Frequently Asked Questions About ADR
The ADR FAQs page is divided into two sections: the first section is applicable to the entire NRC enforcement related ADR program, both after an NRC investigation is completed and for Early ADR. The second section contains additional information tailored to the Early ADR portion of the program.
On this page:
Part I: ADR In General
- Why use ADR?
- When is ADR most likely to be useful?
- What is mediation?
- How does mediation work in the ADR Program?
- How is a mediator selected for ADR?
- How long do sessions take?
- Is ADR confidential?
- How parties can get the best results from ADR.
- Evaluating results of the ADR Pilot Program.
Why use ADR?
ADR lets people speak for themselves and work together to find their own lasting solutions to their conflicts.
The process is informal and flexible, with no formal rules of evidence or witnesses.
ADR can help expedite resolution of issues in a manner acceptable to all parties.
ADR can help parties resolve conflicts better by providing them a structured, positive environment to discuss differences and better understand each other's concerns, interests, and expectations.
When is ADR most likely to be useful?
- Tensions, emotions, or transaction costs are running high;
- communication between the parties has broken down;
- Multiple issues have to be resolved;
- The parties want or need to maintain some ongoing relationship;
- There is no need to establish precedent and there is no single "right" solution that is required;
- Time is a major factor;
- Failure to agree does not clearly benefit one or more parties; or
- Issues are complex and individual parties have an interest in maintaining confidentiality with respect to key issues.
What is mediation?
Mediation -- the ADR process most often used in the NRC ADR Program -- is a voluntary, informal process in which a trained neutral (the “mediator”) works with parties to help them reach resolution.
The mediator, who has no stake in the outcome and no power to make decisions, uses consensus-building skills and knowledge of negotiation to help parties find solutions. The mediator focuses the attention of the parties upon their needs and interests rather than on their stated positions.
Mediation gives parties an opportunity to discuss issues, clear up misunderstandings, be creative, find areas of agreement, and reach a final resolution of the issues.
How does mediation work in the ADR Program?
The neutral mediator guides parties through an informal process to resolve their issues.
The mediator helps parties work together to reach an agreement that meets their needs without necessarily conforming slavishly to their original positions.
The mediator will usually start the mediation session by giving each party an opportunity to explain the issues. Often, the mediator will meet privately with each party (where they are more likely to speak more freely) to understand the parties' situations better and explore and assess options.
The mediator may ask questions that will aid parties in assessing the merits of their positions, help them converse in an atmosphere free of name calling and posturing, identify potential settlement options, float trial balloons, and probe participants’ realistic alternatives.
The mediator’s role may shift gradually during the session. A skilled mediator will initially begin to instill an atmosphere of reasonableness and build the parties' trust in the mediator and in their ability to work together. S/he may use these and later sessions to let parties "let off steam" before moving on to more productive talks.
The mediator will also help parties see the dispute from the other party's perspective, and help them generate and evaluate possible solutions. Some mediators explore hypothetical solutions separately with each side, helping them generate alternatives and explore promising options without revealing confidential information. S/he may seek to stimulate momentum to settle, narrow differences, and help parties build on areas of agreement.
Near the process’s conclusion, the mediator may help parties to draft a document spelling out the terms of any agreement. Even when mediation does not end in a written agreement resolving all of the issues, the process still can be useful by helping to eliminate points in dispute and improve parties’ communication level and understanding of their situation.
Many mediators operate much like an interpreter, easing communication between people who do not speak a common language. By listening carefully and shaping messages in order to transmit the views of persons with vastly different views and styles of persuasion, a mediator can help parties to make their cases in the most convincing way. For example, a mediator may listen to a message that is not being "heard" by a party and, without changing the intent, communicate it in a manner that the other understands as a positive suggestion and perceives to be more acceptable--in other words, reducing "heat" while increasing "light".
The mediator often can help the parties agree on realistic, objective standards (appraisals, precedents, or methodologies) by which to judge the merits of their claims. He or she can help the parties devise structures for reaching closure in the instant dispute, or future ones. If asked to do so, the mediator can even preview how an administrative judge or other authority might view the strengths and weaknesses of their positions. Such a well-timed dose of objectivity by an "agent of reality" may help the parties to bridge their gap.
How is a mediator selected for ADR?
