Alternative Dispute Resolution (ADR)

All organizations experience conflict. It is completely natural when individuals with varying backgrounds, values, and responsibilities come together at work. You can respond to conflict in a negative or unproductive manner, such as ignoring it; or you can address it with destructive behavior that intensifies the conflict and leads to destructive outcomes, such as hurt feelings, anger, and a desire for revenge. And you can also respond to conflict in a manner that leads to a constructive resolution.

When we experience differences, we can often work things out by ourselves — quickly and satisfactorily. This is usually the best way. However, sometimes a third person who has no stake in the outcome can help us resolve the problem. A third party may be able to give us a fresh perspective or offer unbiased suggestions.

When you feel the need for assistance in an effort to reach a constructive solution, the Federal Government and VA can make available to you a variety of resources. This Guide is intended to help you choose the option best suited to you and the situation.

There are formal processes available to you, such as the grievance and EEO complaint processes. Like the court system, these are “rights-based” and end with a decision-maker determining the outcome. Each approach has its own timeframes, procedures, and decision-making structure. The demands on your finances, time, and emotions — as well as the demands on your work environment — are also important considerations.

Resolving issues through informal processes at the earliest possible point in a conflict is highly recommended. Most conflicts occur as a result of miscommunication. Early one-on-one discussions about the issue can result in resolution before the “I am right, you are wrong” frame of mind becomes established. When there is no resolution from a one-on-one discussion, however, several alternative dispute resolution (ADR) techniques are available: coaching, facilitation, mediation, and arbitration.

VA Directive 5978, Alternative Dispute Resolution established a department-wide policy supporting the use of ADR for resolving workplace disputes. ADR is an “interest-based” option that leaves the resolution of a dispute to the persons involved in the conflict. Through mediation, for example, you can help improve communication, build relationships, and understand another person’s point of view. Mediation can be used before, during, or in place of the formal administrative avenues, and it provides you with a more personal option for addressing your concerns.

Please read this Guide carefully. Should you face a workplace conflict, a call to the referenced contacts or a visit to the listed web sites may provide you with critical information. Protections against retaliation exist for employees who elect to pursue these options.

This Guide is informational only. It does not replace or take precedence over any Federal laws, regulations, or policies.

In most instances of conflict, doing nothing is the least advisable option. By seeking an appropriate avenue at an early stage to address your concerns, you can gain a measure of control over the situation and increase your chances of resolving it in the most timely and effective manner.

Q. What is ADR?

ADR is a voluntary alternative to, not a replacement for, more traditional and formal systems, such as grievances, discrimination complaints, and appeals. Unlike the traditional formal processes, where the parties involved in a dispute are placed in a contest to determine a “winner” and a “loser,” ADR provides an arena where individuals may examine all the matters related to their workplace concerns. It is an opportunity to develop unique solutions that are acceptable to all parties. Through ADR, participants can generally arrive at resolutions much more quickly than through the formal processes, and resolutions are designed by the participants rather than by an outside person, e.g., the next-level supervisor or a judge.

ADR consists of a variety of approaches and techniques for early intervention and dispute resolution, including facilitation, mediation, early neutral evaluation and others. Each ADR technique provides a non-adversarial setting, giving employees an opportunity to discuss and consider possible solutions with the assistance of a neutral third party.

Q. Who may use ADR?

Any employee at any level — including temporary employees, applicants for employment and former employees— may ask to participate in ADR and may request that other involved individuals also participate. Mediation is the form of ADR that is most often used to address workplace disputes or concerns. Mediation is available to you when you are experiencing conflict with a co-worker, or with a supervisor, and may be requested whether or not a complaint, grievance, or personnel action has been initiated. You maintain the right to pursue more formal avenues as long as you meet the required deadlines.

Q. How does ADR work?

VA encourages all employees to pursue available ADR options at the earliest possible time in order to minimize the disruption and stress that often accompany conflict. You can start the process by contacting your facility’s ADR program coordinator. If you are already in a formal administrative process, an opportunity to participate in ADR may be suggested as a part of that system. ADR emphasizes voluntary participation, neutrality, confidentiality as permitted by law, and the ability of the parties to determine their own outcomes.

