[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14288]
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[Federal Register: June 13, 1994]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
RIN 1094-AA45
Use of Alternative Dispute Resolution (ADR)
AGENCY: Office of the Secretary.
ACTION: Notice of interim ADR policy and opportunity for comment.
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SUMMARY: The Department of the Interior (Department) has developed this
two-year interim policy to implement the requirements of the
Administrative Dispute Resolution Act (ADR Act), Public Law No. 101-
552. This interim policy also addresses the Negotiated Rulemaking Act,
Public Law No. 101-648. The Department is adopting this interim policy
to allow time to acquire data on the applicability of ADR techniques to
selected program disputes. During this interim period, the Department
through its bureaus and offices will implement ADR pilot programs and
other program initiatives in an effort to establish a baseline of
experience in the practical uses of ADR. At the conclusion of this
interim phase, the Department will assess the results of the ADR
initiatives in conjunction with both external and internal comments
received, develop a proposed final policy, allow for public comment,
and publish a final ADR policy in the Federal Register.
The Department seeks comments from the public, including, among
others, those persons whose activities the Department regulates, on any
aspect of this interim policy and its implementation, and those persons
who have engaged in or may in the future engage in ADR processes with
the Department. At the end of the 60 day comment period the Department
will consider issues raised by interested persons and may modify the
interim policy based on public comment.
DATES: Comments must be received on or before August 12, 1994.
ADDRESSES: Written comments should be mailed or delivered to Philip G.
Kiko, Deputy Director, Office of Hearings and Appeals (OHA), U.S.
Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia
22203.
FOR FURTHER INFORMATION CONTACT: Philip G. Kiko, Deputy Director and
the Alternate Dispute Resolution Specialist, OHA (703) 235-3810.
SUPPLEMENTARY INFORMATION:
I. Administrative Dispute Resolution Act
The Administrative Dispute Resolution Act (ADR Act), Public Law No.
101-552, 5 U.S.C. 581-583, enacted November 15, 1990, authorizes and
encourages federal agencies to employ consensual methods of dispute
resolution as alternatives to litigation. Under the ADR Act, a federal
agency is required: (1) To designate a senior official as a dispute
resolution specialist; (2) to establish training programs in the use of
dispute resolution methods; (3) to adopt a policy on the use of ADR
techniques; and (4) to review the standard language in agency
contracts, grants or other agreements, to determine whether to include
a provision on ADR. Federal agencies are also required to consult with
the Administrative Conference of the United States (ACUS) and the
Federal Mediation and Conciliation Service (FMCS) on the development of
their ADR policies.
Additionally, section 3(a) of the ADA Act requires the Department
to adopt a formal policy as to how it intends to implement the ADR Act
in each of the following areas: (a) Formal and informal adjudications;
(b) rulemakings; (c) enforcement actions; (d) issuing and revoking
licenses or permits; (e) contract administration; (f) litigation
brought by or against the Department; and (g) other departmental
action.
Congress enacted the ADR Act to reduce the time, cost,
inefficiencies and contentiousness that are too often associated with
litigation and other adversarial dispute mechanisms. Moreover,
experience at other federal agencies shows that ADR can help achieve
mutually acceptable solutions to disputes more effectively than either
litigation or administrative adjudication. In fact, Vice President Gore
recommended in September 1993 that federal agencies ``increase the use
of alternative means of dispute resolution.'' National Performance
Review, Recommendation REG06 (September 7, 1993).
While ADR techniques have proven to be useful in resolving serious
conflicts, the day-to-day operations of the Department's bureaus should
provide conflict avoidance methods, where possible. Moreover, the ADR
Act, 5 U.S.C. 582(b), specifically cautions that:
An agency shall consider not using a dispute resolution proceeding
if--
(1) a definitive or authoritative resolution of the matter is
required for precedential value, and such a proceeding is not likely
to be accepted generally as an authoritative precedent;
(2) the matter involves or may bear upon significant questions
of Government policy that require additional procedures before a
final resolution may be made, and such a proceeding would not likely
serve to develop a recommended policy for the agency;
(3) maintaining established policies is of special importance,
so that variations among individual decisions are not increased and
such a proceeding would not likely reach consistent results among
individual decisions;
(4) the matter significantly affects persons or organizations
who are not parties to the proceeding;
(5) a full public record of the proceeding is important, and a
dispute resolution proceeding cannot provide such a record; and
(6) the agency must maintain continuing jurisdiction over the
matter with authority to alter the disposition of the matter in the
light of changed circumstances, and a dispute resolution proceeding
would interfere with the agency's fulfilling that requirement.
