September 20, 2022

by James Hopkins & Charles Myers

Mediation is often successful when it is flexible, is a safe space to elicit fresh ideas and creative resolutions, and an openness to participate. There are many different types of Alternative Dispute Resolution (ADR). Here at the National Institutes of Health, we offer ADR as part of the Equal Employment Opportunity (EEO) complaint process in the form of mediation. As managers and key leaders, you will be required to participate in EEO Alternative Dispute Resolution if the Counselee/Complainant selects that as an option. The following are some helpful tips:

How do you prepare?

Here are a few tips to help you navigate through the EEO ADR/mediation process:

1. Don't take it personally. It is normal to feel disappointment, resentment, and shock when you are named in an EEO complaint. Taking an EEO complaint personally could interfere with your ability to understand an employee's perspective on the issue(s) and why he/she filed a complaint. EEO Complaints are filed against the agency, not an individual, so engaging in mediation with an open mind can help facilitate resolution.

2. Clarify your goals and come to the table in good faith, in seeking a resolution. Do not assume that the process will only have a win or lose outcome; often times communication and clarification on issues can resolve the conflict. Consider the following:

• What outcome presents a win-win solution?

• Have you considered all reasonable avenues of resolution?

• What steps could both parties take to resolve the conflict at the earliest possible point?

• Don’t limit the possibility of creative resolutions.

3. Creativity and collaboration are essential to any settlement. Consider the following options for settlement & develop some proposals:

• What do both parties need to resolve the issue?

• Be open-minded and listen for key things the employee needs. Address the points made. Consider what is needed on the Agency’s side to accomplish its business objectives.

• What would you like to see the other party do?

• Is there a simple resolution? Sometimes employees and managers need to be heard on why issues arose. There is power in communicating, listening, and remaining empathetic.

4. Be self-reflective and solution(s) oriented. Try to understand the other party’s perspective and why they may have filed an EEO complaint. Cooperate to solve the problem. Some things to consider include the following:

• Mediation is not about “right” or “wrong;” it’s about working towards a common goal towards achieving resolution.

• Focus on results for the future, not on past wrongs.

• Seek out solutions that address an overall goal, even if it is not the remedy sought.

5. Learn to Effectively Listen. Listen in a way that will allow you to understand and explore the situation through the other party’s eyes.

• Acknowledge what the other party is talking about and pay close attention to the inflection of their voice when speaking on different issues.

• Avoid interrupting someone to make your point or talking over them. This will help you understand what is important to them and what might resolve the conflict.

• Listening to understand will reduce defensiveness and move the process towards resolution.

6. Communicate Clearly. Employees’ perceptions are often formed due to a breakdown in communication somewhere along the path.

• Speak in a way that the other party will understand you. Be genuine in expressing the business objectives of the Agency and the necessities to accomplish the Agency’s mission.

• Avoid blaming or intentionally provoking a defensive response.

• Lack of effective communication by management results in employees creating their own story. Often, employees do not see the perspective of why a leader made a particular decision. Communicate the Agency’s mission and how a decision furthers the goal to accomplish the mission; however, do not be closed minded in hearing the employees’ thoughts on how to achieve the same result. Remember that we are all working towards the same goal. Getting there is not a ‘one-size fits all’ approach.

• Be mindful of your non-verbal communication. Be aware of body language and facial expressions like folded arms, facial grimacing, non-responsiveness, finger pointing, and tapping that can be conveyed as negative.

7. Consider repairing the workplace relationship with co-workers.

• Reach out to the co-worker during the negotiation process and seek to repair the relationship.

• Think about the productivity of the work and performance as well as the need to have a respectful working relationship.

• If parties agree to work on repairing the relationship, they may obtain help from the mediator to assist in this regard.

If you keep these key tips in mind, the EEO ADR/mediation process may provide closure and eliminate the need for an employee to file a formal complaint. Mediation is a fair and efficient process that could avoid lengthy investigations or unnecessary and costly litigation.

For more tips or information about EEO ADR/mediation, please visit our website at https://www.edi.nih.gov/resolutions/power-of-adr. You can also find more information at EEOC’s frequently asked questions, regarding mediation at https://www.eeoc.gov/questions-and-answers-about-mediation.

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