Wednesday, October 30, 2013

WHAT FACTS/EVIDENCE DISCLOSED DURING MEDIATION ARE NOT CONFIDENTIAL?

Consider this situation: our client, a native Chinese speaker, is assigned as a GS-14 law enforcement attaché for a US law enforcement agency at the US Embassy in Beijing. At the time she initially applied and was selected for the Beijing position the vacancy announcement and the position description required fluency in Chinese.  During her tenure, she receives good ratings but at the end of her tour she is denied an extension and rotated back to headquarters in the US. 

    The agency then advertises the Beijing position and a similar law enforcement attaché position in Germany for filling.  This time the vacancy announcements and position descriptions do not include a language requirement.  The client applies for both positions (Beijing and Germany) and is on the best qualified list for both but is not selected for either position.  The selectee for the Beijing position does not speak Chinese so the agency sends him to Chinese language training for approximately a year (at vast expense to the agency) and then he is sent to Beijing. 

    Client files an EEO complaint and ultimately the case is assigned for mediation and a confidentiality agreement is signed.  At mediation during a joint session with both parties there is a discussion of the reasons for not selecting the client for the Beijing position despite the fact that she is a native Chinese speaker. 

    The agency management official proffers that the agency “wanted to give someone else a chance” to serve in Beijing despite the fact that the selectee did not speak Chinese and required extensive and expensive language training and could not enter on duty in the Beijing position for over a year.  The management official is also asked the reasons for not selecting the client for the Germany attaché position and his response is that the selectee speaks fluent German.

    Three questions: First, during discovery can the client discover the factual bases for her non-selection for the Beijing and Germany positions.  The answer to that question is definitely “yes.”  5 U.S.C. 574(f) (the ADR statute) states
        Nothing in this section shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented in the course of a dispute resolution proceeding.
    Thus, facts that were discoverable before the mediation session do not become confidential merely because they were presented as evidence during a joint mediation conference.  It is only things that are said or written during the mediation in private sessions that must be kept confidential.  Indeed, many agencies now include this disclaimer in their mediation statements and agreements.

    The second question is more interesting: Can the client make  a request for admission in discovery that states the following?
        Admit that the selectee for the Germany position was selected because he speaks fluent German.
    The answer is that one may make that discovery request.

    The third and final question is even more interesting: What if the agency proffers as the reason for the selection for the Germany position a reason or reasons that do not include the fact that the selectee speaks fluent German and/or denies the request for admission.  Can the client move to compel or otherwise attempt to force the agency to admit that it proffered the selectee’s fluency in German as its reason for selecting him for the Germany position during mediation?   The answer to this question also is “yes,” since the information was provided to all parties during the joint session of the dispute resolution proceeding.  See 5 U.S.C. § 574(b)(7).

Posted by June Kalijarvi.

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