The National Guard Roster of Third-Party Neutrals (NG TPNs)

A TPN is a properly trained and certified individual who, with respect to an issue in controversy, functions specifically to aid the Parties in reaching resolution. This person is not one of the Parties in the dispute, and does not have an official, financial, or personal conflict of interest in the issue in controversy, unless such interest is fully disclosed in writing to all Parties and all Parties agree that the individual may serve. A TPN for the National Guard may be a current or former Federal Government employee, Service-member, contractor, or someone outside the Federal Government. 

The NG Third-Party Neutral Roster (COMING SOON) comprises members of the National Guard and Title 5 civilian employees who offer their services as third-party neutrals (TPNs) to National Guard organizations on a collateral duty basis. These personnel have appointed and certified in accordance with Chief, National Guard Bureau Memorandum (CNGBM) 0402.01.

Mediation services through the National Guard Roster of TPNs are provided free of charge to National Guard organizations. Although not always at every site where a dispute may arise, Roster TPNs may be located throughout the United States, Guam, Puerto Rico, U.S. Virgin Islands, and the District of Columbia. The NGB-EOC may coordinate with the ADR managers across the State National Guards to assign an appropriate TPN. When available resources permit, the National Guard uses the co-mediation model (i.e., two mediators per mediation) and conducts these activities in person, telephonically, or through the usage of real-time collaboration tools such as Microsoft Teams.
 

Requesting Mediation

The NG TPN Roster (COMING SOON) is comprised of members of the National Guard and Title 5 civilian employees that, on a collateral duty basis, serve as third-party neutrals (TPNs) for National Guard organizations. These personnel have appointed and certified in accordance with Chief, National Guard Bureau Manual (CNGBM) 0402.01. This is the same policy that governs mediation request process.

Mediation services through the National Guard Roster of TPNs are provided free of charge to National Guard organizations. Although not always at every site where a dispute may arise, Roster TPNs may be located throughout the United States, Guam, Puerto Rico, U.S. Virgin Islands, and the District of Columbia. The NGB-GC and NGB-EOC may coordinate with the ADR managers across the State National Guards to assign an appropriate TPN. The NGB-EOC may coordinate with the ADR managers across the State National Guards to assign an appropriate TPN.  When available resources permit, two mediators may be assigned to each matter using the co-mediation model.
 

Qualification as a Third-Party Neutral

The NG ADR Roster of Third-Party Neutrals is composed of National Guard personnel and civilian employees who have had at least 40 hours of approved professional training as a Third-Party Neutral and agree to abide by established ethical standards A Guide for Federal Employee Mediators. Members of the National Guard and Title 5 civilian employees that have taken at least 40 hours of approved professional training as a Third-Party Neutral and want to be placed on the roster must submit an application via the NGB-GC ADR group mailbox, “Attention NG Third-Party Neutral Roster Manager” in the subject line. 

Currently, the NGB is in the process of developing a 40-hour mediation class to help satisfy the appointment and certification requirements of our Third-Party Neutrals. Once course development is complete, it will be announced and made available to all members and civilian employees of the National Guard. To remain active on the NG ADR Roster of Third-Party Neutrals, TPNs must abide by the training and certification requirements outlined in CNGBM 0402.01. Training or ADR experience outside the National Guard will be given due consideration by the NG Deputy Dispute Resolution Specialist (NG DDRS) and may potentially be used to satisfy the policy training and certification requirements.

When resources allow, the NG ADR Program attempts to utilize the co-mediator approach. Therefore, in some instances, a lead mediator with significant experience may be paired with a co-mediator who has little or no experience (but has been formally trained). The lead mediator is provided with assistance of the co-mediator. Using this method, the Parties receive the useful value of two mediators, the co-mediator gains needed experience, and over time, the National Guard will increase its cadre of qualified Third-Party Neutrals.