In mediation, specifically, a trained neutral mediator usually begins the session — with all the participants present — by explaining the procedures and ground rules that will be used. The participants are then invited to present the issues important to them in their own words. The mediator provides structure, balance, and fairness throughout the discussion. The mediator may meet separately with each participant to discuss matters further and to develop possible options for resolution. Throughout the mediation process, the participants listen to each other’s concerns and try to focus on problem solving. Although an agreed-upon resolution between the parties is the primary goal, mediation is often considered successful if a better understanding or relationship between the participants is achieved.

Another ADR option offered in VA is facilitation. In facilitation a third party neutral, referred to as a facilitator is trained and experienced in active listening and managing conflict. The facilitator can assist employees, managers, and groups exchange information, obtain answers to questions, discuss decision-making and otherwise support effective communication. The goal of facilitation is to open lines of communication; thereby promoting awareness and understanding and preventing and/or resolving disputes. Facilitation can involve a face-to-face meeting between individuals or groups or it can merely involve relaying information through the facilitator.

Facilitation is recommended when: (1) an individual is having difficulty communicating with another individual; (2) a conversation or meeting needs to take place about a matter where one or both parties fear the discussion could become emotional or unproductive; (3) something has occurred in the workplace leading to gossip, rumors, suspicions and an individual wants to initiate a conversation to clear up the matter; (4) a new employee or manager has joined a group and changes are about to be initiated and there is concern about how the changes will be received, and (5) morale is low within a team and there is interest in having a discussion about the situation and developing ways to improve the environment.

Some employees in VA also serve as conflict coaches. A coach works one-on-one with an individual to help them find ways to better manage a conflict. When parties don’t want to mediate, but need help with managing a situation, another person could help by coaching them through the situation. The couch talks to the individual about what is going on, looks at it from different angles, and assists in developing some options for how the individual might address the situation. The individual may not want to approach the other person but needs help. The individual may need coaching before going into mediation or after mediation has ended. Coaching aids in processing a situation and manage the issues.

Another ADR process includes arbitration, where the parties designate a third person or panel to decide a matter for them and may agree to be bound by the result.

Q. How do I learn about ADR?

If you have any questions about ADR or wish to initiate an ADR process, contact your facility ADR program coordinator. You can find additional information about ADR on the agency’s ADR web site: http://www.va.gov/adr.

Q. What is the Employee Assistance Program (EAP)?

The EAP is a professional counseling and referral service designed to help you with your problems, both on and off the job. It is free, confidential within the limits of the law, and voluntary. The EAP provides employees with counselors who are prepared to help you deal with virtually any issue or problem that may arise. Some of the more common concerns relate to emotional issues, relationships, family matters, alcohol or drug use, and problems on the job.

Q. Who may use EAP?

Any VA employee may use the EAP.

Q. How does the EAP work?

The EAP provides prompt assistance to employees and, in some cases, their immediate family members. You simply contact an EAP counselor, who meets with you in a confidential setting. After your initial contact, an EAP counselor may help you assess the problem, provide short-term counseling or problem solving methods when appropriate, advise you in selecting a community resource when necessary, and follow up to make sure you receive quality assistance.

Q. How do I learn more about the EAP?

If you are interested in learning more about the EAP, contact your facility’s Human Resources office, or visit http://www.opm.gov/ehs/Eappage.htm.

Q. What is the Workplace Violence Prevention Program?

The Workplace Violence Prevention Program exists to carry out VA’s policy prohibiting acts or threats of violence against persons or property in the VA workplace. That policy applies to violent threats or acts, whether committed by VA employees or by individuals outside VA.

Q. Who may use the Workplace Violence Prevention Program?

Any VA employee may use the Workplace Violence Prevention Program.

Q. How does the Workplace Violence Prevention Program work?

Every VA facility has a workplace violence prevention policy. Facilities are required to have policies and procedures to prevent and to respond to workplace violence at VA work sites. In addition, each facility must have a process to identify, report, monitor, and respond to specific areas with a high potential for workplace violence.

If you have concerns about a threat or act of violence, you should promptly raise these concerns, generally with either your supervisor or your Human Resources office. The supervisor or Human Resources office will take the necessary and appropriate actions, which could include bringing a “threat assessment team” together to evaluate the situation and to determine what steps, if any, need to be taken. There may be other unique features to your facility’s Workplace Violence Prevention Program.

Q. How do I learn about the Workplace Violence Prevention Program?

If you are interested in learning more about the Workplace Violence Prevention Program, contact your facility’s Human Resources office or visit the website:

http://vaww.va.gov/vasafety/osh-issues/violentbehavior/ViolentMainPage.htm.

