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###### Office of Departmental Equal Employment Opportunity 

> **Alternative Dispute Resolution Program**
>
> **Frequently Asked Questions About HUD\'s ADR Program**
>
> ***What is Mediation?***
>
> Mediation is a process in which a neutral third party - the mediator -
> facilitates or helps settlement discussions among the parties. Each
> party should understand that the mediator is not a decision maker. The
> mediator does not have the power to force a decision on either party;
> it is the parties who make the decision on whether to settle a matter.
> The mediator attempts to focus the attention of the parties upon their
> needs and interests rather than on their rights and positions.
> Mediation is voluntary, and both parties must want to use it to
> resolve the dispute. By using mediation, neither party gives up any
> rights they had before the mediation. Any settlement is entirely
> voluntary. If a settlement is not reached, the parties lose none of
> their rights. Provided they have followed the statutory time frames,
> they can return to the EEO process.
>
> ***What do you mean by the words "followed the statutory time
> frames"?***
>
> Most of the traditional procedures available to employees have time
> limitations that must be followed; otherwise the employee loses his or
> her rights to use that process. This is particularly true of EEO
> discrimination complaints. Choosing mediation does not satisfy taking
> the steps you need to preserve your rights to use these other
> procedures. You should contact your EEO Counselor to discuss what you
> need to do to protect your rights.
>
> ***Why should I use Mediation?***
>
> Mediation is simple, informal, speedy, confidential and less expensive
> than court. The parties control the process and the results. In
> mediation, it is the parties who decide on the solution, not the
> mediator.
>
> Mediation helps parties to communicate and approach differences more
> positively with joint ownership of concerns and solutions. It helps
> the parties talk with each other and reach compromises that satisfy
> each of them. It keeps the decision making process in the hands of the
> parties rather than having a judge or an arbitrator impose a decision.
> By lowering the intensity or level of conflict, it can help the
> parties preserve or rebuild a stressed relationship. The mediator
> helps give the parties a fresh outlook, and a good environment in
> which to think creatively and brainstorm on ways to resolve the
> problem. Mediation helps the parties realistically evaluate their
> alternatives in a calm and cooperative environment. The mediator keeps
> the negotiating process from stalling, sometimes by reminding the
> parties that their interests are better served by a fair compromise,
> rather than risk loosing a case after spending an undetermined amount
> of money, time and hardship.
>
> Sometimes persons are reluctant to try mediation because they have the
> misperception that it requires them to give up a degree of control
> they feel they have or that they are familiar with the established
> procedures associated with litigation. The ironic thing is that
> parties have much more control in mediation than they do in
> litigation. In mediation, the parties control the outcome, whereas in
> litigation the judge or arbitrator controls the outcome. When parties
> feel as if they own and control the process, they feel safer and more
> interested in making the process work. They also tend to feel more
> satisfied with the result.
>
> ***What is the goal of mediation?***
>
> The goal of mediation is for the parties to reach a voluntary
> agreement of their own**.** During mediation the parties work toward a
> solution that will satisfy each of them. Sometimes mediation can
> result in solving part, but not all of a dispute. It will also help
> narrow the issues and help the parties mutually choose the best next
> step.
>
> ***In what types of cases can mediation be used?***
>
> Mediation can be used in a wide variety of EEO and non-EEO cases with
> a full range of complexity, including disputes involving
> discrimination, grievances, workplace issues between employees,
> between employee and supervisor, and between program areas.
>
> ***When should mediation be used?***
>
> Mediation should be used when one-on-one discussions between the
> parties have deteriorated to a point where the parties are unlikely to
> reach an amicable resolution and the parties believe that a neutral
> individual can help them generate creative solutions to resolve the
> dispute. Mediation should be used when the parties need and want to
> rebuild or preserve their relationship. It can be used to \"defuse\"
> the emotions of a situation, and help the parties get beyond their
> anger, hurt and other negative feelings in discussing the problem.
> Mediation enables the parties to have frank discussions with each
> other, with the assistance of a neutral mediator, so that the parties
> can then negotiate better with each other.
>
> ***What is expected at a mediation session?***
>
> Parties must be willing to work toward a compromise, and each party
> should come prepared to settle the case at mediation. Mediation
> requires each party to agree to listen to each other and to attempt to
> understand the other party\'s position. Parties should be prepared to
> discuss briefly the facts of the case and what they want to
> accomplish. Each party will have the opportunity to voice concerns and
> to speak without interruption. The mediator will expect the parties to
> share information with him or her, focusing on their needs and
> interests, and work to resolve the dispute by negotiating and
> bargaining in good faith. Either party, or the mediator, can decide
> the mediation is not productive and stop the process at any time.
>
> ***What is the general format of a mediation session?***
>
> Most mediation sessions begin with an introduction by the mediator and
> a brief statement about what to expect in the mediation process, and
> everyone introducing themselves. The purpose of this is to put the
> parties at ease and to build trust in the mediator and the process.
> After the opening, each party is given the chance to make a brief oral
> presentation of its position, or how they see the problem, in the
> presence of the other party. The parties are encouraged to speak their
> minds and each is given the chance to hear .the other side\'s position
> in an unfiltered form. After the opening statements, most mediators
> will meet privately with each side for what is called a caucus. In the
> caucus, the mediator explores, in a confidential setting, the
> interests, objectives and real positions of the parties in an effort
> to find the heart of the dispute. The mediator will be very careful
> about what he or she reveals to the other side to make sure no
> confidences are breached. Through a series of caucuses a negotiating
> process can occur with the mediator acting as the broker or emissary
> between the parties. When appropriate, the mediator may bring the
> parties together to negotiate among themselves. If all goes well, with
> trust and small successes occurring, the momentum builds leading to
> settlement. At the conclusion of a mediation, the goal of a mediator
> will be to have the parties sign a settlement agreement setting forth
> the essential terms of the settlement. The settlement agreement is
> signed; it is a binding contract stating what the parties have agreed.
