Workplace Section Report To The Attorney General
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January 2001 |
Memorandum From Attorney General Janet Reno-January 2001
Report Of The Interagency ADR Working Group To The President
Civil Enforcement Section
Claims Against The Government Section
Contracts And Procurement Section
The Workplace Dispute Section was chaired by Erica Cooper of the Federal Deposit Insurance Corporation (FDIC) and Mary Elcano of the United States Postal Service (USPS), with the assistance of Cathy Costantino and Martha McClellan of the FDIC, and Cindy Hallberlin and Kim Brown of the USPS. The report summarizes the actions taken by the Section over the past year to further the Federal interagency ADR mission.
The Section's co-chairs hosted a meeting on October 28, 1998, to determine the individual needs of the Section member agencies. To facilitate the work of the Section, "workplace dispute" was defined broadly to include Equal Employment Opportunity (EEO), Federal Labor Relations Act (FLRA), and Merit Systems Protection Board (MSPB) cases as well as grievances. Agencies were invited to provide information about the types and number of their workplace disputes. Attendees were asked to identify specific ADR issues that confront them and training they would like to receive.
The co-chairs used the data collected at the meeting to develop a strategic plan based on the expressed needs and requests of the attendees. The Strategic Plan was presented to the Section at a second meeting on December 15, 1998. Presentation of the plan launched a year-long effort that included:
- Offering twenty-four topical programs;
- Supporting a mentoring program;
- Developing a Federal ADR Program Manager's Resource Manual; and
- Proposing recommendations for continuing the Section's work in the year 2000.
I. THE 1999 STRATEGIC PLAN
A. THE ASSESSMENT
The Section's first task was to design a tool that would effectively measure each agency's current workplace dispute resolution mechanisms and that would identify needs and areas for improvement. An initial coordination team consisting of representatives from the USPS developed a needs assessment matrix and a conflict audit. The conflict audit was designed to collect data on a broad range of workplace dispute issues including:
- Agencies' current workplace dispute caseload;
- Agencies' current workplace dispute resolution options;
- Agencies' resistance and constraints on the use of ADR; and
- Agencies' labor-management climate.
The needs assessment and the conflict audit were distributed at the section's first organizational meeting in October 1998. More than 150 individuals representing forty-nine agencies met in small, facilitated groups to identify their needs and expectations, and to develop strategies on how best to meet those needs.
The information obtained from the needs assessment matrix and the conflict audit were used to establish the Section's goals. This data became the basis of the 1999 Strategic Plan and served as a benchmark for an agency's program development and implementation. These tools also generated specific information relating to an agency's grievance or complaint caseload and identified impediments to implementation of an ADR program. With this information agencies were able to determine which dispute resolution processes would be of greatest value to them.
These tools proved highly valuable as they revealed, for example, that of the forty-two agencies that responded, thirty-six currently had ADR programs. The programs included:
- Thirty-six for Equal Employment Opportunity (EEO) complaints;
- Twenty-three to address grievances; and
- Twenty-two to handle either FLRA or MSPB complaints.
In the EEO arena, twenty-eight agencies had fewer than 100 informal complaints annually while only three agencies reported more than 1,000 per year. Twenty-nine agencies reported less than 100 formal complaint filings and one agency reported more than 15,000 annually. Overall, most agencies agreed that mediation would be the most valuable ADR technique for handling any of their agency's disputes.
Armed with this information, the Section's challenge was to provide guidance and hands-on assistance to all Federal agencies despite their size or available resources. More than half of the agencies identified the need for assistance in the areas of program design and evaluation as well as budget development, marketing and training. A smaller group requested assistance with the selection of neutrals and in identifying best practices.
The final tabulation of this information led to the development of the 1999 Strategic Plan. Given the diversity of the needs reported on the conflict audit, the responses were categorized and divided into three tracks. Track One was developed to assist agencies that were not currently using ADR; Track Two assisted agencies with an ADR program that wanted to improve their efforts; and Track Three focused on activities for those agencies wishing to share resources or explore complex policy questions.
B. THE PLAN
Track One offered a series of activities for agencies interested in learning about the basics of establishing an ADR workplace disputes program. The goal of this Track was to ensure that those who attended the programs developed a clear understanding of the various ADR mechanisms, identified the appropriate mechanisms for their agency, gained an awareness of the components necessary to create a successful program, and undertook major steps in program design and at least preliminary steps toward program implementation.
