Q. What is mediation?
A. In mediation, a neutral third party helps two parties to a conflict hear, sort through, and understand each other's issues. A mediator does not favor either "side" or position. The mediation process usually helps the parties themselves devise a solution (or settlement) that both can agree to. Mediation is thus not fault-finding: it does not result in a "winner" and "loser," but aims for a win-win solution. And, unlike a hearing, trial, or arbitration, the settlement is shaped by the parties, not imposed on them.
Q. Why would I want to have my complaint mediated?
A. Many people come to mediation because it provides them a chance to be heard, a chance to talk the problem through in a safe, confidential environment, a chance to resolve the problem quickly, before everyone becomes exhausted and resentful, and the assurance that the solution that comes from the process will either be acceptable (because they helped make it) or they can go back to the complaint process.
Q. If I have agree to mediation, do I lose my chance to go to court?
A. Not if you and the second party fail to reach a mutually acceptable solution through mediation. If mediation does not produce a settlement with which you both are satisfied and which both are willing to sign, you may file a formal complaint and follow that process to its conclusion as you would have without mediation. Mediation is merely an alternative procedure to the EEO Counselor's informal resolution process under 29 CFR 1614 . Both processes are initiated with a complaint and, if they are not resolved (through either informal resolution or mediation), both end up with the right to file a formal complaint under 29 CFR 1614 .
Q. Who will be the mediator on my case? Could it be my EEO counselor?
A. No. Your mediator must be someone with no previous knowledge of the situation. Your mediator will be selected from a list DCR maintains of trained and experienced mediators. Though most of the mediators DCR uses are DOL employees, care will be taken to ensure that your case is not mediated by someone in your organization, though mediators are professionally neutral, no matter who employs them. And like your counselor, your mediator will keep your case confidential.
Q. What is the difference between mediation and my EEO counselor's attempts at informal resolution of the complaint under 29 CFR 1614 ?
A. The kind of "shuttle diplomacy" that an EEO counselor necessarily practices during the informal complaint period may lack the incentive to both parties that the mediation process provides. In mediation, the parties have an early opportunity to hear and understand each other's issues. In particular, mediation focuses the agency (as represented by the settlement official) on the seriousness of the complainant's allegations early in the process. Further, the settlement official present in the mediation sessions is authorized to settle.
Q. When does the investigation or factfinding take place in mediation? Who does it? Will I get a copy of the report?
A. Some preliminary factfinding is done by your EEO counselor, but most information needed is presented by you and the second party and/or settlement official in the mediation session. Extensive factfinding is not necessary in mediation, because there is no finding to be made; no one is found right or wrong. Mediation is an opportunity for two parties to hear each other and reach their own balance.
You will be given a copy of every document you sign in the EREC process, but bear in mind that nothing said in the mediation may be used outside of the mediation, in this or in any further cases. Nor can you subpoena the mediator as a witness. The success of the mediation process relies in large part on its confidentiality.
Q. What kind of problem can I take to mediation? Are there issues that are not appropriate for mediation?
A. Since participation in EREC is at the complainant's option, most issues a complainant might bring are possible subjects of mediation. However, in rare cases the EREC Team may reject a case for mediation. During the pilot, for instance, a case could not be mediated because it involved a reduction- in-force action.
In any case, in the rare event that a complainant requests mediation but the issues are deemed unsuitable for mediation, he or she will be given a final interview letter and the opportunity to pursue the issues in a formal complaint.
Q. Can I bring just part of my complaint to mediation?
A. Yes, but it makes more sense to bring all of your issues to mediation if you elect mediation. If you bring your issues to mediation one or two at a time, you lose the advantage of mediation as an option that brings early resolution of your complaint. If mediation does not resolve all of the issues you raise, you may bring those unresolved issues in a formal complaint when the Notice of Final Interview letter is issued at the conclusion of the mediation.
Q. What happens if the matter in the EEO complaint is also the subject of a grievance?
A. If the matter is resolved through EREC mediation, then the settlement agreement must be signed by an authorized union official in order to resolve the grievance.
Q. Will I be giving up monetary damages if I go to mediation?
A. Not necessarily. Settlement agreements may, as appropriate, provide results with monetary value, such as training opportunities, back pay, step increases or awards, certain expenses, etc. However, it is unlikely that compensation for such things as "emotional distress" would be awarded as a result of mediation.
Q. May I bring a representative to the mediation?
A. Yes. You may be represented just as you would in an ordinary complaint investigation. However, most people find the mediation process most effective when they speak for themselves in the mediation sessions, though their representative may be present for guidance and support.
Q. Is my supervisor going to be at the mediation?
A. If your supervisor is part of the complaint, your mediator may decide that your supervisor is necessary for its resolution. Mediation is an opportunity for you to be heard. If your supervisor is to be part of the solution, it may be important for him or her to be present in order to hear and understand your issues and how the resolution came about. However, most mediators we know mediate with just the complainant and the settlement official as participants.
Even if your supervisor is at the mediation, a higher level "settlement official," who has the authority to settle the case on behalf of your agency, will also be there. And the mediator will be there to make sure the procedure is fair to all parties.
Q. What about reprisal?
A. EREC is part of the EEO complaint process. You may not be discriminated against for bringing a complaint for resolution through the EREC process any more than you could be for bringing a complaint through the traditional process.
Information shared in the mediation sessions is confidential. If your employer is not present at the mediation, he or she does not have access to any information revealed in the process. And neither of you, if your employer is present, may use such information in subsequent procedures, if there are any.
Q. How long does mediation take?
A. Though each component step in the EREC process can be completed fairly quickly (pre-mediation factfinding is scheduled to take 7 days; the mediation sessions themselves, 12 days), arranging to get people togetherfor factfinding interviews, the EREC team meeting, or mediation itself, particularly in the regionscan take considerable additional time.
The EREC process was designed to be completed in 45 days or less, from the time the complainant agrees to mediation to the signing of the agreement. In FY96, the average time has been closer to 60 days, to accommodate schedule conflicts and vacation, travel time (particularly in regional cases), and furlough. With experience from the pilot, we expect to be able to substantially reduce EREC processing time in FY97.
The standard complaint process, on the other hand, might take another 68 months, because it allows 180 days beyond informal counseling to investigate your complaint and permits another 60 days beyond that for a final decision by DOL or longer, if you request an EEOC hearing.
Q. What happens if my agency violates the settlement agreement?
A. A settlement agreement reached through mediation and signed by the parties is as binding as one reached as the result of a formal complaint investigation. The Directorate of Civil Rights (DCR) will enforce it.
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