April 21, 1998
The Society of Professionals in Dispute Resolution (SPIDR) has embarked in a major initiative to examine and make recommendations on key principles and policies on alternative dispute resolution (ADR) processes. The "ADR in the Workplace" initiative focuses on the established and emerging uses of dispute resolution to resolve workplace conflicts. The goal of this initiative is to inform consumers about the availability of ADR services and to provide guidelines for public policy makers, statutory rights enforcement agencies, public and private employers, union, advocacy organizations, and dispute resolution professionals.
Enclosed is a copy of the Initiative's first report: Guidelines for Voluntary Mediation Programs Instituted by Agencies Charged with Enforcing Workplace Rights prepared by the "ADR in the Employment Sector" working group co-chaired by Ann R. Gosline and Lamont E. Stallworth. The report, approved by the SPIDR Board of Directors, addresses essential and recommended elements of mediation programs instituted by agencies charged with investigating and adjudicating statutory workplace claims. In developing the Guidelines, the working group builds on the extensive earlier work by SPIDR's Law and Public Policy Committee and the Committee on Qualifications, and on other efforts such as the "Due Process Protocol" and the recommendations in the Dunlop and Brock Reports.
In addition, we are enclosing a policy on arbitration of statutory rights imposed as a condition of employment which was adopted by the SPIDR Board of Directors during its January 28, 1998, meeting.
We hope you will find the enclosed documents useful and informative.
Peter S. Adler SPIDR President
Thomas A. Kochan Initiative Co-Chair
Gerald W. Cormick Initiative Co-Chair
INSTITUTED BY AGENCIES CHARGED WITH ENFORCING WORKPLACE RIGHTS
The Law and Public Policy Committee of the Society of Professionals in Dispute Resolution (SPIDR) examines key policy issues in alternative dispute resolution and makes recommendations about the integrity of ADR processes. The Committee's "ADR in the Workplace" initiative focuses on established and emerging uses of dispute resolution to resolve workplace conflicts. The goal of this initiative is to inform consumers about the availability of ADR services and to provide guidelines for public policy makers, statutory rights enforcement agencies, public and private employers, unions, advocacy organizations, and dispute resolution professionals.
There are three tracks to the ADR in the Workplace initiative: ADR in the Employment Sector; ADR in the Organized Workforce; and International Structures/Processes for ADR in the Workplace.
This is the first report from the working group on ADR in the Employment Sector. This paper addresses essential and recommended elements of mediation programs instituted by agencies charged with investigating and adjudicating statutory workplace claims. In developing these guidelines, the Committee builds on extensive earlier work by SPIDR'S Law and Public Policy Committee and the Committee on Qualifications, and on other efforts, such as the "Due Process Protocol" and the recommendations in the Dunlop and Brock Reports.
The ADR in the Employment Sector Committee focused first on statutory rights enforcement agencies. There is a critical need to develop consensus on essential elements of fairness for agency mediation programs because the US Equal Employment Opportunity Commission and state agencies are currently experimenting with a range of mediation programs.
A properly designed mediation program can expeditiously resolve disputes in a manner acceptable to the parties and consistent with statutory purposes. Mediation gives disputants the chance to address both past problems and future relationships. It can free agency resources for claims that require extensive investigation and adjudication. If agency mediation programs receive adequate funding, they can complement and significantly enhance agencies' capacity to fulfill their missions.
If an agency mediation program is instituted without adequate safeguards, however, mediation programs can potentially impose pressures to settle that favor parties with greater knowledge and resources. At worst, a poorly designed agency mediation program can undermine the purposes of the very statutes the agency was created to enforce.
In this working paper, the Committee: 1) proposes core principles that should guide the design of a mediation program created or endorsed by an enforcement agency; 2) discusses key elements that must be incorporated in mediation programs to effectuate these core principles; and 3) recommends additional elements to enhance the effectiveness of these mediation programs.
These guidelines were drafted for mediation programs in which participation is voluntary. If agencies mandate participation in mediation, they must provide additional safeguards to ensure that outcomes are completely voluntary. These additional safeguards should be consistent with the recommen-dations in Report #11 of SPIDR's Law and Public Policy Committee, which specifically addresses mandated participation in mediation programs.
