Mediation Program
It is the policy of the State of Tennessee to encourage the use of mediation as a valuable tool for state employees to resolve workplace issues. Mediation is a process whereby the parties themselves, with the assistance of a third-party neutral, seek to develop and agree upon solutions to issues in the workplace. The primary purpose of the Tennessee Employee Mediation Program is to provide a responsive, informal, confidential, and effective means of resolving human resource issues as an alternative to administrative proceedings.
Q: What is mediation?
A: Mediation is an informal way for employees to resolve common workplace disputes with the help of neutral mediator(s) who are trained to facilitate the mediation process and assist the employees in reaching a mutually acceptable resolution.
Q: When is mediation appropriate?
A: Access to mediation services is available to most employees in the state service as a voluntary means of resolving workplace issues, such as:
- Suspensions, demotions, terminations
- Workplace harassment and discrimination
- Violations of the Abusive Conduct in the Workplace Policy
- Some performance and/or conduct issues
- Other workplace issues involving a relational, communication, or values conflict
Q: Who conducts the mediation?
A: Mediation is conducted by a neutral third party who has been trained and approved as a mediator. The mediator will facilitate the parties´ discussion in order to provide for better communication and understanding.
Q: What are the benefits of mediation?
A: Mediation is free. The Mediation Program is available at no cost to employees. Mediation is fair and neutral. Employees have an equal say in the process and they, not the mediator(s), decide the terms of the settlement. There is no determination of guilt or innocence in the process. Mediation saves time. Most mediations are completed in one meeting. Mediation fosters cooperation by promoting a problem-solving approach to complaints.
Mediation improves communication and provides a neutral and confidential setting in which the employees can openly discuss their views on the underlying dispute. Enhanced communication can lead to mutually satisfactory resolutions.
Mediation helps to discover the real issues in your workplace. Employees share information, which can lead to a better understanding of issues affecting the workplace.
Q: How can I request mediation?
A: Mediation can be requested by e-mailing the Request for Mediation form to DOHR.Mediation@tn.gov. The Request for Mediation form can be found by following this link.
Q: If I request mediation, how long should I expect the process to take?
A: The Mediation Program Coordinator shall make every attempt to schedule the mediation within one month of the date of request. Keep in mind that scheduling will depend on the involved employees’ dates of availability, as well as the availability of the Appointing Authority’s designee and mediator(s).
Q: Who is present during a mediation session?
A: The employee who requested mediation, the employee(s) with whom he or she has requested mediation, 1-2 mediators, and the Appointing Authority’s designee. In addition, one or both employees may have a TSEA representative or attorney present. No one else is allowed to attend the mediation without the consent of all involved employees and the mediator(s).
Q: Who are the mediators?
A: The Tennessee Employee Mediation Program uses mediators who have successfully completed 40 hours of Rule 31 General Civil Mediation training. The mediators have also been approved by their supervisors, their agency Appointing Authorities, and the Commissioner of the Department of Human Resources to participate in the program. Each mediator under the program is a state employee. However, mediators do not mediate issues involving their employing agencies, in order to remain neutral and unbiased. In addition, the program coordinator ensures that mediators do not have a conflict of interest with either employee involved in the mediation.
Q: Who is the Appointing Authority’s designee?
A: The Appointing Authority’s designee, who is required to be present during each mediation, is an individual selected by the employees’ Appointing Authority to assist them in implementing any settlement agreement reached during mediation. The designee usually does not participate as a party to mediation, but is present if there are questions regarding agency rules, policies, and procedures. In addition, the designee may sign the agreement as a party if the settlement involves matters beyond the capability of the employees involved. Finally, the settlement agreement must be approved by the designee to be effective, in order to ensure it complies with agency rules, policies, and procedures.
Q: Where is the mediation held?
A: Mediations occur in 5 locations across the state: Chattanooga, Knoxville, Nashville, Jackson, and Memphis. The mediation will take place in whatever location is most convenient to the employees. The mediation will not take place at the employees’ work site, to help maintain the confidentiality of the process.
Q: Can I have TSEA or my attorney present?
A: Yes, employees may have their TSEA representative or an attorney present, although it is not required. Any representative present at the mediation shall be required to sign the agreement to mediate at the start of mediation and be bound by its terms. However, as mediation is not an adversarial proceeding, the role of any representative shall be limited to that of an advisor and observer, and not as an advocate on behalf of either party. The mediators shall maintain the authority to restrict the activities of any representative and shall have the discretion to terminate the mediation.
Q: Can I bring witnesses?
A: No, mediation is a non-adversarial proceeding, and the mediators do not act as a judge or jury. As such, witnesses are not allowed during mediation.
