NLRB contracts with FMCS to provide mediators in Board Alternative Dispute Resolution program

October 23, 2012

As part of its ongoing efforts to encourage the settlement of cases, the National Labor Relations Board has contracted with the Federal Mediation and Conciliation Service (FMCS) to provide mediators to parties who participate in the Board’s alternative dispute resolution (ADR) program.
Since 2005, the Board’s ADR program has provided parties with the assistance of a mediator to aid them in settling unfair labor practice cases pending before the Board.  Parties reached a settlement in 60% of the cases mediated under the ADR program, and the Board approved the settlements in each of those cases.  ADR programs provide the parties with several benefits, including savings in time and money, greater control over the outcome of their cases, and more creative, flexible, and customized resolutions of their disputes.  Settlement discussions conducted with the assistance of an ADR neutral tend to broaden resolution options, often going beyond the legal issues in controversy, and can be particularly useful where traditional settlement negotiations are likely to be unsuccessful or have already been unsuccessful.
Until now, the Board has primarily used Administrative Law Judges to serve as mediators.  The Board’s FMCS contract will bring new resources to the ADR program by providing parties with the opportunity to use experienced FMCS mediators.  Parties will continue to have the opportunity to use the ADR program director as a mediator as well.
The Board established the ADR program in response to the success experienced by other federal agencies and the federal courts in settling contested cases through ADR, as well as the success of the NLRB’s own settlement judge program at the trial level.  About 90% of meritorious NLRB cases are settled by agreement at some point in the process, whether at the Regional Office where the charge is filed, before or during an Administrative Law Judge trial, or while the case is pending before the Board.
Participation in the ADR program is voluntary, and a party who enters into settlement discussions under the program may withdraw from participation at any time.  There are no charged fees or expenses for using the program.  The Board stays further processing of the case while the case is in the program.  Cases generally may not be in the program longer than 30 days, and in no event longer than 60 days.

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