*The U.S. Equal Employment Opportunity Commission*

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# Federal Sector Alternative Dispute Resolution Fact Sheet

The use of alternative dispute resolution (ADR)techniques by federal agencies has increased dramatically in the equalemployment opportunity (EEO)process.  In 1998, the Equal Employment Opportunity Commission's ADRStudy of Federal Sector EEO ADR Programs reported that more than half ofthe federal agencies surveyed had active ADR programs.  As of January 1,2000, all federal agencies were required to establish or make available anADR program during the pre-complaint and formal complaint stages of theEEO process.   See 29 C.F.R. 1614.102(b)(2).  In order to build on thesuccess of ADR programs in the federal sector, it is vital for complainants andmanagement officials to understand and participate in the ADR process.

What is ADR?

ADR generally refers to a continuum of processes and approaches that aredesigned to resolve disputes in a manner which avoids the cost, delay, andunpredictability of more traditional adversarial and adjudicatory processes,such as, litigation, hearings, and appeals.  Numerous types of ADR techniquesexist, including mediation, facilitation, fact finding, early neutralevaluation, the use of an Ombudsman, settlement conferences, minitrials, andpeer review. Chapter 3 of the EEOManagement Directive (MD)-110 provides a detailed description of each ofthese techniques.

Every agency has the discretion to create its own unique ADR program thatis best suited for their particular office environment.  Mediation has been themost popular form of ADR offered by federal agencies in the EEO process.Over 87 percent of the agencies who responded to EEOC's1998 ADR survey stated that mediation is their primary ADR technique.  TheEEOC has encouraged federal agencies to experiment with other forms ofADR, including a combination of ADR techniques.  Many agencies haveestablished pilot programs to decrease the processing time of EEO complaintsand improve the overall satisfaction of the participants. 

Why is ADR beneficial?

Agencies and complainants have realized that utilizing ADR during the EEOprocess has many advantages.  ADR offers the parties the opportunity for anearly, informal resolution of disputes in a mutually-satisfactory fashion.Rather than receiving a decision from an unknown third party, such as anadministrative judge, the parties have the opportunity to write their ownagreement in a manner which satisfies both of their needs.  Not only doesADR provide a Win-Win resolution for the parties, but it also usually costsless and uses fewer resources than traditional administrative or adjudicativeprocesses.  For example, complainants could avoid costly attorney's fees andthe agency could minimize the use of investigators, legal staff, official time,and court reporter fees.  Moreover, since the parties are using ADR during theearliest stages of the EEO process, a resolution will avoid numerous years oflitigation in administrative and court proceedings.  As a result, thecomplainant's  working relationship can improve rather than deteriorate dueto ongoing legal battles, and the overall employee morale can be enhancedwhen the agency is viewed as open-minded and cooperative in seeking toresolve EEO disputes.

How does the ADR process work?

The revised regulations do not require federal agencies to conduct ADR inevery EEO case; rather, agencies have the discretion as to which EEO casesare offered ADR.  Complainants may not file a new complaint based on theagency's refusal to offer ADR in their particular case.

If the agency offers ADR during the pre-complaint, or the informal, stage ofthe EEO process, the complainant may choose between participating in theADR program or the traditional EEO counseling activities.  Once thecomplainant elects to participate in the ADR program, all EEO counselingactivities will end.  It is also important to note that electing ADR increases theEEO pre-complaint processing period from 30 to 90 days.  In the event thatthe matter concludes without resolution after 90 days, the agency will conducta final interview, and issue a notice of right to file a formal complaint to thecomplainant.

If the complainant files a complaint, the agency may also choose to offer ADRduring the formal complaint stage.  The 180-day processing period for theformal complaint stage may be increased by an additional 90 days in order toconduct ADR, if the parties agree to do so in writing.

The revised regulations have established certain core principles which must beincorporated into every federal sector ADR program.  The overridingrequirement is that the ADR program is fair.  Fairness requires voluntariness,neutrality, confidentiality, and enforceability.

- Voluntariness means that the parties (in this context, the          complainant and the agency) knowingly and willingly enter into an          ADR proceeding and that they have the opportunity to end the          proceeding at any time.  In this regard, once the ADR proceeding          ends, complainants may re-enter the traditional EEO complaint          process in order to pursue their claim.  Moreover, any agreements          between the parties must have been reached without coercion or          duress.
- Neutrality means that the ADR proceeding is impartial and          independent of control by either party.  A neutral third party who          assists the parties in reaching an agreement must not have any          stake in the outcome of the proceeding.
- Confidentiality of the ADR proceedings must be maintained by the          parties and the neutral third party.  This means that information          concerning the underlying facts of an ADR proceeding and          records generated as part of that proceeding may not be made part          of the EEO complaint record.  The Alternative Dispute Resolution          Act of 1996, 5 U.S.C. § 574, provides that neutrals in ADR          proceedings may not voluntarily disclose or be required to disclose          dispute resolution communications, with certain statutory          exceptions.  For additional information regarding confidentiality,          please consult with the guidance developed by the Department of          Justice Interagency Alternative Dispute Resolution Working Group          at  http://www.usdoj.gov/adr/.
- In order to have an enforceable settlement agreement, the          agreement must be in writing and signed by both parties.  The          revised regulations at 29 C.F.R. . 1614.504 set forth specific          procedures by which the EEOC enforces all settlement          agreements.

Nothing said or done during attempts to resolve the matter through ADRproceedings may be made the subject of an EEO complaint.  All concerns withthe operation of the agency's ADR program should be resolved by contactingthe administrator of the ADR program.   If the agency's ADR programappears to conflict with the EEOC's complaint processing regulations and theMD-110, individuals may write to:

Director of Special Services StaffU.S. Equal Employment Opportunity Commission Office of Federal Operations P.O. Box 77960 Washington, DC 20013

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*This page was last modified on December 12, 2008.*

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