National Guard ADR Program History

In 1990, the Administrative Dispute Resolution Act (ADRA) required each Federal agency to adopt a policy on ADR use. In 1996, ADRA was reenacted as the Administrative Dispute Resolution Act of 1996 (ADR Act). In 2000, the Equal Employment Opportunity Commission (EEOC) required all Federal agencies to establish or make available an ADR program during the pre-complaint and formal complaint stages of the EEO process.  Additionally, EEOCs regulation, 29 C.F.R. § 1614.603, requires agencies to make reasonable efforts to voluntarily settle EEO discrimination complaints as early as possible in, and throughout, the administrative process.

In 2001, the Chief of the National Guard Bureau issued the National Guard Alternative Dispute Resolution (ADR) policy encouraging the use of ADR as appropriate to resolve disputes as early as possible, as inexpensively as possible, and at the lowest organizational level. On 24 July 2015, the Chief of the National Guard Bureau (NGB) designated the General Counsel of the NGB the National Guard Dispute Resolution Specialist (NGDRS), and tasked the NGDRS with several responsibilities, including submission and execution of the National Guard ADR program budget, identification and elimination of unnecessary barriers to ADR, providing ADR and negotiation training for National Guard personnel, and ensuring sufficient resources to facilitate the use of ADR across a broad spectrum of disputes. To support management and implementation of the National Guard ADR program and policy compliance, the NGDRS has appointed a Deputy. While National Guard ADR policy and practice is consolidated at the NGB, each State National Guard is left free to execute their ADR program consistent with their missions and requirements.

ADR generally refers to a continuum of processes and approaches that are designed to resolve disputes in a manner which avoids the cost, delay, and unpredictability of more traditional adversarial and adjudicatory processes, such as, litigation, hearings, and appeals. Numerous types of ADR techniques exist, including mediation, facilitation, fact finding, early neutral evaluation, the use of an Ombudsman, settlement conferences, and peer review. Chapter 3 of the EEO Management Directive (MD)-110 provides a detailed description of each of these techniques.  The overriding requirement for the National Guard ADR program is that it is fair.  Fairness requires voluntariness, neutrality, confidentiality, and enforceability.

Voluntariness means that the parties (in this context, the complainant and the agency) knowingly and willingly enter into an ADR proceeding and that they have the opportunity to end the proceeding at any time. In this regard, once the ADR proceeding ends, complainants may re-enter the traditional EEO complaint process in order to pursue their claim. Moreover, any agreements between the parties must have been reached without coercion or duress.

Neutrality means that the ADR proceeding is impartial and independent of control by either party. A neutral third party who assists the parties in reaching an agreement must not have any stake in the outcome of the proceeding.

Confidentiality of the ADR proceedings must be maintained by the parties and the neutral third party. This means that information concerning the underlying facts of an ADR proceeding and records generated as part of that proceeding may not be made part of the EEO complaint record. The Alternative Dispute Resolution Act of 1996, 5 U.S.C. § 574, provides that neutrals in ADR proceedings may not voluntarily disclose or be required to disclose dispute resolution communications, with certain statutory exceptions. For additional information regarding confidentiality, feel free to review the guidance developed by the Department of Justice Interagency Alternative Dispute Resolution Working Group at https://www.adr.gov/.
 

Vision, Mission, and Goals

Vision: Equip all elements of the National Guard with superior conflict management and informal dispute resolution capabilities and thereby reduce the cost of conflict, increase the number and quality mutually acceptable outcomes amongst the Parties, and increase the readiness of National Guard units and personnel across the world.

Mission: Promote and facilitate the use of alternative dispute resolution (ADR) and other informal, collaborative conflict management methods in elements of the National Guard, to resolve disputes at the earliest possible stage of the conflict and at the lowest possible organizational level.

