Audubon Area Community Services, Inc.

Internal Dispute Resolution Policy and Procedure
Head Start

It is the policy of Audubon Area Community Services, Inc. (AACS) to resolve all disagreements between any parties in the executive leadership of the agency and its Head Start program fairly and expeditiously. This policy grows out of the requirements of 45CFR Part 1304, the Head Start regulations’ section entitled "Program Performance Standards for the Operation of Head Start Programs by Grantees and Delegate Agencies," and the AACS’ own commitment to continue its nationally recognized high caliber and effective sponsorship of the Head Start program.

Whenever possible, disagreements arising out of the AACS’s sponsorship and administration of the Head Start program will be resolved through a process of mediation and conciliation, which includes discussion, compromise, and consensus-seeking among the parties. These processes formal and/or informal, may, if necessary, employ professional mediation services. Failure of mediation, either formal or informal, to produce agreement will result in binding arbitration.

Definitions, Processes and Procedures.

Disagreement "Impasse." A disagreement¾ which also may be known as an Impasse¾ is an internal dispute between or among key parties¾ groups and/or individuals¾ having mandated or agency-defined (by policy) roles which include required approval functions according to the Head Start Performance Standards’ Appendix A¾ "Governance and Management Responsibilities." When two (or more) groups (or individuals) who share formal approval/disapproval functions as defined in Appendix A fail to agree, a "disagreement" exists for the purposes of this Internal Dispute Resolution Policy and Procedure.

An "Impasse" occurs, usually, when the agency proposes the hiring or firing of a Head Start Director, presents a grant request for refunding or major changes in budget and work programs while the program is in operation, and the Policy Council does not concur in the agency’s action within fifteen (15) days or by the time of the next regularly scheduled Policy Council meeting, whichever occurs later.

The "Head Start agency" or "agency" means either a grantee or delegate agency acting through its governing board or chief executive officer. "Policy group" means either a policy council or a policy committee, acting as a body or through its authorized representatives.

Key Parties. To be specific, the "key parties" referenced in the paragraph above are those enumerated in Performance Standards Appendix A. That is, the governing body, the AACS, Inc. Board of Directors; the policy council, the AACS, Inc. Head Start Policy Council; the Head Start program director, the AACS, Inc. Head Start Director (at times referred to as the Director of Child and Family Development); and the agency director, the AACS, Inc. Executive Director. The executive director’s role is as specified in Board policy directives such as the agency’s Personnel Policies and Procedures. He/she leads the executive management of the agency and is responsible for daily agency administration, its programs and contractual obligations, and Board policy adherence.

Parties to the Proceedings. When the internal dispute/impasse leads either to mediation or arbitration the Head Start agency and the policy council are, officially, the parties to the mediation or arbitration hearing. The designated staff¾ the CEO and Head Start director are exactly that, staff, not "official" parties in the dispute.

Dispute Resolution Process. The AACS dispute resolution process is a three-tiered process. The first tier is conciliation. It is a voluntary and completely informal and within-the-agency process. The second tier of the process is mediation. It employs the use of a mediator when the AACS parties alone are unable to resolve the internal dispute and an "impasse" is officially declared. The third tier (or phase) of the dispute resolution process, which occurs only when mediation fails, is arbitration¾ which is binding on all parties.

Conciliation. In the AACS dispute resolution context, conciliation is a process of informal communication and efforts to resolve differences before an impasse is formally declared. It consists primarily of informal discussions among the parties¾ and may include others of the "key parties" not heretofore engaged in the dispute or disagreement. Compromise and consensus-seeking is encouraged during this phase of the AACS dispute resolution process.

Mediation. Mediation is usually an informal process which may include discussion, compromise and consensus-building in which two parties allow an agreed and/or trained neutral third party to assist them in resolving a dispute in a way that is acceptable to both parties. As stated in DHHS/ACF Program instruction ACF-PI-HS-96-16, "Mediation," dated October 4, 1996, the benefits of mediation are:

Mediation allows the parties to retain control.

Mediation allows you to control your dispute and resolve the problems yourself, rather than having someone else do it for you.

Mediation fosters more creative solutions.

Since the mediation process empowers parties to craft their own solutions, parties have the opportunity to be far more creative than formal procedures would allow.

Mediation is timely.

Mediation allows parties to resolve disputes faster by avoiding backlogged court systems.

Mediation is economical.

Although any party is free to consult with a representative at any time, the mediation process does not require parties to have attorneys. Additionally, mediation saves money by resolving disputes in a timely manner.

Mediation enhances communication.

Entering into the mediation process enhances communication between parties by allowing the parties to sit down at a table together and talk to one another. Additionally, the mediator’s unique position allows him/her to gain a more complete picture of how each of the parties views the problem.

Mediation enhances relationships between parties.

