Вы находитесь на странице: 1из 19



Alternative Dispute Resolution, commonly referred to as ADR, is a term which covers many alternatives to traditional
methods for resolving conflicts or disputes. ADR has been used as a tool in resolving workplace disputes arising
from poor communication, personality conflicts, or alleged discrimination. ADR is an alternative method for resolving
workplace disputes instead of the traditional equal employment opportunity counseling or formal complaint process.

There is a spectrum of dispute resolution techniques, covering such processes as fact-finding, early neutral evaluation,
negotiation, mediation, settlement conferences, arbitration, and adjudication. All ADR processes aim to achieve the
following desirable results:

- To motivate parties to focus their attention on the issues.

- To give parties the opportunity to present their perspectives on the situation.
- To provide parties the opportunity, often for the first time, to hear a clear explanation of each other¶s view point
- To provide parties with a window of opportunity to identify common interests and points of agreement, and to
fashion mutually acceptable settlement options to resolve disputed issues

Dispute resolution techniques differ in their formality and placement of decision-making power. If the process is
adjudication or arbitration, the decision-making power lies with a third-party neutral. When the process is mediation, the
decision-making power will reside at all times with the parties in conflict. The mediation as its primary ADR method f
because it empowers the parties themselves to reach an acceptable resolution of the conflict, through the intervention of
a third party.


Mediation is a process where a neutral third party, the mediator, facilitates settlement discussions
between parties in conflict. The mediator has no authority to make a decision or impose a settlement
upon the parties. The duty of the mediator is to facilitate communication and seek solutions so the
parties may reach their own agreement. Any settlement is entirely voluntary.

&'" !"!!!!!#
!#%" !!"+""


˜ ""'%
˜ &(""%
˜ "!""'!'$

(#"'""(% (%'#!$ In the absence of settlement,
the parties retain the right to take their case before the court. However, even partial agreements can
help the parties narrow the issues involved and limit the time and expense of going to court. The
issues that cannot be resolved in mediation will be returned to the court and the assigned judge.
Mediation is an alternative to court, in which YOU have control over the final outcome

Mediation involves the intervention of a third person, or mediator, into a dispute to assist the parties in negotiating
jointly acceptable resolution of issues. The mediator meets with the parties at a neutral location where the parties can
discuss the dispute and explore a variety of solutions. Each party is encouraged to be open and candid about his/her
point of view. The mediator, as a neutral third party, can view the dispute objectively and assist the parties in
considering alternatives and options that they might not have considered. The mediator is neutral in that he or she does
not stand to personally benefit from the terms of the settlement, and is impartial in that he or she does not have a
preconceived bias about how the conflict should be resolved.

The mediation session is private and confidential. Matters unique to the mediation discussion have been held by Federal
courts to be privileged and inadmissible in any adversarial administrative or court proceeding with the exception of
certain issues such as fraud, waste and abuse, or criminal activity. If a settlement was not resolved during a mediation
session, and the dispute was litigated in any administrative or judicial proceeding, neither the mediator nor his/her notes
can be subpoenaed by either party.

Mediation is familiar to most people as a means of resolving labor- management and international disputes, but it also
has been used to settle contract, interpersonal, human resource, and EEO conflicts. in conflict.

c  .  /    

The use of ADR in the Federal sector was spurred in the early 1990s by a dramatic increase in the number of
discrimination complaints, along with the costs, time, and frustration involved in attempting to resolve them. Federal
managers and parties. representatives have long criticized the Federal administrative redress system ² especially as it
affects workplace disputes involving claims of discrimination ² as being adversarial, inefficient, time consuming, and
Another factor in the widening adoption of ADR practices has been a recognition that traditional methods of dispute
resolution do not always get at the underlying issues between disputants. Traditional methods of dispute resolution ²
lawsuits in the private sector and traditional EEO complaints in the Federal sector ² are predominately position-based.
Simply stated, each disputant stakes out a position, such as a complaint of discrimination or a defense against a
complaint, and hopes to win the case. But interest-based dispute resolution, which is the basis for mediation, focuses on
both determining the disputants¶ underlying interests and working to resolve their conflict at a more basic level, perhaps
even bringing about a change in the work environment in which their conflict developed


Promotes communication and cooperation. Benefits children by reducing conflict. Private and
confidential, thus avoiding public disclosure of personal problems and the stress and strain of a
traditional courtroom battle. May be completed in less time than litigation, saving you costly
litigation expenses.

