General Circular No. 001326
To: Heads of State Agencies and Human Resource Directors
Subject: Proposed Adoption Of CS Rules 13.50 And 13.51
Issue Date: August 17, 1998
The State Civil Service Commission will hold
a public hearing on Wednesday, September 2, 1998 to consider the proposed
adoption of Civil Service Rules 13.50 and 13.51. The hearing will begin at 9:00
a.m. and will be held in the Department of Civil Service Second Floor Hearing
Room, DOTD Annex Building, 1201 Capitol Access Road, Baton Rouge, Louisiana.
PROPOSED ADOPTION OF RULES 13.50 and 13.51.
13.50 Alternative Dispute Resolution; Pilot
Program.
(a) The Appeals Division is authorized to
pilot an Alternative Dispute Resolution Program and to establish its
guidelines. The Appeals Division will submit the guidelines to the Commission
for its approval.
(b) The purpose of the Alternative Dispute
Resolution Program is to encourage the resolution of employment disputes
without traditional adversarial hearings.
EXPLANATION
This rule will enable the Appeals Division to
pilot Alternative Dispute Resolution programs and to establish guidelines for
the pilot programs. For oversight purposes, the rule requires the guidelines to
be submitted to the Commission for its approval.
The goal of any Alternative Dispute
Resolution program is to resolve employment disputes without resorting to
traditional adversarial hearings. Instead, appeals will be referred to
mediation, which is the type of Alternative Dispute Resolution that the Appeals
Division has chosen to begin the pilot program. Mediation is simply assisted
settlement negotiation. Traditional hearings are emotionally draining and can
damage an ongoing employment relationship. The sad reality is that co-workers
and supervisors who testify against each other one day cannot function as an
effective working group the next day.
A related goal of an Alternative Dispute
Resolution program is to eliminate or reduce the need for witnesses at
hearings, which would mean that few, if any, people have to disrupt their
schedules. Traditional hearings are expensive and time consuming for a large
number of people--many of whom are not parties to the dispute. The greatest
expense is the cost of having witnesses (mostly state employees) appear at the
hearing. The state loses the work that would have been performed if the
witnesses had not been at a hearing and often has to pay overtime to provide
coverage for employees attending hearings.
The guidelines will not be adopted as rules
at this time. A pilot program will allow the Appeals Division to determine how
well the guidelines work in practice and to make prudent changes. With the help
of a pilot program, the Appeals Division can later recommend rules that work.
13.51 Mediation.
(a) The Commission or a Referee may direct
the attorneys and the parties in an appeal to participate in mediation to
attempt to resolve the appeal before a hearing.
(b) A member of the Commission, a Referee, or
anyone appointed by the Commission or by the Chief Referee may conduct the
mediation. The person who conducts the mediation must meet the Mediator
qualifications established by the Appeals Division.
(c) The Mediator's role is to facilitate
communication among the parties at the mediation. The Mediator will not later influence,
participate in, or make any decision on any issue in the appeal. The Mediator
will not issue any orders or sanctions pertaining to the mediation or the
appeal.
(d) Before the mediation, the attorneys must
confer with their clients about the clients' goals and expectations from
settlement. The attorneys and every person whose authority is necessary for
settlement must appear at the mediation (or, at the discretion of the Mediator,
be available by telephone), on time and prepared to negotiate.
(e) The Commission, the Chief Referee, or the
Referee presiding over the appeal may order the attorneys and/or the parties to
bring to (or exchange before) the mediation a witness and exhibit list,
relevant documents and/or exhibits, a proposed settlement offer, and anything
else that will aid in resolving the appeal.
(f) The mediation will not be open to the
public and will be confidential as established in the guidelines.
(g) If anyone fails to comply with an order
pertaining to the mediation, the Commission or the Referee presiding over the
appeal may order appropriate sanctions. Those sanctions may include punishing
for contempt, dismissing the appeal or portions of it, reversing the action
appealed or portions of it, and assessing costs and attorney's fees against the
noncomplying person.
EXPLANATION
This rule provides the foundation for a
successful mediation program. Paragraph (a) allows parties and their attorneys
to be ordered to participate in mediation, and Paragraph (g) allows the person
presiding over the case (NOT the Mediator) to sanction anyone who does not
comply with an order pertaining to mediation. To evaluate the pilot program,
the Appeals Division needs a random sample of cases, which would not result if
the program were piloted on a purely voluntary basis or lacked sanctions for
non-compliance.
Paragraph (b) establishes who may mediate and
who may appoint a Mediator, and Paragraph (c) dictates that the Mediator is a
facilitator, not a decision-maker. For the program to succeed, the parties must
have confidence in the Mediator's competence and neutrality.
Paragraph (d) requires attorneys and parties
to be prepared and to have someone with settlement authority available at the
mediation, and Paragraph (e) allows the person presiding over the case (NOT the
Mediator) to order production and/or exchange of documents and exhibits.
Mediation can only succeed if the parties/attorneys are prepared and have the
documents needed to evaluate their case and persons with settlement authority
are available.
Paragraph (f) provides that the mediation is
confidential. To achieve candor during the mediation process, the parties must
be assured that nothing said in the mediation will ever be "held against
them."
Persons interested in making comments
relative to these proposals may do so at the public hearing or by writing to
the Director of State Civil Service at Post Office Box 94111, Baton Rouge,
Louisiana 70804-9111.
Sincerely,
Allen H. Reynolds
Director