Office of Enforcement

Pre-Investigation ADR Frequently Asked Questions

1 September 2012

1. What is the pre-investigation ADR program? 

The NRC’s pre-investigation program is a multifaceted program providing an 

individual and his/her employer (or former employer) the opportunity to 

resolve an allegation of discrimination through mediation rather than fully 

litigate the discrimination allegation or have the NRC initiate an investigation. 

Pre-investigation program refers both to Early ADR (where the NRC is the 

sponsor) and Licensee Sponsored ADR programs (where the employer is the 

sponsor). 

2. Is the participation in the program voluntary?

Participation in the program is entirely voluntary. Either party may withdraw 

from negotiations at any time for any reason.

3. Who administers the pre-investigation ADR program?

The pre-investigation ADR program is an umbrella term referring to NRC’s 

Early ADR and Licensees’ Sponsored ADR program. The NRC does not 

have any involvement in the Licensees’ Sponsored ADR programs. So long 

as a licensee provides a settlement agreement to the NRC prior to the 

initiation of an OI investigation, the NRC will consider the settlement 

agreement as part of the pre-investigation ADR program. The NRC’s 

involvement in Licensees’ Sponsored ADR programs is limited to reviewing 

the settlement agreement for restrictive covenants in violation of the 

applicable employee protection rule.

As for Early ADR, the NRC has a contract with Cornell University's 

Scheinman Institute on Conflict Resolution (“Cornell”) to act as the neutral 

program administrator for the Early ADR program=s day-to-day operation, 

including handling mediation process logistical matters and working with 

parties to select a mediator from Cornell’s roster of mediators. Cornell 

certifies a network of independent mediators who help the parties find ways to 

reach a common understanding and settle their disputes.

4. Who are the parties to pre-investigation ADR (Early ADR or Licensee 

Sponsored ADR)?

The parties to mediation are an individual and his/her employer (or former 

employer). The employer may be a NRC licensee, contractor to a NRC 

licensee or vendor. The NRC is not a party to the mediation.
Office of Enforcement

Pre-Investigation ADR Frequently Asked Questions

2 September 2012

5. Who pays the fees and expense of the mediator?

The NRC (through Cornell) will pay the fees and expenses of the mediator 

that the parties mutually select from a list of mediators provided by Cornell. 

Parties preferring to locate their own mediator may do so at their own 

expense. The parties are also responsible for their own expenses such as 

travel, lodging, and meeting room or attorney fees, if any. 

6. What is the scope of the pre-investigation program?

Pre-investigation ADR is limited to the resolution of allegations of 

discrimination. The resolution of technical safety concerns or other 

allegations (e.g. “chilling effect” or wrongdoing type concerns) are not within 

the scope of the program and cannot be the subject of any settlement 

agreement. To the extent an individual has a concern other than the 

allegation of discrimination, such other allegation are handled through the 

NRC’s Allegations program.

7. What is mediation?

Mediation is an informal process in which a trained neutral (the “mediator”) 

works with parties to help them reach a resolution. The mediator, who has 

no stake in the outcome and no power to make decisions, uses consensusbuilding skills and knowledge of negotiation to help parties find solutions. The 

mediator focuses the attention of the parties upon their needs and interests 

rather than on their stated positions. Mediation gives parties an opportunity to 

discuss issues, clear up misunderstandings, be creative, find areas of 

agreement, and reach a final resolution of the issues.

8. What is “Early ADR”?

Early ADR is the term commonly used to refer to the NRC’s pre-investigation 

program. In Early ADR, the NRC pays for the fees and expenses of the 

mediator that the parties select from Cornell’s roster of mediators. If the 

parties settle the allegation of discrimination, the agreement must be provided 

to the NRC for review for credit under the program. The NRC’s Office of the 

General Counsel will review the settlement agreement solely to ensure that 

the employee will not be prohibited from engaging in a protected activity. 

