The Federal ADR Feeding Frenzy: Managers May Get Caught Up In It and Not Always be Prepared to Represent the Agency’s Best Interests

There has been an explosion in the use of alternative dispute resolution (ADR) in the federal sector. Is using ADR always a good idea? What pitfalls should a federal manager be aware of before starting the process? The author provides a succinct list of problems in the ADR process and how to avoid them.

Over the last decade, the Federal service has seen an explosion of Alternate Dispute Resolution (ADR). Whether in grievances, discrimination, adverse action, or unfair labor practice, or virtually any difference of opinion, ADR mediators, advocates, coordinators and program managers are the vogue. In the headlong rush to establish ADR structures, questions of their appropriateness to a given case or situation are often put aside.

I do not know who first said “kill them all and let God sort it out” but the ADR mantra appears to be a quite similar “send it to mediation and it will fall out from there.” I have encountered many supervisors and managers who tell me they are “mandated” to use mediation in discrimination cases concurrently with EEO counseling. When I asked them who would be present at these meetings, I was told that the employee, the EEO Counselor, the mediator (also likely an agency employee) and the supervisor. When I asked if these supervisors were represented or trained to deal with these meetings, they frequently said that their leadership told them to “go see if you can work this out informally, we don’t want ant more EEO complaints.” They claimed that agency counsel told them that counsel was “too busy to deal with all these informal meetings; we get involved if the case goes formal.”

Agencies Have a Responsibility to Prepare Supervisors and Managers Engaging in ADR

I do not want to pick on the EEO process alone. Other appeal and dispute processes engage in institutional management arm twisting as well. Anyone who has appeared before MSPB has felt the pressure. Interestingly enough, arbitrators don’t appear to care one way or the other but the Federal Labor Relations Authority arm twisting in ULP cases is legendary.

In this article, I’m more concerned about ADR and the line manager or supervisor. Professionals like lawyers or labor relations practitioners do it for a living and should know the ropes. Any agency that sends a supervisor or manager into dispute resolution meetings without training and guidance on how to effectively represent the agency in these processes should be ashamed. And I’m not talking about training conducted by the mediator or ADR specialist but at least a briefing that looks at the consequences of what a supervisor might say or agree to.

What Should a Manager Know Before Attending a “Mediation or Informal Dispute resolution” Meeting?

Managers who represent the Agency in these meetings should, first and foremost, have a plan. That plan should include the following:

Establish some ground rules:

  • The meeting will not be recorded in any way.
  • All the persons present are informed and agree (in writing is best) that settlement/resolution discussions may not be introduced for any purpose in a later hearing.
  • Any discussion at the meeting is limited to the specific issues identified in advance of the meeting to the parties involved.
  • The mediator/facilitator/ADR advocate or whatever they’re called agrees to referee the meeting to keep the discussion civil and on track.
  • The meeting is over whenever the supervisor or manager involved decides there is no reason to continue.

Research the processes involved

  • Get a briefing on the appeal process (EEO, grievance, ULP, etc.) from a professional agency representative such as a labor relations, employee relations professional or a lawyer.
  • Get a similar briefing on the ins and outs of the ADR process from someone who has been involved whose job it was to represent the agency.

Develop a negotiation strategy that includes:

  • What the agency may be willing to do or not do resolve the dispute
  • How the manager will open the meeting considering or regardless of what another participant may say.
  • Whether the manager’s involvement will be mostly active or passive.

Another key tip for this kind of meeting is to remember that your role is primarily as a listener.

Get the employee’s version of events, what they want and why they believe they deserve what they’re asking for. Then go do your homework. Find out whether it’s a good deal, whether it’s a legal deal or otherwise makes sense. Whatever you do, take time away from the meeting to analyze the deal and get advice from knowledgeable people before you sign up.

Is Dispute Resolution Always a Good Idea?

Are there some rules about whether to engage in dispute resolution? You bet. These rules can be classified as “always a good idea” and “never a good idea”. In some cases the rule will be “it depends”.

It’s Always a Good Idea:

• If the agency made a mistake that produced the problem and resolution is the right thing to do
• If the facts will lose at hearing
• If the deal will not set precedents nor encourage further cases
• If there’s a guaranteed result in the Agency’s interest as opposed to a coin toss at hearing
• If the costs (financial or otherwise) of going forward are out of proportion to the worth of the issue to be resolved

It’s Never a Good Idea:

• If the resolution would compromise an agency policy or undermine an important principle
• If a resolution would send a wrong or easily misinterpreted signal to employees
• If a resolution for one case is a horse trade for resolving another
• If the terms go beyond the individual involved
• If the deal exceeds the authority of the manager involved or commits other offices to requirements they were not consulted on
• If the employee involved or their representative demands a deal be signed at the meeting

It Depends:

• On the specific terms involved
• On whether the deal is in the agency’s best interest
• On whether there’s agreement within management that it’s a good deal
• On whether it’s legal, enforceable, limited in scope and generally the right thing to do.

My general advice to managers is that you can be saved from almost anybody but yourself. Be smart enough to know what you don’t know. Refuse to participate without adequate preparation. Bring a management advocate unless your system won’t allow it and in that case be 5 or 10 times as wary of the process.

As always, these are my opinions and mine alone. I’d like to hear what you have to say so email me or comment on the article.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.