The decision whether to use ADR, however, remains within each
federal agency's discretion, and participation in ADR processes is by
mutual consent of the disputants.
The ADR Act fosters the use of ADR by ensuring appropriate
protection of parties' and neutrals' communication. The ADR Act,
however, is not a statute exempting disclosure under the Freedom of
Information Act (FOIA). To establish a baseline of understanding,
concerned parties should establish confidentiality guidelines
consistent with FOIA requirements before entering into negotiations.
Within the limitations set forth in the ADR Act, and elsewhere, the
Department plans to explore, over the next two years, whether and in
which contexts the use of ADR facilitates fairer, faster, or more
rational resolutions of disputes than present dispute resolution
methods provide. Additionally, the Department will conduct an
evaluation of the interim policy. On the basis of this evaluation, the
Department will consider modifying any of its current procedures or
rules, as appropriate, to allow for greater use of ADR.
II. Negotiated Rulemaking Act
In enacting the Negotiated Rulemaking Act, Public Law No. 101-648,
Congress indicated its concern that traditional notice and comment
rulemaking procedures may discourage agreement among the potentially
affected parties and the Federal Government. Congress addressed this
concern by purposefully designing the Negotiated Rulemaking Act's
procedures to facilitate the cooperative development of regulations by
interested persons and agencies. Moreover, Vice President Gore's report
recently recommended improving agencies' regulatory systems by
``[e]ncourag[ing] agencies to use negotiated rulemaking more frequently
in developing new rules.'' National Performance Review, Recommendation
REG03.
Negotiated Rulemaking (Reg-Neg) does not replace the traditional
notice and comment rulemaking. Rather, Reg-Neg supplements the more
traditional process by developing consensus around the candidate
proposed rule before an agency publishes it in the Federal Register.
Combining early consensus-building and information-gathering with an
opportunity for broad public consideration, the Reg-Neg process meets
the prescription of the Administrative Procedure Act, 5 U.S.C. 551 et
seq., and can facilitate more effective regulatory development and
regulations. Moreover, on September 30, 1993, President Clinton issued
a Memorandum in conjunction with the issuance of Executive Order 12866
on Regulatory Planning and Review. The Memorandum required each
department to identify to the Office of Information and Regulatory
Affairs at least one rulemaking within the upcoming year to be
developed through negotiated rulemaking or to explain why negotiated
rulemaking would not be feasible, 58 FR 52391 (Oct. 7, 1993).
Decisionmakers should view Reg-Neg as one of a variety of
information-gathering and consensus-building or consultative processes
used to achieve effective, efficient, rational, and fair agency policy.
Although the Negotiated Rulemaking Act does not address less formal
decisionmaking processes, including, among others, policy roundtables
and public meetings, such nonadversarial processes may help gather
information to assist the Department in policy development.
Participation in informal regulatory development processes can
require significant commitment of resources on the part of all
participants, including federal agencies. The Department's experience,
however, has shown that consensus-building techniques can result in
better policy, reduce the high rate of litigation, and lower the costs
of program implementation for the Department's bureaus and the
regulated community.
III. Interim Policy
A. Application of the Interim Policy
The Department encourages the effective use of ADR and Reg-Neg to
the fullest extent compatible with existing law, and the Department's
resources and missions. Based on almost one hundred and fifty years of
experience, the Department recognizes that the use of consensus-
building techniques and nonadversarial planning processes can increase
the wisdom, efficiency, equity, and long-term stability of departmental
decisions.
