|NASA Headquarters' Directives|
Effective Date: January 05, 2010
Expiration Date: January 05, 2015
Responsible Office: LM1
|NASA Headquarters Alternative Dispute Resolution in Matters Pertaining to Discrimination Complaints Under 29 C.F.R. Part 1614|
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Chapter 3. ADR Informal Process
3.1 HQ EEO ADR Process
3.1.1 The NASA HQ Equal Opportunity and Diversity Management Division (EODM) administers the EO ADR program at the informal stage of the EEO complaints process, with oversight from the Agency Office of Diversity and Equal Opportunity (ODEO). This chapter lays out the HQ EEO ADR process at the informal stage.
3.1.2 While there are numerous forms of ADR available for consideration, NASA HQ has chosen mediation as the primary method of ADR during the informal stage. As such, ADR when used in the context of the NASA HQ program refers to mediation.
3.1.3 There are many benefits to utilizing ADR:
a. Entered into at any early stage, ADR allows the parties to voice their concerns and gives the parties an opportunity to resolve their complaints under the facilitation of a trained certified mediator before their positions become entrenched or their relationship further damaged;
b. ADR is informal; the rules of evidence do not apply;
c. ADR allows the parties to come to their own resolution, which allows for creativity in reaching a solution; and
d. ADR does more than merely solve the problem at hand; it opens lines of communication and restores harmony in the workplace.
3.2 Determining Appropriateness of Informal Complaint for Mediation
3.2.1 An individual who has sought EEO counseling shall be advised by the HQ EEO Counselor of the option to receive traditional counseling or the opportunity to participate in ADR where the agency agrees to offer ADR in a particular case. If the complainant opts for ADR, he/she and the HQ EO Director sign the Agreement to Mediate. The HQ EO Director signs the Agreement to Mediate on behalf of NASA HQ management.
3.2.2 Management in consultation with the HQ EO Director and/or the HQ ADR Manager, a representative of the OGC and/or the HRMD, or the Counsel to the Inspector General and the OIG Human Resources Officer (if in a matter arising in the OIG), shall determine whether the informal complaint is appropriate for mediation and whether HQ management is agreeable to mediation. (See Section 2.7)
3.3 Arranging for Mediation
3.3.1 While mediation may be productive at any time in the course of an EO dispute, mediation shall be attempted as soon as reasonably possible after the alleged discriminating event, once an EEO Counselor has been contacted.
3.3.2 There may be time limits imposed by external processes (formal complaint filing, limits related to the Merit Systems Protection Board, Office of Special Counsel, union grievance processes, or others). While it is primarily the responsibility of affected parties to be aware of applicable filing deadlines and procedures, the HQ EO Director or HQ ADR Manager shall take reasonable steps to alert parties to the possibility of such limits.
3.3.3 The HQ ADR Manager shall prepare the parties for mediation. The HQ ADR Manager shall schedule a meeting with each party individually to brief them on the mediation process and explain in detail the way in which the process works before scheduling the mediation. The parties may ask questions of the HQ ADR Manager to make sure each party understands the process.
3.3.4 The HQ ADR Manager shall obtain the services of neutrals from external sources, e.g., Shared Neutrals Program, other agencies, contract mediators, or similar sources.
3.3.5. The HQ ADR Manager shall identify a mediator and provide the mediator with the names of the parties to determine whether there is a potential or actual conflict of interest.
3.3.6 The HQ ADR Manager shall contact all the parties to the mediation and provide them with the name of the mediator(s). The parties shall have an opportunity to request another mediator if the mediator is not acceptable to either party.
3.3.7 The HQ ADR Manager shall provide the mediator with all pertinent documents needed to conduct the mediation. The mediation shall take place in a neutral conference area.
3.3.8 The HQ ADR Manager shall assist the mediator in coordinating the mediation and serve as the mediator's point of contact for on-site resources and support, such as logistical arrangements and access to the Center.
3.3.9 HQ may use multiple-neutral teams (such as a co-mediation team) to provide diversity of perspective, consistent with resource availability. Mediators in training shall be allowed to observe or co-mediate, at the discretion of the HQ ADR Manager and with the advance consent of the parties.
