Sample Mediation Program: Veterans Integrated Service Network

1. Policy.

To assure a work environment that is conductive to the delivery of high quality patient services, VISN X is dedicated to finding creative, acceptable, and early resolution of disputes. Therefore, the use of mediation and other forms of ADR as alternative means of resolving disputes is hereby endorsed and encouraged by the leadership of this Network. To facilitate this policy and actively support the use of ADR and mediation, the VISN leadership is establishing the VISN X Mediation Program (Program) to provide guidelines and responsibilities within the VISN and to encourage the use of mediation at all VISN X medical centers. The Program will be available to all VISN employees.

Alternative:

VISN X actively supports using various of types of alternative dispute resolution (ADR), and is establishing the VISN X Mediation Program to facilitate this policy and to provide guidelines and responsibilities within the VISN to encourage the use of mediation at all VISN X medical centers.

2. Purpose:

To use mediation to promote principles and practices that will facilitate communication and working relationships. Using mediation to resolve differences demonstrates a commitment to a positive approach and joint ownership of concerns and solutions. The mediation process allows parties to resolve their differences quickly, less formally, less adversarily and with more efficient use of resources than traditional dispute mechanisms (i.e., litigation). Mediation is a problem solving process, voluntary, confidential, mutually agreed upon, and unbiased. If a medical center chooses not to participate in mediation or plans to restrict mediation to a specific group of employees the Director should notify the Network Director’s office, with a copy of such communication to the appropriate union official.

3. Scope.

The use of mediation is encouraged at all VISN X medical centers. Its applicability to particular disputes shall be determined collaboratively at the local level by the local Partnership Council. Article 6 of the Master Agreement between the American Federation of Government Employees (AFGE) and the Department of Veterans Affairs encourages ADR and applies to this Program. Nothing in the Program shall be interpreted as inconsistent with the Master Agreement.

4. Background.

The Administrative Dispute Resolution Act of 1996, Public Law 104-320, encourages the use of ADR methods to resolve controversies relating to administrative programs. Mediation is a form of ADR which has particular applicability to VA programs, and may be used in a wide variety of cases with a full range of complexity, from small claims and disputes among fellow employees to large cases and Government disputes. In VA, mediation can be used to help resolve disputes, including but not limited to those involving discrimination, grievances, workplace issues between employees, between employee and supervisor, and between services, negligence, personal injury, contract, construction, and patient complaints. Mediation is voluntary and both parties must be willing to use it. Mediation does not suspends statutory deadlines.

5. Definition of Mediation.

Mediation is a process whereby a neutral third person called a mediator, acts to encourage and facilitate the resolution of a dispute between two or more parties. It is a confidential, informal, non-adjudicative and non-adversarial process with the objective of helping the disputing parties to reach a mutually acceptable and voluntary agreement

In mediation, the mediator is not authorized to make decisions or force a decision on any party to the dispute. The role of the mediator includes, but is not limited to, assisting the parties to identify issues, fostering joint problem solving and exploring settlement opportunities. The mediator shall not provide counseling, therapy or legal advice to either party during the mediation process. If, however, the mediator believes that either party does not understand how an agreement may adversely affect legal rights or obligations, then the mediator should bring this issue to the attention of all parties involved.

6. Roles and Responsibilities.

a. The Network Office (VISN X).

The Network Office (VISN X) is responsible coordination efforts within the VISN, providing resources to administer the program, including initial mediator skills training, and distribution of the Program evaluation reports.

b. The Medical Center Director.

The Medical Center Director is responsible for approval, support, establishment and continuance of a Mediation Program at the medical center, providing resources to administer the program and providing training for medical center employees. This will be done in collaboration with the Local Union President and Partnership Council. In addition, the Medical Center Director and the Local Union President will affirmatively urge medical center employees, managers and supervisors to use the Mediation Program. The Medical Center

Director and the Local Union President are responsible for the application ADR and the administration of this Program under Article 6 of the Master Agreement between AFGE and the Department.

c. Local Union Presidents.

Local Union Presidents are also responsible for working collaboratively with the Medical Center Director and the Local Partnership Council as indicated above. Local Union Presidents are also responsible for facilitating mediation awareness and training within the medical center and encouraging the appropriate use of and participation in mediation among union stewards and employees.

d. Local Partnership Councils.