> Sometimes the parties will agree that a written settlement agreement
> is unnecessary, and that is perfectly all right also.
>
> ***Who is the mediator and where does one get a mediator?***
>
> HUD obtains mediators from Contract Mediators and the Federal Shared
> Neutrals Program. These mediators are trained in conflict resolution
> techniques and other ways of helping disputing parties resolve their
> problem.
>
> ***What skills does a mediator have?***
>
> A mediator\'s skills are both natural and acquired. To be an effective
> mediator, an individual should have good judgment, excellent
> communication and negotiating skills, poise and stamina. Successful
> mediators possess some or all of the following qualities: tact,
> patience, tolerance, honesty, credibility, trust, respect,
> sensitivity, intuitiveness, fairness, open-mindedness, creativeness,
> and calmness. A mediator must be a good listener and communicator,
> organized, unbiased, neutral, non-judgmental, and professional in
> demeanor. If one or both of the parties believe the mediator assigned
> to the case has a conflict of interest or is not acceptable for some
> reason, the mediator should be replaced with another. However, each
> party should remember that the mediator is not a decision-maker. The
> mediator does not have the power to force a decision on either party.
> It is the parties who make the decision on whether to settle a matter.
>
> ***What is the role of the mediator?***
>
> The mediator provides a structured process, called a mediation
> session, which helps the parties to exchange information, listen to
> each other\'s positions, and jointly consider various options that are
> mutually advantageous for each of them. A good mediator should focus
> on guiding the mediation process along with a fine hand. The mediator
> can act in any number of roles which can change depending on the
> character of the dispute: communicator, empathizer, balancer, referee,
> intermediary, traffic cop, devil\'s advocate, spark plug, lightning
> rod, translator, and/or agent of reality. The mediator can help
> \"defuse\" the emotions of the parties and lead the parties to more
> productive discussions and solutions to problems. The mediator can
> help parties explore creative solutions to problems. However, it is
> the parties themselves who agree upon the compromise and it is the
> parties who make the decision on whether to settle a matter. The
> mediator is not a judge, advocate, lawyer, counselor, psychiatrist, or
> therapist. The mediator does not have the power to force a decision on
> either party, and does not typically offer an opinion on who is right
> or wrong.
>
> ***Who should attend and participate in a mediation session?***
>
> One of the reasons why disputes are often difficult to settle is that
> the key parties stop communicating effectively. The mediation session
> allows for direct exchange between the parties, and it is, therefore,
> essential that all key decision makers be present at the mediation.
> During the mediation session, the parties are expected to be the
> primary participants.
>
> In addition to the mediator, the aggrieved party, complainant or the
> individual to whom something adverse has happened or is about to
> happen must attend. A management representative must attend. This is
> the individual who has the authority to represent HUD management. The
> management representative (RO) is usually familiar with the facts, has
> the ability to agree on resolution, and the authority to bind the
> office to any resolution agreed upon. The supervisor of the aggrieved
> individual may also attend, but not in every case. Management
> representatives may bring additional management participants to the
> mediation to advise the management representative on the facts as they
> see them. Care should be taken not to overwhelm the aggrieved employee
> at the table with too many persons from management. Union
> representatives may attend, particularly when the matter involves an
> employee from the bargaining unit. Attorneys, representatives and
> advocates may also attend, if the parties decide to invite them.
> Unlike litigation, attorneys, representatives and advocates will
> usually be expected to take a \"backseat\" during the mediation
> session. The representatives for the parties are in attendance in an
> advisory capacity only, at no time will they be allowed to provide
> testimony or question the other party. If the representative would
> like to have a particular question asked, she/he may request that the
> mediator ask the question. If the mediator feels that the question is
> appropriate, she/he may present the question.
>
> ***Is mediation confidential?***
>
> Mediation is treated like a settlement conference. Therefore, all
> information presented at mediation is considered confidential,
> including that information shared with a mediator in a private session
> with only one party, called a \"caucus.\" In a private caucus, the
> mediator may confidentially discuss the strengths and weaknesses of
> that party\'s case, and what that party really needs for a
> satisfactory resolution of the matter. The parties may agree to take
> additional steps to ensure further confidentiality of the mediation by
> signing additional documents. Information disclosed during a mediation
> session may give a party additional information to look into if the
> matter is not resolved through mediation and goes on to litigation.
> For this reason, parties should discuss confidentiality issues with
> their attorneys prior to attending a mediation session. Mediation
> proceedings are \"private,\" and not open to the public. A mediator
> will not discuss private conversations with other parties or persons
> who are not participating in the mediation. Mediators do not prepare
> or submit reports on the substance of the dispute or the issues
> discussed during the mediation. However, some statistical reporting on
> user satisfaction may be appropriate. By signing an Agreement to
> Mediate, the parties agree that if the matter is not settled, the
> mediator cannot be used by either party as a witness in future
> actions.
>
> ***What happens if a dispute is resolved through mediation?***
>
> Usually a settlement agreement is drafted and signed by the parties.
> The agreement is binding and enforceable to the same extent as any
> other agreement or contract.
>
> ***What happens if a dispute is not resolved through mediation?***
>
> The parties can continue with the traditional EEO process.
>
> ***How does mediation affect a case already filed with the court?***
>
> Mediation typically does not affect or delay any schedule, discovery,
> or trial calendar unless the parties agree otherwise and the court so
> orders.
>
> ***How long does mediation typically take?***
>
> The length of mediation depends upon the complexity of the issues and
> the willingness of the parties to resolve the dispute. Some mediation
> sessions may last less than an hour, while others may require multiple
> days of meeting. Generally, workplace related mediations take 3 to 8
> hours to complete. In almost all cases, the informality and different
> focus of the mediation process helps parties resolve the issues in a
> much shorter time than traditional dispute resolution. Naturally, the
> time it takes to set up and complete mediation depends on the program,
> the complexity of the problem and the availability of the mediator and
> the parties.
>
> ***Mediation works particularly well when:***

