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Going Beyond the Norm: The Case for Incorporating Evaluative Mediation into Department of Defense Employment Discrimination Complaints

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Technical Report

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Air Command And Staff College Maxwell Air Force Base United States

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Alternative Dispute Resolution is a vital tool being used by the Department of Defense DoD as a means to resolve workplace disputes. The DoD uses the facilitative model of mediation to resolve these disputes and it is a proven, effective resource in satisfactorily resolving DoD workplace conflicts. Facilitative mediation relies solely on the individual parties coming up with solutions to resolve the dispute and does not evaluate the actual merits of a complaint. This can be problematic when an employee has filed a workplace complaint based on illegal discrimination with the Equal Opportunity Office. Evaluative mediation involves having a mediator with expertise in labor and employment law evaluate the complaints strengths and weaknesses and help the parties reach resolution based on this evaluation. The Equal Employment Opportunity Commission provides settlement judges who use evaluative mediation techniques but this is only after a case has gone formal and is in the advanced stages of litigation. Sometimes this can be almost 1-2 years after the alleged discriminatory action took place due to the length of time it takes a case to get assigned a judge. This paper proposes that DoD policy and guidance be modified to allow for early stage evaluative mediation by a qualified mediator in select EO complaints either by contracted or internal mediators. This will provide the DoD a broader spectrum of dispute resolution options and potentially greater cost savings than those already provided by using the facilitative model.

Subject Categories:

  • Personnel Management and Labor Relations

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