FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW

SUITE 520N

WASHINGTON, DC 20004-1710

EQUAL EMPLOYMENT OPPORTUNITY ALTERNATIVE DISPUTE RESOLUTION 

PROGRAM

PURPOSE

The Federal Mine Safety and Health Review Commission’s (FMSHRC) Equal 

Employment Opportunity (EEO) Alternative Dispute Resolution (ADR) program provides an 

alternative procedure for resolving allegations of discrimination based on race, color, religion, 

sex, pregnancy, national origin, political affiliation, sexual orientation, gender identity, marital 

status, disability, genetic information, age, membership in an employee organization, or other 

non-merit factor. The ADR program is an early and expeditious means of conflict resolution, 

which retains the legal and administrative due process rights of the parties involved.

SCOPE

This program applies to any FMSHRC employee and applicant for employment (the 

aggrieved person).

FMSHRC reserves the right to determine that an aggrieved person’s complaint may not 

be appropriate or feasible for ADR, such as in cases in which there is a need to establish policies 

or precedents, where resolution of a dispute would have a significant effect on non-parties, where 

a full public record is important, where FMSHRC must maintain continuing jurisdiction over a 

matter, or where it would otherwise be inappropriate. However, FMSHRC will not decline to 

offer ADR because of the basis (e.g., sex, race, etc.) of the aggrieved person’s claim. 

ADR PROGRAM PROCEDURES AND TIMETABLES

ADR TECHNIQUE

The ADR program is a non-adversarial process that may be used to address an aggrieved 

person’s EEO complaint through the use of a trained mediator. The mediator is an impartial and 

neutral third party, who assists the parties to voluntarily reach an acceptable resolution of the 

issues in dispute. An aggrieved person may elect mediation during the informal complaint 

process or the formal complaint process prior to a hearing by an Equal Employment Opportunity 

Commission (EEOC) Administrative Judge.

Where FMSHRC offers ADR as a means of resolving an EEO dispute, the aggrieved 

person’s election of ADR is voluntary and does not waive any of his or her rights within the 

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traditional EEO process, including the right to a hearing or a final FMSHRC decision. At any 

time prior to the resolution of the dispute, the aggrieved person is free to end the ADR process 

and retains the right to proceed through the administrative EEO process.

INFORMAL COMPLAINT PROCESS

Prior to filing a complaint, the aggrieved person must contact the EEO Director within 45 

calendar days of the matter alleged to be discriminatory. The EEO Director will arrange for an 

EEO Counselor to be provided. The EEO Counselor will immediately initiate an informal 

inquiry to identify the issues in the dispute and the aggrieved person’s requested relief, advise the 

aggrieved person of his or her rights, and offer the option of using FMSHRC’s ADR program. 

The aggrieved person must sign the ADR Election Form (Attachment 1) indicating whether he or 

she will elect ADR or the traditional EEO counseling program.

If the aggrieved person chooses the informal counseling process, the EEO counselor shall 

proceed with counseling pursuant to the procedures explained in FMSHRC’s memorandum 

entitled “EEO Discrimination Complaint Process” posted on FMSHRC’s bulletin board and on 

its website www.fmshrc.gov.

When the ADR process is invoked, the aggrieved person must agree to extend the 

informal counseling process for an additional 60 calendar days; however, the total time for the 

informal process, including counseling and mediation, shall not exceed 90 calendar days from the 

day of initial contact with the EEO counselor.

FORMAL COMPLAINT PROCESS

An aggrieved person may request mediation during the formal complaint process prior to 

a hearing by an Administrative Judge. FMSHRC is required to investigate a formal complaint 

within 180 calendar days; however, if the aggrieved person elects mediation, this time period 

may be extended by agreement for an additional 90 days.

MEDIATION PROCESS

After the aggrieved person elects to pursue his or her claim through mediation, the EEO 

Counselor will prepare a Mediation Intake Report (Attachment 2) and immediately forward both 

the ADR Election Form and the Intake Form to the EEO Director. Upon a determination that the 

aggrieved person’s claim is appropriate for mediation, the EEO Director shall secure a mediator 

and make necessary logistical arrangements, including special accommodations, such as 

interpreters, auxiliary aids, etc., if necessary. The mediator will contact the parties to arrange a 

mediation.

FMSHRC will designate an employee to participate in the mediation, who will have the 

authority, after consultation with appropriate FMSHRC officials, to resolve the dispute by 

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entering into a settlement agreement with the aggrieved person. The mediator, the aggrieved 

person, and the designated employee are the only persons required to be at the ADR session. The 

aggrieved person and the management official also have the right to have a representative 

present.

The mediator is not a judge or an arbitrator and has no power to make a decision; instead 

he or she tries to help the parties work together to creatively resolve the claim, by suggesting 

possible resolutions to the parties; but the resolution reached must be achieved by the parties 

themselves. The mediator is subject to the following requirements:

• The mediator is required to have sufficient training as is generally recognized in 

the dispute resolution profession and must have knowledge of EEO law.

• A mediator shall have no official, financial, or personal conflict of interest with 

respect to the issues in controversy.

• The mediator shall advise parties of the ADR process, rules of confidentiality, and 

the terms of mediation.

