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Alternative Dispute Resolution (ADR)

VAMC Mediation Program Sample

VAMC MEDIATION PROGRAM SAMPLE

Department of Veterans Affairs
Anywhere VA Medical Center
Mediation Program

1. Policy.
VAMC Anywhere actively supports using local mediation to resolve disputes and has instituted the Mediation Program at VAMC Anywhere to facilitate this policy.

2. Purpose.

To use mediation to promote principles and practices that will facilitate communication and working relationships. Using mediation to resolve differences demonstrates a commitment to a positive approach and joint ownership of concerns and solutions. The mediation process allows parties to resolve their differences quickly, less formally, less adversarily and with more efficient use of resources than traditional dispute mechanisms (i.e., litigation). Mediation is a problem solving process, voluntary, confidential, mutually agreed upon, and unbiased.

3. Scope.

Mediation can be used at VAMC Anywhere to resolve all types of differences, including grievances, discrimination complaints, employee/employee, supervisor/employee, service/service, patient complaints and other workplace differences. Mediation is voluntary and both parties must be willing to use it. Mediation does not suspend statutory deadlines. Typically patient abuse issues and violations of law will be eliminated from the Mediation Program.

4. Definitions and Roles.

Mediation is a process where a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is a confidential, informal, private, non-adjudicative and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, the mediator is not authorized to make decisions or force a decision on any party to the dispute. The role of the mediator includes, but is not limited to, assisting the parties to identify issues, fostering joint problem solving and exploring settlement opportunities. The mediator shall not provide counseling, therapy or legal advice to either party during the mediation process. If, however, the mediator believes that either party does not understand how an agreement may adversely affect legal rights or obligations, then the mediator should bring this issue to the attention of all parties involved.

The Medical Center Director is responsible for approval, support, establishment and continuance of a Mediation Program at the Medical Center, designating appropriate staff to administer the program, providing awareness training within the medical center and providing mediation training for medical center employees. The Medical Center Director will affirmatively urge VAMC managers and supervisors to use the Mediation Program. The Medical Center Director is responsible for funding the travel and expenses of mediators from outside VAMC Anywhere. The Medical Center Director or designee will have the final approval authority for all settlement agreements that arise out of mediation.

The Partnership Council is responsible for appointing a Mediation Coordinator, jointly selecting Mediators, and supporting, educating, and encouraging the VAMC Anywhere Mediation Program.

The Mediation Program Coordinator will be selected by the Partnership Council utilizing nominations from mediation training participants. The Mediation Program Coordinator will, on a collateral duty basis, serve as a resource for information, assign mediators from the Roster of Mediators, issue the Information Sheet (Attachment A) to all individuals interested in mediation, appropriately maintain bulletin boards describing the Mediation Program, and track the Mediation Program using the User Satisfaction Survey form (Attachment D). The Mediation Coordinator will also serve as a member on the Partnership Council.

Mediators selected by the Partnership Council should possess the following qualities: reputation for confidentiality, fairness, patience, honesty, trustworthiness, credibility, respect, an active listener, open minded, creative, a good communicator, empathetic, unbiased, non-judgmental, professional in demeanor, possess problem solving skills and have the ability to remain neutral. Mediators provide a structured process (called a mediation session) which enables the parties to exchange information, listen to each others positions, and jointly consider various options which are mutually advantageous for both parties. Mediators are not decision makers and do not have the power to force a decision on either party; it is the parties who make the decision on whether to settle a matter. Mediators are generally VAMC Anywhere employees who have volunteered to serve as mediators, and who have received special training in conflict resolution techniques and other ways to help disputing parties resolve their problem. Mediators will not discuss private conversations with the other party or with other persons who are not participating in the mediation. Mediation sessions are confidential and the parties agree that, if the matter is not settled, the Mediator can not be used by either party as a witness in future litigation. Mediators are neutral individuals, have no relationship to either party, and no personal interest in the outcome of the dispute which they are mediating. Each party in a mediation should agree that they know of no conflict and be willing to use to the appointed mediator.

Co-mediators are mediators who work together to mediate a particular dispute. In some instances co-mediation is used in a mediation program that provides for more experienced mediators training or mentoring less experienced mediators. Other programs use the co-mediation model to give their mediators more opportunity to mediate or provide more comprehensive coverage during the mediation session.

