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Discussion Hypotheticals



HYPOTHETICAL #1

In caucus, a complainant in the agency's workplace mediation program tells a collateral duty mediator that the "real" reason why she is in trouble with her supervisor involves a buddy of her boss's who receives agency grant funds to support a driving safety inspector training school. Complainant alleges in the caucus that her boss wants to get rid of her because she complained that the crony's approach to training inspectors is very lax; in fact, the complainant says, several former "students" now employed at the Agency received diplomas without even attending a single class after making sizeable payments well in excess of the standard tuition.

VARIANT 1
What if the mediator were a private mediator rather than a government employee?

VARIANT 2
This mediator receives a call from an investigator at the Department's Office of Inspector General, who asks her to tell him all safety-related information that came out in the mediation. He reminds the neutral that there is a public interest in finding out anything that threatens public health, as well as in protecting the proper expenditure of federal grant dollars that the school has received.

HYPOTHETICAL #2

A contracting firm has a dispute concerning a large contract with a federal agency. The contractor requests mediation and the agency agrees. However, the company's principals express concern about maintaining confidentiality of discussions during mediation proceedings and are advised by the mediator that statements made during joint mediation sessions (where all parties are present) are not protected under the confidentiality provisions of the Administrative Dispute Resolution Act of 1996 (ADRA). The contractor refuses to participate in mediation unless it can be assured that such statements can be protected from public disclosure.

As part of their ADR Agreement, can the parties agree to confidentiality terms that are different than those provided in ADRA? If so, how is this accomplished, and are there any disadvantages?

HYPOTHETICAL #3

Disputant contacts the federal agency's ADR office and asks general questions about how ADR works. Do the ADRA confidentiality protections apply to this conversation? Does the answer change if the disputant begins to talk about specifics of his problem and alleges that there has been mis- or malfeasance in the program and is asking if the ADR office believes ADR would be helpful?

VARIANT 1
This intake person receives a call from an investigator at the Department's Office of Inspector General, who asks her to tell him all information that came out during the intake discussion. He reminds the intake person that there is a public interest in finding out anything that threatens public health, as well as in protecting the proper expenditure of federal grant dollars.

 

HYPOTHETICAL #4

The ADR program manager in a federal agency handles case files on all the cases mediated by her and the two other staff mediators in the office. Are these case files subject to the ADR Act and federal record keeping requirements?

  • What about the mediator's notes?
  • What about case logs with the parties' names, the mediator assigned, a description of the matter, meetings held, and the general topics discussed?
  • What about settlement proposals drafted by the mediator?
  • What about the settlement agreement and agreement to mediate?

VARIANT 1
What if the mediator were a private mediator rather than a government employee?

HYPOTHETICAL #5

The presiding district court judge orders a neutral mediating a case being litigated in the court to report to him with respect to an ongoing mediation, the current settlement offers and the issues on which the parties are divided. What should the neutral do? What rules might govern? Does it matter in what court (e.g. Federal or state) this occurs?

HYPOTHETICAL #6

You are the government's counsel defending a deposition in an Architect/Engineer liability appeal to your agency's Board of Contract Appeals. The Government claims that the architect's defective specifications caused cost increases on the construction phase of the project. The government paid the increases to the construction contractor after reaching a settlement agreement in a mediation conducted last year.

The architect's counsel has established that your witness made statements at the mediation between the construction contractor and the government. All parties to the mediation heard the statements. Counsel now asks, "What statements did you make?" How do you react?

 

HYPOTHETICAL #7

A party to a dispute has expressed great concern about confidentiality throughout the dispute resolution proceeding. When asked to participate in an evaluation of the agency's ADR program, the disputant declared that neither she nor the agency representative should take part in the evaluation process for fear that confidential information will be disclosed. What might the federal agency ADR program do to alleviate such concerns?

 

HYPOTHETICAL #8

The settlement agreement involves implementation by an agency financial management official who must cut a check to the disputant. The finance official wants to debate the dollar amount and is demanding details of what led up to the agreement, including discussions at the dispute resolution session. How much can be revealed to the finance official by the neutral?

How much can be revealed by the parties?