By John V. Berry, Esq., www.berrylegal.com
We represent federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov, in the appeals process. In doing so, we have often been called upon to represent federal employees in “mediation” which is a type of hearing or meeting where a federal employee and federal agency attempt to resolve the employee's appeal through settlement.
What is Mediation?
Mediation is just one form of alternative dispute resolution (ADR) which is available to parties in litigation at the MSPB. Mediation is essentially an informal hearing, where both parties use the services of a third party, usually an administrative judge (or other experienced personnel) in order to attempt to resolve a filed MSPB appeal. In other words, the parties try to settle the case before it goes to an administrative judge for a ruling.
How Does Mediation Work at the MSPB?
Typically, the mediation process at the MSPB starts after the filing of an appeal by the federal employee involved. Once the MSPB appeal is filed, then the parties, usually about 5-7 days later will receive what is known as an Acknowledgment Order (Order). Towards the end of the Order will be instructions describing different methods in which the parties may use in order to resolve the appeal outside of receiving a final ruling.
The details for mediation will be listed in detail in the Order. The MSPB mediation program is referred to as the Mediation Appeals Program (MAP). In order for mediation to be a possibility, both parties must agree to attempt mediation. Either party can object to it. Once the parties agree to mediation, the administrative judge hearing the case is notified and the appeal is generally put on hold for a designated amount of time while the parties attempt to reach settlement through mediation. The administrative judge that is assigned to the appeal will typically then refer the case out to a third party mediator assigned by MAP, usually a different administrative judge or other experienced mediator.
Generally, once the referral is made, the original administrative judge will not be involved in mediation efforts, but will hear the case later if mediation ultimately fails and the case comes back to them.
What is a Typical Mediation Session Like?
A typical mediation session can be either held in person, by videoconference or by telephone. We generally recommend in person mediation sessions as it seems that more appeals can be resolved through face to face meetings. The federal employee and the federal agency (usually through their counsel) begin the mediation, usually, by presenting their positions on the appeal to the other side and to the mediator. Typically, the federal employee goes first, followed by the Agency. During this time, the parties may offer specific proposals to resolve a case. A mediator has no ability to force the parties to settle, but is used to try to bring the parties towards settlement. Usually, following opening statements, the mediator will then separate the parties and talk with each party separately and attempt to narrow the ground for settlement.
For instance, a federal employee who has been terminated may ask for reinstatement, backpay and attorney fees as a settlement proposal. In this hypothetical, the mediator would then take this proposal back to the federal agency to discuss. Then, the federal agency may then give the mediator a counter proposal to send back to the federal employee. In this example, the mediator may come back and informed the federal employee that a counter-offer has been made where the federal agency would agree to reinstatement and attorney fees but not back pay. The process continues until the parties decide that they cannot settle or results in an informal agreement.
Following the Mediation Session
Following an informal agreement to settle a case through mediation, the parties then work towards finalizing the agreement in writing. Sometimes, this can be accomplished at the mediation site, but normally the final agreement is completed within the following 2-3 days after the session, when the parties have had the chance to exchange and revise draft written settlement agreements which encompass the terms agreed to at the mediation.
Once the agreement is finalized and signed, the administrative judge assigned to the appeal is notified about the settlement and normally enters a copy of the agreement into the record for enforcement, dismissing the appeal as settled. In the event that the parties are unable to settle, the case will return to the administrative judge and the hearing process will begin again. In sum, the mediation program at the MSPB, in our view, tends to be helpful for cases that have a possibility of settlement. The following link is further helpful information published by the MSPB on the mediation program. MSPB Mediation Guidance.
When a federal employee is involved in the MSPB mediation process, it is important for them to have legal advice and representation in order to facilitate potential settlement of their case. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.