Strategic Goals

1. Establish and sustain National Guard conflict management and dispute resolution capability at every level by properly maintaining the National Guard ADR program, training supervisors and managers in conflict management, and certifying National Guard personnel as collateral duty Third-Party Neutrals.
2. Formulate and implement coherent, consistent National Guard-wide ADR policies that promote ADR as the first option to dispute resolution whenever practicable and appropriate.
3. Facilitate the provision of timely, best-in-class Third-Party Neutral services to National Guard elements whenever and wherever they are required.
4. Identify and eliminate barriers to using or attempting ADR through outreach and awareness education across the National Guard Bureau as well as the National Guard units located in the 50 States, Guam, Puerto Rico, U.S. Virgin Islands, and the District of Columbia.
    

National Guard ADR Policy
CNGBI 0402.01, “National Guard ADR” 
CNGBM 0402.01, “ADR Procedures”

ADR in Workplace Disputes

Workplace disputes encompass disputes that occur in National Guard work environments, particularly those involving National Guard civilian employees, former employees, or applicants for employment. For the National Guard, workplace disputes are generally separated into three broad categories: Equal Employment Opportunity (EEO) complaints, non-EEO Complaints (e.g., employee grievances, adverse actions and appeals, and union-management disputes), and Military Equal Opportunity (MEO) complaints. ADR techniques, especially collaborative techniques like mediation, conciliation and facilitation, have long been used to resolve both EEO, non-EEO, and MEO disputes. These techniques are particularly effective in addressing the types of issues and problems that are common to workplace disputes (e.g., lack of communication, dysfunctional working relationships, poor management, and counterproductive leadership). Because ADR processes do not require a finding or admission of legal liability, they are much more flexible than traditional litigation or other adjudicative procedures in fashioning solutions to these problems.  Each category of workplace dispute is discussed in more detail below.
 

EEO Complaints

Federal civilian employee complaints alleging violation of anti-discrimination laws in the Federal workplace are under the jurisdiction of the Equal Employment Opportunity Commission, Office of Federal Operations. National Guard Regulations (NGRs) 690-600, Volumes 1 and 2, are also applicable. All Federal agencies are required to make ADR available as an option for resolving EEO complaints at both the informal (i.e., “pre-complaint”) and formal complaint stages. The EEOC has long recognized that the majority of EEO claims on its hearing dockets are not about unlawful discrimination, but instead involve less pernicious, more widespread problems such as lack of communication, personality conflicts, and bad management practices. The EEO complaint system is not built to resolve these issues. ADR provides a mechanism for addressing these non-legal issues, while easing the pressure on crowded agency investigation schedules and EEOC hearing dockets.

ADR processes, primarily mediation and facilitation, are now a fixture of EEO complaint processing and disposition. ADR processes should consume a significant percentage of National Guard informal and formal EEO cases, producing resolutions not often achieved through the traditional complaint process of investigation and adjudication.  At the pre-complaint stage, ADR is one of two options offered to the aggrieved employee. At this stage, parties may also add non-EEO claims, i.e., claims that do not allege discrimination, to those slated for ADR, in order to resolve all contested issues at once, providing both employee and management a final, economical, and complete solution. At the formal stage, ADR is always available, up to the final decision by the Agency.

Whether used at the informal or formal stages (or both) of the EEO complaint process, collaborative ADR techniques like mediation and facilitation treat the dispute as a problem for employee and management to solve together, not a case to be won or lost. These processes open the door to better communication and a sense of teamwork, thereby decreasing the tensions that give rise to conflict. For the employee, this methodology produces a less stressful, more harmonious work environment. For management, the ADR process fosters a more productive workplace and redirects the focus where it belongs: the mission.
 

