After mediation has been requested by one party to a conflict, the Headquarters (HQ) Mediation Program Manager will contact the other side to determine whether they agree to mediate. If they agree to mediate, she will meet separately with each party to discuss and prepare them for the mediation. This private pre-session meeting is required before the mediation is held. If a party is represented by counsel, the counsel may be present at the pre-session meeting, if the attorney and party so chose. Although attorneys are not required at a mediation, if you are representing management and, consequently, the Department, you should consult with the General Counsel’s Office of Assistant General Counsel for General Law in advance of the mediation session. If a mediation participant is a bargaining unit employee, the employee should seek guidance from The National Treasury Employees Union (NTEU) in advance of the mediation session. For those participants who may want additional assistance before the mediation, the DOE's Employee Assistance Program is available to provide coaching.
After all necessary parties have consented to the mediation, the HQ Mediation Program Manager will select the mediator and coordinate scheduling. She may sit in on the mediation, with the parties’ permission, so that she can provide any necessary follow-up to possible proposed terms for a settlement agreement.
Preparing for the Mediation Session
If you are represented by counsel or NTEU, you should ensure that your negotiating team is prepared and ready for the mediation session. In preparation for negotiating during mediation, it is useful to consider the following:
1.What are your interests, i.e., what do you really want or need?
2.What do you think the other party really wants or needs? Try to envision how you would react and what you would want if you were in their situation.
3.Identify and list as many creative options to resolve your issues as you can. Think of what the other person could reasonably/realistically do to satisfy your needs, wants and interests.
4.Prioritize your options and allow room for flexibility.
5.Think of what you could do to satisfy the interests of the other party.
6.If you don't settle this dispute in mediation, what are your other alternatives?
7.Of all those alternatives, which is the best (and most realistic) one?
8.Consider what it will cost you if you DO NOT resolve this in mediation. Think about that when you consider whether to accept a settlement offer and decide which is better, considering time, cost, uncertainty, stress, etc.
9.If you can't get everything you want, think about what you can live with, in order to get resolution now.
Communication During the Mediation
Oftentimes workplace disagreements happen because of a miscommunication or limited communication at best. Mediation provides the opportunity to have a conversation in a productive manner. Try to avoid using the "tough" approach. Remember that both of you are trying to resolve workplace disagreements together.
It is most helpful to communicate with the other party by looking at her/him when speaking to her/him and acknowledging that you have heard her/his comments. Even when you disagree with her/his perspective, sit calmly and listen to her/his statements.
Try to keep the anxiety level and anger level at a minimum. Refrain from saying, "I don't know why we are here; this thing will never settle," and be conscious of your body language.
When you honestly can show empathy for the other party’s point of view, consider reflective listening, e.g., you may want to say something like, "I understand how hard that must have been for you" or "I know you felt badly about being accused of unfair treatment.” These small steps can begin to build trust which can make it easier to discuss your differences.
At the Mediation Session
The mediation generally will begin with everyone together (joint session), during which time the mediator will explain the process and read the “Agreement to Mediate” form and answer any questions the parties may have. Each side will be asked to review and sign the “Agreement to Mediate” form.
During the initial joint meeting, the mediator will ask each party to share an opening statement, without interruption, of her/his perspective regarding the nature of the dispute. These “Opening Statements” should be short, straightforward and in chronological order. You may use the attached “Opening Statement” form to prepare yourself. During joint meetings, everyone has an opportunity to ask questions which may bring out new information.
Following the joint session, the mediator may meet with each side privately in a confidential session (caucus). The mediator will use these private caucuses to ensure that she/he thoroughly understands the party’s real interests (or needs). She/he also may use the private caucus as an opportunity to explore options to resolve the dispute and help each party assess the strengths and weaknesses of her/his position. After the joint session and private caucuses, the mediator may reconvene everyone with a joint meeting to assess whether there are areas of agreement on any issues.
If an agreement is reached during the mediation session, the mediator will draft a settlement agreement which the parties and their representatives will review. Sometimes participants may decide they need more information before making a decision on the terms of a settlement agreement. They may schedule another session with the mediator when the pertinent information becomes available. After the parties have agreed to the terms of a draft settlement agreement, the HQ Mediation Program Manager will send it to the appropriate headquarters offices to be reviewed and approved in accordance with applicable regulations and laws. After all reviews and edits have been completed and coordinated by the HQ Mediation Program Manager, the parties will sign the settlement agreement.
If no settlement agreement is reached, the parties always have the option of pursuing the matter in other forums. Mediation does not preclude you from using a more formal EEO or grievance process.
After the mediation has ended, each participant will be given a form to evaluate and comment on the mediation process and the mediator.
You can use this to help you prepare what you want to say at the beginning of the
1. What is the issue that you would like resolved?
2. Summarize the facts leading up to the problem in chronological sequence.
3. What are some possible solutions that might resolve this problem?