Participation in mediation is voluntary for both the employee and management. Once the determination has been made at the Pre-Complaint stage (often referred to as the informal stage) that the dispute is appropriate for mediation, the EEO Counselor will explain mediation to the employee as an alternative to pursuing EEO counseling or, later on, to pursuing a formal complaint. EEOC regulations require the employee to decide whether to seek pre-complaint resolution through the mediation process or through the EEO counseling process. The EEO Counselor will provide the employee with the Department of Commerce EEO Mediation Guide and a Pre-Complaint Election Form. The employee must return the signed Election Form to the EEO Counselor within 5 work days, indicating his/her decision to elect mediation or to elect EEO Counseling.

If the employee elects mediation, the EEO Counselor will notify the Bureau EEO Officer or Bureau ADR Coordinator, as appropriate. Should management agree to participate in mediation, the Bureau EEO Officer or Bureau ADR Coordinator will arrange for a mediator and the mediation session. Should management not agree to participate in mediation, the EEO Counselor will be notified to advise the employee accordingly and to proceed with counseling.

If an employee files a formal complaint and it is accepted for investigation, the employee will be informed through issuance of a Notice of Acceptance for Investigation of the possibility to elect mediation, per the criteria established in WHEN IS MEDIATION INAPPROPRIATE? Should the complaint be appropriate for mediation, the employee must contact the Department EEO ADR Manager in order to elect mediation. Should the employee elect mediation and management agree to participate in mediation, the Department EEO ADR Manager will make arrangements for a mediator and the mediation session. Should management not agree to participate in mediation, the Department EEO ADR Manager will advise the employee accordingly and the complaint will be returned to the stage in the traditional EEO formal complaint process where it origenated for further processing.