Non-EEO Workplace Disputes

There are two major classes of non-EEO workplace disputes: labor-management relations (LMR) and management-employee relations (MER). LMR disputes arise out of the collective bargaining relationship between management and unions representing bargaining unit employees. Thus, LMR disputes include grievances that are filed under a negotiated grievance procedure in a collective bargaining agreement (NGPs), allegations of unfair labor practices (ULPs), and disputes arising as part of the collective bargaining process (negotiability issues, impasses). These disputes are all subject to the Federal Service Labor-Management Relation Statute (FSLMRS), and are under the jurisdiction of the Federal Labor Relations Authority (FLRA). MER disputes involve the relationship between management and employees that do not directly implicate the collective bargaining process (regardless of whether the employee is part of a bargaining unit or not). Main examples are adverse personnel actions that can be appealed to the Merit Systems Protection Board (MSPB), administrative grievances filed by employees that are not represented by a union, and other workplace disputes that don’t fit any other category.

The FSLMRS requires that collective bargaining agreements provide for binding arbitration as the final step of the negotiated grievance procedure. Binding arbitration is a form of ADR, but because it can be invoked only by the union or management, not the employee, and places binding decision-making authority in the hands of an outside party, the arbitrator, it is not a favored ADR method. Otherwise, LMR and EMR disputes do not have ADR built in, the way EEO complaints do. Nevertheless, both the FLRA and the MSPB encourage voluntary efforts by the parties to resolve the dispute informally, and will accommodate such efforts consistent with their procedural rules. Beyond that, management and employees or their unions have a lot of leeway before a dispute finds its way to these tribunals to engage in ADR and other informal dispute resolution techniques. For example, management and union can form joint teams to review and propose solutions to ULP allegations or bargaining impasses; the collective bargaining agreement can be written to provide mediation as an employee-requested option at step one or 2 of the grievance procedure; or management and union or employees can agree to form joint peer review panels to evaluate and decide on grievances. All of these options, and others, give management and employees local control over disposition of disputes, without giving decision-making authority to outside third parties.
 

MEO Complaints

This is where it can get tricky for the National Guard because status matters! Members of the National Guard serving in their State Active Duty (SAD) status who allege violation of State and or Federal anti-discrimination laws at their State National Guard are under the sole jurisdiction of their State. State law applies, including the State Code of Military Justice (SCMJ). Depending on the nature of the complaint, Federal law may apply in a manner that trumps State law. Members of the National Guard serving in their Title 32 status who allege violation of Federal anti-discrimination laws at their State National Guard unit are under the jurisdiction of their State National Guard and the National Guard Bureau. Therefore, local policies, policies issued by the National Guard Bureau (CNGBI/M 0402.01; CNGBI 9400.01), and Title VI of the Civil Rights Act of 1964 are applicable. If the member is a National Guard Technician under 32 U.S.C. § 709, jurisdiction and the applicable laws or policies will hinge on whether the act complained of occurred while the member was serving in their Title 5 civilian employee or their Title 32 National Guard member status. Members of the National Guard serving in their Title 10 status who allege violation of Federal anti-discrimination laws at while deployed, attached to the National Guard Bureau, or attached to an active-duty Army or Air Force unit, are under the jurisdiction of either the National Guard Bureau or the active-duty unit where they are serving. In such cases, the policies of the respective Service apply. 

ADR Training

National Guard policy requires that personnel involved in the resolution of disputes receive ADR training and consider ADR in each case. To that end, the Office of the General Counsel in partnership with the Equal Opportunity Compliance directorate has created a framework that establishes a National Guard conflict management and dispute resolution capability at every level. 

Currently, the NGB is in the process of developing a 40-hour mediation class to help satisfy the appointment and certification requirements of our Third-Party Neutrals.  Once course development is complete, it will be announced and made available to all members and civilian employees of the National Guard.  We will also offer 2-hour ADR training for supervisors and attorneys. 

