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Alternative Dispute Resolution (ADR)

 

Attachment E

 

VISN MEDIATION PROGRAM SAMPLE
 
DRAFT ATTACHMENT E
 
FREQENTLY ASKED QUESTIONS ABOUT THE VISN X MEDIATION PROGRAM

1. What is mediation?

Mediation is an option available to all VISN X, which lets parties use a neutral third person called a mediator, to help them 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. By using mediation, neither party gives up any rights they had before the mediation. Any settlement is entirely voluntary. If a settlement is not reached, the parties lose none of their rights. Provided they have followed the statutory time frames, they can go right back to an EEO complaint, grievance or other trial type procedure.
 
2. Is mediation just another "fad"?
 
No. Mediation is here to stay. It is being extensively used in the Federal government as well as in the private sector. The techniques used have been so successful that here is a steady and rapid growth of the use of mediation in almost all sectors of dispute resolution.
 
3. Just exactly how does the procedure work?
 
The mediator usually holds a series of joint and separate sessions with the parties in order to clarify the issues in dispute and help generate settlement options. Through this series of meetings the parties explore their needs and realistically assess their alternatives to reaching settlement.
 
4. Who are the mediators and what is their role?
A mediator is a neutral party who has no interest in the outcome of the dispute. He or she has received special training in techniques designed to assist the parties in coming to a solution. The mediator does not have the power to decide the dispute; the parties develop a resolution themselves with the assistance of the mediator. The mediator suggests settlement terms, introduces fresh ideas to problem solving and plays the role of a "sounding board" for settlement ideas. The mediator brings independence, momentum and a safe environment in which to problem solve. Each of the mediators chosen and trained we selected by both labor and management as individuals possessing these attributes, and were felt to be persons who were able to act fairly I mediation sessions.
 
5. Who should attend and participate in a mediation session?
 
One of the reasons why disputes are often difficult to settle is that the key parties stop communicating effectively. The mediation session allows for direct exchange between the parties, and it is therefore essential that all key decision makers be present at the mediation. During the mediation session, the parties are expected to be the primary participants.
  • Mediator(s) must be present. These are fair, neutral and impartial third parties, trained and skilled in conflict resolution techniques, who have been selected by labor and management to participate as mediators in the VISN X 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. 
  • The aggrieved party, complainant or the individual to whom something adverse has happened or is about to happen must attend. 
  • The management representative must attend. This is the individual who has the authority to represent VA management. 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. 
  • The supervisor of the aggrieved individual may also attend, but not in every case. Management representatives may bring additional management participants to the mediation to advise the management representative on the facts as they see them. Care should be taken not to overwhelm the aggrieved employee at the table with too many persons from management. 
  • Union representatives should also attend, particularly when the matter involves an employee from the bargaining unit or when asked to serve as the representative of one of the parties. Under Article 6 of the Master Agreement between AFGE and the Department, AFGE supports the appropriate use of mediation and other forms of ADR to resolve workplace disputes. 
  • Attorneys, representatives and advocates may also attend, if the parties decide to invite them. Unlike litigation, attorneys, representatives and advocates will usually be expected to take a "back seat" during the mediation session. 
  • Other Team Members who work behind the scenes are generally not at the mediation session. 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 counselor, and the EEO coordinator.
6. What happens if mediation does not resolve the matter?
 
If the matter is not resolved by the mediation, the parties can still use traditional methods of resolving disputes, provided they have met the statutory time limits that apply to their chosen form of dispute resolution. Most of the traditional procedures available to employees have time limitations that must be followed, otherwise the employee loses his or her rights to use that process. This is particularly true of EEO, discrimination, sexual harassment and union grievance matters, as well as other matters. Choosing mediation does not satisfy taking the steps you need to preserve your rights to use these other procedures. You should contact your EEO counselor and union representative to discuss what you need to do to protect your rights.
 
7. What is expected at a mediation session?
 
Parties must be willing to work toward a compromise, and each party should come prepared to settle the case at mediation. Mediation requires each party to agree to listen to each other and to attempt to understand the other party’s position. Parties should be prepared to discuss briefly the facts of the case and what they want to accomplish. Each party will have the opportunity to voice concerns and to speak without interruption. The mediator will expect the parties to share information with him or her, focusing on their needs and interests, and work to resolve the dispute by negotiating and bargaining in good faith. Either party, or the mediator, can decide the mediation is not productive and stop the process at any time.
 
8. 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.
 
