More information can also be found within the Department of Transportation's Alternative Dispute Resolution site at http://www.dot.gov/adr.

Overview

The Equal Employment Opportunity Commission (EEOC) requires all federal agencies to offer Alternative Dispute Resolution (ADR) at any stage of the EEO complaint process. Mediation is the form of ADR that the Department of Transportation has chosen to utilize in EEO cases. Mediation is a problem solving process that uses a neutral third party. The mediator works with the parties to assist them in identifying mutually acceptable solutions and to facilitate communication between the parties. Mediation has proven to be the type of ADR that is most successful in workplace disputes of this nature, and is less time-consuming and less expensive than the more formal EEO complaint process. The ONEDOT Sharing Neutrals Program was established for all Operating Administrations (OA) to utilize. An OA may also establish its own ADR Program for EEO cases. The Federal Aviation Administration (FAA) has established an ADR program for EEO cases. Information pertaining to FAA's ADR Program for EEO cases may be found at http://www.faa.gov/acr/EEO.htm. DOT Directive 1010.1A gives the procedures for the ONEDOT Sharing Neutrals EEO/EO ADR Program.

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Pre-ADR/Mediation Steps

Contact an EEO Counselor

Within 45 days of an alleged incident, the complainant must contact an EEO Counselor for informal counseling. The EEO Counselors will provide the following documents:

• Notification of Rights form (Rights, Responsibility, Election Rights Memorandum)
• ONE DOT Sharing Neutral's brochure
• Request for Mediation form
• Any other internal publications

Request Mediation

The process begins with the complainant's completion of the Request for Mediation form. In order to use mediation to quickly resolve any problems, the complainant will fill out the Request Mediation form. The EEO Counselors will describe the process and answer any questions or concerns. When the complainant chooses mediation, the counseling period may be extended 30-90 days, but will never exceed 90 days. Mediation may be requested by the complainant, the OA, or the agency involved.

After Mediation is Requested

After mediation is requested, the EEO Counselor will forward the Request for Mediation form, along with a Mediation Intake form, to the proper official. The agency must then decide if the case is suitable for mediation or ADR.

Deciding When Mediation is Appropriate

There are several factors to consider in determining whether a case is suitable for ADR or mediation. The Department supports the use of ADR at the lowest possible level to resolve claims quickly and suitably to all parties.

Case Assessment for ADR

ADR has been determined to be helpful with one or more of the following factors:

• Identified parties: there is an identifiable group whose interests are easily recognized
• Good Faith: parties are willing to participate in good faith
• Communication: parties are interested in resolving the problem, but poor communication or personality conflicts may be in the way
• Continuing Relationship: continuing relationship between the parties is important or necessary
• Issue(s): there are issue(s) the parties feel are suitable for negotiation
• Sufficient Areas of Compromise: there are possible areas of compromise to make ADR worthwhile
• Expectation of Agreement: parties feel that a resolution may be possible
• Enhanced communication would improve the relationship between the parties

Case Assessment Against Use of ADR

ADR is generally not helpful if one or more of the following factors are present has:

• Precedent: the dispute involves precedent-setting legal or policy issue(s)
• Affect on Non-Parties: possible settlement(s) may affect others who are party to the dispute
• Expectation of Settlement: the case is likely to settle through unassisted negotiations
• Fraud, Waste, Abuse, or Criminal Conduct: either party appears to have been involved with fraud, waste, abuse, or criminal conduct

Agreement to Mediate

Once the parties have agreed to enter into mediation, the Agreement to Mediate form should signed by both parties. The form will be submitted to the Departmental Office of Civil Rights Mediation Coordinator (DMC).

In the event ADR is unsuccessful, the case is sent back to the EEO Counselor. The EEO Counselor will conduct a final interview and the complaint will follow the EEO Complaint Process.

Representation During Mediation

All parties to an EEO complaint are entitled to have legal representation or an advisor. If the representative(s) or advisor(s) are going to attend the mediation, the parties must let the DMC and mediator(s) know in advance.

Cost of Mediation

DOT mediator(s) are generally provided at no cost. However, should an OA or office request a particular mediator and travel is involved, the OA or office may be responsible for travel expenses involved.

Selecting a Mediator

The DMC is responsible for assigning a mediator from the ONEDOT Sharing Neutrals roster, the Federal Shared Neutrals Program, or any other federal entity with experienced mediators may also be consulted regarding available mediators. The parties will be advised of the mediator selected. If either party objects to the mediator selected or the mediator feels that there might be a conflict of interest, another mediator will be chosen.

Role of the Mediator

The mediator is expected to be able to:

• Gather information that is relevant to the parties
• Empathize and consider the needs of each party
• Remain impartial, neutral, and keep an open mind
• Create options, find solutions, and propose solutions
• Lead the parties toward a "closing" agreement
• Facilitate the discussion during mediation

Mediator Standard of Conduct

Mediators are required to follow the Model Standards of Conduct for Mediators. The standards are designed to be a guide for mediator conduct, let the parties know what they can expect, and promote confidence in mediation. The Model Standards cover the following conducts:

1. Self Determination
2. Impartiality
3. Conflicts of Interest
4. Competence
5. Confidentiality
6. Quality of the Process
7. Obligations to the Mediation Process

Mediator Training

Mediators receive the following basic and advanced training:

• Classroom Training
• On-the-Job Training
• Advanced Training

Directive 1010.1A also covers ADR training for managers, supervisors, and employees. Any other questions concerning mediators can be answered in this directive, or by contacting the ONEDOT Sharing Neutrals Program at (202) 366-4648 or (202) 366-ADR1.

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MEDIATION PROCESS

Schedule the Mediation

Once a mediator has been selected, the DMC will work with all parties to schedule mediation time(s) and location(s). Mediation will be conducted in a neutral location.

Preparation

Parties should come to a mediation session prepared to discuss the issue(s) and possible resolution. Settlement options from the agency should be coordinated before the meeting.

Mediation Session

The mediator will conduct the mediation. Each party will get to describe their view without interruption. If necessary, the mediator may ask for discussions (caucuses) with each party. Mediation will continue until a resolution or the parties agree that no resolution will be reached. Since mediation is a voluntary process, either party may end the mediation session at any time. If there is a possible settlement, the mediator will draft the terms and conditions for each party to review.

No Resolution

Mediation does not always lead to a successful resolution. If this occurs, the mediator will inform the DMC, who will send the case back to the EEO Counselor to continue at the point in the EEO Complaint Process in which it left off. In the EEO Complaint Process, the informal phase cannot go over 90 calendar days. The formal complaint process should not exceed 270 calendar days.

Resolution

When there is a resolution reached, it will be reduced to writing and signed by both parties.

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POST MEDIATION

Execution and Agreement of the Resolution

The Civil Rights Director or appropriate designated official will monitor the agreement for compliance.

Breach of Agreement/Noncompliance

If the complainant feels that there has been noncompliance with the terms of the resolution agreement, he or she should contact the appropriate Regional DOCR Office. A notice, in writing, must be submitted within 30 days of when the complainant knew (or should have known) of the breach. The complainant can either request that the terms of the agreement be carried out or that the complaint resume at the point in the EEO Complaint Process that it left off.

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APPEALS

If the complainant is not satisfied with the agency's decision regarding whether or not a breach has occurred, or if no decision has been made, an appeal may be filed with the EEOC's Office of Federal Operations (OFO) 35 days after the assertion of breach has been made or within 30 days of receiving the agency's determination. The OFO will determine if the agency has complied with the terms of the resolution agreement.

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Contact Information

Contact an EEO Counselor

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