U.S. Department of Commerce
Manual for Processing Discrimination Complaints
Part II, Section A, Chapter 8
ALTERNATIVE DISPUTE RESOLUTION

Alternative Dispute Resolution (ADR) is a term, which covers many alternatives to the traditional method of resolving EEO disputes through EEO Counseling (during the Informal Complaint stage) or Investigation (during the Formal Complaint stage). There is a spectrum of dispute resolution techniques, covering such processes as fact-finding, early neutral evaluation, negotiation, settlement conferences, mediation, arbitration, and adjudication, and ranging from informal discussions to formal adjudication. All ADR processes aim to achieve the following desirable results:

• to motivate parties to focus their attention on the issues;
• to give parties the opportunity to present their perspectives on the situation;
• to provide parties the opportunity, often for the first time, to hear a clear explanation of each other's viewpoint;
• to provide parties with a window of opportunity to identify common interests and points of agreement, and
• to fashion mutually acceptable settlement options to resolve disputed issues.

The Department offers mediation and settlement conferences as the ADR methods in the EEO process.

Mediation

Mediation involves the intervention of a third person, or mediator, into a dispute to assist the parties in negotiating jointly acceptable resolution of issues in conflict. The mediator meets with the disputing parties at a neutral location where the two parties can discuss the dispute and explore a variety of solutions. Each party is encouraged to be open and candid about his/her point of view. The mediator, as a neutral third party, can view the dispute objectively and assist the parties in discussing alternatives and options that they might not have considered. Professional mediators are trained not to take sides. Standard practice and the Code of Ethics for Mediators guide mediators to ensure impartial behavior. Participation in ADR is voluntary for both the employee and management.

Mediation is an effective ADR technique in many situations, but 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, members of a class actions, egregious harassment, 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. (See DoC EEO Mediation Guide)

During the informal stage, the EEO Counselor or Bureau ADR Coordinator will, in most instances, decide whether a dispute is suitable for mediation, in accordance with the Mediation Guide. The Bureau EEO Officer will make determinations regarding cases in question. The Department EEO Manager will make such determinations for cases presented during the formal complaint stage.

Persons participating in mediation do not waive any of their rights by coming to mediation. Complainants' rights to pursue formal complaint processing, including administrative and court action, are not affected if they decide to mediate the issue. Complainants who are unwilling to continue in mediation or who are unable to reach settlement through the mediation process will continue through the EEO complaint process in a timely fashion.

No person participating in mediation is to be penalized in any way because of such participation or by not reaching an agreement, as to do so would be retaliatory and illegal under the EEO laws and regulations. If complainants believe their rights were violated during any mediation or settlement discussions through actions such as threats, coercion, or intimidation, etc., they should contact the Department EEO ADR Program Manager.

Mediation in the EEO Counseling Process

Once the determination has been made at the informal complaint stage that the dispute is appropriate for mediation, the EEO Counselor will explain mediation to the aggrieved person as an alternative to pursuing EEO counseling or, later on, to pursuing a formal complaint. The EEO Counselor will also provide the aggrieved person with the DOC Alternative Dispute Resolution: EEO Mediation Guide and a Pre-Complaint Election Form. The Pre-Complaint Election Form will record the aggrieved person's decision to elect ADR through mediation or EEO counseling.

If the aggrieved person elects mediation, EEO Counselor will halt counseling for the time being and will notify the Bureau EEO Officer or Bureau ADR Coordinator, as appropriate. The Bureau EEO Officer or Bureau ADR Coordinator will contact the management official to determine interest in participating in mediation. Should management agree to participate in ADR, arrangements will be made for a mediator and the mediation session. Should management not agree to participate in ADR, the EEO Counselor will be notified to advise the employee accordingly and to proceed with counseling.

Mediation in the Formal EEO Complaint Process

When OCR accepts a complaint for investigation, it issues a Notice of Investigation that contains information about the availability of mediation and instructions for requesting mediation or additional information about the mediation program. If the case is appropriate for mediation, and the complainant wishes to elect mediation, he or she must contact the DOC EEO ADR Program Manager. If management agrees to participate, the DOC EEO ADR Program Manager will make arrangements for a mediator and the mediation session. If management does not agree to participate in mediation, the DOC EEO ADR Program Manager will advise the employee accordingly. The investigation will continue throughout the mediation process.