The interim policy is intended to govern both the programmatic side
of the Department's broad responsibility, as well as many of the human
resources aspects. With regard to human resources, this interim ADR
policy embraces the ADR policy of the Department's Office for Equal
Opportunity. The use of ADR is expected to be very useful in matters
involving equal employment opportunity. Workplace dispute issues
outside the jurisdiction of actions governed by regulations issued by
the Merit Systems Protection Board will also be governed by this
policy. Where the use of ADR would impede effective supervisory action
in routine matters of employee discipline or performance appraisal,
supervisors may elect not to use ADR.
B. Purpose of the Interim Policy
The Department has developed a two-year ADR interim policy in
response to the requirements of the ADR Act. The policy encourages the
Department's bureaus to identify disputes amenable to ADR and to use
ADR, whenever practicable. After testing ADR methods in a variety of
contexts, the Department, through the Interior Dispute Resolution
Council, at the conclusion of the two-year interim phase, will assess
the appropriateness of the use of ADR and determine which program areas
could most benefit from the institutionalization of ADR processes.
Existing bureau ADR efforts should continue as this final policy is
developed.
The Department's interim ADR policy is also designed to disseminate
knowledge about ADR both within the Department and to those whom the
Department serves, as well as to introduce new ADR initiatives and to
provide guidelines for bureaus to apply in the implementation of ADR
pilot programs. These initiatives will produce a baseline of experience
that will be used in developing the Department's final ADR policy.
Without the full commitment and cooperation of all involved in the two-
year interim phase, the Department will lose a valuable opportunity to
learn what works, what does not, and how best to capture potential
benefits from ADR use.
C. Implementation of Interim Policy
1. Role of the Department's Dispute Resolution Specialist
Pursuant to the ADR Act, the Secretary appointed the Director,
Office of Hearings and Appeals (OHA) to serve as the Department's
Dispute Resolution Specialist (DRS). This high level, Department
official was appointed as the DRS in order: (1) To facilitate intra-
departmental coordination and communication; (2) to ensure consistent,
quality training; (3) to establish minimum qualifications for
mediators, arbitrators, and certain departmental employees with ADR
responsibilities; and (4) to reduce administrative redundancy. The DRS
will maintain an ``open door'' policy, welcoming inquiries from and
offering assistance to the bureaus and interested persons. During the
period that the interim policy is being implemented, ongoing input from
the public is encouraged. The DRS will also develop and make available
a roster of neutrals who are trained in ADR and who would be available
to participate in a dispute resolution proceeding. Despite this focal
point for ADR activity, the Department's interim ADR policy is to
encourage decentralized decisionmaking to the greatest extent possible.
2. Role of the Interior Department Resolution Council
In order to keep the Department's bureaus informed during the
implementation of the interim phase, the DRS shall, 30 days after
publication of the Department interim policy, convene the Interior
Dispute Resolution Council (IDRC). Composed of the Department's
Assistant Secretaries, Solicitor and the Director of the Office of
Regulatory Affairs (ORA), or their respective designees, and chaired by
the DRS, the IDRC shall monitor and evaluated the Department's use of
ADR and Reg-Neg and assist in intradepartmental policy and process
coordination. The IDRC shall act as an information clearinghouse,
recommend personnel training courses in ADR techniques and program
design, and act as the liaison between the ACUS and FMCS.
Additionally, the IDRC will consider the benefits of appointing a
departmental ombudsman and the benefits of appointing an ombudsman for
selected departmental bureaus. An ombudsman could serve the following
functions: (1) To address specific categories of workplace disputes
through the investigation of the circumstances giving rise to the
disputes and based on their findings to recommend corrective actions,
if appropriate; or (2) to investigate and propose the resolution, if
appropriate, of citizen complaints against the Department, including
recommendations for changes in agency structure or organization to
better address or avoid persistent problems. The IDRC will submit a
written report at the end of the Interim period on the use of an
ombudsman.
3. Training in ADR
The Department recognizes, consistent with the philosophy of the
National Performance Review, that bureaus can best evaluate and develop
specific ADR programs and initiatives to meet bureau needs. Therefore,
each Bureau Head shall appoint a Bureau Dispute Resolution Specialist
(BDRS). The BDRS shall receive training recommended by the DRS in ADR
consensus-building techniques, conflict resolution, and program design.