Provided no such prohibition exists in the settlement agreement, the NRC will 

not investigate the allegation of discrimination or take enforcement action. 
Office of Enforcement

Pre-Investigation ADR Frequently Asked Questions

3 September 2012

9. What is “Licensee Sponsored ADR”?

Licensee Sponsored ADR is one created and paid for by the licensee (the 

general reference to “licensee” includes licensee’s contractor or any other 

party who falls within the NRC’s purview). In Licensee Sponsored ADR the 

parties are not required to use mediators provided by Cornell to fall within the 

scope of the NRC’s ADR program. In fact, in a Licensee Sponsored ADR 

process, parties may or may not choose to utilize a mediator. Licensees are 

encouraged to develop dispute resolution processes internal to their 

companies that are similar to the NRC’s Early ADR program. If the parties 

settle an allegation of discrimination under any mediation process at their own 

expense and if either party provides a copy of the settlement agreement to 

the NRC prior to the initiation of an investigation by the NRC’s Office of 

Investigations, the NRC’s Office of the General Counsel will review the 

settlement agreement to ensure that the employee is not prohibited from 

engaging in a protected activity. Similar to the NRC’s Early ADR program, 

the resolution of technical safety concerns or other allegations (e.g. “chilling 

effect” or wrongdoing type concerns) may not be the subject of the settlement 

agreement. Provided no such prohibition exists in the settlement agreement, 

the NRC will not investigate the allegation of discrimination or take 

enforcement action. 

However, if a settlement agreement is provided to the NRC after the initiation 

of an investigation, the settlement agreement will not fall within the scope of 

the ADR program and will not have an impact on the continuation of the 

investigation.

If the parties don’t settle the allegation of discrimination that falls within the 

NRC’s jurisdiction, the NRC’s Office of Investigations will initiate an 

investigation into the allegation of discrimination.

10.What is the role of the mediator?

The mediator is neutral. In other words, he or she has no stake in the 

outcome of the mediation and does not have any power to make decisions 

that may bind either party. The role of the mediator is to facilitate 

communications between the parties and provide an environment where the 

parties have an opportunity to address their differences. The mediator uses 

consensus building skills and knowledge of negotiation to help the parties find 

ways to overcome any misunderstandings and reach a common 

understanding on issues. The mediator does not act as legal counsel nor 

provide legal advice to any party. Each party should consult an attorney or 
Office of Enforcement

Pre-Investigation ADR Frequently Asked Questions

4 September 2012

other professional if any question regarding the law, the content of a 

proposed agreement, or similar issues arise.

11.How does the Early ADR mediation process work?

Recognizing that each mediation is different, the process is generally as 

follows. After filing of an allegation of discrimination, the Alleger is offered the 

choice of engaging in ADR with his/her employer or having an NRC 

investigation initiated. If the Alleger elects to engage in ADR, then the 

employer is offered ADR. If the employer agrees to engage in ADR with the 

Alleger, Cornell provides a list of three mediators from which the parties 

mutually select a mediator. Once the parties agree on a mediator, the 

mediator will contact the parties to discuss the mediation process, reconfirm 

interest in proceeding, establish a date and location for the session, and 

obtain other information. 

The mediator will usually start the mediation session by calling the parties 

together to give each an opportunity to explain the issues of the conflict. 

Often, the mediator will then meet separately with each party (since they are 

likely to speak more freely in private) to understand the parties' situations

better. The mediator can ask questions that will help the parties assess the 

merits of their positions, suggest potential settlement options, float trial 

balloons, probe participants about their realistic alternatives to settling, and 

converse in an atmosphere free of name calling and posturing.

The mediator’s role may shift gradually during the session. A skilled mediator 

will initially begin to instill an atmosphere of reasonableness and build the 

parties' trust in the mediator and in their ability to work together. S/he may 

use these and later sessions to let parties "let off steam" before moving on to 

more productive talks.

The mediator will also help parties see the dispute from the other party's 

perspective, and help them generate and evaluate possible solutions. Some 

mediators explore hypothetical solutions separately with each side, helping 

them generate alternatives and explore promising options without revealing 

confidential information. S/he may seek to stimulate momentum to settle, 

narrow differences, and help parties build on areas of agreement.