Track Two targeted those agencies that desired to build upon an existing ADR workplace dispute program. The programs in this track focused on identifying cost-effective marketing techniques, developing successful strategies for implementation, reviewing best practices, and evaluating program effectiveness.
Track Three focused on issues unique to agencies with established ADR programs. Special attention was given to sharing lessons learned, with an eye toward avoiding roadblocks to full and effective implementation. Specific issues that warranted attention were confidentiality, ethics, and development and funding of an external panel of neutrals. Track Three participants also explored opportunities for establishing a mentoring program for agencies with less established programs.
Although the 1999 Strategic Plan was divided into three tracks, all participants were encouraged to attend any sessions they felt would benefit their program. Each track offered sessions on a wide range of topics identified by the participating agencies. Twenty-four panel discussions, training sessions and interactive workshops were developed and led by either the Federal Deposit Insurance Corporation or the United States Postal Service.
Additionally, the Plan encouraged use of an informal mentoring program whereby experienced agencies would provide advice to agencies in their early stages of program development. Finally, the Strategic Plan included a networking component designed to assist agencies in exploring ways to share resources, expertise and lessons learned.
II. IMPLEMENTATION OF THE PLAN
The unifying goal of the Section was to provide each agency, regardless of its ADR experience or expertise, with the information, training, and support needed to design, implement, and administer a workplace disputes resolution program. To this end, the Section hosted a total of twenty-six programs (two joint organizational sessions in 1998 and twenty-four topical sessions in 1999). The sessions were well-attended and well-received:
- Total attendance at Section programs was 1,262 participants, from 101 agencies or agency components;
- 119 presenters, many of whom were from the member agencies, participated in panel discussions, training sessions, facilitated discussions and interactive workshops; and
- Approximately 90% of the attendees responding found the sessions useful and informative and the speakers effective and knowledgeable.
In addition to the topical sessions, the Section sponsored an informal mentoring program that provided a variety of opportunities for inexperienced agencies to learn from those with more ADR expertise. The mentoring effort resulted in the formation of the Small Agency Caucus, an organization devoted to addressing the unique ADR program and resource needs of small Federal agencies.
The wealth of information developed for the topical sessions provided the basis for the Section to collaborate with the Enforcement and Compliance Section, the Claims Against the Government Section and the Small Agency Caucus to develop a Federal ADR Program Manager's Resource Manual. The Manual was drafted by members of each of the participating groups and is intended to be a practical guide to designing and developing ADR programs.
A. THE SECTION STUDY GROUP SESSIONS
The twenty-four topical study group sessions were organized not only according to the stages of ADR development but also according to unifying themes such as evaluation, ADR design, and neutral identification and selection. Each track consisted of eight sessions, ranging from one to three hours. The sessions began on January 14, 1999, and ended on September 30, 1999.
Track One sessions provided a basic introduction to ADR principles, ADR practices, and the essentials of ADR program design for novices. Presentations included a training session on basic ADR theory and practice, a panel discussion on ADR program marketing ideas and strategies, and an interactive workshop on current ADR issues and questions. According to attendee feedback, these sessions were very successful. For example:
- More than seventy representatives from forty-one agencies attended the panel discussion on marketing;
- 100% of those returning a feedback questionnaire found the marketing panel informative and expected to use the information learned at the session;
- A training session on facilitation drew more than seventy attendees from thirty-four agencies; and
- 94% of those responding approved of the facilitation session and believed they would use the information they learned.
Track Two presentations were designed to assist agencies in improving or expanding existing ADR programs. These sessions included a panel discussion of the roles and responsibilities of Federal unions and management organizations, interest-based design techniques, and specific design issues such as evaluation and confidentiality. Attendees' responses to these sessions were enthusiastic:
- Thirty-eight representatives from twenty agencies attended an interactive workshop on ADR program evaluation.
- 96% approved of the evaluation session and believed it would assist them in developing agency-specific evaluation methodologies.
Track Three was intended to provide a forum for those agencies interested in ADR policy issues and ADR program development and implementation. This series included sessions on a variety of topics including issues about neutrals, arbitration, and incentives for Federal employees to use ADR. In addition, there was a program on mentoring and one designed to address the unique needs of small agencies. A panel discussion on how the various workplace dispute agencies (i.e. EEOC, MSPB, FLRA, OSC, and OPM) work and interact with ADR was one of the highlights of this series. More than 100 attendees from forty-five agencies participated in this session. Of those responding, 93% approved of the session content, speakers, and materials.