In the meantime, the following training is acceptable for initial certification as a National Guard Third-Party Neutral (Level I) so long as the training was completed within 5 years or less of the date of the certification request and the applicant can demonstrate completion of all required annual refresher training:

1. Army 40-Hour Basic Mediation Course 
2. Air Force Negotiation & ADR Course (conducted at the Air Force Judge Advocate School, Maxwell AFB, Montgomery, Alabama)
3. Equal Employment Opportunity Medication Course (conducted at the Defense Equal Opportunity Management Institute, Patrick Space Force Base, Florida)

ADR Resources
General 
ADRA of 1996,
ADRA of 1998,
DoDI 5145.05,
Presidential Memorandum on ADR,
Federal Ombuds Guide
Federal Sector EEO Program Requirements (29 CFR Part 1614)

Confidentiality 
Confidentiality: “Protecting the Confidentiality of Dispute Resolution Proceedings: A Guide for Federal Workplace ADR Program Administrators(4-06)"
Confidentiality: Guide to “Confidentiality in Federal Alternative Dispute Resolution Programs" 
Interagency ADR Working Group Steering Committee Report on Protecting Confidentiality of Workplace Dispute Resolution Proceedings 
ADR Council Report on the Reasonable Expectations of Confidentiality Under the Administrative Dispute Resolution Act of 1996 
 

Workplace
Federal Workplace Conflict Management Desk Reference
Army Mediation Handbook (2020) (NEW) 
ADR for Supervisors 
The Mediation Process 
Air Force Mediation Compendium 
Mediator Standards of Conduct Guide (ADR Working Group 2006) 
Return on Investment Using ADR in Workplace Disputes 

Federal Government ADR Websites
Interagency ADR Working Group
Air Force ADR Program
Navy ADR Program
Equal Employment Opportunity Commission
Federal Mediation and Conciliation Service
U.S. Inst. For Environmental Conflict Resolution
Defense Equal Opportunity Management Institute (DEOMI)
MSPB Mediation Appeals Program
FLRA ADR & Training
Defense Office of Hearings and Appeals Center for ADR
US Air Force Negotiation Center at the Air University
Armed Services Board of Contract Appeals
Army Materiel Command – HQ AMC-Level Protest Procedures Program
Defense Logistics Agency ADR
US Army Forces Command ADR Policy 
US Army Training and Doctrine Command ADR Policy
Department of Defense Education Activity ADR
Department of Justice ADR
Udall Foundation - Main Page
 

Other Helpful Resources 
Standards of Conduct for Federal Employee Mediators 
Conflict Prevention, Management and Resolution Resources for Federal ADR Programs
Confidentiality Guide for ADR Program Administrators
Electronic Guide to Federal Procurement ADR
Air Force Mediation Compendium
Army Mediation Handbook (2020) (NEW)
Federal Sector Alternative Dispute Resolution 
DoD Center for Alternative Dispute Resolution 
DoD Alternative Dispute Resolution Program for Whistleblower Reprisal Complaints
Air Force Negotiation and Dispute Resolution 
Army Alternative Dispute Resolution 
EEOC Mediation 
ADR-Related Statutes and Regulations 
ADR Case Law 

5 U.S.C. Sections 571 584 Alternative Means of Disbute Resolution in Admin Process
A Guide for Federal Employee Mediators
About Federal Sector ADR EEOC
ADR During the Counseling Pre-Complaint Phase CH 2 MD 110
ADR FAQs EEOC
ADR Handbook OPM
ADR Program Compliance Ch3 MD 110 EEOC
ADR Program Development EEOC
ADR Techniques Ch 3 of MD 110 EEOC
Army Mediation Handbook 2015 FINAL2
Benefits of Mediation Checklist
Employment Arbitration Rules and Mediation Procedures Jul 01 2006
EO 12988 Civil Justice Reform 5 Feb 1996
Evaluating Agency ADR Programs RAND 1995
Facts About Federal Sector ADR-EEOC
Federal Ombuds Guide May 2006
IG Instruction 5145.05 Whistleblower Reprisal ADR Program
Improving Quality Controls for SM Employment Rights GAO Report July 2007
Performance indicators for ADR Program Evaluation ADR.gov
Preparing for Mediation Checklist
Protecting Confidentiality of Dispute Resolution Proceedings