The Local Partnership Councils in VISN X are responsible for appointing a mediation coordinator, jointly selecting mediators, and supporting, educating, and encouraging mediation at the local medical center.

e. Mediation Program Coordinators.

A Mediation Program Coordinator will be selected by each local medical center Partnership Council. The Mediation Program Coordinator will, on a collateral duty basis: (i) serve as a resource for information, (ii) manage the procedural details of the mediation process, (iii) assign mediators from the Roster of Mediators (iv) ensure that appropriate forms are completed and logistical arrangements are completed and (v) serve as the medical center’s liaison between the hospital, Regional Counsel and VISN office, and (vi) and perform other duties related to the Mediation Program as requested by the Partnership Council.

f. Managers, Supervisors and Union Representatives.

Managers, Supervisors and Union Representatives are responsible for supporting the Mediation Program by using the Mediation Program themselves and encouraging stewards, service chiefs, line supervisors and employees to use mediation process. Managers, supervisors and union representatives are responsible for participating in mediations in good faith.

g. Employees.

Employees are encouraged to consider mediation as an alternate form of resolution in disagreements and disputes that arise in the workplace, and will be kept informed about mediation through training, handouts, brochures, staff meetings, etc. Training on the Mediation Program will also become part of the new employee orientation.

h. The Office of Regional Counsel.

The Office of Regional Counsel may be consulted as to whether a dispute is appropriate for mediation, and whether all legal aspects of a settlement agreement are in order. The Regional Counsel is committed to the Mediation Program and will provide a trained attorney for consultation on an as needed basis.

i. Attorneys, Union Representatives and other Party Representatives.

Attorneys, Union Representatives and other Party Representatives may be present and participate in the mediation session. Union representatives have the right to be present when one of the parties to the mediation is a bargaining unit employee. Unlike litigation, the attorney or representative typically takes a “back seat” in the mediation session. Attorneys, Union Representatives and other Party Representatives, are responsible for entering into and participating in mediation in good faith.

7. Procedures.

a. Requests for Mediation.

1. Mediation may be requested by either party to a dispute. A request for mediation can be made and accepted at anytime, with the understanding that both disputants must agree to mediate their dispute. Submission of a dispute to mediation procedures may require that the parties agree to the extension of time periods in other proceedings which will be made without loss of rights. EEO and grievance procedures have provisions which, with agreement of the parties, permit time periods to be extended without loss of rights for the disputants. Information on the Program for distribution is contained in the Instructions Request/Consent For Mediation Form (Attachment A) and the Information Sheet (Attachment F).

2. Mediation requests should be initiated by contacting a management or union official, or the local Mediation Program Coordinator.

3. For each dispute, a joint determination shall be made by management and union representatives as to the appropriateness of mediating the matter.

4. Prior to processing the request steps will be taken to ensure that both parties are willing to participate in mediation by having the parties sign the Agreement to Participate in Mediation Form (Attachment C).

b. Acceptance of a Mediation Request.

1. Upon a joint determination that mediation is appropriate, the Mediation Program Coordinator will:

a. Notify the parties and their representatives that the matter has been accepted for mediation.

b. Obtain appropriate signatures on the Mediation Request Form and Agreement to Mediate.

c. Assign a mediator to the matter. If either or both parties object to a particular mediator assigned to the matter, the Mediation Program Coordinator will immediately assign another mediator off the roster. Mediators should not be assigned to handle disputes in their own service. Assignment of a mediator may include the assignment of a co-mediator.

d. Coordinate with the assigned mediator on scheduling and securing a neutral location for the mediation.

e. Distribute and collect evaluation forms and forward completed forms to the Regional Counsel in Winston-Salem.

c. Signing the Agreement to Mediate.

The parties and all persons participating in the mediation must sign an Agreement to Mediate prior to mediation. This document will set forth the requirements for both parties entering into mediation in good faith in order to resolve their differences. The assigned mediator is responsible for ensuring that the Agreement is signed before beginning the mediation session (Attachment B).

d. Procedures After Assignment of a Mediator.