In developing these guidelines, the Committee seeks to identify essential elements without encouraging rigidity. The Committee recognizes that mediation programs should and will vary depending on the agency's charge, resources available to the agency, and resources available to disputants within the community. Indeed, by experimenting with different program designs, agencies will ultimately develop the fairest and most effective programs. The Committee recognizes that these guidelines must be evaluated periodically in light of agency experiences, and the changing workplace.
II. CORE PRINCIPLES
- The mediation program should allow participants to make informed, uncoerced, and voluntary decisions.
Only when disputants are able to make informed choices can mediation be expected to produce outcomes consistent with the goals of underlying statutes. A mediation program must not create barriers to disputants obtaining information and seeking technical assistance or legal advice reasonably necessary to formulate a position.
Disputants must not be coerced into settlement. They must not be led to believe, either directly or by reasonable inference, that the mediator can impose a settlement. A mediation program must not create or foster the impression that disputants will be adversely affected, in any way, if they fail to reach a mediated settlement, or a particular mediated settlement. One example of inappropriate coercion would be a representation that the claim will receive less attention from the agency if an offer of settlement is rejected. Another example would be representing to an employer that it will be subject to close agency scrutiny if it does not settle.
- Mediators should not have any stake in the outcome of the mediation.
It is essential to the integrity of the mediation process that mediators must not have a stake in the outcome of a dispute they mediate, nor manipulate the mediation to produce a result that they believe to be the "right" one. Agency personnel should not act as mediators on cases on which they have investigatory or enforcement responsibilities.
- The mediation program should not delay access to the adjudicatory process.
Mediation programs tend to promote mediation as an attractive alternative. Claimants must, however, retain their right to have the claim adjudicated if a mutually acceptable resolution is not achieved. A mediation program should only delay access to adjudication to the extent necessary to facilitate the mediation process. If, for example, a two month foray into mediation were to lead to a delay of years before adjudication, access would be unduly burdened. Mediation programs may function effectively while a claim is proceeding along the adjudication track.
- The mediation program should be accessible to disputants of all economic levels.
Agencies should guard against creating a two-tiered system in which mediation is available only to the more affluent. If costs are to be borne by the disputants rather than the agency, the mediation program should be designed to account for disparate abilities to pay.
- The design and operation of the mediation program should not undermine statutory or constitutional workplace rights.
Speedy resolution of claims through mediation constitutes enforcement success just as assuredly as does speedy adjudication. Mediation, like settlement, generally involves compromises. The key to successful vindication of statutory rights in this context is that settlement be informed, uncoerced, and voluntary.
III. ESSENTIAL ELEMENTS OF A FAIR PROGRAM
- Disputants should have the right to choose to be accompanied in mediation by the advisor of their choice.
When considering settlement, disputants weigh many factors, including the likely adjudicated outcome, available remedies in different forums, and the tangible and intangible costs of not settling. Disputants may wish to be accompanied by an attorney, advocate, friend, or family member who can assist them in weighing alternatives and deciding. They should have this right. It will increase the opportunity for them to make informed, voluntary, uncoerced decisions in the mediation process.
Disputants should have the right to be accompanied even if the other disputant is unaccompanied. Generally the benefits of according disputants the right to be accompanied outweigh the potential disadvantages of this policy. Unrepresented disputants must be made aware that they have no obligation to settle, that they can leave at any time, and that they may confer with an attorney or other advisor who is not present at the mediation before reaching final agreement. The mediator must control the process and have the right to exclude persons whose behavior undermines the integrity of a fair mediation process.
- Agencies should provide disputants access to information and technical assistance.
Agencies should provide disputants access to information and technical assistance so that disputants can understand the mediation process and their alternatives to settlement. In order to help unrepresented disputants before and during mediation, agencies should let them know that information is available and that disputants without attorneys may ask agency staff to explain this information. The materials and explanations provided should help disputants without attorneys understand pertinent statutory and regulatory provisions, agency procedures and enforcement, and typical time frames for resolution and costs of going forward. Materials and explanations should also help disputants understand the mediation process, including: 1) the right to request information, and, if not satisfied with this information, the right to refuse to settle; 2) the right to seek advice from legal counsel prior to reaching final settlement; 3) the mediator's inability to provide legal advice; and 4) the right to end mediation at any time.