The Complainant/Disputant is the individual person(s) to whom something adverse has happened or is about to happen. The Complainant is responsible for entering into mediation in good faith.

The Management Representative is the individual from management who attends the mediation session to represent the VA. The management representative is usually familiar with the facts, has the ability to agree on resolution, and the authority to bind the facility to any resolution agreed upon. This is the person who is capable of seeing the "big picture." The management representative is not usually the immediate supervisor responsible for the event in dispute (although in some instances it might also be desirable for that person to also attend the mediation session). Management representatives may bring additional management participants to the mediation to advise the management representative on technical matters, strategy etc. The Management Representative is responsible for entering into and participating in mediation in good faith.

Union(s) are responsible for facilitating mediation awareness and training within the medical center, encourage the use of mediation among union stewards and employees (through the Union newsletter and other means), participate to the fullest extent in any mediation effort that involves member of the bargaining unit, and serve as an advocate in and for the program. Union representatives are responsible for entering into and participating in mediation in good faith.

Managers and Supervisors are responsible for supporting the Mediation Program by using the Mediation Program themselves and encouraging service chiefs, line supervisors and employees to use mediation process. Managers and supervisors are responsible for participating at mediation in good faith.

Employees are encouraged to consider mediation as an alternate form of resolution in disagreements and disputes that arise in the workplace and will be kept informed about mediation through training, handouts, brochures, staff meetings, etc. Training on the Mediation Program will also become part of the new employee orientation.

The Regional Counsel is committed to the Mediation Program and has a trained attorney/mediator available to assist with training and mentoring. This attorney/mediator may also be consulted to facilitate, co-mediate, liaison with the VISN, and/or provide contacts with other Federal mediators. Regional Counsel may also be consulted as to whether a dispute is appropriate for mediation, and whether all legal aspects of a settlement agreement are in order.

Attorneys, Advocates or Representatives from either or both parties may be present and participate in the mediation, although they are not required. Unlike litigation, the attorney or representative typically takes a "back seat" in the mediation session. Attorneys, Advocates or Representatives responsible for entering into and participating in mediation in good faith.

5. Procedures.

a. Requests for Mediation.

Mediation may be requested by either party to a dispute. Mediation requests may be initiated by contacting the Mediation Program Coordinator. Prior to processing the request, the Mediation Program Coordinator should ensure that both parties are willing to participate in mediation.

b. Rights Fact Sheet.

Upon being contacted about a dispute or potential mediation the appropriate individual: Mediation Program Coordinator, Labor Management Specialist, EEO Counselor and/or Union Official/Steward shall apprise the Complainant/Disputant and/or Aggrieved Individual of his or her rights and give that individual a Rights Fact Sheet (Attachment A).

c. Acceptance of a Mediation Request.

A request for mediation can be made and accepted at anytime, with the understanding that both disputants must agree to mediate their dispute. Submission of a dispute to mediation procedures may require that the parties agree to the extension of time periods in other proceeding which will be made without loss of rights. EEO and Grievance procedures have provisions which, with agreement of the parties, permit time periods to be extended without loss of rights for the disputants.

The Mediation Program Coordinator will notify the parties that the matter has been accepted for mediation, obtain signatures on the Agreement to Mediate, schedule the mediation, secure a location, ensure that evaluations at the end of the mediation process and collect those evaluations

d. Assignment of a Mediator (Co-Mediators).

Mediators should be assigned on a rotating basis by the Mediation Program Coordinator off the Mediator Roster maintained by the Mediation Program Coordinator. If either or both parties object to a particular mediator assigned to the matter, the Mediation Program Coordinator will immediately assign another mediator off the roster. Mediators should not be assigned to handle disputes in their own service. Assignment of a mediator may include the assignment of a co-mediator. Co-mediation is an effective training tool for less experienced mediators, or for resolving complex disputes. The Regional Counsel is prepared to co-mediate in the Program in an advisory capacity. It is expected that VAMC Anywhere will support the training of an adequate number of mediators so that the burden of mediation would be borne equitably.

e. Signing the Agreement to Mediate.

