Current through Register Vol. 48, No. 9, September 27, 2024
A. "Mediation"
means an alternative dispute resolution process whereby a mediator who is an
impartial third party acts to encourage and facilitate the resolution of a
dispute without prescribing what it should be. The process is informal and
nonadversarial with the objective of helping the disputing parties reach a
mutually acceptable agreement.
B.
Once an appeal has been made to the State Human Resources Director and has been
determined to meet the jurisdictional requirements for an appeal to be
forwarded to the Committee, the State Human Resources Director shall appoint a
mediator to the appeal of the following adverse employment actions:
terminations, salary decreases based on performance, demotions, suspensions for
more than ten days, and reductions in force when the State Human Resources
Director determines there is a material issue of fact regarding inconsistent or
improper application of the agency's reduction in force plan or
policy.
C. The mediator:
1. Shall review the documents which have been
submitted by each party to the State Human Resources Director and schedule
time(s) and location(s) to meet with both parties, jointly or independently, to
attempt to resolve the matter;
2.
Has sole authority to determine whether the meeting includes the parties with
their representatives, jointly or independently;
3. Should determine when the mediation is not
viable, that an impasse exists, or that the mediation should end but the
mediation cannot be unilaterally ended without the permission of the mediator;
and
4. Should notify each party in
writing as to the status of the mediation process no later than ten calendar
days prior to the scheduled Committee hearing.
D. Mediation Conferences
1. Mediation conferences are confidential and
limited to no more than three representatives, including legal counsel and the
covered employee, for each party. An observer who has been assigned to conduct
mediations for OHR may attend for training purposes if both parties to the
mediation concur.
2. The parties or
their representatives attending a mediation conference must have full authority
to negotiate and recommend settlement.
3. Each covered employee is entitled to
representation at the mediation conference and either the covered employee or
his representative must attend. If neither the covered employee nor his
representative attend a conference, the covered employee is deemed to have
waived his rights to pursue the appeal further unless there is reasonable
justification for the failure to attend the conference. The State Human
Resources Director shall determine whether or not reasonable justification
exists based on documents submitted by the parties on this issue and based on
other information available relating to the conference. Documents submitted by
the parties on the issue of reasonable justification must be received by OHR no
later than 14 calendar days from the date of the scheduled conference. Denial
of reasonable justification by the State Human Resources Director concludes the
processing of the covered employee's appeal.
4. If the dispute is resolved, the mediator
will assist the parties in preparing a written agreement to reflect the terms
of the resolution and may consult with the attorney for OHR to assist in
drafting the agreement.
E. Confidentiality
1. Any discussions by any of the parties
concerned during the mediation process shall be kept confidential and shall not
be used or referred to during subsequent proceedings.
2. The mediator may not be compelled by
subpoena or otherwise to divulge records or discussions or to testify in regard
to the mediation in any adversary proceeding or judicial forum.
3. All records, reports, documents,
discussions, and other information received by the mediator while serving in
that capacity are confidential.
