Alternative Dispute Resolution (ADR)

VA Mediation Program Design Guide

A GUIDE FOR FACILITY DIRECTORS CONSIDERING A MEDIATION PROGRAM

CAVEAT: THESE ARE ONLY SUGGESTIONS BASED ON OUR EXPERIENCES, THE CULTURE AND NEEDS OF YOUR FACILITY (OR GROUP OF FACILITIES) MUST SERVE AS YOUR GUIDANCE IN DESIGNING AND IMPLEMENTING A MEDIATION PROGRAM WHICH MEETS YOUR FACILITY'S NEEDS. THERE IS NO "BEST"; MEDIATION PROGRAM FOR ALL VA FACILITIES AND EACH AND EVERY PROGRAM THAT IS IN PLACE AT THE VA HAS ITS OWN UNIQUE FEATURES. THE IMPORTANT THING IS THAT YOUR STAFF, UNION AND EMPLOYEES ARE SATISFIED WITH THE PROGRAM AS DESIGNED AND IN PLACE.

• Be as active, vocal, and positive in your support of mediation (and a mediation program) as you are able to be. Your staff will look to you to set the tone on whether the program is really supported, or whether it is just some "new thing to try."
• Be especially clear about what you are asking your staff to do and when you want it done otherwise the design and implementation process canlast forever. "I am tasking you to work together to come up with a plan and propose a mediation for implementation at this facility. I have specifically asked you to be here and participate because I believe you have an important leadership role at this facility and have a lot to offer in creating a mediation program. I intend to give your group recommendations great weight in ultimately deciding what to do. I will also ask the partnership council to help with this program."
• Consider and discuss with employees what opportunities exist in the facility for mediation usage, and at what stages in the dispute that mediation would be most beneficial.
• Solicit the views and experiences of other directors of VA facilities and other Federal agencies who are using mediation to resolve disputes.
• Plan to commit the resources to promote the mediation program. If appropriate, require identified services to commit resources. Initial resources will include sponsoring a Working Group to design and implement a mediation program and committing resources to get your Working Group and the mediators that are selected the appropriate education and training to do the jobs you are tasking.
• Sponsor the Working Group. The Group should be coordinated by a top official at the facility. Some ideas include: Associate Director, Union President, Chairs of Partnership Council. The individual(s) selected will play a facilitation role so he/she should be well respected and able to build consensus.
• Obtain the proper training for your Working Group to develop good mediation program for the facility, including a specific plan of action (with enumerated responsibilities and dates). Make sure key individuals attend realize the importance of and attend the your sponsored training. Training is available through your Office of Regional Counsel.
• Give the Working Group strong support by kicking off the first session and voicing your and Secretary Brown's commitment to making the mediation program work effectively. Solicit the Group's ideas and assistance in making this a reality.
• Clarify that the Working Group will be looked to concerning getting potential users (complainants, managers and union officials) to understand and believe in the program.
• Strongly urge your managers to try mediation. Consider adding a requirement that when mediation is
  requested, management must attend the first mediation session.
• Target and expand the training of appropriate personnel who are responsible for offering, explaining, or potentially using mediation services.
• Have the Working Group create a plan to advertise the mediation program to all personnel.
• After a plan of action is committed to, meet or contact the top managers at the facility to talk up the program, answer concerns, request their comments, criticisms and support of the new program. ("We need your use of the program and want your comments on the Program's strengths and weakness to assess whether mediation will assist the VA in managing its disputes.")
• Once determined by the Working Group, indicate your support of the mediation program to the Program Coordinator and urge him/her to come to you (or appropriate designee) with needs, problems and ideas. Discuss an action plan with the Program Coordinator setting a specific course of action and time line to meet the key milestones.
• Support training of facility employees on mediation and your mediation program.

CAVEAT: THE BEST WAY TO GET BUY-IN FOR THE PROGRAM IS TO INVOLVE USERS IN ITS DESIGN. SO, MAKE SURE YOU GET GOOD PARTICIPATION IN THE WORKING GROUP BY THE POTENTIAL USERS, BUT DON'T LET THE GROUP GET TOO LARGE OR IT WON'T OPERATE WELL.