The parties and all persons participating in the mediation must sign an agreement to Mediate prior to mediation. This document will set forth the requirements for both parties entering into mediation in good faith in order to resolve their differences. The assigned mediator is responsible for ensuring that the Agreement is signed before beginning the mediation session (Attachment B).

f. Procedures After Assignment of a Mediator.

The assigned mediator is responsible for scheduling the initial mediation session. The initial session will be scheduled to be held as early as possible, hopefully within 5 business days after receipt of the assignment. No later than 5 days prior to the date scheduled for the mediation, the mediator should confirm the time, date and place for the mediation with all participating. It may also be appropriate for the mediator to provide concerned participants with a brief definition of mediation, the role of the mediator, and the expectation that a mutually agreeable resolution of the dispute in the form of a written settlement agreement is the end result of the mediation session(s). The Mediation Information Sheet is available for this purpose (Attachment C)

g. Concluding the Mediation Process.

At the conclusion of the mediation process, a settlement agreement may be prepared at the request of the disputants. At the conclusion of the mediation, all notes and documentation in the possession of the mediator which concern the mediation shall be destroyed by the mediator. At the conclusion of the mediation the parties will be asked to complete a User Satisfaction Survey (Attachment D).

h. Evaluating the Mediation Program.

The disputants and the mediator(s) will also be asked to complete an evaluation at the conclusion of mediation all evaluations will be sent to the Mediation Program Coordinator in Anywhere for compilation and analysis. An evaluative report will be submitted to the Partnership Council twice a year.

6. Cases Not Appropriate for Mediation.

Certain cases may not be appropriate for mediation. If it is determined that a case is not appropriate for mediation, the management or union official will notify the Mediation Program Coordinator who will inform the parties. The Mediation Program Coordinator will refer the disputants, as appropriate, to other methods of resolution.

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Draft Forms

Attachment A. Rights Fact Sheet.

Attachment B. Agreement to Mediate. This is the form which all persons participating in the mediation must sign before beginning the mediation session. It can be done at or before the mediation session. This is the form that sets forth all the terms under which the mediation is being conducted, and under which the parties are participating. It binds all parties to confidentiality and states that all rights the parties have without the mediation are preserved. Technically, it should be signed before the mediator receives any confidential information.

Attachment C. Mediation Information Sheet. This is a handout which can be edited for any mediation program. It can be edited so union officials, management officials, labor management specialists, etc., would have something to give interested persons explaining the program and answer some of their questions about mediation.

Attachment D. User Satisfaction Survey. This form is used to assess the Mediation Program and to make improvements. Persons who have participated in the Program are requested to anoymously and voluntarily complete the questionnaire.

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DRAFT (Attachment A)

Department of Veterans Affairs
VAMC Anywhere Mediation Program

Rights Fact Sheet

What is mediation? Mediation is a process where a neutral or a third party, called a mediator assists, encourages, and facilitates two or more disputing individual to find a mutually acceptable solution to their disputes. The process is voluntary and confidential. Furthermore, it is an informal, private, non-adjudicative3, and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable agreement.

How is my confidentiality protected? Confidentiality is protected through the Agreement to Mediate, which is a contract, the violation of which can be pursued in court.

How do I preserve my rights to continue my formal equal employment opportunity (EEO) Complaint? Statutory time frames for EEO complaint filing cannot be stayed, and the complainant must continue to comply with all statutory deadlines relating to contacting an EEO counselor and filing a complaint. Normally, an EEO counselor has 30 days from the first contact to issue a notice of final interview. The 30 deadline can be extended by 60 more days. The VAMC Anywhere has established a mediation program where, if the aggrieved individual agrees to participate in mediation, he/she also must agree to extend the pre-complaint processing period the additional 60 days referred to above. During this 60 day extension, the mediation will be conducted. If the matter has not been resolved by the 90th day, the aggrieved person must file a complaint to protect their rights.

How do I preserve my rights to continue my formal grievance? Mediation methods may be used prior to or during a grievance/arbitration or statutory appeal. In the use of the mediation processes, contractual time frames will be stayed by mutual agreement. Statutory time frames cannot be stayed, and the grievant must continue to comply with all statutory deadlines.