Increased communication and understanding between parties creates more pleasant and productive relationships.

The ACF Program Instruction further states, "Engaging in mediation does not mean that you want to compromise. It does mean that you are interested in talking in a confidential setting with another party to find out if a problem can be resolved." Mediation occurs when the "impasse" between the parties involved in the Head Start internal dispute has failed resolution through the conciliation process. Grantees and delegate agencies are encouraged to utilize conciliation and mediation in any conflict which might arise in the course of their operations, and may consult with their responsible ACF Regional Office if deemed necessary. However, in the attachment to the Program Instruction (ACYF-PI-HS-96-16) there is specific guidance to be followed in cases where conflict could have major consequences such as loss of funding. The attachment was written in a form which corresponded to Head Start regulations in 45 C.F.R. Section 1303 then in effect to assuring that timelines for mediation are appropriately aligned with the timelines specified in those regulations. Should the dispute resolution process proceed to the third tier, i.e., binding arbitration, the attachments of that "PI" (Program Instruction) will serve as a guide to the notification requirements for that process.

Use of Grant Funds. ("A mediator’s fee may be charged to the program grant in an amount equal to the usual and customary fees charged in the locality with the approval of the responsible Federal official.") It appears, based on the Program Instruction, that mediator’s fees may not be charged to the Head Start program grant without ACF Regional Officer prior approval.

Arbitration. Specifically, this means binding arbitration; the decision(s) of the Arbitration Panel are binding on all parties to the internal dispute.

Parliamentary Procedure. When applicable, Roberts Rules of Order, Revised, will be employed. However, legal rules of procedure and discovery are not required.

Mediator. Mediators are generally, but not always, professionals in their field. Others who qualify to perform the mediation function may include a variety of professional "counselors," including ministers, certified counselors, psychologists, and others with the requisite background, experience, and education to ably fulfil the responsibilities. As stated in ACYF-PI-HS-96-10, "Mediators are strictly prohibited from discussing cases with anyone outside the mediation process. This rule is designed so that no one who might be involved in a possible later adjudication will have any knowledge of what happens during mediation."

Mediators List. AACS mediators will be pre-selected and mutually agreed upon by the AACS, Inc. Board of Directors and the agency’s Head Start Policy Council. An ordered listing, e.g. 1,2,3,4, etc., will be agreed to by both policy-level bodies and the listing will be employed as necessary and updated annually. Unless unavailable or unwilling/unable to serve when their "turn" arises, the mediators will be engaged in the order they appear on the pre-agreed list. Each time a mediator is utilized or declines an occasion to serve, his/her name will be placed at the bottom of the list. At any time prior to a dispute being declared¾ and any potential dispute being seen on the immediate horizon¾ the Mediators List may be revised, expanded or changed by the mutual consent of both policy-level bodies, that is, the AACS Board and the Policy Council.

Arbitration Panel. An arbitration panel is the ad hoc body selected to settle the impasse/ internal dispute after mediation failed to resolve the disagreement. The AACS Arbitration Panel shall consist of three arbiters, one to be designated by the agency (representing the Board and/or CEO), another designated by the Policy Council (representing the Council and/or Head Start director), and another as selected in the top-of-the-list order he/she appears on the pre-agreed listing of arbiters. The arbiters representing either of the two parties involved in the dispute, i.e., the Head Start agency and the Head Start Policy Council, may be selected first from the Arbiters List or completely at the discretion of either party. A party may choose to have different people involved in arbitration, depending on the nature of the disagreement to represent their interests. For example, disagreement over whom to hire might include as arbiters the Personnel Committee chairpersons of the governing body and of the Policy Council or the agency CEO and the Head Start Director, while a dispute over indirect cost might bring together the chairpersons of the budget committees, agency/Head Start directors or perhaps fiscal personnel. In other areas, the governing body and Policy Council/committees may determine the appropriate representatives from their groups. If either or both parties select a name on the Arbiters List, his/her (that arbiter’s) name reverts to the bottom of the list¾ and if two are taken they both go to the bottom of the list in the same order they then appear.

Arbiters List. AACS arbiters will be pre-selected and mutually agreed upon by the AACS, Inc. Board of Directors and the agency’s Head Start Policy Council. An ordered listing e.g., 1,2,3,4, etc., will be agreed to by both policy-level bodies and the listing will be employed as necessary and updated annually. Unless unavailable or unwilling/unable to serve when their "turn" arises, the arbiters will be engaged in the order they appear on the pre-agreed list. Each time an arbiter is utilized or declines an occasion to serve, his/her name will be placed at the bottom of the list. The listing may be revised, expanded, or changed at any time prior to an impasse¾ and any potential impasse being seen on the immediate horizon¾ an impasse being declared by the mutual consent of both policy-level bodies, that is, the AACS Board and the Policy Council.