9 9 
g  Ê  










9 9 















c 1 */ 2 3  *c   
# !"! (! 

As time drags on without a resolution, people tend to ³dig in their heels´ and fight for their position rather than work to
achieve mutual agreement.

Accordingly, most advise that mediation should be attempted as soon after the dispute arises as practicable. The
following comments were typical of expressing the relationship between the timing of mediation attempts and the
success of the mediation in resolving the dispute:

- The parties should mediate as soon as possible. Do not wait to see if a formal complaint will be filed.
- Both parties agree face-to-face discussion is very effective and it should have happened in the beginning.
- Should have attempted mediation sooner ² both sides became more determined to win with each passing day
- This case had progressed too far before it came to mediation (in time and substance). The parties had become
so polarized in their positions and distrust had grown to the extent that mediation was not a viable method.´

  " " ( *"

Often, one or both of the parties need a flexible process and skillful neutral to bring out what¶s bothering him/her. Other
times, people just need to take time out of their busy schedules to sit down and talk with one another away from the
distractions and stresses of the workplace. As the following indicates, poor communication skills are often the root of
many disputes:

- Mediation opened lines of communication between parties.

- Good case for mediation. Supervisor explained selection criteria which was all the non-selectee needed.
- Both parties felt process enabled them to discuss concerns and both would consider this route again.´
- Issue could have been resolved outside of the EEO process,
- Most conflict was the result of miscommunication or lack of communication

Even the strongest advocates for mediation acknowledge that mediation will not be able to resolve all disputes

- Settlement reached but didn¶t get to the heart of the problem ²personality conflict. They¶re back in EEO.´
- Parties did not come to the table with a ³good faith´ effort to negotiate. Urge that parties be briefed on the
nature of negotiations and the need to be willing to adjust positions.
- Mediation does not work if the dialogue with management is not there.
- Not all individual are willing to resolve the issue even though the opportunity is given to them. Sometimes
people are not rational in their own beliefs about the merit of their perspectives.

c  /.  

The goals of mediation are for the disputing parties to:

1. Share feelings and reduce hostilities

2. Clear up misunderstandings
3. Determine underlying interests and concerns
4. Find areas of agreement
5. Incorporate those areas into solutions devised by the parties themselves

The Advantage of mediation over more traditional complaint procedures is that it provides an environment for creative
problem-solving between the parties. Through the skilled assistance of the mediator, disputants are encouraged to
listen, keep confidences, be empathetic, suspend preconceived judgments, respect each other¶s values, and focus on
resolving the underlying conflict


A case is usually appropriate for mediation when relationships are strained but must continue. Mediation can be a
beneficial alternative to trial in many different type cases and is especially so in cases where there
are highly emotional issues involved or where there is a continuing business or personal
Poor communication is often apparent and a skilled neutral third party is needed to facilitate communication. The
intervention of a third party is likely to change the dynamics of the interaction of the disputants. And, the parties are
often interested in retaining control of the outcome.

Mediation may be appropriate when:

- Parties are having difficulties resolving the dispute because of lack of conflict resolution skills or because of
resistance to confronting, or being confronted by, the other party. The mediation can help by clarifying
productive steps for problem solving and by providing a non-threatening environment for discussion.
- There are strong psychological or relationship barriers to negotiating a resolution. Mediators can play an
intermediary and conciliatory role between the parties. Mediators are trained to handle emotional barriers to
settlement, problems of misperception, or poor communication.
- Parties would be otherwise unwilling to meet face-to-face to discuss the dispute.
- The preservation of a working relationship is important. Many conflicts develop in the context of an ongoing
relationship. A mutual agreement to a dispute, in which the parties maintain control of the outcome and ³own´
the decision, is always preferable to a decision imposed by a third party. The mediation process frequently
repairs or builds new working relationships that are critical to the success of ongoing work.


Mediation can be a beneficial alternative to trial in many different type cases and is
especially so in cases where there are highly emotional issues involved or where there is a
continuing business or personal relationship.


Mediation is beneficial to parties regarding disputes during and after divorce, particularly when
children are involved. A mediator helps focus the parents on the needs of the children and make
decisions that are in their best interest. Mediation facilitates solutions for the day to day care of
children, division of property, and financial arrangements.


