Mediation/Alternative Dispute Resolution (ADR)
What Can I Expect at Mediation/ADR?
Mediation, otherwise known as Alternative Dispute Resolution (ADR), is an informal, voluntary process where you meet, typically in person, with the Agency and a neutral mediator to discuss whether your EEO complaint can be resolved. EEO Mediation is a confidential process, and everyone present will be asked to sign a Confidentiality Agreement.
Some advantages of Mediation include:
- Possibility of resolving your EEO complaint at the lowest level without or with less litigation
- Potential of obtaining relief you may not be awarded if you prevailed at the EEOC, e.g., an agency may offer a reassignment to resolve a non-selection complaint, which is not relief an Administrative Judge is authorized to offer
- It can be an opportunity to better understand the parties’ respective positions. In some cases, a settlement may not be reached at mediation, but both parties are able to walk away with more information about the other party’s perspective
- Most EEO complaints settle, so it never hurts to begin settlement discussions sooner rather than later
EEOC Mediation Tips
You may be wondering how to “win” at an EEO mediation, but the better question is what to ask for in mediation to get the results you hope for and to resolve your EEO complaint. The average EEO mediation settlement varies drastically based upon the case, your relief request, and your counsel, so preparation is key. However, the process generally follows the same structure in most cases.
A mediation session typically begins with the employee explaining what happened that caused them to file an EEO complaint. The Agency will then respond, and in some cases the parties then discuss the issues together. Under the EEOC’s new Management Directive 110, the Agency should have a settlement authority present at the mediation who is not a Responsible Management Official (RMO) in the complaint. In other words, the Agency should have a settlement authority who is above the RMO in the chain of command authorized to make settlement offers on behalf of the Agency.
Prior to the mediation, the employee should think about various options for relief and be prepared at the mediation to state what the Agency could do to resolve the complaint. Ideally, the Agency will then make an offer to the employee. Often, the Agency’s opening offer is not its final offer, and mediation can involve several rounds of settlement demands and counteroffers.
What If Mediation of the EEO Complaint Doesn’t Work?
If the parties are unable to reach a resolution at mediation, then the employee may continue to pursue their complaint through the process. Mediation may occur at any point in the EEO complaint process, although it is most typically offered at the informal complaint stage, where the complainant can elect to participate in ADR, or when the case is pending before an Administrative Judge at the EEOC.
You are entitled to representation at any Mediation, and the attorneys at The Federal Practice Group are well-versed in participating in the ADR process to obtain relief for our clients.