9. Will all VA employees have to use mediation or the VISN X program?
 
No. The process is entirely voluntary and does not interfere with the employees’ right to turn to other means of resolving their dispute. Both parties must agree to mediation before it can take place.
 
10. Why is mediation being used by VISN X?
  • Mediation helps resolve disputes earlier and faster, before the problem has a chance to fester. 
  • Mediation helps the persons having the problem to communicate with each other. 
  • Mediation helps rebuild relationships. 
  • Mediation is voluntary, no one can force you to use it. 
  • Mediation helps the individuals involved develop realistic and mutually satisfying solutions. 
  • Mediation allows the persons involved to control the results reached. 
  • Mediation 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. 
  • Mediation is 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. 
  • Labor and management support using mediation to help the VISN do business better.
For more information, contact your mediation program coordinator, labor relations specialist, EEO counselor, union representative, or a member of management at your facility.  

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COMMON QUESTIONS ABOUT MEDIATION

1. What is Mediation?
 
Mediation is an informal way individuals can resolve disputes with a fellow employee, a manager or a colleague. In mediation, a mediator helps two or more persons explore ways to resolve their differences and reach an agreement that best addresses their interests.
 
2. How will Mediation be used in the VA?
 
A group of trained VA employees will provide a pool of neutral mediators for use in VISN X in order to assist in the early, informal resolution of formal and informal workplace problems.
 
3. In what kind of cases can Mediation be used?
 
Mediation can be used in many areas in the VA. To date, mediation has been widely used in LEO, contract and MSPB cases. It can also be used to settle informal workplace disputes. The Administrative Dispute Resolution Act directs Agencies to explore potential mediation application in both formal and informal adjudication, rule-making, enforcement actions, issuing and revoking licenses or permits, contract administration, litigation brought by or against the agency and any other agency actions
 
4. Is Mediation just another "fad"?
 
No. Mediation is here to stay. It is being extensively used in the Federal government as well as in the private sector. The techniques used have been so successful that there is a steady and rapid growth of the use of mediation in almost all sectors of dispute resolution.
 
5. Just exactly how does the Mediation procedure work?
 
The mediator usually holds a series of joint and separate sessions with the parties in order to clarify the issues in dispute and helps generate settlement option. Through this series of meetings, the parties clarify their needs and realistically assess their alternatives to reaching settlement
 
6. Who is a Mediator and what is their role?
 
A mediator is a neutral party who has no interest in the outcome of the dispute. He/she has received special training in techniques designed to assist the parties in coming to a resolution The mediator does not have the power to decide the dispute; the parties develop a resolution themselves with the assistance of the mediator. The mediator does, when appropriate, suggest settlement terms, urges the parties to accept them, introduces fresh ideas to problem solving and plays the role of a "sounding board" for settlement ideas. The mediator brings independence, momentum and a safe environment in which to problem solve. Each of the mediators were selected by labor and management as person possessing the above attributes.
 
7. Will all VA employees have to go to Mediation?
 
No. The process is entirely voluntary and does not interfere with the employees' right to turn to other means of resolving their dispute Both parties to a dispute must agree to go to mediation before the process can take place.
 
9. What happens if Mediation does not result in a resolution?
 
If both parties to a dispute agree to go through the mediation process but cannot reach an agreement, the traditional methods of resolving disputes are still available provided the party meets any required time limits for filing the dispute. Neither party gives up his or her right to pursue a dispute formally. No one can force the parties to make a decision or reach an agreement The parties can stop the mediation process at any time
 
10. Who can be at the table during Mediation?
 
Parties can represent themselves or have a representative with them bargaining unit members will have a union representative present Of course the mediator will also be present
 
11. Why is Mediation being used?
 
Mediation is becoming widely used because it offers many benefits not available in the standard methods of dispute resolution. A few of the benefits are listed below.
  • Mediation is used early in a dispute so that there can be a much faster resolution of an employee conflict. 
  • Mediation is an especially effective tool where communication has broken down or where emotions are intense and can result in more mutually acceptable and creative solutions to problems. 
  • The parties themselves resolve their dispute and, thus, do not give up control of the problem or the resolution. 
  • Mediation is confidential. 
  • Mediation is voluntary. It brings a consensual approach to conflict resolution. 
  • Mediation is a cost effective and efficient method of workplace problem resolution. 
  • Mediation helps the individuals communicate with each other 
  • Mediation helps the individuals involved develop realistic and mutually satisfying solutions.  
This policy will encompass all bargaining unit members represented by the National Partnership Agreement, NAGE, ANA in VISN X.
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