The assigned mediator is responsible for scheduling the initial mediation session. The initial session will be scheduled to be held as early as possible under guidelines determined by the Local Partnership Council. No later than 5 days prior to the date scheduled for the mediation, the mediator should confirm the time, date and place for the mediation with all participating.

It may also be appropriate for the mediator to provide concerned participants with a brief definition of mediation, the role of the mediator, and the expectation that a mutually agreeable resolution of the dispute in the form of a written settlement agreement is the end result of the mediation session(s).

g. Concluding the Mediation Process.

At the conclusion of the mediation, all notes and documentation in the possession of the mediator which concern the mediation shall be destroyed by the mediator. At the request of the parties the mediator may prepare a settlement agreement. The parties will be asked to complete a User Satisfaction Survey (Attachment D). In certain instances, Regional Counsel may review the settlement agreement.

h. Evaluating the Mediation Program.

At the conclusion of the mediation process the participants will be asked to complete a User Satisfaction Survey (Attachment D). This is a confidential form which does not contain information about the matter mediated and simply attempts to track what benefits the parties felt they received using mediation and to give participants the opportunity to suggest changes to improve the Program. The mediator(s) will be asked to complete a Mediator Survey (Attachment E). Likewise, this form does not contain information about the matter mediated and will be used to evaluate the Program’s strengths and weaknesses and give mediators the opportunity to suggest improvements to the Program. All evaluations will be forwarded to the Regional Counsel in Winston-Salem for compilation and analysis. An evaluative report will be submitted to the Network Director twice a year. These reports will be provided to the Executive Leadership Council and the Council of Union Presidents.

8. Cases not appropriate for Mediation.

Certain cases may not be appropriate for mediation. If it is determined that a case is not appropriate for mediation, the management or union official will notify the Mediation Program Coordinator who will inform the parties. The Mediation Program Coordinator will refer the disputants, as appropriate, to other methods of resolution.

9. References.

The Administrative Dispute Resolution Act of 1996, Public Law 104-320; Article 6 of the Master Agreement between AFGE and Department of Veterans Affairs.

10. FOLLOW-UP RESPONSIBILITY.

VISN X Clinical Program Manager and Chief Medical Officer.

11. RECISSION.

This VISN X Memorandum will expire (date).

Sample Attachments

a. Instructions Request/Consent For Mediation (Attachment A).

Gives preliminary instructions about the mediation process.

b. Mediation Request/Consent From (Attachment B).

Is to be completed as a request for mediation.

c. Agreement to Participate in Mediation (Attachment C).

Must be signed by all persons at the mediation session. It can be done at or before the mediation session. This form sets forth all the terms and conditions governing the mediation. It binds all parties and attendees to confidentiality and states that all rights the parties have without the mediation are preserved.

d. User Survey (Attachment D).

Is to be completed by the disputants and sent to the Regional Counsel for evaluation of the Program.

e. Information Sheet (Attachment E).

Contains questions commonly asked about mediation. It may be distributed as part of the medical center’s awareness training or prior to the commencement of a mediation session.

f. Sample Mediation Settlement Agreement (Attachment F)

Contains a sample mediation settlement agreement which can be used by the parties to finalize the terms and conditions of which were agreed upon during the mediation.


ATTACHMENT ARequest/Consent For Mediation

The following Request/Consent for Mediation form should be submitted to the labor management specialist or appropriate management official designated responsible for coordinating such requests, who will take appropriate steps to immediately contact the other party(s) regarding its (their) willingness to participate in mediation.

In the event the opposing parties jointly request mediation, the signed form should be forwarded to the labor management specialist or appropriate management official designated responsible for coordinating such requests.

The labor management specialist or appropriate management official designated responsible for coordinating such requests shall inform both parties regarding the status of the request for mediation.

If either party has any questions regarding the mediation process they may contact, at ___________________ at _____________________.


ATTACHMENT B

Mediation Request/Consent Form

1. The parties and their representatives understand that mediation is a voluntary and confidential process, and that no party shall be bound by anything said or done at the mediation, unless a written settlement agreement is reached and executed by all necessary parties. If a settlement is reached, the agreement shall be reduced to writing by the Mediator(s) and, when signed and approved by the appropriate authorities for all of the parties, the settlement shall be legally binding upon all parties to the agreement.

