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Alternative Dispute Resolution

Lynda O’SullivanKen Lechter

Office of the AF General Counsel(Dispute Resolution Division)

Presentation to NIH25 June 2008

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ADR – What is it?

“Any procedure that is used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, factfinding, minitrials, arbitration, and use of ombuds, or any combination thereof.”

- Administrative Dispute Resolution Act of 1996, 5 USC § 571(3)

- Air Force Policy Directive 51-12 (9 Jan 03)

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ADR - Where Does it Fit In?Q. What distinguishes most ADR processes from unassisted

negotiations of the parties, even if they use IBN?A. Introduction of a neutral third party to assist parties to resolve

their dispute (exception: Contract Disputes Act)Q. What distinguishes ADR from standard adjudicative forms of

dispute resolution?A. Several things:

A voluntary process Confidentiality Informality Greater control by parties over process & outcome Faster resolution; lower cost Greater opportunity for creative solutions Improved relationships

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UnassistedNegotiationsUnassisted

NegotiationsAssisted

NegotiationsAssisted

NegotiationsPrivate

AdjudicationPrivate

Adjudication

OutcomePrediction Assistance

Facilitation

Mediation

Conciliation

Mini-Trial

Early Neutral Evaluation

Fact-Finding

Non-bindingArbitration

PublicLitigation

PublicLitigation

BindingArbitration

Summary Trialwith BindingDecision

Article I Courtsand Boards(e.g., EEOC,MSPB, FLRA, ASBCA)

Article III Courts

NEGOTIATIONNEGOTIATION ALTERNATIVE DISPUTE RESOLUTIONALTERNATIVE DISPUTE RESOLUTION LITIGATIONLITIGATION

The Dispute Resolution Spectrum

Non-Binding Processes Binding Processes

PositionalNegotiation

Interest-basedNegotiation

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MediationProcess Dynamics:Third-party assistednegotiations

Unique Features:Confidential caucusesNeutral as facilitator

Decisionmakers:The parties

N

P1 P2

N

P1 P2

P1 P2

N

+

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Facilitation

Process Dynamics:Third-party assistednegotiations

Unique Features:Neutral as facilitator;IBN techniques

Decisionmakers:The parties

N

P1 P2

P1 P2+

N

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Early Neutral EvaluationProcess Dynamics:Third-party assistancewith negotiations

Unique Features:Evaluation of likely outcome;Assessment of facts and/ormethodology

Decisionmakers:The parties

P1 P2+

P1 P2

N

P1 P2

N

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Workplace Disputes Integrate ADR into traditional complaint processes

Negotiated grievance procedures EEO complaints (formal and informal) MSPB appeals Labor-management disputes NSPS adverse actions, appeals, and labor-management disputes

Promote ADR as the preferred dispute resolution option (voluntary and confidential)

Maintain a cadre of highly trained and experienced mediators and facilitators

Train management personnel in effective conflict management techniques

Metrics critical to program evaluation

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Distribution of Air Force Civilian Workplace Disputes FY 2007

Source: FY 07 AF ADR Report

Equal Employment Opportunity

41%

Negotiated Grievance Procedure

43%

Other5%

Agency Grievance System

3%

Unfair Labor Practices5%

Merit Systems Protection Board

3%

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Average Number of Days for Closure of EEO Complaints FY 07

ADR resolves complaints in much less time than other closure methods.

Source: EEOC Form 462

356

36

0

100

200

300

400

Average Days for allClosures

Average Days for allADR Closures

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ADR Customer Satisfaction (FY07)

1%3%6%

70%

20%

Somewhat Satisfied

Very Satisfied

Neutral

Somewhat Dissatisfied Very

Dissatisfied

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Questions & Discussion