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Alternative Dispute Resolution (ADR)

VISN Mediation Program Sample

SAMPLE
Department of Veterans Affairs
Veterans Integrated Service Network (VISN X)VISN X MEMORANDUM (DATE)

SUBJECT: MEDIATION PROGRAM
1. POLICY

To assure a work environment that is conductive to the delivery of high quality patient services, VISN X is dedicated to finding creative, acceptable, and early resolution of disputes. Therefore, the use of mediation and other forms of ADR as alternative means of resolving disputes is hereby endorsed and encouraged by the leadership of this Network. To facilitate this policy and actively support the use of ADR and mediation, the VISN leadership is establishing the VISN X Mediation Program (Program) to provide guidelines and responsibilities within the VISN and to encourage the use of mediation at all VISN X medical centers. The Program will be available to all VISN employees.

Alternative:

VISN X actively supports using various of types of alternative dispute resolution (ADR), and is establishing the VISN X Mediation Program to facilitate this policy and to provide guidelines and responsibilities within the VISN to encourage the use of mediation at all VISN X medical centers.

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. If a medical center chooses not to participate in mediation or plans to restrict mediation to a specific group of employees the Director should notify the Network Director’s office, with a copy of such communication to the appropriate union official.

3. SCOPE

The use of mediation is encouraged at all VISN X medical centers. Its applicability to particular disputes shall be determined collaboratively at the local level by the local Partnership Council. Article 6 of the Master Agreement between the American Federation of Government Employees (AFGE) and the Department of Veterans Affairs encourages ADR and applies to this Program. Nothing in the Program shall be interpreted as inconsistent with the Master Agreement.

4. BACKGROUND

The Administrative Dispute Resolution Act of 1996, Public Law 104-320, encourages the use of ADR methods to resolve controversies relating to administrative programs. Mediation is a form of ADR which has particular applicability to VA programs, and may be used in a wide variety of cases with a full range of complexity, from small claims and disputes among fellow employees to large cases and Government disputes. In VA, mediation can be used to help resolve disputes, including but not limited to those involving discrimination, grievances, workplace issues between employees, between employee and supervisor, and between services, negligence, personal injury, contract, construction, and patient complaints. Mediation is voluntary and both parties must be willing to use it. Mediation does not suspend statutory deadlines.

5. DEFINITION OF MEDIATION

Mediation is a process whereby 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, non-adjudicative and non-adversarial process with the objective of helping the disputing parties to 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.

6. ROLES AND RESPONSIBILITIES

a. The Network Office (VISN X).

The Network Office (VISN X) is responsible coordination efforts within the VISN, providing resources to administer the program, including initial mediator skills training, and distribution of the Program evaluation reports.

b. The Medical Center Director.

The Medical Center Director is responsible for approval, support, establishment and continuance of a Mediation Program at the medical center, providing resources to administer the program and providing training for medical center employees. This will be done in collaboration with the Local Union President and Partnership Council. In addition, the Medical Center Director and the Local Union President will affirmatively urge medical center employees, managers and supervisors to use the Mediation Program. The Medical Center Director and the Local Union President are responsible for the application ADR and the administration of this Program under Article 6 of the Master Agreement between AFGE and the Department.

c. Local Union Presidents.

Local Union Presidents are also responsible for working collaboratively with the Medical Center Director and the Local Partnership Council as indicated above. Local Union Presidents are also responsible for facilitating mediation awareness and training within the medical center and encouraging the appropriate use of and participation in mediation among union stewards and employees.

d. Local Partnership Councils.

The Local Partnership Councils in VISN X are responsible for appointing a mediation coordinator, jointly selecting mediators, and supporting, educating, and encouraging mediation at the local medical center.

e. Mediation Program Coordinators.

A Mediation Program Coordinator will be selected by each local medical center Partnership Council. The Mediation Program Coordinator will, on a collateral duty basis: (i) serve as a resource for information, (ii) manage the procedural details of the mediation process, (iii) assign mediators from the Roster of Mediators (iv) ensure that appropriate forms are completed and logistical arrangements are completed and (v) serve as the medical center’s liaison between the hospital, Regional Counsel and VISN office, and (vi) and perform other duties related to the Mediation Program as requested by the Partnership Council.

f. Managers, Supervisors and Union Representatives.

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

g. Employees.