2. In electing to use mediation, the parties and their representatives understand that they are not waiving statutory deadlines.

3. In the event mediation is terminated for any reason, the aggrieved person may continue to pursue an informal or formal resolution of the matter.

4. The issue(s) for mediation (please describe):

_______________________________

_______________________________

_______________________________

_______________________________

5. Each party involved in this matter is requested to sign the request document and indicate whether they are willing to participate in mediation:

Initiating Party:

_______________________________

[name, telephone number]


________________________________ Date ________

I understand the above information, agree that mediation is a proper way to attempt to resolve the issue(s), and agree to participate in the mediation process.

I understand the above information, but have decided not to participate at this time.

Union Representative

if appropriate):

_______________________________

[name, telephone number]


__________________________ Date ________

I understand the above information, agree that mediation is a proper way to attempt to resolve the issue(s), and agree to participate in the mediation process.

I understand the above information, but have decided not to participate at this time.

* * *

Other Party:


_______________________________

[name, telephone number]

___________________________
Date ________

I understand the above information, agree that mediation is a proper way to attempt to resolve the issue(s), and agree to participate in the mediation process.

I (we) understand the above information, but have decided not to participate at this time.

Other Party Representative

(if appropriate):


_______________________________

[name, telephone number]


___________________________ Date ________

I understand the above information, agree that mediation is a proper way to attempt to resolve the issue(s), and agree to participate in the mediation process.

I understand the above information, but have decided not to participate at this time.

* * *

Other Party

(if appropriate):

_______________________________

[name, telephone number]


___________________________ Date _________

I understand the above information, agree that mediation is a proper way to attempt to resolve the issue(s), and agree to participate in the mediation process.

I understand the above information, but have decided not to participate at this time.


ATTACHMENT C

Agreement to Participate in Mediation

1. I understand that this is an agreement by the parties to attempt to resolve the following issues, by submitting these issues to mediation:

_______________________________

_______________________________

2. I understand that mediation is a dispute resolution process which is non-adversarial in nature and seeks to find reconciliation between disputing parties. The mediation process does not declare winners or losers. The main focus is to seek a resolution which is informal, quick and minimizes the harm to either party.

3. I understand that the Mediator is not involved in the immediate occurrence and is committed to treating this matter in a fair and unbiased way. The Mediator’s role is to facilitate and help the parties reach for themselves a mutually satisfactory resolution to the problem. However the decision making power rests with the parties, not the Mediator. If the parties cannot agree on a resolution, the Mediator will NOT impose a resolution nor will s/he offer judgment as to which party, if any, is at fault. In certain circumstances, Co-Mediators will be assigned to the matter.

4. I understand that the Mediator has no authority to make decisions or act as a judge or arbitrator. The Mediator will not act as an advocate or attorney for any party. To the extent either the complainant or the agency wishes to have a representative or legal counsel to consult with or assist them at any stage in the mediation, the party is responsible for taking steps to obtain such a person.

5. I understand that mediation is a confidential process. Any documents submitted to the Mediator and statements made during the mediation are for settlement purposes only. I agree not to subpoena or request the Mediator to serve as a witness, or request or use as evidence any materials prepared by the Mediator for the mediation, with the exception of a settlement document signed by the parties. In no event will the Mediator voluntarily testify on behalf of any party or submit any type of report in connection with this mediation. However, I understand that matters that are admissible in a court of law or other administrative process continue to be admissible even though brought up in a mediation session.

6. I understand that no party shall be bound by anything said or done at the mediation unless a written settlement is reached and executed by all necessary parties. If a settlement is reached, the agreement shall be reduced to writing by the Mediator and, when signed and approved by the appropriate authorities for all the parties, the settlement document shall be legally binding upon all parties to the agreement.

7. In electing to use mediation, I understand that no statutory deadlines are waived, and that all statutory deadlines must be adhered to.

8. The aggrieved party’s Rights to pursue informal or formal processes are not waived and will be protected during the mediation process. At the same time, the aggrieved party’s Responsibilities to comply with all requirements of any administrative or court process, e.g., time limits, points of contact, Are Not Waived, and must be adhered to.

