Alternative Dispute Resolution and Settlements
Each of the federal appeals agencies employs various alternative dispute resolution techniques and settlement initiatives to adjudicate matters over which it has jurisdiction, and each is engaged in substantial outreach efforts to encourage potential litigants to use their respective ADR and settlement processes. For contact information, see the sections on each agency in this chapter. Further, individual employing agencies, in some cases at the direction of the appellate agencies, use many of the same types of techniques to resolve disputes before they turn into formal appeals. Information on them is available through the employing agency.
Note: Under Executive Order 13839 of May 25, 2018, agencies may not agree to remove, or to withhold from another agency, as part of a settlement or other resolution of a formal or informal challenge to an adverse personnel action any information about an employee’s performance or conduct in that employee’s official personnel records. Information about a proposed action may be deleted, however, if the agency cancels it before the final agency decision after discovering evidence that cast doubt on the validity of the proposed action or the agency’s ability to sustain it against a legal challenge. Guidance is in an October 10, 2018 memo at www.chcoc.gov/transmittals. Formal rules had been proposed but not finalized as of the publication of this edition of the Federal Employees Almanac.
Equal Employment Opportunity Commission
Under 29 CFR 1614.102(b)(2), all federal agencies are required to make available an ADR program during the pre-complaint and formal complaint stages of the EEO process. EEO Management Directive 110 (MD-110) provides that aggrieved individuals who seek pre-complaint counseling must be fully informed of their agency’s ADR program and how the ADR program works. Agencies need not offer ADR in every case; they have the discretion to determine when an EEO matter is appropriate for ADR. Complainants may not file a new complaint based on the agency's refusal to offer ADR in their case.
Mediation has been the most common form of ADR offered by agencies in the EEO process. The EEOC has encouraged agencies to experiment with other forms of ADR, including a combination of techniques.
Many agencies have established programs to decrease the processing time of EEO complaints and improve the overall satisfaction of the participants.
If the agency offers ADR during the pre-complaint, or the informal stage of the EEO process, the complainant may choose between participating in the ADR program or the traditional EEO counseling activities. Once the complainant elects to participate in the ADR program, all EEO counseling activities will end. Electing ADR increases the EEO pre-complaint processing period from 30 to 90 days. If the matter concludes without resolution after 90 days, the agency will conduct a final interview, and issue a notice of right to file a formal complaint to the complainant.
If the complainant files a complaint, the agency may also choose to offer ADR during the formal complaint stage. The 180-day processing period for the formal complaint stage may be increased by an additional 90 days in order to conduct ADR, if the parties agree in writing.
Once the ADR proceeding ends, complainants may re-enter the traditional EEO complaint process in order to pursue their claim. Moreover, any agreements between the parties must have been reached without coercion or duress. Information concerning the underlying facts of an ADR proceeding and records generated as part of that proceeding may not be made part of the EEO complaint record. In order to have an enforceable settlement agreement, the agreement must be in writing and signed by both parties. Nothing said or done during attempts to resolve the matter through ADR proceedings may be made the subject of an EEO complaint.
Federal Sector Mediation Services Program—The FSMS program provides small federal agencies with mediation services. Agencies enter into a memorandum of understanding with the EEOC, whereby they agree to reimburse it for mediating EEO cases. Mediations are conducted by EEOC staff. Agencies have the option of submitting only those cases to the FSMS program that they deem appropriate for ADR. If the dispute is not resolved within 60 days, the EEOC will return the case to the agency and the mediators will have no further role in the subsequent adjudication process.
Federal Mediation and Conciliation Service Referral—Under a 2019 agreement with the Federal Mediation and Conciliation Service, the EEOC identifies cases suitable for mediation by the FMCS. The EEOC retains responsibility for the closure or continued processing of such cases.
Further information is at www.eeoc.gov/federal/adr/federal-adr.cfm.
Merit Systems Protection Board
MSPB operates settlement initiatives both at the administrative judge and Board levels. More than half of the appeals filed with the Board that are not dismissed for jurisdictional reasons are settled.
Administrative judges at the regional level may initiate attempts to settle the appeal informally at any time, beginning in some cases with the initial filing of the appeal. The administrative judge may conduct pre-hearing conferences to help achieve resolution of an appeal, or another judge may be assigned to act as a settlement judge. In most cases, settlement agreements are entered into the record, with the Board retaining enforcement authority.