A fair mediation program allows disputants to make informed and voluntary decisions about whether and on what terms to resolve their dispute. This is not possible when there is a great disparity in access to information. When disputants are represented, their counsel is responsible for assisting them in obtaining information necessary to make an informed decision. When disputants are unrepresented, however, they may lack access to basic information about their statutory rights, agency procedures, and the mediation process itself. It is essential that an agency mediation program provide technical assistance to unrepresented disputants. Moreover, because disputants will vary in literacy, experience and education, the agency should provide access to a person who can provide such technical information, explain written information, and answer questions. This technical assistant should be available prior to and during the mediation, but need not be available to accompany the disputant to the mediation session.
It is neither the role nor the function of the technical assistant to engage in the practice of law or to advise disputants, but only to convey relevant technical information and respond to informational questions. While the technical assistant may or may not be an attorney, the individual must have a working knowledge of relevant statutes, agency procedures, and the mediation process. Technical assistants, where necessary, should be sensitive to cultural diversity, language differences, and disability issues.
In addition to ensuring that a person is available to discuss this technical information, the agency may provide this information in a variety of ways. For example, agencies may provide handbooks, summaries of outcomes in cases, video presentations, or interactive computer programs.
- Agencies should inform disputants of the opportunity to request and exchange information relevant to the specific dispute.
Disputants should be informed of the importance of sharing information before and during mediation, but should not be precluded from mediating if they do not provide it. Disputants should be advised of the opportunity to request information relevant to the dispute and of their right to terminate the mediation if they believe they do not have sufficient information to make an informed choice.
- Agencies should promulgate rules that protect the confidentiality of the mediation process.
Agencies should have clear policies defining the extent of and protecting the confidentiality of both written and oral communication in mediation, including documents prepared for mediation and offers made during mediation. These policies should prohibit mediators from discussing confidential communications, from commenting on the merits of the case outside the mediation process, and from making recommendations about the case. These policies should also prohibit agency staff from asking mediators to reveal confidential mediation communications (including offers made during mediation), to comment on the merits of the case, to make recommendations about the case, or from subpoenaing mediators or disputants to testify about confidential mediation communications. These policies should also prohibit disputants from compelling mediators to testify concerning confidential mediation communications, absent appropriate waivers.
Confidentiality is a vital element of mediation. It is critical that agency policies protect disputants' reasonable expectations of confidentiality. Agencies' written policies concerning their own personnel and procedures should require mediation confidentiality.
Agency dispute resolution programs must be designed with attention to existing law. Agencies should make clear the current limits of local and federal law regarding confidentiality of statements and materials produced in mediation, so the disputants are not misled as to what will be confidential outside the agency process. Agencies should make clear who may assert and waive the protection, and what exceptions to that protection exist. Program administrators have a particular responsibility to design a clear and succinct statement about confidentiality and its limits that agency mediators can use to communicate to parties in a consistent way.
Current law regarding confidentiality of mediation sessions and mediator privilege is mixed across the United States. It is currently being examined in many states. Organizations of dispute resolution professionals generally support widening confidentiality and mediator privileges against being required to testify.
Mediators should not be asked by agency staff to comment outside the mediation process on rejected offers or the merits of claims. Nor should they be asked to recommend action to an agency or court. Otherwise, the disputants may feel unduly pressured to accept the mediator's views regarding settlement, or to "argue their case" to the mediator.
Confidentiality rules should not preclude responsible, statistical monitoring and evaluation that protects disputants' confidentiality.
- Fees for mediation programs should reasonably allow for participation by disputants of all income levels.
If all or part of the cost of mediation is to be borne by the disputants, agencies should design a program that allows access to disputants who are unable to pay. Agencies should either charge no
fees or minimal fees for participation in mediation, or, alternatively, provide for a reduced fee, fee waiver, or subsidy for those unable to pay the full fee.
