There are a number of other barriers to the successful resolution of disputes for federal employees. There is little insistence that agency representatives have their principals present in person during ADR sessions although federal employees are generally present. While the agency settlement officials are often available by telephone, this does not allow for the important interaction with employees that often leads to settlement. It is difficult to develop a positive relationship when the parties are unable to speak directly and candidly to each other across the table. Another major impediment is that agency settlement officials are sometimes the responsible management officials (RMOs) charged with discrimination. This makes settlement very difficult as the parties may concentrate on the merits of the case rather than resolving the dispute.
Once they are at the bargaining table, agencies sometimes declare certain aspects of settlement negotiations to be off limits, e.g., attorney fees and/or compensatory damages. This has a very chilling effect on ADR and may make it impossible to reach an agreement. Another troublesome area is that agency attorneys are not usually authorized to make settlement offers or counterproposals and have to go to their settlement officials before they can respond to employee offers. This may result in a long delay before the ADR process can be resumed and inhibits settlement. Sometimes an agency will have no intention of settling the case in ADR but will use the process to argue the merits of its case in order to obtain information on the merits of the employee’s case and/or proof of compensatory damages.
An example of an excellent model for an ADR program is one adopted by the Department of Agriculture (USDA) which has an independent office of conflict resolution staffed by full-time mediators. The USDA requires that management be represented by a high-level official (resolving official), not an RMO although also present, who has authority to settle the case and provides appropriate facilities to enhance mediation unlike other agencies which sometimes don’t even have a separate room set aside for caucuses. Other agencies use the “shared neutrals” program started by the Department of Health and Human Services, outside professional mediators, or the services of the Federal Mediation and Conciliation Service. Some other agencies, e.g., the Department of Labor and the Federal Aviation Administration, use in-house mediators, and others, e.g., the National Institutes of Health and the Food and Drug Administration, use their office of ombudsman to handle mediation requests that works well when the ombudsman is truly neutral which is not always the case in other agencies.
The institutional impediments are also enhanced by the Office of Personnel Management (OPM) having inserted itself to a greater extent than necessary in the settlement process for MSPB and EEOC cases which has inhibited settlement and fostered unnecessary litigation. The net result has been an overall loss of efficiency as cases that should settle continue in prolonged litigation. While well-meaning, the OPM Guidelines for Settlement of Federal Personnel Actions Involving Civil Service Retirement Benefits found at opm.gov have caused many unnecessary problems in their overzealous interpretation by OPM and agency representatives.* 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.
The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to https://www.fedweek.com/pub/index.php This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we’ve reduced the price to only $29.95 plus s&h.