Research by the U.S. Equal Employment Opportunity Commission (EEOC) determined that Alternative Dispute Resolution (ADR) is effective and even more effective when offered early in the EEO complaint process.
ADR "is a process in which a neutral third party helps parties reach an agreement without legislation." Federal agencies are required to have fair ADR programs, which generally means they are "voluntary, confidential, enforceable, and led by a neutral person."
The "Effectiveness of Alternative Dispute Resolution in the Federal Sector" report examined the experienced of complainants and managers that participated in agency ADR programs - primarily mediation - during fiscal year 2021. The principles apply to EEO complaints in the private sector, as well. https://www.eeoc.gov/federal-sector/reports/effectiveness-alternative-dispute-resolution-federal-sector#:~:text=In%20FY%202021%2C%20Federal%20agencies%20accepted%20ADR%20more%20often%20during,percent%20of%20all%20complaint%20closures).
The EEOC found that 87.8 percent of completed counseling offered by agencies occurred during the pre-complaint stage, while 17 percent of complaint closures occurred during the formal EEO complaint stage. Agencies also accepted ADR more often during the pre-complaint stage than during the formal EEO complaint stage.
However, forty-six of the 72 complainants surveyed said they were dissatisfied with the fairness of the ADR process, while 22 of the 23 responsible management officials (RMO) said they were satisfied with the fairness of the ADR process. In addition, 41 complainants said they were considering leaving their agency in the coming year, with the main reason cited being retaliation for engaging in ADR.
Based on its findings, the EEOC recommends that federal agencies provide ADR training; keep participants informed on the procedural steps throughout the ADR process; collect feedback after the mediation process; encourage good faith participation in the ADR process; and review and use recommendations from the EEOC's previous ADR report. "EEOC Research Finds Alternative Dispute Resolution More Effective When Offered Early in the EEO Complaint Process" www.eeoc.gov (Aug. 21, 2024).
Commentary
Mediation is a voluntary process in which the plaintiff and defendant both agree to participate. A trained mediator moderates the process – setting the ground rules for the process, sometimes having the parties in the same room, talking and listening to each other, and at other times having the parties in separate rooms.
The resolutions that are available in mediation are limited only by the parties' imaginations and willingness to agree, as compared to remedies through litigation, which are nearly always limited to money damages.
Some of the benefits of mediation include avoiding litigation; saving time and money; promoting cooperation; helping employers discover underlying issues in the workplace; and reaching a voluntary, mutually beneficial resolution. Often, business relationships can be renegotiated and saved for future transactions.
The EEOC's mediation program successfully resolved more than 153,400 charges - 72 percent of all charges mediated - from 1999 to 2017. "History of the EEOC Mediation Program" www.eeoc.gov. The EEOC states that 96 percent of respondents and 91 percent of charging parties surveyed said they would use mediation again. "10 Reasons to Mediate" www.eeoc.gov.