A case may be suspended to permit the parties to pursue discovery or settlement. The parties may submit a joint request for additional time. Upon receipt of such a request, the judge will suspend processing of the case for up to 30 days. The judge will grant an extension of the suspension period for up to an additional 30 days upon a joint request from the parties for additional time. Either party may submit a unilateral request for additional time to pursue discovery, which may be granted at the discretion of the judge. The suspension period may be terminated prior to the end of the agreed upon period if the parties request the judge’s assistance relative to discovery or settlement during the suspension period and the judge’s involvement under that request is likely to be extensive.
MSPB’s Mediation Appeals Program offers the services of mediators who can facilitate discussion between the parties to help them identify issues and barriers to agreement that will aid in resolving their disputes and settling the appeal. Both parties must agree to its use before the appeal will be accepted for mediation, and both must agree on its resolution before any settlement is concluded. Arrangements are made through the administrative judge assigned to an appeal. Further information is at www.mspb.gov/appeals/mediationappeals.htm.
At the Board level, officials select cases that appear to have the most potential for settlement. Board settlement attorneys contact the parties in the case to initiate the resolution process and may in some cases use the services of an outside neutral to facilitate settlement.
MSPB provides an automatic extension of the regulatory time limit for filing an appeal with MSPB where an appellant and agency mutually agree, prior to the timely filing of an appeal, to attempt to resolve their dispute through an ADR process. It also has developed a program of instruction for dispute prevention specialists who can help intercept and resolve cases prior to adjudication by MSPB. The goals of the program are to help agencies anticipate, manage and reduce workplace conflict and tension while reducing costs directly and indirectly related to workplace conflicts.
MSPB also conducts an outreach program to help educate those who might be involved in Board matters, making administrative judges and other agency officials available to speak in various forums, and providing opportunities for practitioners before the Board to participate in skills-building training sessions which may include exercises in settling appeals as an alternative to formal litigation.
Federal Labor Relations Authority
FLRA’s voluntary Collaboration and Alternative Dispute Resolution (CADR) program integrates ADR into all of the case processes used by the various FLRA components. The services focus on alternatives to traditional case processing and formal dispute resolution.
The CADR program assists the parties both in preventing disputes before they become cases and in finding ways to informally resolve disputes in pending cases. This includes interest-based conflict resolution and intervention services in pending unfair labor practice cases, representation cases, negotiability appeals and impasse bargaining disputes. The CADR program also provides facilitation, training and education to help labor and management develop collaborative relationships.
FLRA regulations for negotiability, unfair labor practice, and representation cases ensure that parties have the opportunity to use ADR to resolve their cases. For example, in negotiability cases, during the post-petition conference, if the parties express interest in using ADR services, the case will be put on hold to give the parties time to get help from the CADR office. In unfair labor practice cases, an ADR process is available that allows the parties to resolve the underlying dispute by facilitating a problem-solving approach, rather than having the regional office investigate the facts and determine the merits of the charge.
For cases on their way to hearing, an administrative law judge settlement program is available for one more attempt at informal resolution.
ADR services are also available in some circumstances for parties who do not have a case filed, but would like assistance with disputes or relationship issues.
The FLRA Office of the General Counsel offers ADR services in unfair labor practice and representation cases, both before cases are filed and while they are pending. The services to agencies and unions include facilitation, intervention, training, and education.
Each regional office has a regional dispute resolution specialist who coordinates ADR services within the region. In addition, the ALJ office has a settlement program for parties who have hearings pending before an ALJ, and staff from the Authority members’ offices participate in interventions in negotiability and other cases, offering facilitation to help the parties resolve their differences before the case is ruled on by the Authority. Further information is at www.flra.gov/resources-training/resources/alternative-dispute-resolution/ogc-adr.
Federal Mediation and Conciliation Service Referral—Under a 2019 agreement with the Federal Mediation and Conciliation Service, before a negotiability appeal is considered by the FLRA’s members for a decision, the FLRA may refer the appeal to the FMCS, either on the FLRA’s own initiative or based upon a request from the parties. The FLRA will defer further processing of the case to give the parties time, typically 30 to 60 days, to settle the dispute. If the parties do not settle their entire dispute, the FLRA will resume processing of the appeal.
Federal Service Impasses Panel
Once it decides to assert jurisdiction in a dispute, the FSIP may recommend or direct the use of procedures for resolving an impasse through any method it deems appropriate. If the procedure selected does not result in a settlement, the panel may then take whatever final action is necessary to resolve the dispute, including the issuance of a decision and order. The order is binding during the term of the parties’ collective bargaining agreement unless the parties agree otherwise.
