# Presentation: 743891

## Alternative Dispute Resolution

**Lynda O’Sullivan**
**Ken Lechter**
**Office of the AF General Counsel**
**(Dispute Resolution Division)**

**Presentation to NIH**
**25 June 2008**

## ADR – What is it?

- “Any procedure that is used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, factfinding, minitrials, arbitration, and use of ombuds, or any combination thereof.”
- 		- Administrative Dispute Resolution Act of      1996, 5 USC § 571(3)
- 		- Air Force Policy Directive 51-12 (9 Jan 03)

## ADR - Where Does it Fit In?

- Q. What distinguishes most ADR processes from unassisted negotiations of the parties, even if they use IBN?
- A. Introduction of a _*neutral third party*_ to assist parties to resolve their dispute (exception: Contract Disputes Act)
- Q. What distinguishes ADR from standard adjudicative forms of dispute resolution?
- A. Several things:
- A _*voluntary*_ process
- Confidentiality
- Informality
- Greater control by parties over process & outcome
- Faster resolution; lower cost
- Greater opportunity for creative solutions
- Improved relationships

**Notes:**
Taking all three definitions together, we see that the DOD and AF directives attempt to narrow and refine the statutory definition of ADR.  While the tools and techniques of ADR are broad and various, all ADR procedures share three common traits: 

(1)  they must be agreed to by the parties to the dispute; 

(2)  they all involve the use of a third-party neutral; and 

(3)  they all involve something short of formal adjudication, whether administrative or judicial

## The Dispute Resolution Spectrum 

**Unassisted**
**Negotiations**

**Assisted**
**Negotiations**

**Private**
**Adjudication**

**Outcome**
**Prediction **
**Assistance**

**  ****Facilitation**
** ****Mediation**
** ****Conciliation**
**  ****Mini-Trial**

**Early Neutral **
**Evaluation**
**Fact-Finding**
**Non-binding**
**Arbitration**

**Public**
**Litigation**

**Binding**
**Arbitration**
**Summary Trial**
**with Binding**
**Decision**

**Article I Courts**
**and Boards**
**(e.g., EEOC,**
**MSPB, FLRA, **
**ASBCA)**
**Article III Courts**

**NEGOTIATION**

**ALTERNATIVE DISPUTE RESOLUTION**

**LITIGATION**

***The Dispute Resolution Spectrum ***

**Non-Binding Processes**

**Binding Processes**

**Positional**
**Negotiation**
**Interest-based**
**Negotiation**

**Notes:**
This slide depicts the spectrum of dispute resolution choices, from unassisted negotiations between the parties on the left, to litigation, in both administrative and judicial for a, on the right.

ADR occupies this broad territory in the middle.  Even here there is a spectrum, from the relatively informal and open-ended assisted negotiations on the left, to the more formal and more limiting binding arbitration on the right.  Depending on which method of ADR is selected, the role and authority of the third-party neutral, and the parties themselves, vary, as the following slides demonstrate--

## Mediation

_**Process Dynamics**_**:**
**Third-party assisted**
**negotiations**

_**Unique Features**_**:**
**Confidential caucuses**
**Neutral as facilitator**

_**Decisionmakers**_**:**
**The parties**

**N**

**P****1**

**P****2**

**N**

**P****1**

**P****2**

**P****1**

**P****2**

**N**

**+**

**Notes:**
Mediation is the quintessential form of process assistance ADR.  It is commonly used to resolve workplace disputes like EEO complaints and grievances.  When used in contract disputes, it commonly takes the form of evaluative mediation.  ( Discuss facilitative vs. Evaluative mediation)—see slide 8

Mediation and facilitation are similar in that the neutral’s primary role is to facilitate communication between the parties.  Both use interest-based negotiation techniques move the process forward.  However, mediation tends to be more formal than facilitation.  The major distinction is the mediator’s use of private caucuses with each party, which are effective for coming up with options that otherwise might not present themselves.  Use of private caucuses in mediation also carries greater guarantees of confidentiality than does facilitation.  

In both mediation and facilitation, the parties themselves are the decision makers.  The neutral has no power to impose a decision.  The parties are free to walk away at any time.  Of course, if they reach agreement and sign a settlement agreement to that effect, the settlement agreement has the same binding legal effect as any settlement agreement would.  

## Facilitation

_**Process Dynamics**_**:**
**Third-party assisted**
**negotiations**

_**Unique Features**_**:**
**Neutral as facilitator;**
**IBN techniques**

_**Decisionmakers**_**:**
**The parties**

**N**

**P****1**

**P****2**

**P****1**

**P****2**

**+**

**N**

**Notes:**
MEDIATION IS THE QUINTESSENTIAL FORM OF PROCESS ASSISTANCE ADR.  IT IS COMMONLY USED TO RESOLVE WORKPLACE DISPUTES LIKE EEO COMPLAINTS AND GRIEVANCES.  

MEDIATION AND FACILITATION ARE SIMILAR IN THAT THE NEUTRAL’S PRIMARY ROLE IS TO FACILITATE COMMUNICATION BETWEEN THE PARTIES.  BOTH USE INTEREST-BASED NEGOTIATION TECHNIQUES MOVE THE PROCESS FORWARD.  HOWEVER, MEDIATION TENDS TO BE MORE FORMAL THAN FACILITATION.  THE MAJOR DISTINCTION IS THE MEDIATOR’S USE OF PRIVATE CAUCUSES WITH EACH PARTY, WHICH ARE EFFECTIVE FOR COMING UP WITH OPTIONS THAT OTHERWISE MIGHT NOT PRESENT THEMSELVES.  USE OF PRIVATE CAUCUSES IN MEDIATION ALSO CARRIES GREATER GUARANTEES OF CONFIDENTIALITY THAN DOES FACILITATION.  