One method of selecting a mediator is for the parties to use an “intake” neutral. One function of an intake neutral is to assists the parties in “session” neutral selection. For the NRC’s pilot program, the Institute on Conflict Resolution (ICR) at Cornell University will serve as an intake neutral. ICR will provide a selection process and propose experienced, unbiased mediators for the parties consideration.
Parties preferring to locate their own mediator may do so.
Conflicts of Interest. Any mediator who is contacted by a party to handle a case must disclose to all parties, prior to undertaking resolution efforts:
- Any existing or past personal, financial, business, or other relationship, with any of the parties to the case at hand, their employees, or their attorneys that could affect the mediator’s ability to be impartial;
- Previous or current involvement in the case at hand;
- Past or prospective employment, including employment as a neutral in previous disputes, by any party; and
- Any other circumstances likely to create a presumption of bias or the appearance of bias.
- A neutral who fully discloses any such conflict in writing to all parties may serve if all parties are informed and agree to his/her serving.
How long do sessions take?
Most ADR cases will be completed in one or two sessions lasting several hours. Depending on the nature and complexity of the issues, some could require a few additional sessions.
Is ADR confidential?
While ADR can make it safe for parties to raise sensitive issues and new ideas, many of its benefits can be achieved only if discussions remain private.
Confidentiality for Neutrals. The Administrative Dispute Resolution Act seeks to ensure appropriate protection of parties' and mediators' communications and to balance the openness required for legitimacy with the security that is necessary if some sensitive negotiations are to yield agreement. Unless the parties and the mediator agree otherwise, the Act generally prohibits disclosure or introduction into evidence dispute resolution communications shared in private with the neutral, subject to a few narrow exceptions for extraordinary cases. The main exception involves the rare situation where a court orders disclosure based on its explicit findings that (1) release of the information would prevent harm to the public health and welfare, prevent a manifest injustice, or reveal a violation of the law, and (2) the magnitude of the harm outweighs the need for integrity of the dispute resolution process in this and future cases.
The ADR Program Administrator (ICR), as well as OE’s ADR Program Director, will serve as intake neutrals. As such, they will maintain the confidentiality of their dispute resolution communications with parties and potential parties. Anyone who wishes to discuss with an intake neutral the potential utility of NRC’s ADR process may do so with an expectation of confidential treatment, as set forth herein.
Confidentiality for Parties. Parties may consult with advisors, legal counsel, or representatives at any time during the mediation or prior to signing any agreement. Otherwise, they typically agree not to discuss the substance of the mediation with anyone who was not present, or to share such information voluntarily with non-participants, except those who may need certain information to aid in implementing a settlement.
Alternate Confidentiality Arrangements. The ADR Act allows parties and neutrals to agree to alternate confidentiality arrangements, provided all parties and the neutral agree in writing in advance.
For further information. These resources offer additional helpful information on ADR confidentiality:
How can parties get best results from ADR?
Parties entering into ADR should:
- take some time to prepare before sitting down at the table
- understand their own case and be prepared to communicate with neutrals and other participants
- briefly assess their interests, wants, needs, and expectations
- assess adversaries’ interests and expectations
These additional tips may also be helpful:
Check yourself and the other participants:
- Why are you concerned, angry, or upset?
- What do you really want out of this situation?
- What can you do to get that?
- Who would be able to help you get that?
- Will everyone who needs to be there to resolve the issues be present? Generally, it is important that those attending the ADR session have the authority to resolve the dispute.)
Create a Safe Space:
- What guidelines do you and others need to be honest with each other? (e.g. confidentiality)
- What guidelines do you and others need to be able to listen to each other? (e.g. only one speaks at a time)
Check out what the other party wants:
- Listen. Often if you listen first, other people will let you speak.
- Say back what you heard. Give other people a chance to clarify.
- Figure out what other participants really want, or need.
Say what’s going on with you:
- Make sure you know what issues you want to discuss. (e.g., communication, expectations, working conditions)
- Be clear about what you need from the situation.
- Explain what you need and how you feel in a way that is respectful to all.
- Remember that the goal is for you to be heard, not to slam others or minimize your own needs.
Look for solutions together:
- Work on one issue at a time.
- Make a list of all the possible solutions. Try to be creative.
- Try to find solutions that work for everyone.
