The Commission does not mandate the use of a particular ADR technique in an agency's ADR program. As such, numerous ADR techniques are available for use by agencies in their programs. The Commission requires, however, the ADR technique must be used in a manner that is consistent with the core principles outlined in Chapter III of the Management Directive (MD)-110. One fundamental core principle provides that ADR techniques must be voluntary; i.e., the parties (the complainant and the agency) must mutually agree to participate and a binding decision cannot be issued by a third party. In addition, the use of an ADR technique must not diminish the complainant's rights protected under Part 1614 regulations. For example, an ADR program many not require a complainant to waive his/her right to an investigation, hearing, or to appeal the final decision to the Commission.
Below is a description of various ADR techniques and the agencies which utilize them. Agencies are not limited to using only one technique in their program; rather, they are encouraged to experiment with these techniques by using various methods in combination to reach effective resolutions.
Mediation is presently the most popular form of ADR in use by agencies in employment-related disputes. Mediation is the intervention in a dispute or negotiation of an acceptable impartial and neutral third party, who has no decision-making authority. The objective of this intervention is to assist the parties in reaching a mutually-acceptable resolution of the issues in dispute.
A mediator makes primarily procedural suggestions regarding how parties can reach agreement. Occasionally, a mediator may suggest some substantive options as a means of encouraging the parties to expand the range of possible resolutions under consideration. A mediator often works with the parties individually, in caucuses, to explore acceptable resolution options or to develop proposals that might move the parties closer to resolution.
Ombuds are individuals who rely on a number of techniques to resolve disputes. These techniques include counseling, mediating, conciliating, and fact finding. Usually, when an ombud receives a complaint, s/he interviews the parties, reviews files, and makes recommendations to the disputants. The ombuds do not impose solutions. The power of the ombud lies in his/her ability to persuade the parties to accept his/her recommendations. An individual not accepting the proposed solution of the ombud is free to pursue a remedy in other forums for dispute resolution.
Peer Review is a problem-solving process where an employee takes a dispute to a group or panel of fellow employees and managers for a decision. The decision is not binding on the employee, and s/he would be able to seek relief in traditional forums for dispute resolution if dissatisfied with the decision. The principal objective of peer review is to resolve disputes early before they become formal complaints.
Typically, the panel consists of employees and managers who volunteer for this duty and who are trained in listening, questioning, and problem-solving skills as well as the specific policies and guidelines of the panel. A peer review panel may be a standing group of individuals who are available to address whatever disputes employees might bring to the panel at any given time. Other panels may be formed on an ad hoc basis through some selection process initiated by the employee, e.g., blind selection of a certain number of names from a pool of qualified employees and managers.
Fact Finding is the use of an impartial expert (or group) selected by the parties, by the agency, or by an individual with the authority to appoint a fact finder, in order to determine what the "facts" are in a dispute. The fact finder may be authorized only to investigate or evaluate the matter presented and file a report establishing the facts in the matter. In some cases, s/he may be authorized to issue either a situation assessment or a specific procedural or substantive recommendation as to how a dispute might be resolved. If used as an ADR technique, the findings of fact must remain confidential.
Early Neutral Evaluation uses a neutral or an impartial third party to provide an objective evaluation, sometimes in writing, of the strengths and weaknesses of a case. Under this method, the parties will usually make informal presentations to the neutral party to highlight their respective cases or positions.
Settlement conferences are meetings which are typically conducted by a settlement judge or referee to assist the parties in reaching a mutually acceptable settlement of the disputed matter. Agencies may have their own settlement conferences without the presence of an EEOC administrative judge, provided the parties agree. The role of the settlement judge is similar to that of a mediator in that the judge assists the parties procedurally in negotiating an agreement. Some judges may provide the parties with specific substantive and legal information about what the disposition of the case might be if it were to go to court or hearing. The judge may also provide the parties with possible settlement ranges for their consideration.
Facilitation involves the use of techniques to improve the flow of information in a meeting between parties to a dispute. The term facilitator is often used interchangeably with the term mediator, but a facilitator does not typically become as involved in the substantives issues as does a mediator. The facilitator focuses more on the process involved in resolving a matter. The facilitator generally works with all of the participants at once and provides procedural directions as to how the group can efficiently move through the problem-solving steps of the meeting and arrive at the jointly agreed upon goal. The facilitator focuses on procedural assistance and remains impartial to the topics under discussion.