9. I understand that in the event the mediation is terminated for any reason, the aggrieved party may continue to pursue an informal or formal resolution of the matter as s/he sees fit.

10. No admission of guilt or wrongdoing by either party is implied, and none should be inferred, by participation in this process.

11. I will sincerely attempt to resolve this matter, agree to cooperate with the Mediator assigned to this matter, and give serious consideration to all suggestions made in regard to developing a realistic solution to the problem. I will conduct myself in a courteous and non-hostile manner, use appropriate language, and to allow the Mediator to interrupt the process if the Mediator feels a caucus or break is needed to facilitate the mediation process.

12. The Mediator agrees to notify the parties, their representatives and the appropriate management official of the status and results of the mediation process within one working day of termination of the process, including settlements, withdrawal from, or unsuccessful conclusion of the process.

By signature below, I acknowledge that I have read, understand and agree to this Agreement to Participate in Mediation:

___________________________________

Aggrieved Party’s Signature


Date

___________________________________

Union Official’s Signature


Date

___________________________________

Management Official’s Signature


Date

___________________________________

Additional Signatures


Date

___________________________________

Additional Signatures


Date

___________________________________

Additional Signatures


Date

___________________________________

Mediator’s Signature


Date

___________________________________

Mediator’s Signature


Date


ATTACHMENT D

USER SATISFACTION SURVEY

To find ways to assess and improve the VISN X Mediation Program, persons who have participated in the Program are requested to complete this questionnaire. Your assistance is voluntary, but will help us with making the necessary improvements! Please return the questionnaire to the appropriate local management official designated to coordinating mediation requests, or mail to: VISN X Mediation Program Survey Results, Office of Regional Counsel Region 23 (318/02), 251 N. Main Street, Winston-Salem, NC 27155.

1. VA facility:

_______________________________

2. Name of matter:

_______________________________

3. Type(s) of issues:

_______________________________

4. Describe the type of settlement that resulted form the mediation process.

      • o Full

    settlement of all issues

  •  o No settlement of any issues
  •  o Partial settlement of the issues

5. Please describe any other impacts or benefits that you felt resulted from the mediation process. Examples might include relationships repaired, communication enhanced, office productivity enhanced, money saved, etc.

___________________________________

___________________________________

6. Were you satisfied with the process?

    • o Yes
  •  o No

Please provide any comments

_________________________________________

___________________________________

7. Would you use mediation again?

    • o Yes
  •  o No

Please provide any comments

_______________________________
_______________________________

8. Is there anything that you think should be done to improve the VISN X mediation Program?

    • o Yes
  •  o No

Please provide any comments

_______________________________
_______________________________

9. Please rate the following items on a scale of 1 to 5 by circling the number that represents your choice:

    • 1 = strongly disagree
  •  2 = somewhat disagree
  •  3 = neither agree or disagree
  •   5 = strongly agree

    4 = somewhat agree

  •  N = don’t know or are unable to determine

a. The mediation process was impartial.

b. The right parties were at the table.

c. Both sides negotiated in good faith.

d. Mediation was appropriate for this matter

e. You were able to fully present your case.

f. The mediator helped create a positive atmosphere.

g. The mediator helped create realistic options for settling the matter.

h. The mediator was impartial.

i. The mediator participated the right amount.

j. The mediator listened well.

i. The mediator helped clarify the key issues of the parties.

k. The mediator explained the process well.

l. The mediator was fair.

m. The mediator was effective.

10. If this was a co-mediation, was it beneficial to have two mediators?

    • o Yes
  •  o No

Please provide any comments

__________________________________________

___________________________________

11. Please provide any other

comments: _________________________________

___________________________________

Thank you for taking the time to complete this questionnaire. Please return it to the appropriate local management official designated to coordinating mediation requests, or mail to: VISN X Mediation Program Survey Results, Office of Regional Counsel.


