MEDIATION

Applicable Law | Pleadings | Representation | Time Limits for Filing | Jurisdiction | Discovery | Burdens of Proof | Hearing | Relief | Right to Further Review | Mediation

What is the FBI Whistleblower Mediation Program?

In an effort to provide an alternative to the regulatory investigative and adjudicative processes under 28 C.F.R. part 27, the Department of Justice, through the FBI’s Office of Equal Employment Opportunity (EEO) Affairs, offers the parties to an FBI whistleblower reprisal complaint the option to resolve the dispute through mediation.  The FBI Whistleblower Mediation Program is a form of alternative dispute resolution in which the parties (Complainant (you and your designated counsel, if any) and the FBI’s Office of General Counsel) meet with a trained mediator in a non-litigious, non-adversarial setting to assist them in resolving their dispute.  Mediation is an informal, voluntary process that is unbinding unless agreement is reached by both parties.  Mediation is not a legal process based on documentation; it is a collaborative problem solving process where the goal is to improve or restore working relationships and foster better communication and is based on open communication.

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Is mediation mandatory?

You have the option to pursue mediation voluntarily.  However, if you elect the option, the FBI’s Office of General Counsel’s participation is mandated by Bureau policy.  In the event you elect mediation of your reprisal complaint, OARM must concur that it could be beneficial, given the circumstances of the case.

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Why should I consider mediation?

Mediation offers the parties an opportunity to communicate directly in a non-threatening forum.  It offers a private and confidential place to discuss issues.  Emotional involvement in a conflict can cloud one’s ability to think creatively and objectively; mediation can help parties move beyond the barriers created by those emotions.  Mediation can be healing as it offers an opportunity for participants to come together and tell each other how the conflict has personally affected them (how they feel and/or how they have been hurt).  Mediation is cost effective, expeditious, and efficient.  Formal processes are lengthy, expensive, and often have an adverse effect on the professional relationship and workplace.

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What is a mediator?

A mediator is an unbiased, neutral third party who facilitates discussions to assist parties in conflict.  A mediator is someone who is trained in mediation skills, and has no direct authority to impose a decision on the parties in conflict.

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What is the role of the mediator?

The mediator has no authority or power to render decisions.  He (or she) is merely a facilitator who is skilled at working with the parties to resolve their dispute.  The mediator is not an arbitrator or judge.  The parties dictate the outcome of the mediation, not the mediator.  The mediator will draft any agreements reached by the parties.

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Who will be the mediator assigned to handle my case?

The mediator will be an individual trained and experienced in mediation skills.  The individual may be employed by the FBI or another Department of Justice entity.

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Who will pay for the mediator?

Generally, there are no fees for hiring a mediator since the Department of Justice Mediator Corps is comprised of Department of Justice employees who are trained collateral-duty mediators.

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Who will pay for costs associated with mediation?

The FBI will cover any costs associated with obtaining a mediator.  If travel is involved, the FBI will fund travel for the FBI employee, mediators, and other FBI personnel necessary to conduct the mediation.  The FBI will also cover any costs associated with conducting the mediation at a neutral meeting space (e.g., hotel conference room) if other suitable federal space is not located.

If you are represented by counsel, any costs related to legal or other representatives’ attendance are your responsibility.

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How do I elect mediation?

If you wish to elect mediation, you shall notify OARM and the FBI in writing of your election.  If OARM agrees that mediation would be beneficial, OARM will then refer the matter to the FBI’s Office of EEO Affairs, Alternative Dispute Resolution Manager, who will assign a mediator to the case and handle the scheduling of, and administrative procedures related to, the mediation.

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What is the format of a mediation session?

Typically, the mediator meets first with both parties together in a joint session.  At the joint session, the mediator will initially ask you to briefly describe the facts leading up to your reprisal allegation.  Then the mediator will ask the representative from FBI Office of General Counsel to do the same.  The mediator may also ask each party what they are seeking to accomplish in the mediation (i.e., what will it take to resolve the matter).

At the conclusion of the joint session, the mediator will typically meet with each party separately in what is called a caucus or a private session.  A caucus or private session affords the parties an opportunity to privately discuss interests, needs, and/or other issues.  These sessions also allow the parties to provide confidential responses to more direct questions posed by the mediator.  Anything discussed during the private sessions is completely confidential, unless the mediator is given permission to disclose the information to the other party.