The Meditation Process

Parties to mediation. The employee raising the dispute, a management official with authority to resolve the dispute appointed by the Bureau, and the mediator are the key parties in a mediation. Sometimes the manager involved in the case is an active participant in the mediation. The management official will be responsible for engaging in creative problem solving at the lowest level in the organization. Both parties are entitled to bring with them representatives of their choosing to assist them in the process.

The mediation session. Mediation sessions usually begin with the introduction of the mediator to the two parties. The mediator will provide procedural ground rules, such as making no interruptions when the other party is speaking. S/he will explain the mediation process including clarification of the issue of session confidentiality, securing agreement on time allocation and securing a commitment from the parties to seek resolution in good faith. The mediator will then explain the role of the mediator – to be an impartial facilitator, not an advocate or judge of either party, and to assist the parties in arriving at their own solutions.

The mediator will end the opening statement by informing the disputants that any settlement agreement developed during the session must be reviewed by the Department's OGC, the Servicing Human Resources Manager, and the Bureau EEO Officer, before the parties sign. After it is signed by the parties, concurrence signatures must be obtained from the servicing Human Resources Manager (or, in some cases, the Department's Director for Human Resources Management), the Department's OGC, and the Bureau EEO Officer before the settlement agreement is enforceable and binding.

After the opening statement from the mediator, the mediator will ask the person initiating the mediation session -- usually the aggrieved employee -- to explain in his/her own words the nature of the complaint and what type of remedy s/he is seeking. The mediator will then ask the respondent, or management official, to make an opening statement to explain in his/her own words his/her perspective of the complaint.

After all opening statements have been delivered, the mediator will caucus as necessary. A caucus is a private meeting during which the mediator talks with each party separately about the dispute. Information revealed in the caucus that is confidential will not be shared in the other caucus or when the parties reconvene in a joint session, unless the party providing the confidential information permits the mediator to share it. Following the caucuses, the mediator will reconvene the joint session and determine if there is any area of agreement between the parties on any issue. If not, the parties will continue to negotiate and caucus with the mediator, if necessary, until it is clear that a settlement is or is not going to emerge at this session. If there is a need to reconvene the mediation on another day, the decision will be made jointly by both parties and the mediator.

The process ends when a determination is made that a settlement has, or has not, been reached.

Settlement agreements. If a settlement is reached, the parties will draft the terms of the settlement agreement that are acceptable to them. It is suggested that management confer with the servicing Human Resources office to discuss appropriate language relating to personnel actions or benefits before the drafting of the terms of the agreement. The agreement will then be reviewed by the Department's OGC, the Servicing Human Resources Manager, and the Bureau EEO Officer (the concurrences).

Once the settlement agreement is cleared by the concurrences, the parties will sign the settlement agreement. The agreement will then be submitted to the Department's OGC, the servicing Human Resources Manager, and the Bureau EEO Officer for execution. After all signatures are obtained, the agreement can be implemented. The Bureau EEO Officer will submit a copy of the fully executed agreement to the Department EEO ADR Manager.

Conclusion of mediation without settlement agreement. If either party believes that a solution cannot be reached and it is useless to continue the mediation, the dispute will return to the stage in the traditional EEO complaint process where it originated for further processing. If the complaint is returned during the informal complaint stage, the EEO Counselor will conduct a final interview and advise the employee of the right to file a formal complaint. If the complaint is returned during the formal complaint stage, the Department EEO ADR Manager advises the Chief, Program Implementation Division. The intake and investigation processes will continue throughout the mediation.

Settlement Conferences

At any point during the EEO complaint process, the parties can voluntarily agree to resolve the issue(s) without a mediator. The parties may negotiate a settlement through informal meetings or conferences. A party may convey an offer of settlement to the EEO Officer, Chief, Program Implementation Division, or the Office of General Counsel at any time before a final decision is issued on the complaint. The terms of the agreement between the parties must be reduced to writing and the agreement must be signed by both parties.