ATTACHMENT E

FREQUENTLY ASKED QUESTIONS

ABOUT THE VISN X MEDIATION PROGRAM

1. What is mediation?

Mediation is an option available to all VISN X, which lets parties use a neutral third person called a mediator, to help them explore ways to resolve their differences and reach an agreement that best addresses their interests. Mediation is a totally voluntary process and unless all parties want to participate in the process, time and resources should not be expended. All parties must be willing to work the problem out between themselves. Mediation, unlike arbitration or court proceedings, does not focus on who is right or who is wrong. The Mediator has no power to make the decision for the parties or tell the parties what they should do. It is the parties themselves who decide what is important to each of them and make decisions based on those factors. A mediator helps the parties become the decision makers by understanding and listening to each other and by working together to create options and solutions which meet their concerns. By using mediation, neither party gives up any rights they had before the mediation. Any settlement is entirely voluntary. If a settlement is not reached, the parties lose none of their rights. Provided they have followed the statutory time frames, they can go right back to an EEO complaint, grievance or other trial type procedure.

2. Is mediation just another “fad”? No. Mediation is here to stay. It is being extensively used in the Federal government as well as in the private sector. The techniques used have been so successful that here is a steady and rapid growth of the use of mediation in almost all sectors of dispute resolution.

3. Just exactly how does the procedure work? The mediator usually holds a series of joint and separate sessions with the parties in order to clarify the issues in dispute and help generate settlement options. Through this series of meetings the parties explore their needs and realistically assess their alternatives to reaching settlement.

4. Who are the mediators and what is their role? A mediator is a neutral party who has no interest in the outcome of the dispute. He or she has received special training in techniques designed to assist the parties in coming to a solution. The mediator does not have the power to decide the dispute; the parties develop a resolution themselves with the assistance of the mediator. The mediator suggests settlement terms, introduces fresh ideas to problem solving and plays the role of a “sounding board” for settlement ideas. The mediator brings independence, momentum and a safe environment in which to problem solve. Each of the mediators chosen and trained we selected by both labor and management as individuals possessing these attributes, and were felt to be persons who were able to act fairly I mediation sessions.

5. Who should attend and participate in a mediation session? 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, the parties are expected to be the primary participants.

  • Mediator(s) must be present. These are fair, neutral and impartial third parties, trained and skilled in conflict resolution techniques, who have been selected bylabor and management to participate as mediators in the VISN X Mediation

    Program. Where it might be beneficial, co-mediation sessions may be conducted in which two mediators are assigned to help the parties reach settlement.

  • The aggrieved party, complainant or the individual to whom something adverse has happened or is about to happen must attend.
  • The management representativemust attend. This is the individual who has the authority to represent VA management. The management representative is usually familiar with the facts, has the ability to agree on resolution, and the authority to bind the facility to any resolution agreed upon.
  • The supervisor of the aggrieved individual may also attend, but not in every case. Management representatives may bring additional management participants to the mediation to advise the management representative on the facts as they see them. Care should be taken not to overwhelm the aggrieved employee at the tablewith too many persons from management.
  • Union representatives should also attend, particularly when the matter involves an employee from the bargaining unit or when asked to serve as the representative of one of the parties. Under Article 6 of the Master Agreement between AFGE and the Department, AFGE supports the appropriate use of mediation and other forms of ADR to resolve workplace disputes.
  • Attorneys, representatives and advocates may also attend, if the parties decide to invite them. Unlike litigation, attorneys, representatives and advocates will usually be expected to take a “back seat” during the mediation session.
  • Other Team Members who work behind the scenes are generally not at the mediation session. A small team of people may be aware of the issues and provide support to the resolution effort, though they are not included in the confidential mediation discussion. This team may include the Labor Relations Specialist, the EEO counselor, and the EEO coordinator.

6. What happens if mediation does not resolve the matter? If the matter is not resolved by the mediation, the parties can still use traditional methods of resolving disputes, provided they have met the statutory time limits that apply to their chosen form of dispute resolution. Most of the traditional procedures available to employees have time limitations that must be followed, otherwise the employee loses his or her rights to use that process. This is particularly true of EEO, discrimination, sexual harassment and union grievance matters, as well as other matters. Choosing mediation does not satisfy taking the steps you need to preserve your rights to use these other procedures. You should contact your EEO counselor and union representative to discuss what you need to do to protect your rights.

