ALTERNATIVE DISPUTE RESOLUTION John Paolino, NFFE & John R. Obst, NFFE Acknowledgment: USDA FS EIP
Why the NGP doesn’t work as well as it should. The grievance process: • is a power struggle. • is adversarial. • challenges management’s authority. • may place the decision in the hands of an arbitrator. • produces winners and losers.
Conflict in the Workplace Often Results from the Basic Struggle for Control. While it does provide the route for dispute resolution, the grievance process further reinforces that struggle. The focus often becomes who is right, and not what is right.
Why Alternate Dispute Resolution? • ADR provides for “more friendly” dispute resolution. • ADR is usually a win-win proposition. • ADR decisions rest with the parties, not with someone else. • ADR is less threatening to management. • Grievances do not have to be dropped to enter into ADR. (But get time limit extensions!)
PRINCIPLES OF HUMAN BEHAVIOR • People often wish to avoid making a decision. • People may agree on the ‘facts’, but disagree over the ‘meaning’ of the facts. • People usually act out of self-interest, even if they do not fully understand the ‘interest’ that is motivating them. • People will not agree to resolve a dispute until they are psychologically ready to resolve it.
PRINCIPLES OF HUMAN BEHAVIOR • People do not like to be ‘told’ what to do. • People do not like to apologize. • People can ‘compromise’ if they feel respected and valued. • People will more readily carry out decisions they helped to formulate.
WHY USE ADR? • Solves conflict quickly and confidentially. • Is a voluntary process. • Allows parties to actively participate in the creation of the solution to their dispute. • Puts parties in control of the decision making. • Avoids costly, time consuming litigation. • Provides for the practice and modeling of effective communication & problem solving behavior.
WHY USE ADR? • It’s cost effective. • It’s time effective. • Preserves personal and professional relationships that might be destroyed during lengthy litigation. • Produces “Win – Win” rather than “Win – Lose” solution to conflicts. • Contributes to restoring a healthy work environment.
When to do ADR. ADR is an option in any dispute where the parties are willing - and a negotiated solution is an acceptable outcome. In deciding whether to mediate, parties should consider their: BETNA – Best Alternative To A Negotiated Agreement WATNA – Worst Alternative To A Negotiated Agreement EATNA – Expected Alternative To A Negotiated Agreement
ADR may be useful in situations where: • Multiple issues have to be resolved. • There is no need to establish precedent and there is no single “right” solution that is required. • Tensions, emotions, or transaction costs are running high. • Communication between the parties has broken down. • Time is a major factor. • Failure to agree does not clearly benefit one or more parties. • Issues are complex and individual parties have interest in maintaining confidentiality with respect to key issues. • The parties want or need to maintain some ongoing relationship.
ADR MOST LIKELYENCOUNTERED. • Mediation/Early Intervention. • Facilitation.
MEDIATION • Intervention of a mutually acceptable, neutral, third party into the negotiation or dispute process. • Mediators have no decision making authority in the dispute. • Mediation emphasizes problem solving by the parties. • Mediators use their knowledge of negotiation and consensus-building processes and their persuasion skills to help reach their respective objectives. • Mediation may be used in the resolution of grievances at any step right up to the arbitration decision.
MEDIATION Unless mandated by a court, mediation is voluntary, informal process. • Rules of evidence do not apply. • Testimony is not taken. • Witnesses are neither sworn nor used to support or defend positions. • Interrogatories, depositions, and transcripts are not required. • Even in court-mandated mediation, parties cannot be forced to reach agreement.
TYPICAL MEDIATION PROCESS • After the preliminaries are disposed of (instructions from the third-party neutral) each party will be afforded an opportunity to present their position. Normally such presentation is uninterrupted. • Following the presentations either party may pose questions. As the union representative for the employee, you have a right to ask questions and assist the employee in asking questions and responding. • The goal is to have open, frank communications to better understand the positions of the parties – why things were done in the manner they were and to explore acceptable resolution.
SUCCESS AND MAXIMUM BENEFITS GENERALLY RESULT WHEN ADR IS EMPLOYED EARLY - BEFORE POSITONS OF THE PARTIES HAVE HARDENED.
EARLY INTERVENTION • As the name implies, early intervention may be the choice of ADR forums when the parties wish to attempt to resolve a potential dispute early in the process. • Early Intervention Specialists/Counselors function similarly to mediators using their skills to help the parties arrive at an agreeable settlement. • Techniques involve meeting with the parties jointly and separately (mediation).
FACILITATION • Involves the use of techniques to improve the flow of information between the parties in a meeting to discuss a disputed issue or issues. • Facilitation may be used in joint decision making, interest-based bargaining (“IBB”) negotiations/problem solving and in some cases, the resolution of contract disputes. • The use of facilitation discourages separate meetings of the parties and encourages open communications to arrive at a common position on the issue(s).
THIRD PARTIES • Third parties in ADR processes may come for the private sector, another government agency, or specially trained persons within your own agency. • Private sector persons may be arbitrators or persons who are not arbitrators but specialize in ADR under contract to the agency. • Agency personnel may be from FMCS, FLRA, EEOC or trained neutrals from other agencies under a cooperative arrangement and may even be a union person whom the agency may have trained. In locations where there is a Federal Executive Board, they usually have a shared neutral program which provides persons for ADR.
