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# Alternative Dispute Resolution

# Alternative Dispute Resolution

In October 1996, the Administrative Dispute Resolution Act was reauthorized. The Administrative Dispute Resolution Act and Department of Defense (DoD) Directive 5145.5 requires DLA to establish the capability to handle disputes using ADR processes, and encouraged DLA to expand the use of ADR.

DLA's EEO and General Counsel offices champion DLA’s formal ADR program, known as RESOLVE, to provide mediation as an option to EEO claimants. RESOLVE encourages maximum use of mediation as the preferred EEO dispute resolution technique, and offers employees efficient and fair resolution of EEO complaints.

Video: Crucial Conversation: Tools for Talking when Stakes are High (DoD Customers Only) **

## Questions about EEO's ADR

                            - What is mediation?
                            - How does RESOLVE work?
                            - Why should you consider participating in mediation?
                            - At what point in the complaint process is it best to request mediation?
                            - Are all issue(s) eligible for mediation?
                            - What happens if management does not comply with the resolution reached in mediation?
                            - What are the similarities between mediation and EEO counseling?
                            - What are the differences between mediation and EEO counseling?

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### What is mediation?

Mediation is one of many voluntary dispute resolution techniques collectively called Alternative Dispute Resolution or ADR. In mediation, a neutral third-party assists the opposing parties to reach a voluntary, negotiated resolution to a charge of discrimination. Mediation gives the parties the opportunity to discuss the dispute, clear up misunderstandings, determine the underlying interests or concerns, find areas of agreement and, ultimately, to incorporate those areas of agreements into solutions in the form of a settlement agreement. A mediator does not impose a decision on the parties. Instead, the mediator helps the parties to agree on a mutually acceptable resolution.

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### How does ADR work?

After contacting your DLA EEO office to request counseling, an EEO staff member may offer you the option of mediating your issue(s) using mediation instead of EEO counseling. It is your choice. If you elect mediation, management will identify the management official who will participate in the mediation with you and the mediator. The management official attending the mediation session will have knowledge of the dispute and be authorized to resolve it. Either party may have an attorney or other representation but it is not mandatory. Every effort will be made to schedule your mediation within two to three weeks from the date of your election to mediate.

The process starts with the mediator explaining how mediation works and answering your questions. During the mediation session, the mediator guides a discussion between you and the designated management official. If mediation is successful, the terms agreed to are written down in a settlement agreement that is binding on all parties. If mediation is unsuccessful, you are given the right to file a formal complaint of discrimination.

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### Why should you consider participating in mediation?

                            - Fair and Neutral  - You and the designated management official have equal say in the process and both of you - not the mediator - decide the terms of the settlement. Guilt or innocence is not determined.    
                            - Saves Time  - Coordinating all parties' schedules usually takes longer than mediation. Many mediations are completed in one meeting. Legal or other representation is optional but not required.    
                            - Confidential  - All parties sign a confidentiality agreement. Discussion that takes place during mediation will not be revealed to anyone. After the mediation is over, the mediator destroys all of the discussion notes if there are any.    
                            - Avoids Lengthy Litigation  - It takes 30 to 90 calendar days for counseling at the pre-complaint level and more than a year to have a formal complaint processed and the outcome at both stages of the complaint process is uncertain. Mediation is quick and the outcome is a settlement agreement or the right to file a formal complaint.    
                            - Fosters Cooperation  - Mediation fosters a problem-solving approach to disputes, which enables the parties involved to use the techniques learned to reduce future workplace disruptions. Pre-complaint counseling and formal complaint investigations gather facts but the underlying problems may remain because they are not discussed.    
                            - Improves Communications  - Mediation provides a neutral and confidential setting where both parties can openly and confidentially discuss their views on the underlying dispute. Parties share information, which can lead to a better understanding of each other's perspectives and mutually satisfactory resolutions.    
                            - Design Your Own Solution  - A mediator assists you and the designated management official in voluntarily reaching a mutually beneficial resolution. Mediation can resolve all underlying issues important to the parties, not just the legal dispute.

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### At what point in the complaint process is it best to request mediation?

The earlier mediation takes place in the complaint process the higher the probability that settlement can be reached. The pre-complaint stage of the EEO complaint is the ideal time for mediation. Parties are not focused on the related facts only. They are more willing to discuss underlying perceptions, too.

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### Are all issue(s) eligible for mediation?

Although most issue(s) can be mediated there are a few that are not appropriate for mediation. Since DLA wants to mediate in good-faith, the DLA EEO Manager will evaluate your issue(s) to determine whether mediation is appropriate. Factors such as the nature of the issue(s), the relationship of the parties, and the relief you seek are considered.

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### What happens if management does not comply with the resolution reached in mediation?

Any resolution reached during mediation is documented in the form of a settlement agreement, which is a written contract between you and DLA. The settlement agreement is signed by you and the designated management official. This contract explains your rights in detail if DLA does not comply with what it agreed to do. If you believe DLA has not complied with the terms of settlement agreement, which is called a breach, you will need to contact the DLA EEO Director who will assign an EEO Specialist to investigate the allegation of breach to determine if the agreement was breached.

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### What are the similarities between mediation and EEO counseling?

Mediation and counseling ideally should be completed within 30 calendar days but cannot exceed 90 calendar days. Mediation however is usually completed in less time. With mediation and counseling, resolution takes the form of a settlement agreement signed by all parties that is legally binding. Whether you elect mediation or counseling, your right to file a formal complaint is guaranteed if resolution is not reached.

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### What are the differences between mediation and EEO counseling?

With mediation, witnesses are not called. It is just you and the designated management official working with a neutral mediator, who is experienced in resolving disputes. The mediator facilitates a discussion to find solutions to the dispute between you and the designated management official. With counseling, the EEO Counselor gathers the facts from you and other witnesses individually then shares what they found with you and management individually, to see if the dispute can be resolved. There is a high success rate with mediation; most disputes are resolved. There is a low success rate with counseling; most disputes are not resolved. Complainants who are not satisfied with the information found out during the EEO Counselor's inquiry may file a formal complaint. With mediation, a settlement agreement is crafted by the parties involved in the mediation. With counseling, a third party crafts the agreement.

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