- Agencies should ensure that program mediators are qualified.
An agency should ensure that program mediators are knowledgeable concerning: 1) the mediation process and professional ethics; 2) employment discrimination law; 3) outcomes in typical discrimination cases; and 4) diversity issues. In addition, the agency should ensure that qualifications of mediators are reviewed on an ongoing basis.
The agency is responsible for developing additional qualifications in collaboration with stakeholder groups and guided by the principles set forth in SPIDR Report #2 of the Committee on Qualifications. The qualifications must apply to all mediators.
There is an inherent tension between providing mediation at reasonable cost and providing quality mediation services. It is better to have no mediation program at all than to allow unqualified mediators to participate in the program. If mediators are not qualified, they are unlikely to be able to ensure that the mediation process is fair and disputants' rights to make an informed, uncoerced, and voluntary decision are safeguarded. It is therefore essential that agencies ensure that mediators who participate in agency mediation programs are qualified.
- Agencies utilizing mediation programs for resolution of employment disputes have the responsibility to monitor and evaluate them periodically.
Agencies should devote sufficient resources to monitoring and evaluation of the mediation program. Agencies should collect data systematically and regularly.
Agencies should preserve the confidentiality of data collected for monitoring and evaluation. In particular, disputants' identities should not be released publicly and the content or results of confidential mediation sessions or agreements should not be identified with particular disputants.
Agencies should insure that their own rules regarding the confidentiality of mediation do not preclude gathering and analysis of data for purposes of monitoring and evaluation.
The terms "monitoring and evaluation" refer to processes used to evaluate the functioning of the mediation program, rather than review of appropriateness of the outcome of mediation of a particular dispute. Monitoring and evaluation provide information helpful to agencies in determining whether mediation programs are functioning in a manner consonant with the core principles indentified in Section II.
Monitoring generally refers to continuous collection and evaluation of data by program or agency
administrators for managerial purposes. The collection of data for monitoring is usually built into the organization of the program and the data collected becomes part of a management information
system. Monitoring can be utilized to track regular program operation and also to track the results of pilot programs and changes in program operation.
Evaluations occur irregularly and often are carried out by independent, outside consultants. Evalua-tion assesses the effectiveness of the program overall in accomplishing the goals set for it. Evaluations may lead to decisions to modify or expand a program or to renew funding for it. Evaluation will be made easier and the costs will be lower if the program already collects considerable data for moni-toring. However, evaluators typically need information in addition to that collected for monitoring. For example, evaluators might interview disputants six months after mediation to see how they assess the process in retrospect and whether compliance with any agreement has taken place.
IV. Recommended Elements
- Meaningful access to legal counsel
Ideally, disputants should have access to advice from legal counsel knowledgeable in employment discrimination law. Advice from counsel enables claimants and respondents to assess realistically the merits of their complaints and the potential outcome of litigation. Availability of counsel therefore enables claimants and respondents to determine whether and on what terms to settle based on a full understanding of their rights and options. Availability of counsel is the single most important protection against uninformed abandonment of meritorious claims and unwarranted prosecution of meritless claims. For these reasons, we recommend that:
Agencies provide information on where disputants may obtain counsel;
Agencies encourage bar associations and other organizations to develop lists of counsel knowledgeable in employment discrimination law and available to represent disputants in these cases, including counsel available to serve on a pro bono or reduced fee basis;
Agencies identify and, where possible, remove barriers to disputants' obtaining counsel. For example, agencies should consider making the agency's investigative file available for review to an attorney who is considering representing an unrepresented disputant, provided the disputant consents.
Disputants may also be assisted by persons with knowledge of discrimination statutes, agencies procedures, and the mediation process. While these persons may not provide legal advice, they may provide helpful technical assistance to supplement that provided by agency personnel. Therefore, in addition to the recommendations above, we also recommend that:
Agencies actively encourage law schools, civil rights organization, unions and other organizations to develop cadres of skilled advocates to provide technical assistance to unrepresented disputants.