7. What is expected at a mediation session? Parties must be willing to work toward a compromise, and each party should come prepared to settle the case at mediation. Mediation requires each party to agree to listen to each other and to attempt to understand the other party’s position. Parties should be prepared to discuss briefly the facts of the case and what they want to accomplish. Each party will have the opportunity to voice concerns and to speak without interruption. The mediator will expect the parties to share information with him or her, focusing on their needs and interests, and work to resolve the dispute by negotiating and bargaining in good faith. Either party, or the mediator, can decide the mediation is not productive and stop the process at any time.

8. Are mediation sessions confidential? Yes, the mediator will protect the confidentiality of the parties and the mediation process. The mediation sessions and all materials disclosed during the mediation are confidential. Both parties must agree to confidentiality. Mediators will not testify concerning the mediation discussions. In addition, mediators do not disclose anything that one of the parties asks them, in a separate session, not to disclose to the other party. Of course, if the case is not settled and goes to formal litigation, each party could use the court process to obtain documents which would normally be obtained through the litigation process or pursuant to the Freedom of Information Act.

9. Will all VA employees have to use mediation or the VISN X program? No. The process is entirely voluntary and does not interfere with the employees’ right to turn to other means of resolving their dispute. Both parties must agree to mediation before it can take place.

10. Why is mediation being used by VISN X?

  • Mediation helps resolve disputes earlier and faster, before the problem has a chance to fester.
  • Mediation helps the persons having the problem to communicate with each other.
  • Mediation helps rebuild relationships.
  • Mediation is voluntary, no one can force you to use it.
  • Mediation helps the individuals involved develop realistic and mutually satisfying solutions.
  • Mediation allows the persons involved to control the results reached.
  • Mediation allows the persons affected to create their own solutions and examine unique solutions to a problem instead of taking the problem to a judge, arbitrator or another outside decision maker.
  • Mediation is less formal and cheaper for all parties involved, both in time, resources and money.
  • Neither party gives up any rights when they use the Program.
  • Labor and management support using mediation to help the VISN do business better.

For more information, contact your mediation program coordinator, labor relations specialist, EEO counselor, union representative, or a member of management at your facility.

COMMON QUESTIONS ABOUT MEDIATION

1. What is Mediation?

Mediation is an informal way individuals can resolve disputes with a fellow employee, a manager or a colleague. In mediation, a mediator helps two or more persons explore ways to resolve their differences and reach an agreement that best addresses their interests.

2. How will Mediation be used in the VA?

A group of trained VA employees will provide a pool of neutral mediators for use in VISN X in order to assist in the early, informal resolution of formal and informal workplace problems.

3. In what kind of cases can Mediation be used?

Mediation can be used in many areas in the VA. To date, mediation has been widely used in LEO, contract and MSPB cases. It can also be used to settle informal workplace disputes. The Administrative Dispute Resolution Act directs Agencies to explore potential mediation application in both formal and informal adjudication, rule-making, enforcement actions, issuing and revoking licenses or permits, contract administration, litigation brought by or against the agency and any other agency actions

4. Is Mediation just another “fad”?

No. Mediation is here to stay. It is being extensively used in the Federal government as well as in the private sector. The techniques used have been so successful that there is a steady and rapid growth of the use of mediation in almost all sectors of dispute resolution.

5. Just exactly how does the Mediation procedure work?

The mediator usually holds a series of joint and separate sessions with the parties in order to clarify the issues in dispute and helps generate settlement option. Through this series of meetings, the parties clarify their needs and realistically assess their alternatives to reaching settlement

6. Who is a Mediator and what is their role?

A mediator is a neutral party who has no interest in the outcome of the dispute. He/she has received special training in techniques designed to assist the parties in coming to a resolution The mediator does not have the power to decide the dispute; the parties develop a resolution themselves with the assistance of the mediator. The mediator does, when appropriate, suggest settlement terms, urges the parties to accept them, introduces fresh ideas to problem solvingand plays the role of a “sounding board” for settlement ideas. The mediator brings independence, momentum and a safe environment in which to problem solve. Each of the mediators were selected by labor and management as person possessing the above attributes.