At the conclusion of the separate sessions, it is up to the mediator whether to convene additional separate sessions or whether to bring the parties back together for another joint session.

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Are the mediation sessions confidential?

Yes.  At the beginning of the mediation, all parties in the room will be required to sign an “Agreement to Mediate,” as well as a “Confidentiality Agreement,” which states that everything discussed in the room is confidential.  At the conclusion of each separate session, the mediator will also ask each party what they do not want to be shared with the other party.  The mediator is bound by these requests of confidentiality.  The “Agreement to Mediate” and “Confidentiality Agreement” also state that neither party can subpoena or depose the mediator in the event of future litigation.

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Are representatives permitted to attend the mediation? 

You are permitted to bring whomever you want to the mediation.  You may bring a friend, a relative, or a legal representative.

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Who will represent the FBI at the mediation?

The FBI will be represented by legal counsel, usually an attorney from the FBI’s Office of General Counsel.  The name of this individual will be provided to you prior to the mediation session.

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What preparation should the parties do prior to attending the mediation session?

The parties should come fully prepared to discuss the facts that led up to the alleged reprisal.  Documentation is not necessary and may interfere with the process.  If there is any unclassified documentation a party feels the other side should read as it would be beneficial in understanding the dispute, he or she can bring this documentation to the mediation.  However, unclassified information that is to be shared with non-FBI personnel must be cleared by the FBI’s Office of General Counsel.  If the documentation contains any classified information, the documentation has to be provided to the FBI’s Alternative Dispute Resolution Manager as soon as possible for declassification.  The FBI’s Discovery Processing Unit requires a minimum of 30 days to process any documents for release to a party, your attorney, or other non-FBI individuals.  The parties should also be able to discuss what they believe will resolve the issue.  Typically, the mediator will have no knowledge of the facts prior to the mediation.

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What is the duration of an average mediation session? 

A typical mediation session lasts from 4-6 hours.

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When and where are these mediation sessions conducted?

Mediations are generally held in a neutral location and not within the workplace of the parties.  The mediator will contact all parties prior to the session to coordinate a date and time convenient to all parties.  Mediations will be conducted during normal business hours and parties are allowed official time to attend and participate in the mediation.

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Who will determine if mediation is appropriate to resolve my claim? 

If you elect to pursue mediation, the Conducting Office or OARM will determine whether the issue is appropriate for mediation.  Mediation will not be appropriate if there is an ongoing criminal investigation, or if the claim involves an issue the FBI has no authority to decide (e.g., claims involving the revocation of a security clearance).  Mediation may not be available if you or the FBI has abused the mediation process or for any other reason that the Conducting Office or OARM determines.  Should mediation not be the appropriate venue to resolve the dispute, the Conducting Office or OARM will provide you with procedural guidance on how to proceed with your claim.

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How soon will the mediation session be conducted?

The goal of the FBI Whistleblower Mediation program is to conduct mediation within 45 days of the date on which you elect mediation.  This will depend, however, on the schedules of the parties.

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What happens to the processing of my reprisal claim if I elect mediation before the Conducting Office? 

If you elect mediation while the Conducting Office investigates your complaint, the Conducting Office’s investigation will be suspended while you and the FBI pursue mediation.  As a result, the Conducting Office will likely not be able to complete its investigation within 240 days as required by 28 C.F.R. § 27.3(f).  In this circumstance, the Conducting Office will ask you whether you would agree to an extension of the 240-day deadline.

If mediation is unsuccessful, the Conducting Office will resume its investigation.  If mediation is successful, the Conducting Office will terminate its investigation and the matter will be closed.

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What happens to the processing of my reprisal claim if I elect mediation before OARM? 

If mediation is elected after your reprisal complaint is filed with OARM, your case will be suspended or dismissed without prejudice to refiling so the parties have time to pursue mediation.  Mediation will not affect your rights before OARM, and you will have the ability to continue to pursue your claims before OARM if mediation is unsuccessful.

In the case of a dismissal without prejudice, you may refile your reprisal complaint with OARM within 30 days of the conclusion of the mediation session.  If mediation is successful, however, OARM’s case processing will conclude and the matter will be closed.

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