Near the process’s conclusion, the mediator may help parties to draft a 

document spelling out the terms of any agreement. Even when mediation 

does not end in a written agreement resolving all of the issues, the process 

still can be useful by helping to eliminate points in dispute and improve 

parties’ communication level and understanding of their situation.
Office of Enforcement

Pre-Investigation ADR Frequently Asked Questions

5 September 2012

Many mediators operate much like an interpreter, easing communication 

between people who do not speak a common language. By listening carefully 

and shaping messages in order to transmit the views of persons with vastly 

different views and styles of persuasion, a mediator can help parties to make 

their cases in the most convincing way. For example, a mediator may listen 

to a message that is not being "heard" by a party and, without changing the 

intent, communicate it in a manner that the other understands as a positive 

suggestion and perceives to be more acceptable--in other words, reducing 

"heat" while increasing "light".

The mediator often can help the parties agree on realistic, objective standards 

(appraisals, precedents, or methodologies) by which to judge the merits of 

their claims. He or she can help the parties devise structures for reaching 

closure in the instant dispute, or future ones. Although the mediator does not 

have any binding authority, if requested by a party, the mediator can even 

preview how an administrative judge or other authority might view the 

strengths and weaknesses of a party’s position. Such a well-timed dose of 

objectivity by an "agent of reality" may help the parties to bridge their gap.

12.Who will serve as a mediator?

In Early ADR, the parties select a mediator from the Scheinman Institute on 

Conflict Resolution at Cornell University (“ICR”) list of mediators.

In Licensee Sponsored ADR, it’s up to the parties whether to use a mediator 

and if so, the source for such mediator.

13.What does Early ADR cost?

The parties are responsible for their own expenses such as travel, lodging 

and meeting room or attorney fees, if any. 

The NRC (through Cornell) will pay the fees and expenses of the mediator 

that the parties mutually select from a list of mediators provided by Cornell. 

Parties preferring to locate their own mediator may do so at their own 

expense.

14.When and where do Early ADR mediation sessions occur?

Although up to the parties, the mediation session will occur at or near the 

workplace, depending on availability and party desires. The parties are 
Office of Enforcement

Pre-Investigation ADR Frequently Asked Questions

6 September 2012

generally expected to complete the mediation within 90 days after referral,

unless the parties and the NRC agree to a brief extension.

15.How long does a mediation session last?

Most Early ADR cases will be completed in one session lasting several hours. 

Depending on the nature and complexity of the issues, some could require 

one or more additional sessions (although uncommon). 

16.Does participation in pre-investigation affect the DOL complaint 

filing requirements?

Participation in the Early ADR program or the Licensee’s Sponsored ADR 

program does not change the timeliness requirements for filing the 

discrimination complaint with any other governmental entity under any other 

law including Section 211 of the Energy Reorganization Act of 1974. 

Individuals should confer with counsel or other competent advisors or refer to 

the DOL website to ensure that they comply with all relevant DOL deadlines. 

17.Does participation in pre-investigation ADR affect the NRC 

enforcement process?

If Early ADR or a Licensee’s Sponsored ADR program is utilized to settle a 

discrimination concern, the NRC will not investigate the particular allegation of 

discrimination or take enforcement action relating to such allegation of 

discrimination so long as the NRC receives the settlement agreement prior to 

initiation of an investigation by OI and the NRC’s Office of General Counsel 

has reviewed the settlement agreement for any restrictive terms in violation of 

the applicable NRC employee protection regulation. 

18.Will the NRC investigate an alleged violation of the applicable NRC 

employee protection rule if the Alleger settles his/her allegation of 

discrimination with his/her employer?

The NRC will not investigate or take enforcement action relating to the 

specific allegation of discrimination given an acceptable settlement prior to 

the initiation of an investigation by OI.

19.What if the parties settle the allegation of discrimination after the 

initiation of an OI investigation?