- Access to other services
The Committee recommends that agencies develop lists of counseling or other resources that may be helpful to disputants. In some cases, the availability of such a list will help mediators to work with disputants to craft creative settlements.
- Education and training of advocates
The Committee recognizes that the mediation process is one which is effectively used and controlled by the disputants and their advocates. Accordingly, it is incumbent upon the agency to encourage advocates to become knowledgeable about mediation, and the agency's mediation program. Among other things, this will increase the acceptance of the mediation process and program, and enhance the probability of quality mediated settlements.
Agencies and professional dispute resolution organizations should also actively encourage mediation advocates to participate in mediation advocacy training and skill-building workshops, conferences and other training and education programs. These training and education activities may be sponsored or offered by the agency, bar associations, community associations, employer associations, civil rights organizations, universities and other interested stakeholder organizations.
- Education and training of agency staff and agency staff mediators
Based upon the experience from other agency sponsored or cooperative mediation programs, the Committee concludes that it is essential that agency staff (particularly intake personnel) and agency staff mediators become educated and trained in substantive matters related to alternative dispute resolution, particularly the mediation process and the particular mediation program.
This may be accomplished by providing staff and mediators training programs, workshops, conferences and symposia related to alternative dispute resolution, mediation, conflict management, and cultural diversity. Whenever possible, the agency should either sponsor or co-sponsor such activities or subsidize agency staff's participation and attendance at such training and education offerings.
Ann Gosline, Co-Chair, is a partner in Gosline, Reitman & Ainsworth Dispute Resolution Services. She mediates and arbitrates labor and employment disputes and mediates environmental and public policy disputes. She is co-general editor of the treatise Labor and Employment Arbitration and is an adjunct professor at the University of Maine Law School.
Lamont Stallworth, Co-Chair, is Associate Professor at the Institute of Industrial Relations, Loyola University, where he teaches managing a diverse workforce, conflict management and alternative dispute resolution, and employment discrimination law. He is an arbitrator and mediator of labor and employment disputes and is the founder and chairman of the Center for Employment Dispute Resolution (CEDR), a not-for-profit organization that administers an experimental voluntary mediation and arbitration program for the resolution of employment discrimination and wrongful discharge disputes in Illinois. He is Past President of the Society for Professionals in Dispute Resolution (SPIDR).
Myrna Adams is Vice President for Institutional Equity at Duke University. She is the chief officer responsible for institutional initiatives related to increasing and maintaining diversity within the Duke community and to fostering equal opportunity for all employees, faculty, and students of Duke University.
Bob Blair is the Chair of the Alberta Labour Relations Board. He has worked in the labour and employment law field in several Canadian jurisdictions, including acting as an arbitrator and adjudicator.
Norman Brand is a full time arbitrator and mediator of labor and employment disputes. He is an Adjunct Professor at Hastings College of Law, where he teaches arbitration. He is President-elect of the California Dispute Resolution Council, on whose behalf he advocates for fair arbitration and mediation legislation.
Homer La Rue is Professor of Law at Howard University School of Law where he is also the Director of the Clinical Law Center at the Law School. Professor La Rue is also an arbitrator and a mediator. Professor La Rue is First Vice President of the Society of Professionals in Dispute Resolution (SPIDR). He will become President of SPIDR in 1999.
Craig McEwen is the Daniel B. Fayerweather Professor of Political Economy and Sociology at Bowdoin College. He has done research about small claims, family, civil court, community, corporate, and EEO mediation and with Nancy Rogers is the co-author of the treatise Mediation: Law, Policy, Practice.
Nancy Rogers is the Platt Professor of Law at Ohio State University College of Law. She served as Chair of the SPIDR Public Policy Committee on Mandatory Participation and is the co-author of several books and articles on mediation.
Mary Rowe has been an ombudsperson at MIT for 25 years, and is also Adjunct Professor at the MIT Sloan School of Management. Since 1973 she has published widely on harassment, and on conflict management in the workplace. She has helped to set up hundreds of ombuds offices and a dozen dispute resolution systems in corporations, government agencies and academic institutions.
Anne Thomas is Director of the Office of Equal Opportunity for the University of New Mexico. A former attorney with the Equal Employmen