The Good, Bad & Ugly of ADR The Workplace Disputes Section offered a Track 1- interactive training program on Thursday, July 22, 1999 from 9 until 11 a.m. Eighteen federal sector employees from a variety of different agencies attended this program. The goals of the program were to offer participants an opportunity to discuss common program pitfalls and problem cases with experienced mediators. Participants had an opportunity to strengthen their ability to manage incidents of unethical practice.

Don Greenstein, Attorney, ADR Team at the Law Department, U.S. Postal Service introduced and facilitated the program. Don explained the panelists' definition of "good" -- Positive ADR experiences; "bad" - Unethical ADR practices; and "ugly" -- ADR Practices that are in a gray area, less than fully defined or clear.

The groups entered into a roundtable discussion regarding the attendees' own good, bad and ugly ADR experiences. The following issues and considerations for potential solutions were discussed:

1) Abuse of Process by Management. A mediation where management appears to listen to employee solely to get free discovery and refuses to negotiate in good faith.

In designing a program, create an intake office to help parties understand the process.

The mediator should talk to parties prior to mediation and prepare all participants to negotiate in good faith.

Buy-in is essential from Senior Management, with education for mid-level and senior managers about use of mediation for workplace disputes.

Indicate to management and employees that mediation is voluntary - but good faith negotiations are necessary.

Don't assume that management's attitude is bad faith. It could be a fear of speaking openly. It could also be a fear of setting a precedent. Good faith mediation is better served when both managers and employees understand the voluntariness of the process and the workplace benefits of good faith, cooperative approaches to the problems that arise in the workplace.

2) Mediation with Representatives Present. A mediation where a Union Representative or an attorney is present and will not let the party actively participate in the process.

A mediator must help the party and representative identify problems and issues. This can be done in caucus.

It helps to explain the process to representative and ask their cooperation in supporting the party to speak for him/herself.

A mediator can urge the representative to allow the parties to control the outcome, while supporting the party they represent. Tactfully remind attorneys to allow clients to make settlement decisions for themselves.

If the union is strongly involved in the agency, the design of the ADR process should appropriately include them and consider union contract provisions and their effect on mediation.

3) Should management be compelled to participate in EEO Mediations.

The debate about whether or not to compel management to appear in EEO mediations is similar to an older debate about whether or not courts should mandate the parties' attendance at a mediation session. The most important concept to keep in mind is that even if management is compelled to appear they cannot be compelled to settle. Mandatory appearance is not synonymous with mandatory settlement.

Programs should include this in their education materials for management and employees.

Programs, whether they have voluntary or mandatory participation, should be marketed through brochures, meetings, training, videos, and brown bag lunches.

Many federal agencies have developed useful marketing tools, including videos. One of the benefits of the Interagency Workgroups is the opportunity to network with other ADR and mediation programs

4) Confidentiality. Should a mediator report back to a mediation program coordinator what happened during the mediation?

The Administrative Dispute Resolution Act says that the conversations in a mediation are confidential and cannot be reported to the program coordinator. The ADRA may not always apply however. Participants in a mediation should consider "opt-out" language in the Agreement to Mediate.

What can the mediator disclose? The ADRA prohibits voluntary disclosure with certain exceptions, including matters with all parties' approval, issues that the mediator is compelled by law to disclose (e.g., child abuse), a court order, or manifest injustice.

What can the Parties disclose? Similarly, the parties are also bound not to disclose what happens during a mediation. While this is an important protection, it is much harder to enforce.

What should the mediator do if he or she is questioned by management after the mediation? This is a particularly difficult question a) if the mediator works for the agency; and b) if there are certain issues related to an agreement which need to go to higher authorities in the agency to confirm the agreement or make it viable. If the mediator works for the agency, he or she is obligated to protect the confidentiality of the mediation session, unless an issue of fraud or abuse arises that would fall under the obligations the mediator has, as a federal employee, to report. Written agreements are not confidential under the ADRA. However, it is always good practice for the mediator and the parties to discuss who might need to see the agreement and to agree, as an exception to confidentiality, that these people may be shown the agreement.

6) Confidentiality: Separate Caucus.

A mediator cannot share any confidential information offered during separate sessions without the express consent of party. Sometimes this creates a dilemma for the mediator, as he or she may believe it is a breach of impartiality or the appearance of impartiality to have information from one party that is not being revealed to the other. One of the roles of a mediator is to manage information. Another is to maintain the fairness of the process. It is difficult for a mediator to do both, particularly when, as the result of meeting separately with the parties, he or she has information which would affect the outcome if known to the other side. The panelists acknowledged that this is a difficult dilemma for mediators. Each stated that good judgment and basic fairness can guide the mediator. Ms. Filner added that she uses the "informed consumer" standard to guide her (e.g., does this consumer have the information necessary to make an informed decision).

Charles Pou, Jr. is a partner in the new dispute resolution firm of Harter & Pou. For over ten years, Pou directed the dispute resolution program at the Administrative Conference of the United States, where he was a principal draftsman of the Administrative Dispute Resolution Acts of 1990 and 1996 and headed a team carrying out the Conference's lead responsibility within the federal government for ensuring agencies' implementation of consensus-based decision-making methods. He has worked with many agencies in setting up new conflict resolution programs, served as a mediator of public policy and other government and private disputes, and published numerous articles on dispute resolution and administrative law issues. A cum laude graduate from Rice University and from Harvard Law School, Pou was recognized by the Washington, DC Chapter of SPIDR in 1995 with its annual award for Outstanding Contribution to Improved Dispute Resolution.

Judith Filner is a former program director at the National Institute for Dispute Resolution. Before leaving the Institute in May, 1997 she managed the Institute's Youth, Courts, Higher Education and Innovation Fund programs. She is currently in private practice, mediating, training and consulting in the implementation of mediation programs. Ms. Filner serves on the Education Committee of the Maryland ADR Commission, teaches Conflict Management in the Workplace at American University, and consults with the United States Postal Service's ADR Team. She is the Director of the Academy of Family Mediator's Voluntary Mediator Certification Project and serves on the Certification Work Group of SPIDR's 3CQ.

Ms. Filner earned her J.D. (cum laude) from Howard University School of Law and a B.A. from Oberlin College, Oberlin, Ohio. She is a member of the District of Columbia and Maryland Bar Associations, the Society of Professionals In Dispute Resolution, and the Academy of Family Mediators.

Handouts for the program included:1) ABA, SPIDR & AAA Model Standards of Practice for Mediators, and

2) Article: Ten Things You Should Know About The Confidentiality Provisions of the ADRA of 1996, by Diane R. Liff, Esq., Special Counsel FHWA, US, DOT 7/1/99.