Mediation as ADR Tool

Mediation is not being fully utilized in federal employee cases despite previously being given strong support by the Congress and the executive branch. See Dispute Resolution Act of 1998, §4, 28 USC 652; President William J. Clinton's memo of May 1, 1998, to Heads of Executive Departments and Agencies encourage the use of ADR by federal agencies and set up the ADR Working Group to be convened by the Attorney General. This trend is on the verge of being reversed in the new Department of Homeland Security (DHS) and Department of Defense (DoD) regulations which limit settlement negotiations by stating that in the DHS regulations that "MSPB or an adjudicating official may not require settlement discussions in connection with any appealed action under this section." 5 CFR 9701.706(i)(1). Even worse, the Merit Systems Protection Board MSPB administrative judge (AJ) assigned to the case was prohibited from engaging in settlement negotiations, requiring all settlement talks be with "an official specifically designated by MSPB for that sole purpose." 5 CFR 9701.706(i)(2). DHS's questionable rationale was that "we strongly believe that settlement should be a completely voluntary decision made by the parties on their own, based on their individual interests." 70 Fed. Reg. 5,271, at 93.

The MSPB continues to be the leader in its aggressive use of ADR, settling over 50 percent of its cases, while the Equal Employment Opportunity Commission (EEOC) and the federal agencies generally lag behind. While the 1999 amendments to Part 1614 of the EEOC regulations provide for an ADR option in lieu of EEO counseling at 29 CFR 1614.105, too much discretion is given to the agencies as to when to offer ADR which is optional. ADR should be mandatory when requested by a complainant. At times, the 90-day deadline for the informal EEO process interferes with possible resolution when there is a problem in scheduling ADR. 29 CFR 1614.105(f). Even worse, the EEOC regulations discourage ADR by limiting attorney fees in the informal process, except when agreed to, unless the Commission affirms on appeal an AJ's decision finding discrimination after an agency takes final action by not implementing the AJ's decision. 29 CFR 1614.501(e).

In most agencies, e.g., DoD, it is up to management's discretion to agree to ADR even when such services are offered by its Office of Investigations and Resolutions (ORD). In other agencies, there are limitations placed on when ADR can be used, e.g., it is limited to active employees, not former employees or applicants for employment. However, several agencies provide for mandatory ADR if requested by the employee in the informal EEO process, e.g., the Departments of Justice and Housing and Urban and Development.

The EEOC does not have an ADR program mandated by regulation and places too much reliance upon its individual offices to craft ADR programs. This has led to a wide variety of programs ranging from an abandoned experimental effort to triage cases for ADR in the Washington Field Office followed by the assignment of cases to the supervisory administrative judges to having non-attorneys serve as mediators in EEOC offices. The most common EEOC approach is to have AJs also serve as settlement judges which is the practice followed by the MSPB. However, often the EEOC AJs are not available due to their heavy workloads, trained mediators are often unavailable in the federal sector, and not all EEOC AJs appear to have been trained in or are experienced in using mediation techniques.

This article also appears in FEDweek ( www.fedweek.com), a weekly newsletter for federal employees.