The topical presentations were the centerpiece of a larger information package developed for each session. Attendees received extensive written materials to supplement the two- or three-hour programs, including relevant laws and regulations, program practice and procedures, and model forms and clauses. The agenda and minutes from each session were placed on the Working Group website as were many of the forms and training materials. The Section developed and maintained a contact list of all attendees on the website to facilitate networking and information sharing. The FDIC videotaped its sessions, and these videotapes are available upon request.
B. THE MENTORING EFFORTS
The mentoring and networking component of the plan was intended to assist agencies in understanding and applying what they were learning at the sessions. Mentoring and networking opportunities were incorporated into every session by providing ample time for questions and informal discussions. In addition, two sessions were devoted solely to mentoring, including one training session for mentors and mentees and another devoted to small agency issues. Response to these two sessions was enthusiastic: 98% of the attendees responding thought the mentoring sessions provided valuable information and contacts.
C. THE FEDERAL ADR PROGRAM MANAGER'S RESOURCE MANUAL
The Federal ADR Program Manager's Resource Manual is a collaborative effort of four entities: the Workplace Dispute Section, the Enforcement and Compliance Section, the Claims Against the Government Section, and the Small Agency Caucus. It is the work product of representatives from numerous agencies and is designed to be a practical guide to developing and implementing an ADR program. The manual incorporates the information accumulated from sessions sponsored by the four participating groups and includes both theory and practical advice. The manual also contains relevant laws and regulations, links to Federal and private ADR websites, an extensive bibliography, and a list of agency ADR specialists and other ADR contacts. The manual is available on the Working Group website.
D. SUCCESS STORIES
The Workplace Disputes Section, at its May and June 1999 meetings, devised and distributed a survey to gather information on the progress of participating agencies' ADR programs. Several participants have made significant strides in program development and implementation. Some of their success stories are reported below.
Veterans Affairs
The Department of Veterans Affairs has sponsored a variety of workplace mediation programs for hospital employees, and it recently instituted a comprehensive and ambitious ADR policy, VA Directive 5978. Among other things, this Directive requires Department officials to make the option of mediation available to all VA employees and provide all VA employees with a basic understanding of mediation and the ADR program available at their facility. Each of the VA's 173 hospitals have be directed to take steps to have a mediation program in place by close of FY 2000.
Department of Energy
The Sandia National Laboratories Ombuds Program was involved in more than 400 conflict cases during FY 1999. This is consistent with the annual case load over the seven years the program has been in place. Most of the conflicts were employee related. The savings accrued by ombuds involvement was principally achieved through improved productivity, lower turnover, and higher decision quality. The case rate of 400 in FY 1999 has been very conservatively estimated to generate savings of at least $600,000 (50% more than the program cost) and improvements in morale that cannot be measured. Litigation and EEOC charges against Sandia continue well below the levels experienced prior to the creation of the program.
Social Security Administration
The SSA had concerns about fostering buy-in for the development of its ADR program. These concerns were allayed after SSA representatives attended Section presentations and had an opportunity to discuss their situation. Once they realized that other agencies had effectively dealt with similar issues, they solicited advice on how to proceed. With this advice and encouragement from other agencies' ADR success stories, they were able to proceed with their project. As a result, SSA recently completed negotiations with its unions and began to implement a pilot ADR program.
National Security Agency
After attending several Section meetings and learning about ADR programs in other agencies, NSA gained confidence that its program contributed to the well being of its workforce. This awareness was aided by NSA's realization that a successful program is not evaluated solely in terms of dollars. By reviewing issues regarding resolution and trust as well as dollars, NSA was able to find ways to design its program to be more flexible and fit the organization's unique culture. Thereafter, NSA shifted its definition of success from "dollars" to "improved organizational culture."
NSA ADR personnel are especially encouraged that high level managers are beginning to recommend ADR to their employees. The NSA program continues to experience higher rates of use and, since its inception, there is a noticeable increase in the development of trust between agency personnel.