REQUIREMENTS FOR ADR • Many contracts today carry provisions for ADR in their grievance procedure. • All agencies are required to have an ADR policy. • ADR requires mutual agreement of the parties. • Participants must have the authority to resolve the issue(s) and enter into a binding agreement. (Note: Exception would be agency-head review of a negotiated labor agreement.)
REQUIREMENTS FOR ADR, cont. • In the case of a grievance, EEO complaint, or other appeal process, parties are usually asked to sign a statement that: “if an agreement is not reached, neither party will use any of the information developed during the process in any formal proceeding following the failed ADR process.” This includes the calling of the third party as a witness. • If an agreement is reached, it will be reduced to writing as a Memorandum of Understanding (“MOU”) or Memorandum of Agreement (“MOA”). The agreement is enforceable and information developed during the process may be used to enforce a signed agreement.
WHAT YOU NEED TO KNOW WHEN REPRESENTING AN EMPLOYEE IN ADR. • A thorough knowledge of the complaint which includes any and all evidence being presented by both sides. Know the facts of the case and what resolution to expect from an arbitrator. Otherwise, the employee might end up with a poor ADR agreement. • Understand that an arbitrator’s decision is binding and that neither party has control over what the decision will be. • Arriving at a settlement agreement using ADR, you and the complainant will have participated in the development of the remedy.
WHAT YOU NEED TO KNOW, cont. • You need to be reasonable, but creative, in fashioning a remedy. Think of Alternative Discipline in disciplinary matters. • Need to remember we are trying to represent the best interest of the employee and the union, not ourselves. The employee may be ignorant of the arbitration process, possible outcome, costs, etc. • Need to be realistic in the possible outcome of arbitration or other third-party proceeding. • Knowledge of burden of proof required will aid in establishing the case’s strengths during an ADR proceeding.
EVIDENCE Level of evidence required – preponderance or substantial: • Substantial Evidence: “The degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” • Used as the standard of proof in all adverse actions processed under Chapter 43. (Performance-based actions).
EVIDENCE, cont. • Preponderance: “Degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find a contested fact is more likely to be true than untrue.” • Standard of proof required in any discipline/adverse action initiated under Chapter 75 (Misconduct). Same standard of proof is necessary to support an affirmative defense or when grieving/appealing an action the employer allegedly failed to take or when making an allegation of discrimination or disparate treatment.
SOME EXAMPLES OF ADR Facilitation • The last two Master Agreements between the Forest Service and the NFFE Forest Service Council were negotiated using IBB. The previous agreement was negotiated with the assistance of a private facilitator. The current agreement employed a facilitator from the DOD Field Advisory Service.
SOME EXAMPLES OF ADR, cont. Mediation • Employee suspended for misconduct for 30 days. Suspension was served and case was scheduled for arbitration. Mediation produced settlement, which resulted in the employee receiving back pay for 14 calendar days and the remaining days charged to LWOP with OPF cleared of any documents referring to the incident. Private mediator used.
SOME EXAMPLES OF ADR, cont. Mediation • Union official accused of violating official time MOU (50% Union representation, 50% 01 work). The open-ended MOU was poorly written and the employee countered that he was in compliance. Through mediation, a new, better MOU was developed. This complaint was resolved; there were no further complaints. FMCS mediator used.
SOME EXAMPLES OF ADR, cont. Early Intervention • Employee served a 3-day suspension and was under a decision letter for a 14-day suspension. Early intervention agreement resulted in a two-year probation addressing behavior, back pay for the 3 days, 3-day and 14-day suspensions held in abeyance for the probation period. Completion of probation clears all records and official files of the incidents. Early intervention mediated by trained agency employee.
SOME EXAMPLES OF ADR, cont. Early Intervention • Employee and supervisor constantly “at war;” supervisor also raised performance issues. Mediation produced a MOU which detailed a road map toward a professional relationship. This included regular meetings, clear work assignments, and a mechanism to handle future problems. Supervisor also agreed to approve details to foster employee’s career development. Early intervention mediated by trained agency employee.
SOME EXAMPLES OF ADR, cont. Mediation-Arbitration • Numerous grievances had been filed on behalf of the employee who had suffered from a hostile work environment. Arbitration would likely have produced an unwanted position and a trivial monetary settlement. The employee was not likely to succeed in any position in the agency. A significant monetary settlement was achieved in mediation; the employee agreed to resign. Mediation was conducted by the arbitrator.
SOME EXAMPLES OF SETTLEMENTS NOT ACCEPTED AND THE RESULT OF ARBITRATION • Employee terminated, settlement negotiations result in an offer of resignation with clean record plus $20,000.00. Originally, agreed to by employee. Union representative talks employee into canceling settlement. Arbitrator rules time served as suspension (8 months) reinstates employee. Within 60 days, the employee resigns with a suspension on file.
SOME EXAMPLES OF SETTLEMENTS NOT ACCEPTED AND THE RESULT OF ARBITRATION • Employee receives a 10-day suspension and the matter is referred to arbitration. Prior to arbitration settlement, negotiations produce an offer to reduce penalty to 4 days. National office recommends acceptance. Employee rejects offer. Arbitrator sustains 10-day suspension.