IN BOTH MEDIATION AND FACILITATION, THE PARTIES THEMSELVES ARE THE DECISIONMAKERS.  THE NEUTRAL HAS NO POWER TO IMPOSE A DECISION.  THE PARTIES ARE FREE TO WALK AWAY AT ANY TIME.  OF COURSE, IF THEY REACH AGREEMENT AND SIGN A SETTLEMENT AGREEMENT TO THAT EFFECT, THE SETTLEMENT AGREEMENT HAS THE SAME BINDING LEGAL EFFECT AS ANY SETTLEMENT AGREEMENT WOULD.  

## Early Neutral Evaluation

_**Process Dynamics**_**:**
**Third-party assistance**
**with negotiations**

_**Unique Features**_**:**
**Evaluation of likely outcome;**
**Assessment of facts and/or**
**methodology**

_**Decisionmakers**_**:**
**The parties**

**P****1**

**P****2**

**+**

**P****1**

**P****2**

**N**

**P****1**

**P****2**

**N**

**Notes:**
EARLY NEUTRAL EVALUATION IS AN “OUTCOME PREDICTION” PROCESS IN WHICH THE PARTIES UTILIZE A NEUTRAL THIRD PARTY WHO IS A SUBJECT MATTER EXPERT IN THE PARTICULARS OF THE DISPUTE, TO EVALUATE THEIR RESPECTIVE CASES.  
THE PARTIES PRESENT THEIR CASES TO THE NEUTRAL, WHO THEN RENDERS AN OPINION AS TO THE STRENGTHS AND WEAKNESSES OF EACH CASE AND THE LIKELY RESULT IF THE CASE GOES TO LITIGATION.  ARMED WITH THIS “REALITY CHECK,” THE PARTIES MAY THEN BE ABLE TO NEGOTIATE A SETTLEMENT IN A MORE REASONABLE ENVIRONMENT.
EARLY NEUTRAL EVALUATION IS MOST USEFUL IN CASES THAT ARE MORE COMPLEX, OR OF UNCERTAIN VALUE, OR IN WHICH THE PARTIES’ POSITIONS ARE CLOUDED BY UNREALISTIC EXPECTATIONS.
WE SEE ITS USE MOST FREQUENTLY IN CONTRACT DISPUTES, WHERE THE FACTS ARE OFTEN COMPLEX, REQUIRING A GREAT DEAL OF EXPERTISE, AND THE DOLLAR AMOUNTS IN CONTROVERSY ARE SIGNIFICANT.
FOR THIS PROCESS TO WORK, THE NEUTRAL MUST BE A PERSON WHOSE EXPERTISE, JUDGMENT AND INTEGRITY ARE TRUSTED BY BOTH PARTIES.

## Workplace Disputes

- Integrate ADR into traditional complaint processes
- Negotiated grievance procedures
- EEO complaints (formal and informal)
- MSPB appeals
- Labor-management disputes
- NSPS adverse actions, appeals, and labor-management disputes
- Promote ADR as the preferred dispute resolution option (voluntary and confidential)
- Maintain a cadre of highly trained and experienced mediators and facilitators
- Train management personnel in effective conflict management techniques
- Metrics critical to program evaluation

## Distribution of Air Force Civilian Workplace Disputes FY 2007

- Source: FY 07 AF ADR Report

**Notes:**
THIS SLIDE SHOWS A BREAKOUT OF THE FIVE MAJOR CATEGORIES OF WORKPLACE DISPUTES IN FY 2001.
EEO CASES ALWAYS ACCOUNT FOR THE SINGLE LARGEST SHARE OF ALL DISPUTES, ALTHOUGH THIS SHARE HAS BEEN SHRINKING IN RECENT YEARS.  NEGOTIATED GRIEVANCES MAKE UP THE SECOND LARGEST CATEGORY, FOLLOWED BY ULP CHARGES.  TOGETHER, THESE THREE TYPES OF WORKPLACE DISPUTES ACCOUNT FOR ABOUT 90% OF ALL WORKPLACE DISPUTES, SO THAT IS WHERE MOST ADR EFFORTS HAVE BEEN DIRECTED.  

## Average Number of Days for Closure of EEO Complaints FY 07

**ADR resolves complaints in much less time than other closure methods.**

- Source: EEOC Form 462

**Notes:**
HERE’S ANOTHER DEPICTION OF THE EFFICIENCIES ACHIEVED BY TARGETING CASES FOR RESOLUTION AT THE INFORMAL STAGE.  
KEEP IN MIND THE VAST MAJORITY OF COMPLAINANTS IN THESE CASES ARE CURRENT EMLOYEES WHO REMAIN ON THE JOB WHILE THEIR CASES ARE PENDING.  SO LETTING CASES DRAG ON NOT ONLY MEANS GREATER COSTS AND DRAIN ON RESOURCES, IT ALSO MEANS CONTINUING DISTRACTIONS, REDUCED PRODUCTIVITY, AND LOWER MORALE (NOT JUST THE COMPLAINANT’S BUT CO-WORKERS TOO).

SO EVEN IF AN EEO CASE IS TECHNICALLY DEFENSIBLE BECAUSE DISCRIMINATION IS NOT MADE OUT, IT’S OFTEN IN OUR BEST INTEREST TO ATTEMPT RESOLUTION EARLY ON, IN A FORUM THAT PROMOTES LOOKING AT ALL THE UNDERLYING ISSUES, NOT JUST THE LEGAL ONES, AND TRYING TO RESOLVE THEM.

## ADR Customer Satisfaction (FY07)

## Questions & Discussion