The DRS shall recommend appropriate BDRS training, such training to
be completed no later than 60 days following issuance of the interim
policy. Additionally, the DRS shall provide ADR training opportunities
for selected groups of senior managers of the Department, whose job
responsibilities include determining or influencing how disputes will
be managed. The DRS will also identify opportunities for advanced
training in facilitation and mediation for judges and attorneys within
OHA, as appropriate.
4. Development of Bureau Alternative Dispute Resolution Plans
The BDRS shall develop and submit the Bureau's Alternate Dispute
Resolution Plan (ADRP) through the Bureau Head to the appropriate
Assistant Secretary no later than 60 days following the completion of
training. The ADRP shall include at least one category of disputes
amenable to ADR methods, and a discussion of how the bureau will
implement ADR to address such disputes. Additionally, to facilitate the
monitoring and evaluation of the bureau's initiative(s), the ADRP
should address, among other topics, the (1) Goals; (2) objectives; (3)
timetable; (4) implementation strategy; (5) monitoring criteria; and
(6) evaluation methodology. It is permissible if two or more bureaus
adopt the same plan or parts of a plan.
In selecting appropriate ADR pilot initiatives, a bureau can focus,
for example, on a particular category of dispute (e.g., contract
cases), on a variety of disputes involving a particular organizational
segment or region of the agency, or on a particular ADR process that
would be applied in a variety of disputes across the bureau. In
selecting a focus for an ADR pilot initiative, the Department
encourages bureaus to consider using some of the disputes that are
central to the Department's mission. While a bureau should not avoid
identifying personnel and small contract disputes, for example, as
candidates for a pilot initiative, a bureau should not focus
exclusively on these areas so that the effectiveness of ADR for a
bureau can be judged in a programmatic context.
Some offices of the Department, such as the Office of the
Solicitor, assist bureaus in carrying out their programs rather than
conducting programs of their own. For the purposes of this policy, such
offices should assist their client bureaus in implementing ADR in a
programmatic context. Nonetheless, such offices should develop an ADRP
for internal, human resource management purposes.
Consistent with the many activities and functions of the Department
and the Federal Acquisition Regulations' (FAR) recognition of the
usefulness of ADR in government contracts, each BDRS, or appointed
designees, should review categories of all proposed new and renewal
contracts, agreements, permits, memoranda of understanding, and other
documents, to determine whether to include ADR provisions. Moreover,
the Department encourages the use of ADR in contract disputes prior to
these disputes reaching the Interior Board of Contract Appeals. To
avoid duplication of effort by bureau personnel, the Office of the
Solicitor, working with the Department's Senior Procurement official,
will develop standardized ADR-related clauses that bureaus can use in
contracts and other documents.
The Department expects, as well, that those bureaus with
comparatively more dispute resolution experience will, on a voluntary
basis, assist bureaus less familiar with dispute resolution in the
development of the ADRP. The Department expects, as well, that inter-
bureau initiatives such as ``one stop permitting,'' for example, be
coordinated with the BDRSs. Each BDRS and others involved with the
implementation of the interim policy are encouraged to consult with
other federal agencies, and others in the dispute resolution field in
the development of their ADR initiatives. The DRS is available to
provide the names of contact persons within various federal agencies
who have effectively utilized ADR methods in resolving disputes.
Judges within all boards and divisions of OHA will be encouraged to
utilize, where appropriate, ADR methods, including, among others, the
use of settlement judges, minitrials, and the referral of litigants to
mediation or arbitration in advance of a judge's consideration of a
case on the merits. OHA will develop an internal policy for the
appointment of settlement judges and will refer litigants to a list of
approved mediators and arbitrators.
The appropriate Assistant Secretary or designee shall, upon receipt
of a bureau's ADRP, review and approve the ADRP in consultation with
the IDRC. Within 30 days after approval of an ADRP, a bureau shall
publish its ADRP in the Federal Register or otherwise make the ADRP
accessible to interested persons.