Contents of Settlement Agreements. Where the complainant has made a claim for compensatory damages, a settlement agreement may provide that the bureau shall pay proven compensatory damages as authorized by Section 102(a) of the Civil Rights Act of 1991. If so, the amount of compensatory damages will be determined as specified in Chapter 7.

Departmental Review and Clearance Process. Settlement agreements reached in the EEO complaint process must be reviewed and approved by:

• the bureau’s EEO Officer,
• the Office of General Counsel (OGC), and
• the Office of Human Resources Management (OHRM).

Official responsible for obtaining clearances. The responsibility for obtaining the necessary clearances shifts at different stages of the EEO complaint process. If resolution is reached during:

• the informal stage, the Bureau EEO Officer will be responsible for transmitting the terms of the settlement for simultaneous review to OGC and OHRM;
• the formal stage through mediation, the DOC EEO ADR Manager will be responsible for transmitting the terms of the settlement agreement for simultaneous review to the Bureau EEO Officer, OGC and OHRM;
• the formal stage without mediation, and when a hearing has not been requested, the Bureau EEO Officer will be responsible for transmitting the terms of the settlement agreement for simultaneous review to OGC and OHRM.

Signatures necessary to finalize agreement. Settlement agreements are not valid until all necessary clearances have been obtained. To finalize a settlement agreement, signatures of the following individuals are necessary:

• the aggrieved individual;
• the designated management official;
• the EEO Officer for reviewing settlement agreements and providing clearance;
• the OGC official responsible for reviewing settlement agreements and providing clearance; and
• the OHRM official responsible for reviewing settlement agreements and providing clearance.

Once the settlement agreement is signed by all parties, including concurrences, the aggrieved individual and the Department are bound by its terms.

Claims of Breach of Settlement Agreement

A complainant who believes that the Department or bureau has failed to comply with the terms of a settlement agreement, may seek implementation of the settlement agreement by filing a claim of breach of settlement agreement. This process is established by EEOC regulations at 29 C.F.R. § 1614.504(a).

Filing a claim of breach of settlement agreement. The claim should indicate whether the complainant wishes to resume processing of the original EEO complaint or have the terms of the settlement agreement implemented. The claims may be filed by sending written notice of the breach allegation to either:

• the bureau EEO Officer; or
• the Director, Office of Civil Rights
  U.S. Department of Commerce
  Mail Stop 6012
  Washington, D.C. 20230

If a claim is filed with the Director of OCR, s/he will forward it to the bureau EEO Officer.

Time Limit for filing a claim. The notice must be received by the bureau EEO Officer or the Director of OCR within thirty (30) calendar days of the date the complainant knew or should have known of the alleged noncompliance.

Allegations of subsequent acts of discrimination. Allegations regarding subsequent acts of discrimination are processed as EEO complaints and not breach of settlement agreement claims. 29 C.F.R. § 1614.504(c).

Processing of Breach of Settlement Agreement Claims. Upon receiving a claim, the EEO Officer shall:

• conduct an inquiry sufficient to determine whether there has been a breach of the settlement agreement; and
• provide the Director of OCR with a recommendation as to whether there has been a material breach in the term(s) of the settlement agreement and suggest appropriate remedies.

Upon receiving the EEO Officer’s recommendations, the Director of OCR shall:

• issue a decision on the claim of breach of settlement agreement within thirty (30) days of receiving the allegation of noncompliance;
• order appropriate remedies if the decision includes a finding of breach of the agreement; and
• advise the complainant of the right to appeal the decision to EEOC.

Remedies. If the bureau has failed to carry out its promises under the settlement agreement for any reason other than noncompliance or waiver of the settlement agreement by the complainant, the following remedies may be ordered:

• reinstatement of the original EEO complaint for further processing; or
• an order to implement the terms of the settlement agreement.

Appeal of Breach of Settlement Agreement Claim. The complainant may file an appeal on the alleged breach of settlement agreement directly to the EEOC:

• any time after 35 calendar days from filing a claim with the EEO Officer or Director of OCR if there has been no decision, or
• within 30 days of the complainant's receipt of the agency's decision on the breach of settlement agreement claim.

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