Q. What is the administrative grievance process?

The administrative grievance process provides employees an opportunity to raise concerns about work issues and to notify management of employment situations that may violate regulations. If you believe that a violation of a personnel regulation has caused you harm, you may choose to file an administrative grievance. Management uses the process to examine the claims and provide a formal response, which can range from completely correcting the situation to reinforcing the reasons for the challenged action.

Administrative grievances can appropriately address a wide variety of potential employment situations, but are not applicable in every matter, such as complaints of discrimination.

Q. Who may file an administrative grievance?

Any VA employee not covered by a collective bargaining unit may use the administrative grievance process. (For a listing of employees not covered by the administrative grievance procedures, see VA Handbook 5021, Part IV).

Q. How does the informal grievance process work?

You initially present an informal grievance to your supervisor, orally or in writing, within 15 calendar days of either the action that generated the grievance or the day when you became aware of the action. The supervisor handles the grievance personally or directs it to the appropriate official. You should receive a response that either clarifies the matter or provides corrective or other appropriate action to you. If you are not satisfied with the response, you may move to the next step and present a formal grievance.

Q. How does the formal grievance process work?

You need to present a formal grievance in writing through supervisory channels (normally your immediate supervisor) within 10 days after you receive a determination under the informal grievance procedure. You must furnish sufficient information to identify and clarify the reason for the grievance. You must also describe the relief you are requesting. You or any management official may ask to participate in ADR during any stage of the administrative grievance process.

Q. How do I learn more about the administrative grievance process?

For additional information, contact your facility’s Human Resources office or ask for a copy of VA’s administrative grievance procedure— VA Handbook 5021, Part IV.

Q. What is the negotiated grievance process?

The negotiated grievance process provides an opportunity to raise concerns about work issues and to notify management of adverse employment conditions that you believe may violate regulations or the collective bargaining agreement. If you believe that a violation of personnel regulations or of a collective bargaining agreement provision has caused you harm, you may choose to file a negotiated grievance. Although negotiated grievances can address a variety of employment situations, they are not applicable in all matters.

Q. Who may file a negotiated grievance?

Negotiated grievances may be filed only by employees who are part of a recognized bargaining unit represented by a labor union. Membership in the labor union is not necessary to file a negotiated grievance. You should first determinewhether or not you are in a bargaining unit.

Q. How does the negotiated grievance process work?

You, or the union acting on your behalf, must file a grievance in the manner required by the collective bargaining agreement. In most cases, the grievance is taken up with your supervisor or another management official. The management official considers and examines the concerns you have raised and provides a formal decision on the matters in question. If you are not satisfied with the decision, you can then raise the issues with the next higher official. The number of such “steps” varies from bargaining unit to bargaining unit. The managers’ decisions can range from finding in your favor and specifying the appropriate remedies to totally denying your grievance. If you are not satisfied with the highest level decision, in some instances the matter may go to an external, neutral arbitrator for a binding decision. Employees who file negotiated grievances have the right to have a union representative assist and represent them through every phase of the process.

Collective bargaining agreements provide detailed descriptions of what concerns may be a cause for grievance and how the grievance process works in an individual bargaining unit.

You or any involved management official may ask to participate in ADR during any stage of the negotiated grievance process in an attempt to reach a mutually agreeable resolution. If ADR is selected, contractual time frames may be suspended by mutual agreement. Statutory time frames cannot be changed.

Q. How do I learn about the negotiated grievance process?

If you are interested in learning more about the negotiated grievance process, contact your local union official. If you are not sure how to reach a local official, contact a labor relations specialist in your facility’s Human Resources office to determine which union covers your position.

Q. What is the Equal Employment Opportunity (EEO) complaint process?

The EEO complaint process provides an avenue for you to address actions taken against you by the agency or issues you believe resulted from illegal discrimination. The actions may be work-related, or they may result from the agency’s failure to take action. Through the EEO complaint process, you may seek either a mutual resolution of the issues raised or a decision by a third party on the validity of the claim of discrimination.

Q. Who may use the EEO complaint process?

You may file an EEO complaint if you believe:

1) That you have suffered in employment due to an action or decision by an official or employee of VA; and

2) That this action or decision was made because of race, color, religion, gender, age (40or over), national origin, physical or mental disability, or retaliation.