SUGGESTED WORKING GROUP MEMBERS

( * DENOTES CRITICAL MEMBERS )

• Associate Director or another top management official with authority to represent the Director *
• Chief of Staff
• Members of the Partnership Council *
• Union Presidents *
• EEO Program Coordinator and/or EEO counselors *
• Office of Regional Counsel *
• Chief and Assistant Chiefs, Human Resources Management Service *
• Chief, Employee/Labor Relations Service
• Chief, Nursing Service *
• Representatives of Local Unions (officials and stewards)
• Mid-level Management Representatives (a good idea for buy-in)
• Employee Representatives and Patient Representatives

FOR ONGOING PROGRAM ASSESSMENT

• Urge flexibility and creativity in your mediation program so that glitches can be quickly addressed, resolved and innovations implemented.
• Sponsor meetings to review and recommend improvements to the program. In addition to the Working Group members, include representation from: EEO counselors, EEO mediators, union representatives, managers, and complainants who have participated in the program.
• Meet with management of the facility to discuss, evaluate and coordinate program implementation efforts.

SEE ALSO THE PAPER ON VA MEDIATION PROGRAM DESIGN

WHAT WE HAVE LEARNED THE HARD WAY

In no particular order

• It cannot be emphasized enough that for a new mediation program to be successful it must have buy in by all interested parties: top and mid level management, unions, users, lawyers, supervisors, human resource management EEO counselors, etc. Those that do not believe in the benefits of a mediation program will most likely attempt to undermine the program behind the scenes.
• The best way to get buy-in for the program is to allow all interested parties to have input in its design and implementation.
• Individuals who have a role in the current dispute system usually need a role in the new program,otherwise they fear a loss of power or control and feel threatened. Threatened entities may attempt to undermine the program behind the scenes.
• Consider that each agency and organization has different resources available to them to create a program and different needs to meet.
• Consider that there is no "right" or "cookie-cutter" way to design a program.
• Some, but not many, spend a lot of money and design a "cadillac" program with expensive top notch private groups.
• Some have an educational component to team with, help coordinate and fund programs.
• Some have zealots who are truly possessed,
• Some have Federal Executive Associations who have committed money for training and administer sharing programs,
• Some have District Counsels who see the merits of mediation and play an active role in channeling resources.
• Not much money is needed to obtain good training and create an excellent program, what is important is an energized and empowered group, that knows or is willing to learn the resources that are out there to tap.
• What are the areas in which you want to use mediation or mediation to resolve disputes? Consider: labor-management bargaining issues, unfair labor practices, grievances, informal workplace disagreements, discrimination complaints, patient complaints.
• Consider the degree of the problems, and the players who need to be involved before designing a program. Involve the important players in the program design.
• How should a particular program be tailored to address the program areas and disputes which need to be resolved with the resources which are available?
• How formal do you want the program to be?
• Should the program policy and processes be verbal or committed to writing?
• What is the cost benefit to using mediation or some other type of mediation to resolve the dispute?
• What is the institutional benefit to using mediation or some other type of mediation to resolve the dispute?
• In which areas do you think mediation or mediation should not be used?
• Why would using an mediation technique in addition to (or in place of) statutorily mandated mechanisms assist the resolution?
• Consider whether you want to have a program that is self contained, shares resources with other VA facilities in the area or shares resources with other Federal agencies in the area.
• Consider who will be administering the program, and involve them from the outset of the design.
• Mediation is a good starting point, and probably has the best applicability of all mediation techniques. Once you learn how to mediate, you can readily adapt to other many other techniques.
• Training resources much more available for mediation than other forms of mediation.
• Consider what other Federal agencies in the area are doing, what training and programs they have in place and whether, and at what price, your facility can tap into those resources.
• Find out who in your facility is a mediator in the community or through some other program and get them involved.
• Get the Directors (top management) and Unions on board at the outset.
• When creating a design team be sure to get the right individuals, including ones with the ability to speak for their components, and make sure those individuals are willing to commit their time to the design process.
• Make sure the design team understands that creating a mediation program is a number one priority.
• Learn what type of programs and resources are available through the state.
• Learn what non-profit organizations are available to help you get training.
• Learn what is happening in the local Federal Executive Association.
• Join other VA facilities to share resources and training.
• Involve your District/Regional Counsel.
• Help your employees, union officials and management understand what mediation is, through pamphlets, discussions.
• The most successful programs usually have someone who is truly convinced that mediation will really help the organization, and is personally committed to see it happen, i.e., the zealot.
• Who can you contact to get more information and talk to about what may be useful?

COMMON PROBLEMS IN MEDIATION IMPLEMENTATION AND USAGE

1. Middle management hierarchical control problems.
2. Resistance to "compromise," "we're here to litigate."
3. Power issues, loss of control.
4. Clients already have a settlement process, don't see an advantage.
5. Job security, status quo. I have my job and I don't want to see it change.
6. Resistance to mediation process because of perception it forces settlement.
7. Satisfaction with existing process, low priority given to mediation because of limited resources, "its just one more thing to do."
8. No direction from top management.
9. Lack of understanding about mediation, "knee-jerk responses."
10. Fear of precedent or obtaining reputation of "caving-in."

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