Transcript ALTERNATIVE DISPUTE RESOLUTION ADR - NFFE

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