Mediation can be beneficial in almost any type of civil case ranging from contracts to personal
injuries. Cases where there is a continuing personal or business relationship or where there are
highly emotional issues involved are particularly suitable. Mediation allow you to draft creative
resolutions that better satisfy all parties.


While mediation is an effective technique in many situations, there are instances in which mediation may not be
appropriate or feasible. Examples of when mediation would be inappropriate are in cases involving applicants
for employment, former employees, alleged violence, egregious harassment, adverse actions, class actions when
authoritative resolution of a matter is required in precedent-setting cases, when the matter in dispute has
significant government policy implications, or when it is important to produce a full public record of the


The length of the mediation and the possibility of additional sessions will vary
according to the case and number of issues involved. Plan to spend a minimum
of two hours at your initial session

* .   

! !''""#!"
 ! $    !  ! 4 #  
"" ! 5  !   ! 67 
  "  " " "$   ! "
 ! # !   ! 67  !
"! (


Mediation is not a substitute for legal advice and the mediator does not give legal or financial
advice. The mediator focuses on helping participants reach their own agreements and does not
represent either party. Lawyers advise their clients on the law and complete the legal process. If
you are represented by counsel, generally counsel is required to be present for the mediation. The
mediation process will involve only the parties to the case and their attorneys. The presence of
others may create animosity and ill feelings even before the mediation begins. *!

You can prepare for mediation by determining your specific interests that need to be addressed
in order to develop a settlement plan. Outline the issues you would like to convey to the
opposing party and the mediator. Bring any documents you find relevant to your position.

In domestic cases, a copy of your financial affidavit must be filed with the court and brought to
the mediation session. You may also need to bring business records, tax returns, documents
relating to property values, and account balances. What you need to bring will depend on the
issues involved in the dispute. '%" #5$The
better prepared you are for the mediation session, the more likely the chance of success.

If an agreement or partial agreement is reached, the mediator will prepare said agreement, and
review same with the parties. If attorneys do not attend, the parties will have ten (10) days in
which to have the agreement reviewed and approved by separate attorneys for each party. The
Plaintiff is responsible for having the agreement drawn to present to the court. Any issues that
are not resolved in mediation will be returned to the assigned judge

The Six Stages of Mediation

Mediation is much less formal than going to court, but it does involve distinct
stages designed to lead to a mutually beneficial compromise. Here's what to
 %      " (!  #  4     !
(#$ 4)('%!44
! #"#$

  94(- ! (      4    !# "
 )# 4 '"4   !  (!  !  (% !  
# '"$

0" !  !  !#    "% !(  ' "
 '!  (  $ : ( !   " '   '
(# " !     99    " ! 4! !
  "(   & $      " 

#"#% (!'99(!'  !         !$
(' "("'!9
#%! $

Ê  Ê  

#  !4 !     "%  !"!  # 
"! !!!##!! 4(!
   !    '% ' !  " (  ! 
"$" ,








Stage 1:8($!'%
"("! 4"# $Ê    










"     / 


 gÊ    1  










Stage 2: 8($"!#"'%!

!  % !!'! !!!'"'#%
! $'          
-         Ê 
"     Ê         













Stage 3:; "$!##(!4("#'

! !($!! !













Stage 4:  *"$!  ""   "!"  "! #  
# ! !  6#   '# 7  " ! (! 
4  !  ! %      $ !  #
"" !"!)"%%$!(



  #* (+!#›'+Ê#, 
-  "     



















v v








v  Ê 





˜ &        3  

˜ 2    
˜ )          

˜ & 
  6 7/ 
˜ ›   

˜ ›           
˜ !
˜ 2    /


˜ ) 1 



˜ $   
˜ '   "   

9 ) 1    
     8 ,           




 v Ê 

     Ê            ! 1         












    ›     97

Stage 6:*$!!!$  3  

    Ê    g 
! ' "!% !  #      (  ! 
$ !  # 4 "!   ( !  #  ( 
((!#4 # $! %!#" 
( (# '( ""$   (  "!% !    
! ( ! '    #   ! % "! 



 8   ›)              









v c



^    c ! *     



^ 9  9    Ê       



^   c    
   c "  ›           



^   9  c 

  :  :  
  ;    0 

   8:     : 

v c



^ ½ 
 !   › / 




^ ?  $     !    Ê     



?    !      


c * * 3  0   

People often have concerns about the mediation process. Listed below are some of the most
frequently raised questions and some responses.