VA recognizes sexual orientation, political beliefs, parental status, and marital status as additional protected bases, but violations on these four bases are not enforceable by Federal courts or the Equal Employment Opportunity Commission (EEOC).

Q. How does the EEO complaint process work?

VA’s Office of Resolution Management (ORM) processes complaints of discrimination. To initiate an EEO complaint, contact an ORM EEO Counselor by calling 1-888-RES-EEO1. You must contact an ORM EEO Counselor within 45 days from the date of the action you believe was discriminatory, or from the date you first learned about the action. During the “pre-complaint” or “informal” stage, the EEO counselor informs you of your rights, including the right to select a representative to assist you during the complaint process. The EEO counselor will work with you and management officials to explore informally the full scope of your claims and will attempt to resolve the issues. In most instances, the EEO counselor will offer you an opportunity to participate in ADR as an alternative to traditional EEO counseling.

The EEO Counselor is required to complete your counseling within 30 calendar days of the initial contact. If the matter has not been resolved by the time counseling has been completed, the EEO Counselor will issue you a “Notice of Right to File a Discrimination Complaint.”

If ADR is elected, the pre-complaint processing period is 90 calendar days. If the matter is not resolved within that period, the EEO counselor will issue a “Notice of Right to File a Discrimination Complaint” by the 90th day. ORM encourages use of ADR throughout the EEO complaint process.

If either counseling or ADR fails to result in a signed resolution agreement, you may go on to file a formal EEO complaint with ORM. The formal complaint must be filed in writing within 15 calendar days of your receipt of the “Notice of Right to File a Discrimination Complaint.”

The formal complaint stage consists principally of the investigation phase and the decision phase. If ORM accepts a complaint for investigation, an EEO Investigator will be assigned to the case. The investigator is authorized to take statements from witnesses under oath, gather pertinent documents, and examine records. The investigator will assemble a file and prepare a report summarizing the evidence.

When the investigation is completed, you will receive a copy of the investigative file and be advised of your right to request an EEOC hearing or final agency decision rendered byVA’s Office of Employment Discrimination Complaint Adjudication (OEDCA).

If you disagree with the decision or if complaint processing exceeds certain timeframes, you may be entitled to appeal to EEOC or go to a Federal district court.

During the formal complaint stage, you may again be offered an opportunity to participate in ADR.

Q. How do I learn more about the EEO complaint process?

Contact your local ORM field office for more information about the EEO complaint process. If you wish to initiate an EEO complaint, you can reach an EEO counselor either by calling 1-888-RES-EEO1 (1-888-737-3361) or visiting your local ORM field office. To find out more about VA’s EEO complaint process, go to the ORM web site at http://www.va.gov/orm. The EEOC has also posted information at http://www.eeoc.gov. Q. What is the Equal Employment Opportunity (EEO) complaint process?

VA recognizes sexual orientation, political beliefs, parental status, and marital status as additional protected bases, but violations on these four bases are not enforceable by Federal courts or the Equal Employment Opportunity Commission (EEOC).

Q. How does the EEO complaint process work?

VA ‘s Office of Resolution Management (ORM) processes complaints of discrimination. To initiate an EEO complaint, contact an ORM EEO Counselor by calling 1-888-RES-EEO1. You must contact an ORM EEO Counselor within

45 days from the date of the action you believe was discriminatory, or from the date you first learned about the action. During the “pre-complaint” or “informal” stage, the EEO counselor informs you of your rights, including the right to select a representative to assist you during the complaint process. The EEO counselor will work with you and management officials to explore informally the full scope of your claims and will attempt to resolve the issues. In most instances, the EEO counselor will offer you an opportunity to participate in ADR as an alternative to traditional EEO counseling.

The EEO Counselor is required to complete your counseling within 30 calendar days of the initial contact. If the matter has not been resolved by the time counseling has been completed, the EEO Counselor will issue you a “Notice of Right to File a Discrimination Complaint.”

If ADR is elected, the pre-complaint processing period is 90 calendar days. If the matter is not resolved within that period, the EEO counselor will issue a “Notice of Right to File a Discrimination Complaint” on the 90th day. ORM encourages use of ADR throughout the EEO complaint process.

If either counseling or ADR fails to result in a signed resolution agreement, you may go on to file a formal EEO complaint with ORM. The formal complaint must be filed in writing within 15 days of your receipt of the “Notice of Right to File a Discrimination Complaint.”