7. Will all VA employeeshave to go to Mediation?

No. The process is entirely voluntary and does not interfere with the employees’ right to turn to other means of resolving their dispute Both parties to a dispute must agree to go to mediation before the process can take place.

9. What happens if Mediation does not result in a resolution?

If both parties to a dispute agree to go through the mediation process but cannot reach an agreement, the traditional methods of resolving disputes are still available provided the party meets any required time limits for filing the dispute. Neither party gives up his or her right to pursue a dispute formally. No one can force the parties to make a decision or reach an agreement The parties can stop the mediation process at any time

10. Who can be at the table during Mediation?

Parties can represent themselves or have a representative with them bargaining unit members will have a union representative present Of course the mediator will also be present

11. Why is Mediation being used?

Mediation is becoming widely used because it offers many benefits not available in the standard methods of dispute resolution. A few of the benefits are listed below. Mediation is used early in a dispute so that there can be a much faster resolution of an employee conflict.

¤ Mediation is an especially effective tool where communication has broken
down or where emotions are intense and can result in more mutually acceptable
and creative solutions to problems.

¤The parties themselves resolve their dispute and, thus, do not give up
control of the problem or the resolution.

¤ Mediation is confidential.

¤ Mediation is voluntary. It brings a consensual approach to conflict resolution.

¤ Mediation is a cost effective and efficient method of workplace problem resolution.

¤ Mediation helps the individuals communicate with each other

¤ Mediation helps the individuals involved develop realistic and mutually satisfying solutions. This policy will encompass all bargaining unit members represented by the National Partnership Agreement, NAGE, ANA in VISN X.


ATTACHMENT F

SAMPLE MEDIATION SETTLEMENT AGREEMENT

The terms of this Settlement Agreement were arrived at through mediation conducted on (date), and are in full settlement of all issues involved in the matters set forth in the (matter, grievance, complaint) initiated on (date), by the (Complainant, Disputant, Griever), (Name and Title), Department of Veterans Affairs. (Name) also attended the mediation session. (Name and Title) was the Management Representative with full authority to bind the agency in this matter. (Name and Title) also attended the mediation session.

The Terms of the Settlement Agreement are as follows:

1. The parties agree that when executed this Settlement Agreement shall be binding upon all parties to the Agreement.

2. The parties agree that the (Complainant, Disputant, Griever), and the Management Representative will (state terms):

3. The Complainant agrees upon execution of this Settlement Agreement to immediately withdraw his/her Complaint. By doing so, the Complainant waives all further remedies, all right to further administrative processing and all right to file a civil action in connection with the above identified Complaint.

4. The parties agree this Agreement has been entered into freely by both parties.

5. The parties agree that this Agreement does not constitute an admission of guilt, fault, or wrongdoing by either party.

6. The parties agree neither party will subpoena the mediators or any documents prepared by or submitted to the mediators. In no eventwill the mediators voluntarily testify on behalf of any party or submit any type of report in connection with this mediation.

7. The parties agree to keep the terms of this Settlement Agreement private and confidential and not discuss them with other persons within the Department of Veterans Affairs, except to authorized EEO officials or other officials responsible for implementing the Settlement Agreement.

8. The parties agree this Agreement shall not serve as a precedent for resolving any other complaints, which have been or may be filed by the (Complainant, Disputant, Griever), or any other person.

9. The parties agree that this Agreement constitutes the entire Agreement and there are no other terms to this Agreement except those specified herein. No other promises or agreements shall be binding unless placed in writing and signed by all the parties.

10. If for any reason not due to Complainant’s acts or conduct, the Department of Veterans Affairs fails to fulfill the terms of this Settlement Agreement, the Complainant retains the right to request reinstatement of the withdrawn complaint at the point previous processing ceased.

11. Prior to reinstating the Complaint, the parties agree to submit the matter to mediation.

BY SIGNATURE BELOW, WE ACKNOWLEDGE THAT WE HAVE READ,

UNDERSTAND, AND AGREE TO THIS SETTLEMENT AGREEMENT.

___________________________________
Date

(Complainant, Disputant, Griever)

___________________________________

Date

Representative

______________________________________

Date

Management Representative

_______________________________________

Date

Co-mediator

______________________________________

Date

Co-mediator

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