+  "  *   <  (! c4 '# (

On the contrary, mediation keeps decision making authority in the hands of the key parties. In mediation, the
parties evaluate whether settlement options developed through negotiations meet their needs, and can reject
them if they are unacceptable. Agreement is voluntary and authority is preserved


Occasionally settlements arrived at through mediation are compromises, but often they are more creative and
customized agreements which meet the specific needs of the involved parties. Mediation helps parties to ³expand
their thinking´, to consider broader alternatives meaningful to each party, to exchange interests not known before, to
become aware of issues valued by each other, and to develop ³win/win´ solutions.
 * #0!c 4

Professional mediators are trained not to take sides. Standard practice and the Code of Ethics for Mediators guide
mediators to ensure impartial behavior. Should either party become dissatisfied with the mediator¶s behavior, or
believe the mediator is acting in a partial manner, they are free to end the session and to report the incident. Moreover,
all participants in a mediation session will be given a Mediation Evaluation Form which solicits their feedback
on the quality, integrity, and value of the mediation experience.

c*  1  .  

The most important factor in the success of a mediation session is the intention of the parties to mediate in good faith. This means
that each party is willing to listen to the other side, to keep an open mind, and to negotiate without holding to a fixed position.
Both parties should make available at the mediation session any appropriate background information related to the dispute. And,
both parties should be willing to reevaluate their positions based upon facts presented during the mediation.
The aggrieved person must give adequate thought to his/her opening statement. The opening statement should clearly
outline, in the most logical way possible, the events or circumstances which led to this dispute. It may be helpful to
write the statement in advance. The facts should be stated as perceived, and should include any interests and desired
outcomes for resolving the dispute. He/she should avoid including information that is not relevant to the issues being

 / 0  /

Yes, once all the necessary written concurrences are obtained, a settlement agreement is binding on both parties.


!"!&"'$  %
!! !(!"! !4!
" !!$

!! ""!#%#"#
 !(! ($

Following are the few standards; the compliance of these is expected from all the mediators:



















A mediator shall conduct the mediation in a fair and diligent manner. The mediator shall protect
the integrity of the mediation process by encouraging mutual respect between the parties and by
taking reasonable steps, subject to the principle of self-determination, to limit abuse of the
process, including discontinuing the mediation if necessary.


A mediator shall maintain professional competence in mediation skills and, where lacking the
skills necessary for a particular case, shall decline to serve or shall withdraw from serving as a


One of the reasons why disputes are often difficult to settle is that the key parties stop
communicating effectively. The mediation session allows for direct exchange between
the parties, and it is therefore essential that all key decision-makers be present at the
mediation. During the mediation session, participants may include:
- The ((#", or the individual to whom something adverse has
happened or is about to happen.

c@c A  

In a sense, mediation is a competitive sport. That is, each side is trying to arrive at a number they will be happy
with. As with all competitive sports, certain actions must be taken in order to emerge victorious. This section of the
article is intended to present a num ber of tips on how to achieve victory at the mediation table.

0 ²Go into the session knowing your facts! Be able to document every point made in the mediation
session. Parties that go into mediation with nothing more than generalizations, vague stories, unfounded
accusations or ³whining,´ invariably lose in this process.

094²At the mediation session, remain cool and under control. Remember that mediation is
a facilitated business negotiation process. Both parties should be seeking a good business decision. It¶s rarely
personal. Treat the process like business and you¶re more likely to prevail.
: "²In formulating the ground rules for the mediation session, strive for informality.
That is, the more legalistic the session appears, the more nervous the project participants are likely to be.
Remember only attorneys are trained to be comfortable on the floor of a courtroom. If the mediation seems like a court
hearing then the project personnel involved will be less effective.

!²Spend as much time and energy as necessary to put together a good presentation
that is factual and well documented. Then, rehearse your presentation and game plan the session thoroughly.

+@.c!A1*²The more time spent preparing for mediation, the more convinced
you become of the righteousness of your case. This is a natural outcome of thorough preparation.However,
keep doing reality checks. Examine every point carefully and with a skeptical eye. It is relatively easy to fool
yourself. It is much more difficult to stay rational and objective. To win at mediation, you must remain objective.

@cA²In the course of preparing for mediation you need to define what ³win´ means to you. That
is, you must determine, prior to the day of mediation,what the ³good settlement´ should look like in terms of cost,
time, and other considerations. Know where you want the mediation to end up before you even start.

  8g* i i  i  08!