Evaluating results of the ADR Pilot Program
At the conclusion of the mediation, parties will be asked to fill out and submit an evaluation form seeking comment regarding the pilot program and the mediator. The comment form will normally be returned to ICR; however, if a party desires, the evaluation may be returned to the NRC’s program administrator. Comments will be used to make interim changes, if necessary, and support a comprehensive evaluation of the entire pilot at the end of the program.
Part II: Early ADR
- About Early ADR
- Who can use Early ADR, and how?
- Why use Early ADR?
- When to use Early ADR?
- Who will serve as neutral mediators in Early ADR?
- What does Early ADR cost?
- When and where do Early ADR sessions occur?
- Does participation in Early ADR affect the DOL complaint filing requirements?
- Does participation in Early ADR affect the NRC enforcement process?
- Is Early ADR confidential?
- Will settlement agreements be final and enforceable?
- What can parties agree to do in settling a case via Early ADR?
- What happens if the the ADR session does not result in resolution?
- Can participants withdraw from Early ADR?
- What role do representatives play in Early ADR?
- Who administers the NRC Early ADR Program?
- How does one obtain additional information on Early ADR?
- Will the NRC investigate an alleged violation of the applicable NRC employee protection rule if the complainant reaches a settlement agreement with the employer?
About Early ADR
The NRC offers an Early ADR Program that allows parties to resolve selected complaints effectively—and in a faster, less expensive, and less contentious way than a lengthy investigation or costly adjudication.
Early ADR may be used for any conflict between a licensee (or licensee contractor) and an employee involving a potential (as determined by the NRC) case of discrimination for engaging in protected activity as described in the NRC’s Employee Protection regulations.
Early ADR typically occurs prior to any NRC investigation of the case or other enforcement activity.
Who can use Early ADR, and how?
After an NRC allegation review board has determined that an individual has articulated a prima facie case of discrimination for engaging in protected activity (as defined in Section 211 of the Energy Reorganization Act of 1974, as amended), the individual will be contacted and the possibility of using ADR to resolve the dispute discussed. If the individual agrees to attempting ADR, the licensee will be contacted and given the option of engaging in ADR.
If all parties agree, the Early ADR Program Administrator, the Institute on Conflict Resolution (ICR) at Cornell University (see below), will assist the parties in selecting a neutral mediator and scheduling a mediation session.
Why use Early ADR?
In addition to the reasons for using ADR in general,
It allows people to develop timely solutions to conflicts, especially in the context of ongoing work relationships. When parties want to get on with their lives, Early ADR may help them produce rapid results.
Early ADR should benefit a safety conscious work environment by bringing about timely resolution of discrimination issues relating to the freedom of employees to raise safety concerns.
When to use Early ADR?
Early ADR is an option in any dispute within the scope of the program where a negotiated solution is conceivably an acceptable outcome. In deciding whether to mediate, a party should first consider options (e.g., an uncomfortable open conflict, a decision imposed from the outside, continuing antagonism that distracts personnel from their priority assignments) and assess the risks associated with each alternative. Parties can generally obtain the best results when mediation is used early in the dispute, before the positions of the parties have hardened.
Who will serve as neutral mediators in Early ADR?
To ensure a source of skilled, unbiased neutrals, the NRC has asked the Institute on Conflict Resolution at Cornell University (“ICR”) to select and oversee a roster of experienced mediators and administer the Early ADR Program’s operations. For more information on neutrals, see How is a mediator selected for ADR? above.
What does Early ADR cost?
The NRC will pay for the services of any ADR neutral selected from the ICR roster. If the parties cannot agree on a neutral from the ICR roster, the NRC will typically, pending funds availability and a reasonable fee, pay the fee for neutral services of the parties’ choosing.
When and where do Early ADR sessions occur?
The session will occur at or near the workplace, depending on availability and party desires. The parties are generally expected to complete the mediation within 90 days after referral, unless the parties and the NRC agree to a brief extension. ICR will coordinate the logistics of mediation with the parties.
Does participation in Early ADR affect the DOL complaint filing requirements?
No. Participation in the Early ADR program or an employer’s sponsored program does not change the timeliness requirements for filing the discrimination complaint with any other governmental entity under any other law including Section 211 of the Energy Reorganization Act of 1974.
