While mediation is an effective technique in many situations, the Alternative Dispute Resolution Act and the EEOC recognize that there are instances in which mediation may not be appropriate or feasible. Examples of when mediation would be inappropriate are in cases involving applicants for employment, former employees, alleged violence, egregious harassment, adverse actions, class actions, when authoritative resolution of a matter is required in precedent-setting cases, when the matter in dispute has significant government policy implications, or when it is important to produce a full public record of the proceedings.
During the informal complaint stage, the EEO Counselor will, in most instances, make the determination regarding the inappropriateness of a dispute for mediation, based upon the above criteria. When appropriate, mediation will be offered as an option to electing EEO Counseling. Should mediation be determined to be inappropriate in a particular case, the complaint will be processed through the traditional EEO Counseling process.
The EEO Counselor will refer cases in question to the Bureau EEO Officer who will make the determination regarding the inappropriateness of certain cases. The Department EEO ADR Manager will make such determinations for cases presented during the formal complaint stage.