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Mediation

Introduction

Mediation is assisted negotiation. In mediation, a trained, neutral third party helps two or more parties negotiate to resolve their dispute. Mediation typically employs a problem-solving approach to address conflict rather than the traditional, adversarial method. Mediators are trained in communication and problem solving skills, which they use to help parties make the best possible decisions about whether to, and how to, resolve their dispute.

Mediation is a voluntary, informal process. Rules of evidence do not apply. Testimony is not taken. Mediation allows parties to control the dispute resolution process, rather than having a judge or some other official control it for them. Mediation is typically faster and more economical than adjudication, and even if mediation does not resolve the dispute, it almost always helps parties clarify and narrow the issues so that adjudication can proceed more rapidly.

Mediators are not decision-makers or judges and have no personal interest in the substantive outcome of a case. Mediators use their expertise in communication and negotiation to help the parties make effective, informed decisions for themselves.

Mediation Process

Conceptually, mediation includes three general phases:

Introductory - During this part of the process, the mediator helps the parties create a safe environment in which to discuss difficult topics. Depending on the parties experience with mediation, the mediator may provide a process overview: the role of the mediator, the what will happen in various mediation sessions, and confidentiality. During this phase, parties may agree to ground rules for the conduct of the mediation (e.g., ensuring that only one person speaks at a time) and a general timetable for the process. This phase includes a joint session among parties, during which opposing sides have an opportunity to state their views and desired outcomes.

Problem Solving Stage - During this stage, parties principally focus on issues, interests, options for resolution and criteria for evaluating the options. Parties may meet separately with the mediator to share confidences and fully consider options in private.

Closure - During this phase, parties decide whether and on what terms to resolve the dispute. The mediator may help them draft a document that reflects any commitments they wish to make. As needed, the agreement then may need to pass to others for approval. If parties do not reach agreement, the mediator makes sure they understand why and what next steps are available to them.

HHS Mediator Standards

HHS Mediators agree to abide by the Standards of Practice for HHS Mediators and the confidentiality provisions of the Administrative Dispute Resolution Act of 1996.

How to Request Mediation

E-mail your request to [email protected] or call (202) 565-0221. If you have any question about whether you might benefit from mediation, a staff member can provide a confidential discussion.

Since mediation sessions will not be scheduled until both parties consent, your mediation may move faster if the parties discuss and agree to mediation prior to contacting the ADR Division. ADR team members will contact opposing parties on your behalf, however, upon your request.

When to Request Mediation

How do parties know if mediation is the right approach for resolving their dispute? Mediation is an appropriate option for any dispute where a negotiated solution is an acceptable outcome to the parties. This includes conflicts within agencies, as well as with regulated parties, states, contractors, and other private persons. Mediation is viable in those situations where:

There is no need to establish precedent and there is no single solution that is required
Tensions, emotions, or transaction costs are running high
Communication between the parties has broken down
Time is a factor
Failure to agree does not clearly benefit one or more parties
Parties have an interest in maintaining confidentiality
The parties want or need to maintain some ongoing relationship

Advantages of Using a Mediator - What can parties hope to gain by working with a mediator? What value is added by a third party neutral? There are several advantages for using a mediator.

Increases Information Flow:
Parties to a dispute often are reluctant to share information. This dynamic leads to decisions made without considering critical factors. A mediator helps parties see a more complete picture of relevant information and thus helps them make better decisions.

Builds Shared Understanding:
A mediator helps each party understand and consider the other's perspective. Parties in conflict tend to discount things said by the other. A mediator can help ensure that important information is not overlooked. Parties are more likely to create a shared understanding of their issues, concerns, and interests with the assistance of a mediator.

Preserves the Relationship between Parties:
Mediators are trained in communication and problem solving skills which can help parties “separate the people from the problem.” This can assist parties in discussing difficult topics without sacrificing critical relationships.

Confidentiality in Mediation

Confidentiality contributes to the success and integrity of the mediation process. The Administrative Dispute Resolution Act of 1996 has confidentiality assurances at Section 574 which apply in DAB mediation. The ADR Act specifically protects communications between a mediator and party in private caucus (outside the presence of the other party) and communications between a mediator and parties in joint session (more than one party present). However, communications which parties make to all other parties (e.g., in joint session with all parties present) are not protected under the ADR Act. Further, agreements to mediate and settlement agreements are not confidential under the ADR Act. See Document: Sample Agreement to Mediate.

Parties may agree to more confidentiality than is provided under the ADR Act (e.g., they can agree to make communications between parties in joint session confidential), and any such terms should be included in the written agreement to mediate. If the parties agree to more confidentiality, the additional confidentiality will not affect a third party's right to access documents (e.g., a third party's right under the Freedom of Information Act to obtain copies of documents not protected by the ADR Act, such as documents one party makes available to all other parties to the mediation). See Document: Sample Agreement to Mediate~Additional Confidentiality.

In unusual circumstances, a judge can order disclosure of information to prevent a manifest injustice, help establish a violation of law, or prevent harm to public health or safety. Further, information concerning fraud and criminal activity or threats of imminent harm may not be considered confidential.

