Fedweek Legal

Alternative dispute resolution (ADR) is very popular these days. Federal agencies are required to use ADR, where feasible, as it is usually more efficient and effective than prolonged litigation. However, as a federal employee you have to be careful to make sure that when you enter into a settlement agreement of your complaint or grievance that it guarantees what you seek and is enforceable in case of a breach. Sometimes federal agencies have been known to agree to nice words on paper that are meaningless and unenforceable. You should carefully review any proposed settlement agreement and consider consulting with an experienced attorney for an impartial expert opinion if you are not already represented by counsel.

ADR can take several forms, but mediation is the most common. A mediator is a third party who is not involved in the matter and is trained in dispute resolution techniques. While a mediator cannot force a settlement on unwilling parties, he or she will try to bring the parties together to find a common middle ground to resolve the dispute. It is most important that any settlement agreement reached be reduced to writing and contain time limits for its implementation. Generally, most settlement agreements are “no fault,” as neither party will admit to have done anything wrong. In addition, settlement agreements usually are confidential and require the employee to dismiss all outstanding cases. However, ADR may also be used to resolve informal disputes before they rise to the level of actual cases.

Notwithstanding that the Office of Personnel Management has a legitimate role to play in the ADR process for Merit Systems Protection Board and Equal Employment Opportunity Commission cases impacting on the retirement system, it has sometimes inhibited settlement by its intervention in settlement agreements. Although it is undisputed that OPM is obligated to protect the integrity of the federal retirement system, any settlement agreement involving the retirement system should also take into account the possibility of costly prolonged litigation and an ultimate outcome that may exceed the cost of settlement. While well intentioned, the OPM Guidelines for Settlement of Federal Personnel Actions Involving Civil Service Retirement Benefits have caused some unnecessary problems by their overbroad interpretation.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **