Administrative Policies and Procedures Manual - Policy 3220: Ombuds/Dispute Resolution Services for Staff
Date Originally Issued: 11-01-1994
Revised: 04-01-2003, 05-29-2014
Ombuds/Dispute Resolution Services for Staff (“Ombuds/DR”) provides independent, impartial, confidential, and informal processes for managing or resolving work-related issues and problems. Except as limited in Section 3. herein, Ombuds/DR is available to staff and their co-workers (“employees”) and supervisors, as well as to faculty who supervise employees. Emphasis is on early and informal identification and resolution with fair consideration of all sides of an issue or problem. The procedures in this policy should be administered flexibly and expeditiously at the lowest possible level with the cooperation of all concerned.
Retaliation against an employee for raising an issue or participating in any way in dispute resolution under this policy is strictly forbidden and shall be cause for disciplinary action if found to have occurred. Refer to UAP 2200 ("Whistleblower Protection and Reporting Suspected Misconduct and Retaliation") for policies and procedures on retaliation.
Information obtained by Ombuds/DR staff in the course of facilitation, informal attempts at resolution, mediation, or other activities is confidential to the extent permitted by law. At the initial visit, Ombuds/DR staff will explain any limitations to confidentiality before discussing specific issues. With permission from the employee, Ombuds/DR staff may seek assistance from various University offices such as the Office of Equal Opportunity (OEO); Counseling, Assistance, and Referral Service (CARS); Human Resources; Risk Management; and Internal Audit to resolve issues or problems in a flexible, cooperative, and responsive manner.
This policy is intended to help employees with issues or problems that affect them in the workplace. Ombuds/DR staff serve in a neutral role and use alternative dispute resolution methods, described in Section 6. herein, to return the primary responsibility for resolving conflicts to the individuals involved. If an individual believes there is a conflict of interest with Ombuds/DR staff conducting the dispute resolution process, a mediator selected by mutual agreement from a panel of outside mediators is available to conduct dispute resolution. Ombuds/DR staff assist and guide individuals or groups in their efforts to identify mutually agreeable solutions. The Faculty Dispute Resolution Office offers alternative dispute resolution methods to faculty. Ombuds/DR Department may work with the Faculty Ombuds/Dispute Resolution Office in instances of faculty/staff disputes with appropriate consent and releases from all participants. Both programs coordinate services and protocols to assist faculty and staff, in accordance with the "best practices" of the International Ombudsman Association Standards of Practice and Code of Ethics, and applicable University policies and procedures.
Employees with concerns about possible violations of University policy or state or federal laws or regulations that are more general in nature (sometimes called "whistleblowing"), should report such concerns according to UAP 2200 ("Whistleblower Protection and Reporting Suspected Misconduct and Retaliation"). Allegations of unlawful discrimination or sexual harassment are handled by the Office of Equal Opportunity (OEO) in accordance with UAP 2720 ("Equal Opportunity, Non-Discrimination, and Affirmative Action") and UAP 2730 ("Sexual Harassment”). Ombuds/DR staff will refer employees to report such allegations to OEO.
Employees who are members of a collective bargaining unit have specific grievance procedures, some of which include participation in the Ombuds/DR process. These employees should refer to their specific collective bargaining agreements. Employees should be aware that there may be federal or state laws and remedies pertaining to workplace complaints, and that use of the dispute resolution process under this policy does not extend the deadlines within which to seek assistance from outside agencies or file legal proceedings.
The University has a number of resources that can provide employees with advice and assistance in resolving work-related issues and problems. These resources include:
- the management chain
- the Faculty Ombuds/Dispute Resolution Office
- the Human Resources Division
If employees are working with more than one (1) of the offices mentioned above concerning the same issue or problem, they should inform the other offices involved, in order to avoid duplication of services.
5. Supervisor Responsibilities
Supervisors at all levels, are responsible for resolving work-related issues and problems in an appropriate, fair, and prompt manner as soon as reasonably possible after becoming aware of the issues or problems. Supervisors are responsible for participating in training offered by the University on management and supervisory skills. Supervisors should seek advice and assistance in resolving issues and problems, as appropriate, from the University resources listed in Section 4. above.