How do I find out more about deadlines? Contact your EEO counselor or union representative. Some deadlines are set by law and some deadlines are set by contract. Deadlines that are set by law cannot be extended even if both parties are willing. It is up to the complainant/disputant to make sure all of his/her statutory deadlines are met or an acceptable agreement is signed extending the deadlines.

How do I request mediation? Either party may request mediation. Mediation requests may be initiated by calling the mediation program coordinator.

What happens after the mediation? If the parties to the mediation sign a Settlement Agreement, the dispute is settled, and the agreement is enforceable. If no Settlement Agreement is signed and no solution is reached, the complainant/disputant may initiate or continue any resolution or legal process available to them.

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DRAFT (Attachment B)

Department of Veterans Affairs
VAMC Anywhere Mediation Program

Agreement to Mediate

1. I understand that this is an agreement by the parties to attempt to resolve the following issues, by submitting these issues to mediation:

________________________________________________________________________

________________________________________________________________________

2. I understand that mediation is a dispute resolution process which is non-adversarial in nature and seeks to find reconciliation between disputing parties. The mediation process does not declare winners or losers. The main focus is to seek a resolution which is informal, quick and minimizes the harm to either party.

3. I understand that the Mediator is not involved in the immediate occurrence and is committed to treating this matter in a fair and unbiased way. The Mediator’s role is to facilitate and help the parties reach for themselves a mutually satisfactory resolution to the problem. However the decision making power rests with the parties, not the Mediator. If the parties cannot agree on a resolution, the Mediator will NOT impose a resolution nor will s/he offer judgment as to which party, if any, is at fault. In certain circumstances, Co-Mediators will be assigned to the matter.

4. I understand that the Mediator has no authority to make decisions or act as a judge or arbitrator. The Mediator will not act as an advocate or attorney for any party. To the extent either the complainant or the agency wishes to have a representative or legal counsel to consult with or assist them at any stage in the mediation, the party is responsible for taking steps to obtain such a person.

5. I understand that mediation is a confidential process. Any documents submitted to the Mediator and statements made during the mediation are for settlement purposes only. I agree not to subpoena or request the Mediator to serve as a witness, or request or use as evidence any materials prepared by the Mediator for the mediation, with the exception of a settlement document signed by the parties. In no event will the Mediator voluntarily testify on behalf of any party or submit any type of report in connection with this mediation. However, I understand that matters that are admissible in a court of law or other administrative process continue to be admissible even though brought up in a mediation session.

6. I understand that no party shall be bound by anything said or done at the mediation unless a written settlement is reached and executed by all necessary parties. If a settlement is reached, the agreement shall be reduced to writing by the Mediator and, when signed and approved by the appropriate authorities for all the parties, the settlement document shall be legally binding upon all parties to the agreement.

7. In electing to use mediation, I understand that no statutory deadlines are waived, and that all statutory deadlines must be adhered to.

8. The aggrieved party’s Rights to pursue informal or formal processes are not waived and will be protected during the mediation process. At the same time, the aggrieved party’s Responsibilities to comply with all requirements of any administrative or court process, e.g., time limits, points of contact, Are Not Waived, and must be adhered to.

9. I understand that in the event the mediation is terminated for any reason, the aggrieved party may continue to pursue an informal or formal resolution of the matter as s/he sees fit.

10. No admission of guilt or wrongdoing by either party is implied, and none should be inferred, by participation in this process.

11. I will sincerely attempt to resolve this matter, agree to cooperate with the Mediator assigned to this matter, and give serious consideration to all suggestions made in regard to developing a realistic solution to the problem. I will conduct myself in a courteous and non-hostile manner, use appropriate language, and to allow the Mediator to interrupt the process if the Mediator feels a caucus or break is needed to facilitate the mediation process.

12. The Mediator agrees to notify the parties, their representatives and the appropriate management official of the status and results of the mediation process within one working day of termination of the process, including settlements, withdrawal from, or unsuccessful conclusion of the process.