• Any information submitted to the mediator during the mediation is for settlement 

purposes only, and any notes taken by the mediator are destroyed after written 

settlement has been reached.

• Neither the EEO counselor nor the EEO Director will serve as the mediator in the 

ADR process.

The mediator is responsible for ensuring that any agreements be reduced to writing and 

signed by the parties, which, upon execution, shall be final and binding. Written agreements 

reached as a result of mediation shall be forwarded by the mediator to the EEO Director for 

distribution to the appropriate parties. The mediator will follow up to assess compliance with 

written agreements within 30 calendar days of execution by the parties. If all the actions 

stipulated in the agreement have not been fulfilled at that time, the mediator shall forward the 

issue to the EEO Director, who shall advise the aggrieved person of all available options. The 

EEOC has enforcement authority over the settlement agreement.

When it becomes apparent that continued efforts to resolve the matter through ADR will 

be unsuccessful or if the dispute is not resolved within 90 calendar days, the mediator will 

terminate mediation and notify the EEO Director. A written Notice of Termination of Mediation 

shall be prepared by the mediator and provided to the parties and the EEO Director. If the 

termination of mediation occurs prior to the filing of a formal complaint, the EEO Counselor will 

then conduct a final interview, advise the aggrieved person of the right to file a complaint 

regarding the matter(s) raised, and issue a Notice of Right to File. The aggrieved person may 

then continue with the EEO administrative process and file a formal complaint.

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CONFIDENTIALITY

FMSHRC and its management officials are required to maintain the confidentiality of 

ADR. Nothing said or done, by either party, during the ADR process can be the subject of any 

future EEO complaints. The mediator presiding over the mediation cannot testify in later 

proceedings involving the aggrieved person’s claim(s).

RESPONSIBILITIES OF ALL FMSHRC STAFF AND APPLICANTS

All FMSHRC staff and applicants for employment are required to comply with the terms 

of the ADR program, and cooperate in good faith with the terms set forth at the beginning of 

mediation.

RECORDKEEPING

A copy of the settlement agreement will be provided to the EEO Director and retained for 

one year or until the EEO Director is certain that the agreement has been fully implemented, 

whichever is later. 

Pursuant to the EEOC’s authority to collect Federal complaints processing data, 

FMSHRC will maintain a record of ADR activity for annual reporting to the EEOC no later than 

October 31 of each year on EEOC Form 462.

AUTHORITY AND REFERENCES

Civil Rights Act of 1964, as amended

Civil Rights Act of 1991

Age Discrimination in Employment Act of 1967

Rehabilitation Act of 1973

Equal Pay Act of 1963

29 C.F.R. Part 1614

Administrative Dispute Resolution Act of 1990

EEOC Management Directives (MD) 110 and 715

www.eeoc.gov/federal/adr/index.html

Genetic Nondiscrimination Act of 2008 (GINA)

January 24, 2012

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ATTACHMENT 1

MEMORANDUM

To: ____________________________________________

From: ____________________________________________

EEO Counselor

Subject: Alternative Dispute Resolution (ADR) Election Form

On ____________________________, we initially spoke regarding allegation(s) of 

discrimination. Specifically, you alleged that ________________________________

___________________________________________________________________________

___________________________________________________________________________

As an employee of, or applicant for employment with, the Federal Mine Safety and 

Health Review Commission (FMSHRC), you have been advised that you may seek resolution of 

these matters using alternative dispute resolution (ADR) techniques. Mediation is the ADR 

technique that FMSHRC will make available to resolve discrimination complaints that the 

agency determines are appropriate for ADR. If you would like your concerns to be considered 

for mediation, please be advised that:

• Your decision to enter mediation is voluntary. Your request for mediation will be 

reviewed and, if accepted for mediation by the EEO Director, will be scheduled and 

completed within ninety (90) calendar days from the date of your initial contact with me.

• All discussions during mediation sessions are confidential.

• Statements made in settlement negotiations may not be used as evidence should you elect 

to file a formal discrimination complaint.

• Requests for accommodation to facilitate communication during mediation (e.g. auxiliary 

aids, interpreters, etc.) should be conveyed when mediation is requested.

• You are entitled to a representative of your choosing throughout the mediation process.

• When you and the management official reach a settlement agreement during mediation, 

the agreement will be put in writing by the mediator and is final and binding. 

You may choose to withdraw from mediation any time before an agreement is reached 

and may resume the EEO process. You will retain the right to file a formal complaint on those 

issues of discrimination raised with me that are not resolved during ADR. You will be issued a 

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Notice of Right to File and will have 15 calendar days from receipt of the notice to file a formal 

complaint.

ELECTION:

I elect _______. I do not elect ______ to use the ADR program.

_________________________________ ______________________

Employee/Applicant’s Signature Date 

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ATTACHMENT 2

MEDIATION INTAKE REPORT

To be completed by the EEO Counselor

Name of Aggrieved Person: ______________________________________________

Agency and Division/Unit: ______________________________________________

Office Telephone: ______________________________________________

Date of Contact: ______________________________________________

Summary of Issues: ______________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

Prepared by:

_____________________________________ ______________________

EEO Counselor Date 

_____________________________________ ______________________

Agency Telephone Number 

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