The Panel encourages the parties to continue efforts to resolve the issues voluntarily at every stage of case processing. To maximize the parties’ opportunity to reach a voluntary resolution of the dispute, a Panel-appointed representative (usually a Panel or staff member) explores settlement possibilities with the parties in a face-to-face setting. Should such efforts prove unsuccessful, the representative reports to the full Panel, which then takes final action on the matter.
To provide the parties with a final opportunity to resolve the dispute themselves at the late stage of the negotiation process, a Panel-appointed mediator-arbitrator explores possible areas of agreement. If a voluntary agreement does not occur during the mediation phase, an arbitration hearing then immediately follows. The arbitrator ultimately has the authority to render a binding arbitration decision on those issues not resolved during the mediation portion of the procedure.
The law also authorizes the parties to voluntarily submit a dispute to a private mediator-arbitrator with Panel approval. Further, the Panel may direct an expedited arbitration procedure. Further information is at www.flra.gov/fsip_drpg.
Office of Special Counsel
OSC offers ADR to resolve selected prohibited personnel practice complaints. The Office primarily uses mediation to provide parties the opportunity to resolve an OSC complaint without the need for an investigation or litigation.
Participation in the OSC Mediation Program is voluntary. In selected cases that are slated for referral to OSC’s Investigation and Prosecution Division, the OSC ADR specialist contacts the complainant and the employing agency to invite them to participate in the mediation program. The factors considered include the nature of the case, the relationship of the parties, the complexity of the case, and the relief sought by the complainant. Allegations that do not warrant referral to the Investigation and Prosecution Division are not eligible for mediation. If both parties agree, OSC schedules a mediation session.
The complainant and a representative from the employing agency attend the mediation. While it is not necessary to have an attorney or other representative attend the session, either party may choose to have representation. The individuals attending the mediation session must have the authority necessary to resolve the dispute. If mediation results in resolution, the agreement is put into writing and becomes binding on both parties.
If one party declines OSC’s invitation to mediate, or decides to terminate mediation before resolution of the complaint, the complaint will be assigned to the Investigation and Prosecution Division, as it would have been had mediation not been offered to the parties. Similarly, if mediation is held and resolution is not achieved, the complaint is assigned to the Investigation and Prosecution Division.
Mediation may be available as an option at the investigation and prosecution stages at the discretion of OSC. Further information is at https://osc.gov/Services/Pages/ADR.aspx.
Like the appeals agencies, individual employing agencies have increasingly used alternative dispute resolution techniques and settlement initiatives in an attempt to resolve disputes before they reach the formal appeals stage. Availability of such channels varies among agencies and among sites within agencies. For bargaining unit employees, certain options and procedures might be required by labor-management contracts.
Techniques agencies commonly employ include:
• binding arbitration, involving the presentation of a dispute to an impartial or neutral individual (arbitrator) or panel (arbitration panel) for issuance of a binding decision;
• conciliation, involving building a positive relationship between the parties to a dispute;
• cooperative problem-solving, most commonly used when a conflict is not highly polarized and prior to the parties forming hard line positions;
• dispute panels, which use one or more neutral or impartial individuals to clarify misperceptions, fill in information gaps, or resolve differences over data or facts;
• early neutral evaluation, which uses an impartial third party to provide a non-binding evaluation that gives the parties to a dispute an objective perspective on the strengths and weaknesses of their cases;
• facilitation, which involves techniques to improve the flow of information in a meeting between parties to a dispute;
• fact-finding, an impartial expert (or group) selected by the parties, an agency, or by an individual with the authority to appoint a fact finder;
• interest-based problem-solving, which aims to effect solutions while improving the relationship between the parties;
• mediated arbitration, in which an impartial or neutral third party is authorized by the disputing parties to mediate their dispute until such time as they reach an impasse;
• mediation, the intervention into a dispute or negotiation of an acceptable, impartial and neutral third party who has no decision-making authority;
• mini-trials, a structured settlement process in which each side to a dispute presents abbreviated summaries of its cases before the major decision makers for the parties, who have authority to settle the dispute;
• non-binding arbitration, which involves presenting a dispute to an impartial or neutral individual (arbitrator) or panel (arbitration panel) for issuance of an advisory or non-binding decision;
• ombudsmen, individuals who rely on techniques including counseling, mediating, conciliating, and fact finding; and
• peer review, a problem-solving process where an employee takes a dispute to a group or panel of fellow employees and managers for a decision.