-   \" There is a continuing relationship that the parties want to
    preserve.\" A long court case would adversely impact morale and
    productivity.

-   Confidentiality is practiced. There is no public record of the
    mediation. The parties must agree that the results are confidential.

-   The parties have time and expense concerns - mediation will be more
    efficient. .

-   There is a lot of distrust and a neutral third party can help
    overcome perceived slights and rebuild lines of communication.

-   The parties want to keep the dispute confidential and not air their
    \"dirty laundry\" in public.

-   The parties believe that getting some assistance communicating and
    negotiating will help resolve the situation.

-   There is a need for creative solutions and realistic assessments.

-   The parties want to control the solutions and reach mutually
    satisfactory solutions.

-   There are concerns about future litigation and repetitive claims.

-   There are no novel legal issues or a desire to make case law.

-   The cost of litigation is likely to exceed the value of the dispute.

> ***Mediation may be inappropriate when:***

-   There is important case law that needs to be established or
    conflicting decisions that need to be clarified to establish the law
    to be applied to future cases.

-   The decision maker for one or both of the parties will not attend
    the mediation session.

-   A party cannot effectively represent his or her best interests and
    is not represented at the mediation session.

-   A person who is important to the mediation session is not able to be
    present or reached.

-   There is a threat of criminal action.

-   One party wants to delay a resolution. .

-   Discovery is needed.

-   One of the parties will not negotiate in good faith or only wants to
    use mediation as a stalling technique.

-   A case involves governmental and/or political issues.

-   Budget constraints may obstruct settlement.