6. Employee Responsibilities
Employees should try to resolve work-related issues or problems as soon as reasonably possible after becoming aware of the issues or problems. Employees are encouraged to consider their supervisors as resources in their problem-solving efforts. Employees are also encouraged to go to Ombuds/DR for assistance with constructive dispute resolution efforts.
Non-bargaining unit employees may request and have advisors of their choice present for all Ombuds/DR processes listed herein. Bargaining unit employees may request advisors if defined in their collective bargaining agreement. Advisors provide support and assistance to employees using the Ombuds/DR process. The extent of the advisor's role may vary on a case-by-case basis. Advisors share the responsibility with employees of making efforts to resolve concerns in a collaborative manner and observe the confidentiality of all relevant Ombuds services and DR processes.
To assist employees in resolving work-related problems and issues, the University offers communication skills and conflict resolution training. Employees may seek advice and assistance in resolving work-related issues or problems, as appropriate, from the University resources listed in Section 4. above.
7. Dispute Resolution Processes
In all instances Ombuds/DR staff serve in a neutral role. In collaboration with Ombuds/DR staff, the individuals affected by the issue or problem will select one or more of the appropriate dispute resolution methods described below.
- Collaborative problem solving: Ombuds/DR staff facilitates conversations with individuals involved in a conflict in finding ways to work together to acknowledge their interests and improve their relationship.
- Employee/supervisor consultation: Ombuds/DR staff assists employees and supervisors with problem solving, effective communication, management skills, and/or preventing conflicts.
- Mediation: Ombuds/DR staff assists individuals in reaching a mutually acceptable resolution to workplace issues.
- Staff as Mediators Program: UNM employees coordinated by the Ombuds/DR staff are available to assist employees on request.
- Ombuds/DR staff reviews and assesses situations and makes recommendations.
- Formal policy interpretation obtained from the applicable office.
- Departmental consultations, assistance, and training designed to improve interactions and productivity and reduce conflict.
- Facilitation: Ombuds/DR staff creates a process intended to encourage ongoing communication and problem solving.
- Training: Ombuds/DR staff provides training in dispute resolution and other related issues.
- Referral to other University resources.
All individuals involved in an issue or problem are required to participate in the dispute resolution process unless otherwise provided by in the applicable collective bargaining agreement. If one or more of the involved individuals does not participate, the Ombuds/DR has the discretion to pursue resolution through the applicable management chain or appropriate administrators. The Ombuds/DR may also bring forward to the appropriate administrators concerns about specific supervisors or employees when a policy violation or pattern of inappropriate behavior is observed, subject to the confidentiality requirements described in Section 2. herein.
7.1. Progressive Discipline
Upon request, Ombuds/DR staff will assist employees and supervisors in their efforts to resolve disagreements or conflicts. This assistance may eliminate the need for disciplinary action. If a supervisor initiates disciplinary action, non-bargaining unit employees may request an advisor of their choice be present at any meeting with the supervisor where the disciplinary action is initiated, but such meetings must be coordinated by Ombuds/DR. Bargaining unit employees may request advisors if defined in their collective bargaining agreement.
Ombuds/DR is intended to supplement, not replace, formal procedures. Employees can contest any disciplinary action through Ombuds/DR, although the final decision on disciplinary action is made by the employee’s supervisor. Participating in an informal dispute resolution process does not necessarily put discipline on hold. However, supervisors in consultation with the Ombuds may choose to place disciplinary action on hold pending the results of dispute resolution process. Refer to UAP 3215 ("Performance Management”).
8. Dean or Director’s Decision
If after a good faith effort the individuals have not resolved the conflict, any party involved in the dispute resolution process may ask Ombuds/DR to forward a request for a decision to the cognizant dean or director. The dean or director will issue a written decision within four (4) weeks concerning the issues raised unless extenuating circumstances delay such action. If the dean or director was involved in the dispute resolution process, the request shall be forwarded to the next level supervisor or cognizant vice president not involved in the dispute resolution process.
Ombuds/DR will forward the dean or director any written concerns provided by either party to the issue. The dean or director shall meet with the parties involved and consult with Ombuds/DR before making a decision. In most circumstances the dean or director may choose to meet separately with each of the parties. Non-bargaining unit employees may request an advisor of their choice be present in the meeting with dean or director. Bargaining unit employees may request advisors if defined in their collective bargaining agreement. Meetings in which an employee wishes to have an advisor present must be coordinated by Ombuds/DR. The decision of the dean or director shall be final, unless there is discretionary review by the President or Board of Regents as provided in Section 10. herein.