Q: How long do mediation sessions last?
A: Mediation can take anywhere from one hour to a full work day, depending on the discussions. Employees should expect to set aside the entire work day for the process. However, employees do not use their accrued leave to participate in mediation, as it is counted as a regular working day.
Q: Will the mediator(s) decide who is right, investigate my concerns, or issue a decision?
A: No, a mediator does not act as a judge, and will not make a determination of right or wrong, conduct an investigation, or grant relief. The mediator acts as a neutral third party, and cannot represent either party or take sides during mediation. The mediator’s role is to facilitate the employees’ discussions in order to assist them in reaching a mutually acceptable agreement. The employees, not the mediator, have control over the outcome of the mediation and the agreement reached.
Q: Is mediation like filing a complaint or an appeal?
A: No, mediation is separate from the appeal or complaint process, but may be used to supplement either process. If an employee has filed a complain, he or she may also request mediation in an attempt to resolve the issues; however, this does not remove any obligation the agency may have to investigate the complaint.
In addition, if an employee has filed an appeal of a disciplinary action, he or she may also request to mediate the disciplinary action (if filed within the applicable appeal timeframe). Note that mediation does not toll the deadline for filing an appeal. If an acceptable agreement is reached in mediation, the appeal may be withdrawn or dismissed as part of the mediation settlement.
Q: Is the mediation multiple sessions or just one?
A: The mediation process takes place during one session.
Q: Do I have to participate in mediation if someone requests mediation with me?
A: No, mediation is a voluntary process that is only conducted by agreement of both parties. Employees who participate in or opt out of mediation shall do so without interference, coercion, reprisal, discrimination, retaliation, or harassment. However, the mediation process can be a valuable opportunity for you to discuss any concerns you have with the employee requesting mediation, as well as hear his or her concerns, in an attempt to reach a more comfortable working relationship and environment. Mediation is not a one-sided process, and both parties will have an equal opportunity to be heard.
Q: Do I have to be in the same room as the employee I am requesting mediation with? Or can we be in two separate sessions?
A: Mediation allows the employees who are experiencing workplace issues to discuss these issues in a confidential environment, with the assistance of a mediator. In order to ensure the process is effective, it is important for both employees to be in the same room. During mediation, the mediators may occasionally use “caucus” (private sessions) with the employees outside the presence of the other party. However, the majority of mediation will take place in one room.
Q: What happens during mediation?
A: At the start of mediation, the mediators will conduct introductions and set ground rules for the mediation. The mediators will also explain the process and answer any questions the employees may have. After the introduction portion, the mediators will have each employee speak uninterrupted, so that the issue(s) can be established. After this phase, the mediators will assist the employees in brainstorming potential solutions to the issue(s), and agreeing upon which solution(s) the employees wish to implement. Finally, the mediators will assist the employees in drafting a settlement agreement, if any has been reached.
During mediation, the mediators will often use a tool called “caucus” or “private session,” in which the mediators meet with each employee individually outside of the other employee’s presence.
Q: Is mediation confidential?
A: This mediation will be conducted in accordance with Rule 31 of the Tennessee Supreme Court. Mediation is intended to be a confidential process. To the extent permitted by law, the State of Tennessee will attempt to maintain the confidentiality of all documents related to the mediation, and all participants agree that any verbal communication made during or in connection with the mediation will be held in confidence and not disclosed or otherwise utilized in any other proceeding. Audiotape, videotape, or other automated or electronic recordings of the mediation are not permitted. The requirement of confidentiality does not extend when a threat of bodily harm or injury is made; when communications express an intent to commit or conceal a crime; when communications reveal abuse of a child or elder abuse; or when disclosure is otherwise required by law. The Request for Mediation and any written settlement agreement signed by the parties shall not, however, be confidential.
Q: I’m afraid I will be fired for requesting mediation.
A: Employees who participate in or opt out of mediation shall do so without interference, coercion, reprisal, discrimination, retaliation, or harassment. If an employee feels he or she has been retaliated against for requesting mediation, he or she may file a complaint with the Mediation Program Coordinator, or follow the procedures for filing a complaint established by his or her agency.
Q: What happens if I have problems after mediation?
A: If there are issues following mediation that involve failure to comply with the terms of the settlement agreement, the affected party should contact the Appointing Authority’s designee who was present during mediation. If the employee is unable to reach the designee for any reason, he or she may contact the Mediation Program Coordinator for assistance.
Q: Who can I contact if I have additional questions about the Mediation Program?
A: You may contact the Mediation Program Coordinator at DOHR.Mediation@tn.gov or via telephone at (615) 741-0623.