United States Department of Justice
Bureau of Prisons
The BOP was committed to designing and implementing a new ADR system within the agency. It began by hiring a Dispute Resolution Counsel who learned about ADR program development by attending the Section programs. In 1999 BOP developed four different pilot programs in order to test different ADR processes. Two of the pilots used ADR to address formal EEO complaints. One pilot is testing the use of mediation in the informal EEO counseling stage and a different pilot is exploring the use of an impartial ombuds, who is available to all employees. This ombuds is selected jointly by a Prison Warden and a union representative. After completion of the pilots, BOP will analyze the data and decide which process to implement within the agency.
United States Patent and Trademark Office
During the development of its new ADR program, the USPTO was not clear on the best way to address the issue of union involvement. Initially it was thought that the best way to address this issue was to exclude the unions from the process. After attending several Section programs, USPTO representatives learned that the successful development of a program required them to involve the unions in the process and obtain their buy-in early in the process.
National Archives and Records Administration
Representatives from the NARA attended the Section meetings to obtain general information on ADR and gather information on the issue of confidentiality. After attending a session on ethics and confidentiality, NARA representatives were able to compose a document that specifically defined the issue of confidentiality for employees and management.
Pension Benefit Guaranty Corporation
PBGC had been using ADR in their General Counsel's office and sometimes informally with EEO complaints, and it had decided to develop a formal EEO ADR process that would be used more extensively. The Section meetings helped PBGC do this by bringing people together with similar concerns from different agencies who served as mentors for each other. As a result of this process, PBGC was able to benefit from lessons learned by other agencies.
Department of Interior
Interior developed a departmental program designed to address any workplace concern of any employee at the earliest opportunity and the lowest level. The COnflict REsolution program (CORE) will supplement any existing dispute resolution mechanisms used in each bureau to address human resources and EEO concerns. Approximately 100 people will be trained to be CORE dispute resolution specialists.
III. THE SMALL AGENCY CAUCUS
The Small Agency Caucus was established as an outgrowth of the Workplace Disputes section to address the dispute resolution needs of smaller agencies. The caucus membership consists of representatives of small Federal agencies. Its mission is to provide small agencies with information on alternative dispute resolution, to act as a support network, and to create opportunities to share resources.
The purpose of the first session of the Caucus was to provide representatives of small agencies with an opportunity to discuss the unique needs of small agencies, create the caucus, and provide opportunities for networking. The representatives were divided into six groups to brainstorm on the organizational structure and goals for the caucus. Before the end of the meeting, representatives presented recommendations to the entire caucus for consideration and further discussion.
The steering committee then met weekly at the General Accounting Office, chaired by Dolores H. Crawford and co-chaired by Dorothea Taylor Kennedy and Julia Roig. The committee members consisted of volunteers from various small agencies. These members are ADR professionals who were available to small agencies who needed ADR information and a contact for support and advice in developing and implementing ADR programs. The steering committee developed a mission statement, goals and objectives, organizational structure, and a strategic plan for the small agency caucus.
To assist small agencies in the formation of their ADR programs, the caucus developed (1) a comprehensive ADR resource guide on how to develop an ADR program, including sample forms and materials from established programs; (2) a forum for information exchange, networking and support; (3) a pool of small agency ADR professionals to contact for advice or support in developing and monitoring ADR; and (4) information and opportunities to share neutrals and ADR training.
The Caucus also held several workshops and seminars on such topics as ADR program design and agency obligation to notify the union when mediation occurs during the formal stage of the EEO process.
IV. THE SECTION'S PLANS FOR THE FUTURE
The Section's 1999 program design was based on the needs and expectations of the member agencies as articulated at an organizational meeting on October 28, 1998. Much of the success of the program series was the result of tailoring the sessions to the expressed needs of the members.
We believe the best approach for maintaining the momentum developed over the past year is to continue to offer programs and direct assistance designed to meet the current needs of the Section members. We are also mindful of a need to coordinate with the other Working Group Sections to maximize the opportunities for sharing information and expertise without duplicating efforts.
The following plans are based on feedback gathered from numerous sources, including the attendees at each session, suggestions received from members on the Section's midyear survey, agency responses to the Department of Justice survey, observations of session presenters and trainers, and our own experience over the past year.
Skills seminars
The goal of the Section's program series offered this year was to provide the information, training, and support agencies need to design, implement, and administer an ADR program for workplace disputes. Sessions were designed to meet the needs of agencies, regardless of their level of ADR expertise. Member agencies made important progress in meeting their individual ADR goals over the past year and, for the most part, have no further need for introductory or basic ADR skills training. As their programs mature, agencies experience sophisticated problems and need specific training to address them.
