MEDIATION OR ADJUDICATION - WHAT'S THE DIFFERENCE?

Mediation provides a quick, simple and effective way to resolve many matters appealed to the MSPB, and the parties must be ready to use it without delay.  While the MSPB is justly proud of its adjudication program where, like in a proceeding before a court, the parties gather evidence and make formal presentations to an Administrative Judge who will decide the case if the parties do not settle it, mediation is a non­-adversarial dispute resolution process in which the parties seek to arrive at a mutually satisfactory resolution using the skills of a third party neutral - a trained and certified Mediator.>

To give you a better idea of whether you may want to use MAP to try to resolve your case, some of the differences between the two processes are listed below.>

STYLES OF MEDIATION

Mediation can proceed in one format, or sometimes a combination of formats, but you do not have to select one of them in order to use MAP.  Rather, based upon the nature of the issues and the parties involved, it is likely that your mediation will naturally follow the style best suited to the situation, guided by the experience gained by the Mediator in similar situations.  Remember, mediation is an alternative to the adjudication process and therefore it is intentionally more flexible, to suit the needs of the parties.

Generally, however, there are four major styles of mediation.

1.  Facilitative Mediation

The Facilitative style is the most utilized style today.  It is characterized by providing a framework within which to work with parties toward a mutually acceptable agreement to end a conflict.  The style is generally an approach characterized by the identification of the needs of the disputants, and then utilization of interactive discussion and caucuses in an effort to find a position acceptable to both sides in the conflict.  There are basically six steps to the process of Facilitative mediation, and they are as follows:

1. Open the Session/Introduction

2. Gather Information

3. Focus on Common Ground

4. Create Options

5. Discuss and Consider Options

6. Write the Agreement/Close the Session

Of the four basic commonly used styles, the Facilitative is the most structured.

2.  Evaluative Mediation

In the Evaluative style, Mediators use their skills to help disputants evaluate the positions they espouse in the mediation and to consider whether they are practical.  The Evaluative style can be seen as somewhat directive, and the skillful evaluative Mediator will be careful not to impose his or her opinion, but rather will be illustrative in helping the parties "reality test" their positions and then helping them decide what might be the prevailing position with regard to the facts and perceptions involved in the appeal.

In the use of this style, the Mediator will often ask the parties to evaluate their probability of prevailing if the dispute were to go through the formal adjudication process.  This technique can be very useful and can help them come to grips with the likely potential results of their positions in adjudication before an Administrative Judge.  It may be particularly useful when the mediation presents primarily legal positions and arguments, and is heavily influenced by attorney opinion during the mediation process.

3.  Transformative Mediation

The Transformative style is heavily focused on the interactions and the communications between the disputants.  Their body language and attitudes are central to Transformative mediation.  Pointing out the manner in which disputants interact, and in which they communicate or often fail to communicate, is the cornerstone of this style.

This style of mediation has become highly popularized through the U.S. Postal Service mediation method, known as REDRESS.  The effectiveness of this method, perhaps more than the others, is the subject of widely varying and strongly held positions, both by Mediators and the parties to mediations that use it.

4.  Narrative Mediation

Finally, the Narrative style of mediation is based on the premise that the position each party brings to the mediation is a product of their life's discourses.  The Narrative style tries to use conversation and discussion to get the disputants to disclose, often unwittingly, the true nature and their perception of the conflict.  It is done through "story telling" which, in effect, allows them to express how and why they feel the way they do.

The Mediator then uses the different stories as a basis for further discussion of the conflict.  The goal is to create an "Alternative Story" which can be substituted for the conflict and result in not only a mutually acceptable agreement, but also in enhanced communication going forward.  The technique seems to be especially useful when there is going to be an ongoing relationship between the disputants after the mediation has concluded.

There is no one right style for all mediations and all parties.  All methods have their proponents and detractors.  Although Mediators certified by the MSPB remain flexible and open to the parties' needs and suggestions, they will put their experience to work to guide the parties toward a style or combination of styles they believe is best suited to the particular circumstances of each individual mediation.

AGREEMENT TO MEDIATE

Before a case will be mediated, all parties will be asked to sign an MSPB "Agreement to Mediate," which sets out their rights, obligations and understandings concerning MAP.  The parties' signature on this form, along with the information that will be provided by the Mediator, will assure that they are all aware of the rules and bounds of the process.  A link to that Agreement appears above for your early review.

WHAT THE PARTIES SAY ABOUT MAP

The MSPB wants MAP to be the best mediation program it can be.  Toward that end, we ask each person who participated in a MAP mediation, whether the appeal settled or didn't, to rate both the Mediator and the process on specific, key areas and to provide their comments on the Program.  Here's a sampling of what they have told us:

"Great process, avoids cost of litigation."

 "Mediator was hardworking, knowledgeable, well-versed in the law and very understanding.">

"Need to continue to encourage parties to consider using [MAP]."

"Though unsuccessful here I believe it is an excellent process."

".may not have settled without [the Mediator]."

"Not resolved, but helped frame possibilities.  ..  In general, mediation before the Board has always helped bridge the gap even if not settled."

"This was an outstanding process.  I don't believe a decision would have been reached without coming together."

Not every case will settle, and not every party to every case will think that MAP moved the parties closer together, but more than 95% of those who participated in a MAP mediation tell us that they would use the process again.  Don't you think that MAP is worth your serious consideration?

BROCHURE

Still uncertain?  The MSPB has prepared a short, helpful brochure designed to introduce the parties to MAP and answer some basic questions about it.  A quick read-through may well answer any remaining questions you have about mediation, and if it doesn't, it will give you the name and titles of officials who can, as well as the contact information you may use to resolve any remaining doubts you may have.

NOW IT'S UP TO YOU

We hope that this information has helped you decide whether MAP may be right for you as an alternative to adjudication.  Remember, though, that both parties must agree before a case will be accepted into MAP.  To express an interest in using MAP, please contact the regional or field office with geographic jurisdiction over your appeal.  If both parties agree to participate in MAP, it is helpful for them to discuss dates within the next month on which they will be available for mediation and to suggest the location at which it might be appropriate to hold it, so that the mediation can be set with minimum delay.  Please keep in mind that while MSPB Mediators are skilled in assisting the parties to arrive at mutually beneficial settlements of their disputes, if an appeal is not resolved in mediation, it will return to the adjudication track.  If this should happen, however, you will find that MSPB Administrative Judges are also adept at reaching settlements between the parties, and many cases that go through MAP without reaching accord are settled after they return to adjudication.  Even where the case is resolved by a Judge's decision, the mediation process often helps sharpen the parties' focus on the matters truly in dispute and the resolution they seek.  Finally, remember that the majority of appeals go through the adjudication process, and that if yours is one of them, the MSPB's record of timely, high quality adjudication and skillful use of alternative dispute resolution methods will assure you a fair and complete chance to be heard by a seasoned Administrative Judge.