3.4 Monitoring the Progress of the Mediation
3.4.1 The HQ ADR Manager shall monitor the progress of the mediation and shall keep the HQ EO Director informed of status of the mediation process.
3.4.2 The HQ ADR Manager shall, in consultation with the HQ EO Director, the mediator and management, determine whether either party should terminate mediation due to unreasonable delays.
3.4.3 The complainant may also terminate the mediation and return to the EEO process at any time.
3.5.1 The management representative shall consult with representatives from the OGC, the HRMD, the Counsel to the Inspector General (in a matter arising in the OIG), and/or other site officials as appropriate during the course of the settlement discussion.
3.5.2 If settlement is reached through mediation, the terms shall be reduced to writing.
3.5.3 The OGC or the Counsel to the Inspector General (if in a matter arising in the OIG) shall review the agreement for legal sufficiency prior to obtaining all necessary signatures.
3.5.4 Representatives of the EO Office, and the HRMD shall also review the settlement agreement for conformance to with EEO and Human Resources regulations and guidelines, respectively. This process should be completed within five business days, unless extenuating circumstances exist. Following their review and approval, the aggrieved individual and the settlement official shall sign the settlement agreement. (See Appendix D.3)
3.5.5 HQ shall afford the aggrieved individual a reasonable opportunity to review the draft agreement and consult with a legal or other representatives prior to finalizing the agreement. This process should be completed within five business days, unless extenuating circumstances exist.
3.5.6 The following language shall be included in all settlement agreements:
If [insert name of aggrieved/complainant] believes that NASA has not complied with the terms of this Agreement, she or he may request that the terms be specifically implemented, or alternatively, that the complaint be reinstated for further processing at the point ceased, in accordance with the procedures set forth in 29 C.F.R. õ1614.504. Any such request must be made within thirty (30) calendar days of the date she or he knew or should have known of the noncompliance and must be forwarded to the Director, Complaints Management Division, Office Of Diversity and Equal Opportunity, NASA Headquarters, Washington, D.C. 20546, with an explanation as to why she or he believes that the Agreement has not been carried out.
3.5.7 If the complaint contains an allegation of age discrimination, the settlement agreement must contain the appropriate settlement provisions required by the Older Worker's Benefit Protection Act (OWBPA). (See Appendix D.4)
3.5.8 In the event the HQ ADR Manager is aware of EEO complaints at other Centers by the same individual, the HQ ADR Manager shall inform the HQ EO Director, the Complaints Manager (ODEO), the OGC, the HRMD, and the OIG (if in a matter arising in the OIG), where appropriate.
3.5.9 The HQ Center shall, wherever possible, seek global settlement, e.g. multiple cases involving the same aggrieved individual through the EEO ADR process.
3.5.10 The HQ ADR Manager shall send a signed and dated copy of the settlement agreement to the HQ EO Director and the Director, ODEO Complaints Management Division within five business days of the execution of the settlement agreement.
3.5.11 The HQ ADR Manager shall be responsible for maintaining the original copy of the settlement agreement and for providing copies to ODEO and the OGC or the Counsel to the Inspector General (if in a matter involving the OIG).
3.5.12 The HQ ADR Manager shall be responsible for ensuring that the terms of the ADR settlement agreement are carried out in coordination with appropriate stake holder offices, such as the OGC and the HRMD or the Counsel to the Inspector General and the OIG Human Resources Officer (if in a matter involving the OIG).
3.6 When Mediation Does Not Result in Settlement
3.6.1 If a resolution cannot be achieved, the mediator shall end mediation and notify the HQ ADR Manager, who in turn, shall advise the HQ EO Director.
3.6.2 The aggrieved individual shall be referred back to the HQ EEO counselor for a final interview and will be issued a Notice of Final Interview and Notice of Right to File a Formal EEO complaint. The Agreement to Mediate must be attached to the EEO Counselor's Report. The counselor's report shall describe the initial counseling session and report that ADR did not result in settlement.
3.7 Abuse of the Process
3.7.1 A complainant may not bring an issue or matter involving the same parties to mediation twice. Upon interviewing a complainant, the HQ ADR Manager will review ADR records to determine whether the issue or event was already mediated.