Mediation in Board Cases

Appellate Cases - Mediation is available in all Board cases. Since mediation is voluntary, however, both parties must agree before a mediation session will be scheduled.

Mediation in Board cases typically follows the standard caucus model used in most court affiliated ADR programs. The caucus model involves the mediator meeting initially with the parties together and then convening a series of private meetings with each party separately. Mediation sessions typically last three or four hours and, often, more than one session is needed to complete a case. Most cases are concluded after only a few sessions, but mediations may be extended as needed if all parties agree.

Mediations are typically conducted at a location convenient to all parties. While our preference is to conduct at least the initial session in person, we have found telephone and video conferencing to be reasonable alternatives, depending on the case (e.g., where the amount in dispute would not justify the expense of travel). Mediation sessions generally can be held as quickly as the parties like, often in a matter of days.

The mediators are ADR team members or staff attorneys and Judges from one of the Board's other three divisions. All our mediators have considerable training and experience in mediation and other ADR applications. There is no charge for the Board's mediation services. Parties may request the services of private neutrals but would be responsible for the private fee.

Board mediators abide by the Standard of Ethics for HHS Mediators. Mediators treat all mediation communications as confidential; no information from mediation will become part of the record in the case, unless the parties make a joint request that it be included. Any concerns about a mediator's conduct should be addressed to the Chief of the ADR Division.

Civil Remedies Cases - Mediation and ombudsman services are available in certain types of Civil Remedies Division (CRD) cases. Mediation is practiced in the same manner as outlined above.

Ombudsman is a distinct form of ADR in which a neutral third party who is knowledgeable in the law provides assistance with understanding the appeals process and in accessing online legal precedent. Ombudsman cases typically involve relatively few issues, little judicial discretion, and well-developed case law. A discussion with an ombudsman is likely to give the petitioner a more informed perspective on whether and how to proceed.

Parties involved in CRD cases who have requested a hearing will receive a letter from the CRD notifying the party of the availability of either mediation or ombudsman services. Communications between the party and the neutral are confidential.

Mediation in HHS Workplace

Mediation and facilitation are available for HHS workplace disputes, including grievances and discrimination complaints filed in the Department’s Equal Employment Opportunity programs. The ADR Division can also provide free non-HHS mediators for these cases, upon request, from the Federal Sharing Neutrals Program pool (see below).

Other ADR Services

The ADR team provides a variety of conflict resolution services:

Training Design & Delivery -
Mediation Skills:
Participants will learn about the mediation model for dispute resolution and develop their competence in conflict intervention.

Mediation Advocacy Skills:
Participants will learn how to effectively represent others in mediation. The skills discussed in this course also apply to representing yourself effectively in mediation.

Negotiated Rulemaking:
Participants learn details of, and effective strategies for executing, this multi-party process which is used to bring together agency and representatives of affected interests to negotiate the text of a proposed regulation.

Interest-Based Negotiating:
Participants will learn the theory and practice of this negotiation model. They will develop skill in distinguishing positions from interests and in using to help parties fashion sound, sustainable agreements.

Consultation/Interventions -
Group Facilitation:
Skilled facilitators from our ADR team can provide your work group with conflict resolution support, including meeting facilitation and problem solving guidance.

Negotiated Rulemaking:
Our ADR staff can provide negotiated rulemaking facilitation for an agency and representatives of affected interests who gather to agree on the text of a proposed regulation.

ADR Design:
Our ADR consultants assist clients in assessing their current dispute resolution processes and make recommendations for improving ADR system.

About the ADR Team

Our mediators and ADR specialists are attorneys and others with extensive mediation training. The ADR Division has been mediating disputes for over ten years. Our staff has taught mediation skills to executives, managers, lawyers, and staff throughout the U.S.

Neil Kaufman, Chief, Alternative Dispute Resolution Division
Email: [email protected]
Phone: 202/565-0118
Neil H. Kaufman is Director of Mediation Services at the Departmental Appeals Board, Department of Health and Human Services (HHS), where he also assists the HHS Dispute Resolution Specialist in implementing alternative dispute resolution (ADR) throughout HHS. Mr. Kaufman has mediated a wide variety of cases for HHS and has extensive mediation background by virtue of his affiliation with the D.C. Mediation Services (1982-1986), the D.C. Superior Court Multi-Door Program (1986-1994), and the Northern Virginia Mediation Service (1993-present). He is one of the founders of the federal Sharing Neutrals Program. Mr. Kaufman is certified by the Supreme Court of Virginia to mediate disputes in the State court system and has trained mediators in both the federal and private sectors. He has been adjunct faculty at the Department of Justice, Legal Education Institute and a guest lecturer on ADR topics at several local law schools. He has authored a variety of training manuals and articles on such ADR topics as basic mediation skills, mediation advocacy skills, and confidentiality. He was a member of a team of nationally known trainers/mediators convened by authors Bush and Folger to develop and deliver training in the transformative mediation model described in their book The Promise of Mediation (Jossey- Bass, 1994, revised 2005). He is a graduate of Duke University and the Marshall-Wythe School of Law, College of William and Mary.

Content created by Departmental Appeals Board (DAB)
Content last reviewed on July 11, 2019