Persons may appear on both the pre-agreed Mediator List and the Arbiter List. However, any person selected as a mediator will not be eligible to serve as an arbiter, i.e., on the Arbitration Panel, for the same dispute/impasse for which he/she served as a mediator.

Arbitration Proceedings. The agency has chosen to employ as its proceedings guide the outline of proceedings contained in a September 8, 1980 Federal Register issuance of the Office of Human Development Services (now ACYF) of DHHS¾ a proposed but never adopted¾ standard for resolving potential impasse between Head Start and the Policy group:

The Arbitration Panel shall schedule the arbitration hearing within a reasonable time but not more than 45 days after the designation of the third arbiter. The timeline is intended to be sufficient to ensure time for proper notification and time for information gathering, but it should also be as quick as it can be handled within these requirements¾ if less than 45 days, then so be it; 45 days is simply the maximum passage of time that may occur between the panel composition of the Arbitration Panel and the panel’s hearing of the dispute.
The hearing shall be held in the locality of the Head Start agency, but not at the agency, at a place fixed by the Arbitration Panel with consideration for the convenience of the parties. The agency shall assume any expenses entailed by the arbitration and shall provide clerical and other support as needed.

Proceedings. The duty of the arbitration panel is to resolve the issues in dispute as expeditiously and fairly as possible at the minimum expense to the parties involved. The proceedings of the arbitration panel shall consist of:
Oral presentation of the Policy Group’s position, including minority views if there are any.
Oral presentation of the agency’s position.
Response by both parties to such questions as the panel wishes to ask.
Informal cross examination of each party by the other, within the limits allowed by the panel.
Such additional presentation of oral or written materials as the panel deems necessary to fully apprize it of relevant facts for an informed decision. The parties may suggest to the panel additional relevant witnesses or materials that would be helpful to the panel.
If the panel needs additional material such as budget statements, Head Start regulations or other materials of that nature, the agency has the duty to provide the panel with such documents.

Standard of Conduct. Both parties are obligated to act in good faith before and during the proceedings. Neither party may communicate with the arbiter once the panel has been selected except at formal meetings attended by all parties. Any attempt to intimidate an arbitrator shall be reported to the ACF Regional Office and may result in a default judgement against the party guilty of it.
Refusal to comply with directions, continued use of delaying tactics by any person at the hearing, or other obstructive tactics may constitute grounds for immediate exclusion of such person from the hearing by the chairperson.

Compromise. The arbitration procedures do not preclude the parties from compromising their differences and reaching a settlement, so long as no final decision has been issued by the panel.

Representation of the Parties at the Hearing. Both the agency and the policy group shall designate one and only one of its members to represent them at the proceedings.

Posthearing Procedures and Decisions. The arbitration panel shall issue its decision in writing fifteen (15) days after the panel meeting. Copies shall be sent promptly to the grantee, the policy group, and the ACF Regional Office.
The final decision shall be binding on both parties and there shall be no appeal.

Notification of All Parties. AACS internal parties to a declared impasse (when arbitration is required) shall be notified according to procedures above and the guidance in the ACYF-PI-HS-96-16 "PI" relating to mediation. However, it is the desire and commitment of the AACS, Inc. Board of Directors and the Head Start Policy Council to resolve all disputes (prior to and without the need for arbitration) amicably and internally. Therefore, unless the dispute is deemed to be of such magnitude and intractability as to jeopardize the Head Start grant, restraint will be observed prior to notifying interests outside the agency. Within this hopeful framework, should the agency decide to submit the impasse/dispute¾ by then, a true arbitration¾ it shall generally notify the Policy Group, in writing, its belief that the impasse can only be resolved by binding arbitration. The preliminary arbitration notice shall include:

A statement of the issue on which the agency and the Policy Group are at impasse, which can be based on the letters exchanged.
Within 10 days after receipt of the preliminary arbitration notice, the Policy Group shall hold a special meeting for consideration of the agency-proposed decision or action. Immediately after the special meeting, the Policy Group shall notify the agency in writing of its approval or disapproval of the proposed decision or action. If the notice is of disapproval, it shall contain a statement of the reasons.
In the event of a disapproval and if the agency desires further consideration of the matter, it may initiate a pre-arbitration meeting between itself and the Policy Group for the purpose of again attempting to resolve their differences.
Should these fail, the formal notification processes shall be employed when binding arbitration is indicated as the last recourse.
In any informal discussions subsequent to the preliminary arbitration notice, if the agency believes the Policy Group will not approve its decision and the agency wants to formalize the arbitration process, it should then notify the Policy Group in writing of that decision. The binding Arbitration Notice then issued shall contain a statement of the reasons in support of the proposed decision or action to move the dispute to binding arbitration.