Alternative dispute resolution (ADR) is a number of different methods for resolving cases which has many advantages over litigation. It primarily consists of mediation although other methods, such as having an early neutral evaluation of each side's case or arbitration where a third party makes a binding decision, may be utilized.
Mediation consists of having a neutral third party act as a facilitator in a confidential process to try to bring about a mutually acceptable resolution to the dispute. A mediator has no authority to force either party to make concessions to settle the case, or to make any final decision. Through joint and separate meetings with the parties, the mediator will try to bridge the gap between each side's positions. It will usually result in an enforceable settlement agreement by an administrative agency or a court.
Typically mediation begins with the moving party, usually the employee, giving a summary presentation of his or her case without interruption although the mediator may pose questions. Then the mediator will ask the other side, usually the employer, to give its side of the case. At that point, the employee will usually set forth his or settlement demands, and the mediator will hold separate caucuses with each side to get a better idea where the middle ground may lie. Most of the work in mediation is done in separate sessions with the parties where the mediator can try out different scenarios to see where there may be movement. The information provided in a separate session will be kept confidential unless the party gives permission for the mediator to disclose it to the other side.
It is expected in settlement negotiations, as in mediation, that each party will exchange proposals back and forth responding to the other's last offer. The mediator can be very helpful in acting as a sounding board to discourage unrealistic offers by both sides and by giving each party a frank assessment, especially in a separate session. By going back and forth between the parties, the mediator will hopefully narrow the gap between each party's respective positions. Also, it gives a party the opportunity to offer a new proposal through the mediator without revealing its source. If there is a misunderstanding that needs clarification or if the parties reach an impasse, the mediator may call a joint session to get the settlement negotiations moving forward.
Typically the parties will set aside the agreed-upon provisions and concentrate on the remaining outstanding issues although an agreement cannot be finalized until all provisions have been settled. Once an overall agreement has been reached in principle, the mediator or one of the parties may draft a written settlement agreement encompassing all of the agreed-upon terms and the usual boilerplate provisions contained in a settlement agreement. Another alternative, if the agreement cannot be finalized on the spot, is for the mediator or one of the parties to set forth in writing a summary of the agreed-to terms to be initialed or signed off by the parties and the mediator pending a final written agreement. It is generally a very bad idea to merely conclude settlement negotiation by a handshake as each side can later have different perceptions as to what has been agreed upon.
This article also appears in FEDweek ( www.fedweek.com), a weekly newsletter for federal employees.