9. Review of Suspension Without Pay or Termination
If a post-probationary employee has been suspended without pay or discharged, the employee is entitled to a peer hearing or arbitration upon request. The employee should send the request, with the Notice of Final Action, to Ombuds/DR within two (2) weeks of the employee’s receipt of the Notice of Final Action per Section 6.5. UAP 3215 ("Performance Management”). Failure to do so may have legal consequences. Because a peer hearing or arbitration is a process with significant legal implications, the employee may wish to seek the advice of a private attorney in considering how to proceed. Upon receiving the request for a peer hearing, Ombuds/DR forwards the request to the Office of University Counsel, which appoints an attorney to advise the peer panel. Ombuds/DR’s role in peer hearings and arbitration is limited to providing administrative support.
9.1. Peer Hearing
If a peer hearing is requested, Ombuds/DR will arrange for the hearing. Identification of potential Peer Review Panel members will begin within five (5) working days from the date of the request and Notice of Final Action. The hearing will be held as soon as reasonably possible before a Peer Review Panel. The decision of the Panel is final, unless a discretionary appeal is allowed by the President or the Board of Regents, as provided in this policy (Section 10.). Non-bargaining unit employees may request an advisor of their choice be present at the peer hearing. Bargaining unit employees may request advisors if defined in their collective bargaining agreement. Hearings shall be conducted according to the University’s Dispute Resolution Hearing Procedures (Exhibit B.). A copy of these procedures may also be obtained from Ombuds/DR. Hearings shall be recorded and shall be private unless both parties agree that the hearing be open.
9.1.1. Peer Review Panel
The Peer Review Panel shall consist of three (3) uninvolved University employees who have no connection with the dispute, nor any interest in the outcome of the hearing. All faculty and staff who are called upon to serve on a Panel are required to participate in peer hearings. Individuals will be excused only in extreme circumstances as determined by Ombuds/DR. Members of the Peer Review Panel will be randomly selected from a pool consisting of all University employees as follows.
Names of five (5) individuals from the same "Primary Occupational Activity" in the University’s biennial EEO-6 Report as the complainant will be drawn at random by computer. Two (2) of these individuals will serve on the Panel and a third will be an alternate who will sit on the Panel should one of the two (2) selected individuals be unable to serve on the Panel.
Names of four (4) individuals from the same "Primary Occupational Activity" in the University’s biennial EEO-6 Report as the respondent will be drawn at random by computer. One (1) of these individuals will serve on the Panel and a second will be an alternate who will sit on the Panel should the selected individual be unable to serve on the Panel.
The nine (9) individuals randomly selected will complete a screening form to determine whether any individual has a conflict of interest that would prohibit him/her from serving in a neutral capacity. The complainant and respondent will then select the Panel members from the randomly chosen names. The members of the Panel will select one of their number to serve as chair. University Counsel will provide the Panel with training on conducting hearings and will also serve as legal advisor to the Panel.
If both parties agree, the dispute may be submitted for final and legally binding arbitration instead of a peer hearing. Non-bargaining unit employees may request an advisor of their choice be present at the arbitration. Bargaining unit employees may request advisors if defined in their collective bargaining agreement. If arbitration is requested, Ombuds/DR will arrange for the arbitration as soon as reasonably possible. Arbitrators are non-UNM employees selected by mutual agreement from a pool of professional arbitrators.
10. Discretionary Review by President and Board of Regents
The President and the Board of Regents reserve the discretionary authority to review all decisions other than final and binding arbitration. The President and the Regents will normally accept review only in extraordinary cases, such as those where proper procedures have apparently not been followed, where the decision appears to be unsupported by the facts, or where the decision appears to violate University policy. If an appeal is accepted, it will first go to the President. The Board of Regents has the discretion to review the President's decision. Any appeal will be handled pursuant to the policies of the President and Regents concerning discretionary reviews.
Exhibit A. Dispute Resolution Process Flowchart
Exhibit B. Dispute Resolution Hearing Procedures