BY SIGNATURE BELOW, I ACKNOWLEDGE THAT I HAVE READ, UNDERSTAND AND AGREE TO THIS AGREEMENT TO PARTICIPATE IN MEDIATION:


________________________________________________________________________________

Aggrieved Party’s Signature
Date

 

________________________________________________________________________________
Union Official’s Signature Date

________________________________________________________________________________
Management Official’s Signature Date

________________________________________________________________________________
Additional Signatures Date

________________________________________________________________________________
Additional Signatures Date

________________________________________________________________________________
Additional Signatures Date

________________________________________________________________________________
Mediator’s Signature Date

_______________________________________________________________________________
Mediator’s Signature Date

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DRAFT (Attachment B)

Department of Veterans Affairs
VAMC Anywhere Mediation Program

MEDIATION INFORMATION SHEET

What is the VAMC Anywhere Mediation Program?

The VAMC Anywhere Mediation Program was created to actively support local mediation to resolve differences. Using mediation demonstrates a commitment to a positive approach and joint ownership of concerns and solutions. It offers mediation as an alternative to resolve problems and disputes before the parties get involved in more formal process, and can be used anytime both parties are willing to use it.

What is Mediation?

Mediation is an informal way complainants can resolve disputes with a fellow employee, manager or colleague. In mediation, a neutral person called a Mediator, helps two or more persons explore ways to resolve their differences and reach an agreement that best addresses their interests. Mediation is a totally voluntary process and unless all parties want to participate in the process, time and resources should not be expended. All parties must be willing to work the problem out between themselves. Mediation, unlike arbitration or court proceedings, does not focus on who is right or who is wrong. The Mediator has no power to make the decision for the parties or tell the parties what they should do. It is the parties themselves who decide what is important to each of them and make decisions based on those factors. A Mediator helps the parties become the decision makers by understanding and listening to each other and by working together to create options and solutions which meet their concerns.

Why Should I Use the Mediation Program?

Mediation is faster, less formal and cheaper for all parties involved, both in time, resources and money. Neither party gives up any rights when they use the Program. Mediation is just one more way to resolve disputes and has been used by other Federal agencies with great success.

Mediation is a type of problem solving process that:

· Helps the persons having the problem to communicate with each other;

· Allows the persons affected to create their own solutions and examine unique solutions to a problem instead of taking the problem to a judge, arbitrator or another outside decision maker; and

· Helps the persons involved to develop realistic and mutually satisfactory solutions.

What is the Role of the Union in the Mediation Program?

The Union is responsible for facilitating mediation awareness and training within the medical center, encourage the use of mediation among union stewards and employees (through the Union newsletter and other means), participate to the fullest extent in any mediation effort that involves member of the bargaining unit, and serve as an advocate in and for the program.

(Union should edit this portion)

When can I use Mediation?

The VAMC Anywhere Mediation Program can be used to resolve a variety of differences, including grievances, discrimination complaints, employee/employee, supervisor/employee, service/service, patient complains and other workplace differences.

How do I begin the Mediation Process?

The mediation process is initiated by contacting the Mediation Program Coordinator, Brad Carter at . The Mediation Program Coordinator can discuss your options with you and provide more information on the mediation process. The Mediation Program Coordinator will also work with you and the other party in making sure both agree that mediation is the way to go.

How Does the VAMC Anywhere Mediation Program Work?

(Describe how the program operates)

Who is Involved in the Mediation Process?

Aggrieved person: Anyone at VAMC Anywhere who is a current employee, who has a problem that they would like to bring to mediation can participate in the Program.

Union: Union officials are trained in mediation and can help answer questions that you may have. Also, depending on the matter union officials can serve in a variety of roles, formal and informal representative, party to the dispute.

Management participant: The VAMC executive staff member or manager (or designee) who is authorized to discuss and execute settlement agreements on behalf of the Department.

Mediator: A fair, neutral and impartial third party, trained and skilled in conflict resolution techniques, who has been approved to participate in the VAMC Anywhere Mediation Program. Where it might be beneficial, co-mediation sessions may be conducted in which two Mediators are assigned to help the parties reach settlement.

Other Team Members: Generally, only the Mediator, the aggrieved person, the union, and the management participant (and their respective representatives, if desired) are present in the room where a mediation takes place. Behind the scenes, a small team of people may be aware of the issues and provide support to the resolution effort, though they are not included in the confidential mediation discussion. This team may include the Labor Relations Specialist, the EEO Program Manager and EEO Counselor.