The Section will develop a series of short skills seminars, each designed to focus on a specific aspect of ADR design or practice. These seminars will allow members to choose the topics most relevant to them and their workplace dispute resolution programs, and allow them to work with similarly situated agencies and designated ADR specialists in small, facilitated sessions. For example, suggested session topics include how to analyze program data and how to build and nurture relationships between the ombuds and the unions.
Ethics seminars
The increasing sophistication of Federal ADR programs and specialists has resulted in an increasing awareness of and sensitivity to ethical considerations, especially in mediation and ADR program administration. The Section dedicated two programs to ethics and ethical issues during the past year, but much more time and thought needs to be devoted to these important issues.
We will develop a series of seminars devoted to specific ethical problems and issues. These seminars will address issues such as mediator ethics, program administration ethics, confidentiality of the mediation process, and the competing ethical considerations facing Federal ADR workplace dispute resolution programs.
Formal mentoring program
Mentoring was an important, although informal, component of this year's program. The success of these initiatives was a direct result of the collaborative spirit of the member agencies and was most clearly demonstrated in the formation of the Small Agency Caucus. As agency programs develop and their problems become more complex, ADR program managers will need direct access to experienced ADR practitioners on a systematic basis.
We will develop a formal mentoring program to pair experienced agencies with those seeking advice and guidance in developing their ADR workplace dispute resolution programs.
Neutrals
How to identify and hire competent neutrals became a recurring theme throughout all of the Section's sessions. Although the shared neutrals program administered by HHS is an example of how agencies can cooperate to provide affordable, quality neutrals in an organized way, it is limited. The shared neutrals program uses only Federal in-house mediators and does not address the common problem of locating appropriate private neutrals in an efficient, cost-effective manner. The Section will collaborate with the other Working Group Sections and the newly formed ADR Council to support the shared neutrals effort and to explore additional options for identifying appropriate neutrals.
V. CONCLUSION
The USPS and the FDIC are proud to have been a part of this exciting first year of the interagency ADR initiative. Our partnership was a unique undertaking in the Federal sector and provided an unprecedented opportunity for agencies to obtain high-quality training and guidance from experts in every facet of ADR practice. Working together, the USPS and FDIC were able to offer twenty-four topical sessions led by outstanding ADR specialists from the private and Federal sectors at no cost to attendees.
Attendee feedback confirms the success of our efforts. Section members reported that all
the sessions were useful, effective, and well received. We believe the Section's efforts have
increased Federal sector awareness of ADR and have had a significant impact on the
consideration and use of ADR in workplace disputes throughout the Federal government.
Biography
Jeff Senger is Senior Counsel in the Office of Dispute Resolution at the United States Department of Justice. He advises and trains Assistant United States Attorneys and Justice Department lawyers around the country in negotiation and alternative dispute resolution. He also works with the Federal Interagency ADR Working Group, an organization chaired by the Attorney General, who was appointed by the President to promote the use of ADR throughout the federal government. He is the author of an award-winning book published by John Wiley & Sons entitled Federal Dispute Resolution: Using ADR with the United States Government.
Mr. Senger serves as a federal mediator for the United States District Court; a civil, family, and criminal misdemeanor mediator for the Superior Court in Washington D.C., and an arbitrator for the Better Business Bureau and the District of Columbia Bar Association. He teaches negotiation at Harvard Law School, and he teaches trial techniques at Harvard and at the National Institute of Trial Advocacy. He serves on the Council of the Dispute Resolution Section of the American Bar Association and the Executive Committee of the CPR Institute, and he worked on the drafting of the Uniform Mediation Act. He has traveled to India, Turkey, Israel, Nigeria, Jordan, Egypt, and Argentina to speak on behalf of the U.S. government about ADR to judges and political leaders. He has published articles in Negotiation Journal, the Journal of Dispute Resolution, and several law reviews. He has testified as an expert witness before the United States Congress.
In earlier experience at the Justice Department, he directed training for all civil and appellate Department lawyers and Assistant United States Attorneys, litigated civil rights cases around the country as a Senior Trial Attorney, and prosecuted felony criminal cases as a Special Assistant United States Attorney. Prior to joining the Department, he was a judicial law clerk for the Honorable Earl B. Gilliam of the United States District Court for the Southern District of California. He is a graduate of Harvard College, magna cum laude, and Harvard Law School, cum laude.
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