If a settlement agreement is provided to the NRC after the initiation of an 

investigation, the settlement agreement will not fall within the scope of the 
Office of Enforcement

Pre-Investigation ADR Frequently Asked Questions

7 September 2012

ADR program and will not have an impact on the continuation of the 

investigation. If the allegation of discrimination is substantiated by OI and the 

staff takes enforcement action, the settlement agreement will be a factor to 

consider for severity level/imposition of civil penalty considerations. 

20.Will Early ADR be available to the parties after OI initiates its 

investigation into the allegation of discrimination?

No. Early ADR is no longer available to the parties after OI initiates its 

investigation into the allegation of discrimination. The initiation of an 

investigation is normally deemed to be the interview of the complainant after a 

prima facie complaint has been alleged (which is reflected by the complainant 

receiving an acknowledgement letter reflecting the allegation of 

discrimination). After the initiation of the OI investigation, the parties may still 

engage in settlement discussions at their own expense but such discussions 

or any subsequent settlement agreements will not terminate or suspend the 

OI investigation nor be considered as part of the Early ADR program.

21.Is the mediation process confidential? 

With limited exceptions (e.g. intent to commit violence or court order), the 

mediation process is confidential regardless of the mediation outcome. The 

mediator is prohibited from discussing the mediation proceedings, testifying 

on anyone’s behalf concerning the mediation, or submitting a report on the 

substance of the discussions.

22.When will a settlement agreement be final and enforceable?

In order to provide assurance that negotiations do not result in an agreement 

a party later regrets, for purposes of the Early ADR program, a settlement 

agreement is not final until three calendar days after the parties sign it. If the 

3rd day falls on a weekend day or a holiday, the next working day will be the 

deadline for rescinding the agreement by giving notice to the other party. 

Either party may rescind the settlement agreement during this three-day 

period. After three calendar days (except as noted above), any written 

agreement that the parties (i.e., the complainant and the licensee or the 

licensee’s contractor) reach becomes fully effective and enforceable as a 

contract. To ensure clarity, the parties are encouraged to include the 

revocation provision in the settlement agreement with the necessary notice 

procedures.
Office of Enforcement

Pre-Investigation ADR Frequently Asked Questions

8 September 2012

23.What can parties agree to do as part of a settlement agreement?

The parties may craft an agreement agreeable to them, as long as the terms 

of the agreement do not restrict or discourage the individual from engaging in 

a protected activity e.g. raising safety concerns. The parties are not 

prohibited from including SCWE corrective actions in a settlement agreement. 

24.What happens if mediation does not result in a settlement 

agreement?

If the parties fail to settle the allegation of discrimination, an Allegation Review 

Board requests that OI initiate an investigation just as it would had the parties 

not tried mediation. Accordingly, OI will initiate an investigation after which 

the parties may not reconsider Early ADR.

25.Can a party withdraw from pre-investigation ADR?

The program is entirely voluntary. Any party may withdraw at any time. No 

one can be forced to agree to anything.

26.What role do representatives play in mediation?

Parties may consult with advisors, legal counsel, or representatives at any 

time during the mediation or prior to signing any agreement.

27.What is the Department of Labor process?

The U.S. Department of Labor (DOL) has the authority to order personal 

remedies in the event an allegation of discrimination is substantiated by DOL 

(whereas the NRC does not have such authority). Unlike the NRC, the DOL 

has a 180 day deadline for filing a discrimination complaint under Section 

211 of the Energy Reorganization Act of 1974 (“Section 211”) (shorter 

deadlines for other laws pursuant to which similar complaints maybe filed). 

While participation in the Early ADR program may result in negotiation of the 

same discrimination complaint that may be filed with the DOL under Section 

211, the timeliness requirements for filing a discrimination complaint with the 

DOL is in no way altered by filing an allegation with the NRC or participating 

in the Early ADR program.

For this reason, in many instances, an Alleger files the same allegation of 

discrimination in more than forum.