The formal complaint stage consists principally of the investigation phase and the decision phase. If ORM accepts a complaint for investigation, an EEO Investigator will be assigned to the case. The investigator is authorized to take statements from witnesses under oath, gather pertinent documents, and examine records. The investigator will assemble a file and prepare a report summarizing the evidence.

When the investigation is completed, you will receive a copy of the investigative file and advised of your right to request an EEOC hearing or final agency decision rendered by VA’s Office of Employment Discrimination Complaint Adjudication (OEDCA).

You may request a hearing by an EEOC judge before a decision on the merits of the complaint is issued. If you disagree with the decision or if complaint processing exceeds certain timeframes, you may be entitled to appeal to EEOC or go to a Federal district court.

During the formal complaint stage, you may again be offered an opportunity to participate in ADR.

Q. How do I learn more about the EEO complaint process?

Contact your local ORM field office for more information about the EEO complaint process. If you wish to initiate an EEO complaint, you can reach an EEO counselor either by calling 1-888-RES-EEO1 (1-888-737-3361) or visiting your local ORM field office. To find out more about VA’s EEO complaint process, go to the ORM web site at http://www.va.gov/orm. The EEOC has also posted information at http://www.eeoc.gov.

Q. What is an MSPB appeal?

Merit Systems Protection Board (MSPB) appeals exist to protect Federal employees against abuses by agency management, ensure that executive branch agencies make employment decisions in accordance with the merit system principles, and keep Federal merit systems free of prohibited personnel practices. Most federal employees may appeal personnel actions affecting them to the MSPB. Matters appealable to the MSPB are generally personnel actions that have an adverse impact on employees: removal, suspension of more than 14 days, reduction in grade or pay, furlough for 30 days or less, reduction-in-force, performance-based actions, and certain other actions under regulations of the Office of Personnel Management.

Q. Who may use the MSPB appeals process?

Although most Federal employees have the right to file appeals of adverse actions and performance-based actions to the MSPB, some employees either do not have a right to file appeals or have restricted rights to do so: probationary employees, non-appropriated fund activity employees, employees serving under a temporary appointment of 1 year or less, and employees in bargaining units with grievance procedures that cover any actions that may be appealed to the MSPB.

Q. How does the MSPB appeals process work?

You must file a written appeal of the agency action — with the MSPB’s regional or field office serving the area where your duty station is located — within 30 calendar days of the effective date of action, or within 30 calendar days of receipt of the decision, whichever is later. To avoid the need for an administrative hearing, the MSPB encourages the parties to explore settlement of issues at any time during the appeals process.

An MSPB administrative judge makes an initial decision, which becomes final unless one of the parties petitions the full Board for review the Board’s final decision may be reviewed in the U.S. Court of Appeals for the Federal Circuit or, in some instances, Federal District court.

Q. How do I learn more about MSPB appeals?

To learn more about the MSPB appeals process or to initiate an appeal, contact your Human Resources office, the MSPB, or an MSPB field office serving the area where your duty station was located when the action occurred. The MSPB offers additional information on it web site at http://www.mspb.gov.

Q. What are OSC complaints?

The primary mission of the Office of Special Counsel, an independent agency, is to safeguard the merit system by protecting Federal employees and applicants from “prohibited personnel practices (PPPs)” — specifically, reprisal for whistleblowing complaints about PPPs.

Q. Who may use the OSC complaint process?

The OSC complaint process is open to most federal employees or applicants who believe that a PPP has been committed against them or other employees.

Q. How does the OSC complaint process work?

Employees may file PPP complaints with OSC, using OSC’s required Form OSC-11, at any time after the alleged prohibited activity occurred. A PPP complaint generally relates to a specific personnel action, such as an appointment, promotion, reassignment, or suspension. After analyzing the complaint to determine whether an investigation is warranted, OSC offers the parties the opportunity to participate voluntarily in mediation, as an alternative to an investigation. If matters remain unresolved through an investigation phase, OSC conducts a legal review — to consider whether the investigation established a violation of law, rule, or regulation, and to determine whether the matter warrants corrective action, disciplinary action, or both. OSC may seek corrective action during the complaint process, either through negotiation with the parties or before the MSPB.

Q. How do I learn more about the OSC process?

You can learn more about the OSC complaint process by calling 1-800-872-9855 or 202-653-7188. Information about the OSC complaint process is also available on the OSC web site: http://www.osc.gov/.