Individuals should confer with counsel or other competent advisors or refer to the DOL website to ensure that they comply with all relevant DOL deadlines. (See for example, Occupational Safety & Health Act (OSHA) Fact Sheet)
Does participation in Early ADR affect the NRC enforcement process?
- Yes. If Early ADR or an employer's sponsored program is utilized to settle a discrimination concern, the NRC will not investigate the particular allegation of discrimination or take enforcement action relating to such allegation of discrimination; so long as there has been no abuse of the program, NRC's Office of Investigations has not commenced its investigation of the discrimination complaint and the NRC's Office of General Counsel has reviewedthe settlement agreement for any restrictive terms in violation of the applicable NRC employee protection regulation. (See 69 FR 50219)for detailed information about Early ADR and the Commission's policy statement regarding the ADR Program).
Is Early ADR confidential?
See the discussion on confidentiality above.
Documents possessed by and information known to a party prior to an attempt to resolve the issue through ADR is not confidential solely because it was discussed or referenced during a mediation session. In other words, participation in mediation does not prevent a subsequent investigation based on the preexisting facts of the case.
Will settlement agreements be final and enforceable?
In order to provide assurance that negotiations do not result in an agreement a party later regrets, a settlement agreement in Early ADR will not become final and binding until three days after the parties sign it.
Either party may reconsider the settlement agreement during this three-day period.
After three days, any written agreement that the parties (i.e., the complainant and the licensee or the licensee’s contractor) reach becomes fully effective and enforceable as a contract, unless the NRC determines (normally within 5 working days from receipt) that it involves (1) restrictive agreements that restrict or discourage an employee from providing information on potential safety violations to the NRC or (2) abuse of the ADR process.
Unless the NRC finds the agreement reached as a settlement early in the NRC’s review and investigation process unacceptable (as described above), it will not investigate or take other enforcement action on the issue of whether discrimination occurred. The NRC may take action to address any underlying safety issues identified.
What can parties agree to do in settling a case via Early ADR?
The parties may craft agreements as they deem fit, as long as a proposed agreement does not: (1) promote agreements that restrict or discourage an employee from providing information on potential safety violations to the NRC or (2) abuse the ADR process.
They are not prohibited from including corrective actions that would improve the safety conscious work environment in a settlement agreement, if all parties agree.
What happens if the Early ADR session does not result in resolution?
If resolution is not achieved, the complaint is then handled as though the parties had not tried ADR. See Reporting Safety Concerns (NUREG/BR-0240, Rev. 1) for a general description of the process.
Can participants withdraw from Early ADR?
Participation in Early ADR is voluntary.
Any party may withdraw at any point in the process.
No one can be forced to agree to anything.
What role do representatives play in Early ADR?
Parties may consult with advisors, legal counsel, or representatives at any time during the mediation or prior to signing any agreement. Such counsel is not required.
Who administers the NRC Early ADR Program?
A party who is interested in learning more about Early ADR should contact the Institute on Conflict Resolution at Cornell University or the Office of Enforcement (see below).
ICR will serve as the neutral Program Administrator for the Early ADR Program’s operation, including working with parties to identify appropriate mediators.
ICR embraces a network of independent dispute resolution practitioners who work on a regional, national, and international basis. ICR works in partnership with companies, unions, and government to help resolve conflicts and evaluate the efficacy of conflict resolution methods.
For more information on ICR, see Institute on Conflict Resolution (ICR)/About ICR.
How does one obtain additional information on Early ADR?
Further information on participating in the Early ADR Program (besides the allegation booklet provided by the NRC to concerned individuals and this overview of the Early ADR program) is available from:
The NRC ADR Program Administrator (ICR: Catherwood Library Tower, Ives Hall, Cornell University, Ithaca, NY 14853, Phone 607-255-5378, or http://www.ilr.cornell.edu/icr/
The NRC Office of Enforcement ADR Program Director (Shahram Ghasemian, 301-415-3591)
Will the NRC investigate an alleged violation of the applicable NRC employee protection rule if the complainant reaches a settlement agreement with the employer?
No. In accordance with the Commission’s policy statement regarding the use of Early ADR or licensee sponsored programs, the NRC will not investigate or take enforcement action relating to the specific allegation of discrimination given an acceptable settlement.
Last updated: 06/12/09