Attorneys: Parties may use attorneys in the process if they see a need. The role the attorney will play in the process should be discussed with the Mediator prior to the start of the mediation session.

Are Mediation Sessions Confidential?

Yes, the Mediator will protect the confidentiality of the parties and the mediation process. The mediation sessions and all materials disclosed during the mediation are confidential. Both parties must agree to confidentiality. Mediators will not testify concerning the mediation discussions. In addition, Mediators do not disclose anything that one of the parties asks them, in a separate session, not to disclose to the other party. Of course, if the case is not settled and goes to formal litigation, each party could use the court process to obtain documents which would normally be obtained through the litigation process or pursuant to the Freedom of Information Act.

Will an Aggrieved Party's Rights to Pursue Court and Administrative Action be Affected if He or She Decides to Mediate the Issue?

No. If unresolved issues remain at the end of the mediation, the Mediator and the Aggrieved Person/Complainant will state these issues in writing during the final mediation session, and the Complainant may continue processing them through the formal complaints process.

How Did the VAMC Anywhere Select and Train Mediators?

The VAMC Anywhere Partnership Council jointly selected volunteers who were willing to serve as mediators on a collateral duty basis. The selected mediators received special mediator skills training.

How Can You Obtain Further Information About the VAMC Anywhere Mediation Program?

For more information, contact your union representative or the Mediation Program Coordinator, Brad Carter.

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DRAFT (Attachment D)

Department of Veterans Affairs
VAMC Anywhere Mediation Program

USER SATISFACTION SURVEY

To find ways to assess and improve the VAMC Anywhere Mediation Program, persons who have participated in the Program are requested to complete this questionnaire. Your assistance is voluntary, but will help us with making the necessary improvements! Please return the questionnaire to the Mediation Program Coordinator.

1. Type(s) of issues mediated: __________________________________________

2. Describe the type of settlement that resulted form the mediation process.

o Full settlement of all issues
o No settlement of any issues
o Partial settlement of the issues

3. Please describe any other impacts or benefits that you felt resulted from the mediation process. Examples might include relationships repaired, communication enhanced, office productivity enhanced, money saved, etc.
______________________________________________________________________________

______________________________________________________________________________

4. Were you satisfied with the process?

o Yes
o No

Please provide any comments: ______________________________________________________________________________

5. Would you use mediation again?

o Yes
o No

Please provide any comments:

_________________________________________________________________________________________

6. Is there anything that you think should be done to improve the VAMC Anywhere Mediation Program?

o Yes
o No

Please provide any comments:

_________________________________________________________________________________________

7. Please rate the following items on a scale of 1 to 5 by circling the number that represents your choice:

1 = strongly disagree
2 = somewhat disagree
3 = neither agree or disagree
4 = somewhat agree
5 = strongly agree
N = don’t know or are unable to determine

a. The mediation process was impartial. 1 2 3 4 5 N

b. The right parties were at the table. 1 2 3 4 5 N

c. Both sides negotiated in good faith. 1 2 3 4 5 N

d. Mediation was appropriate for this matter. 1 2 3 4 5 N

e. You were able to fully present your case. 1 2 3 4 5 N

f. The mediator helped create a positive
atmosphere. 1 2 3 4 5 N

g. The mediator helped create realistic
options for settling the matter. 1 2 3 4 5 N

h. The mediator was impartial. 1 2 3 4 5 N

i. The mediator participated the right amount. 1 2 3 4 5 N

j. The mediator listened well. 1 2 3 4 5 N

i. The mediator helped clarify the
key issues of the parties. 1 2 3 4 5 N

k. The mediator explained the process well. 1 2 3 4 5 N

l. The mediator was fair. 1 2 3 4 5 N

m. The mediator was effective. 1 2 3 4 5 N

8. If this was a co-mediation, was it beneficial to have two mediators?

o Yes
o No

Please provide any comments:

_____________________________________________________________________________________

9. Please provide any other comments:

_____________________________________________________________________________________

Thank you for taking the time to complete this questionnaire. Please return it to the appropriate local management official designated to coordinating mediation requests, or mail to: VAMC Anywhere Mediation Program Survey Results, Mediation Program Coordinator, ( ).