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.

h. The Office of Regional Counsel.

The Office of Regional Counsel may be consulted as to whether a dispute is appropriate for mediation, and whether all legal aspects of a settlement agreement are in order. The Regional Counsel is committed to the Mediation Program and will provide a trained attorney for consultation on an as needed basis.

i. Attorneys, Union Representatives and other Party Representatives.

Attorneys, Union Representatives and other Party Representatives may be present and participate in the mediation session. Union representatives have the right to be present when one of the parties to the mediation is a bargaining unit employee. Unlike litigation, the attorney or representative typically takes a "back seat" in the mediation session. Attorneys, Union Representatives and other Party Representatives, are responsible for entering into and participating in mediation in good faith.

7. PROCEDURES

a. Requests for Mediation.

1. Mediation may be requested by either party to a dispute. 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 proceedings 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. Information on the Program for distribution is contained in the Instructions Request/Consent For Mediation Form (Attachment A) and the Information Sheet (Attachment F).

2. Mediation requests should be initiated by contacting a management or union official, or the local Mediation Program Coordinator.

3. For each dispute, a joint determination shall be made by management and union representatives as to the appropriateness of mediating the matter.

4. Prior to processing the request steps will be taken to ensure that both parties are willing to participate in mediation by having the parties sign the Agreement to Participate in Mediation Form (Attachment C).

b. Acceptance of a Mediation Request.

Upon a joint determination that mediation is appropriate, the Mediation Program Coordinator will:

a. Notify the parties and their representatives that the matter has been accepted for mediation.

b. Obtain appropriate signatures on the Mediation Request Form and Agreement to Mediate.

c. Assign a mediator to the matter. 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.

d. Coordinate with the assigned mediator on scheduling and securing a neutral location for the mediation.

e. Distribute and collect evaluation forms and forward completed forms to the Regional Counsel in Winston-Salem.

c. 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).

d. 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 under guidelines determined by the Local Partnership Council. 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).

e. Concluding the Mediation Process.

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 request of the parties the mediator may prepare a settlement agreement. The parties will be asked to complete a User Satisfaction Survey (Attachment D). In certain instances, Regional Counsel may review the settlement agreement.

f. Evaluating the Mediation Program.

At the conclusion of the mediation process the participants will be asked to complete a User Satisfaction Survey (Attachment D). This is a confidential form which does not contain information about the matter mediated and simply attempts to track what benefits the parties felt they received using mediation and to give participants the opportunity to suggest changes to improve the Program. The mediator(s) will be asked to complete a Mediator Survey (Attachment E). Likewise, this form does not contain information about the matter mediated and will be used to evaluate the Program’s strengths and weaknesses and give mediators the opportunity to suggest improvements to the Program. All evaluations will be forwarded to the Regional Counsel in Winston-Salem for compilation and analysis. An evaluative report will be submitted to the Network Director twice a year. These reports will be provided to the Executive Leadership Council and the Council of Union Presidents.

8. 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.

9. REFERENCES

The Administrative Dispute Resolution Act of 1996, Public Law 104-320; Article 6 of the Master Agreement between AFGE and Department of Veterans Affairs.

10. FOLLOW-UP RESPONSIBILITY

VISN X Clinical Program Manager and Chief Medical Officer.

11. RECISSION

This VISN X Memorandum will expire (date).

Network Director

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SAMPLE Attachments

a. Instructions Request/Consent For Mediation (Attachment A).

Gives preliminary instructions about the mediation process.

b. Mediation Request/Consent From (Attachment B).

Is to be completed as a request for mediation.

c. Agreement to Participate in Mediation (Attachment C).

Must be signed by all persons at the mediation session. It can be done at or before the mediation session. This form sets forth all the terms and conditions governing the mediation. It binds all parties and attendees to confidentiality and states that all rights the parties have without the mediation are preserved.

d. User Survey (Attachment D).

Is to be completed by the disputants and sent to the Regional Counsel for evaluation of the Program.

e. Information Sheet (Attachment E).

Contains questions commonly asked about mediation. It may be distributed as part of the medical center’s awareness training or prior to the commencement of a mediation session.

f. Sample Mediation Settlement Agreement (Attachment F)

Contains a sample mediation settlement agreement which can be used by the parties to finalize the terms and conditions of which were agreed upon during the mediation.