D. Monitoring and Evaluation
Each BDRS shall monitor the implementation of his or her bureau's
dispute resolution initiatives on an ongoing basis, using the criteria
developed in their ADRP. Each BDRS shall submit to the IDRC, through
the proper Bureau Head and Assistant Secretary, every 180 days, an
evaluation of the bureau's progress toward meeting the goals,
objectives, and timetables on the basis of the methodology outlined in
the ADRP. The evaluation should also discuss any unanticipated issues
that each bureau may have encountered and how those issues have been or
are being resolved.
The BDRSs in conjunction with the IDRC shall, at the conclusion of
the two-year interim phase, catalogue and evaluate the bureaus'
respective initiatives and experiences under their ADRPs in a report to
the Secretary. This evaluation, coordinated by the DRS, as chair of the
IDRC, will focus on the categories of dispute and types ADR methods
that were most helpful in achieving resolution of disputes.
Moreover, because the usefulness of ADR to the Department is
dependent on the processes' ability to facilitate rational, fair,
efficient, and stable solutions among the Department's bureaus, the
regulated community and the public, evaluation of the interim policy
should receive the benefit of public public comment and participation.
A concluding section of the evaluation should explain how dispute
resolution will be integrated on a permanent basis into each bureau's
program offices. This process of review, evaluation, and modification
will allow each bureau to systematically and regularly improve its ADR
programs.
E. Development of Final ADR Policy
The IDRC in conjunction with the BDRSs, and with the benefit of
public comment and participation, will develop a permanent Department
ADR policy on the basis of the Department's two-year interim policy
experience. The DRS will be responsible for the coordination of the
development of the Department's final policy, and shall ensure issuance
of that policy no later than 90 days after the conclusion of the
interim policy. During the time between conclusion of the interim
policy and issuance of the final policy, the interim policy shall
remain in effect, as appropriate.
F. Negotiated Rulemaking
Pursuant to Executive Order 12866 and the Presidential Memorandum
on Negotiated Rulemaking, issued September 30, 1993, the Department
will use, where appropriate, negotiated rulemaking or other consensus-
building techniques to develop rules that are fair, technically
accurate, and clear. Each bureau will evaluate, prior to drafting or
amending any regulation, whether negotiated rulemaking is appropriate
for developing or amending that regulation and will explain, on the
Regulatory Alert Form submitted to the ORA, the basis for determining
whether or not the regulation will be developed or amended using
negotiated rulemaking.
In explaining whether negotiated rulemaking should be used for a
particular rulemaking, each bureau should address at least the
following:
(1) Whether there exists a small and identifiable group of
constituents (the ``parties'') with significant interests in the
rulemaking, so that all reasonably foreseeable significant interests
can be represented by individuals in the negotiation;
(2) Whether the parties believe it to be in their best interest to
enter into a negotiated rulemaking;
(3) Whether the parties are willing and able to enter into
negotiated rulemaking in good faith;
(4) Whether any single party has, or is perceived to have, the
ability to dominate negotiations, thereby making a compromise solution
unlikely;
(5) Whether there are clear and identifiable issues that are agreed
to be ripe for a negotiated solution;
(6) Whether a negotiated solution would require one or more parties
to compromise a fundamental value;
(7) Whether the use of negotiated rulemaking is reasonably likely
to result in an agreement or course of action satisfactory to all
parties; and
(8) Whether there are legal deadlines or other legal issues that
either mitigate against negotiation or provide incentives to reach a
negotiated solution.
If a bureau has decided to enter into a negotiated rulemaking, it
will prepare a brief report describing the goals, objectives,
anticipated parties, and projected timetables of the negotiation.
Throughout the negotiation, the bureau will prepare brief periodic
reports discussing the progress toward achieving the goals, objectives,
and timetables of the negotiation, and highlighting any successes and
unanticipated events or issues encountered during the negotiation.
These reports shall be submitted to ORA and the IDRC.
At the end of the two-year interim policy, ORA, the DRS, and IDRC
shall prepare a report to the Secretary evaluating the Department's
experiences with negotiated rulemaking. This report will focus upon the
types of policies, categories of rulemakings, and methods of
negotiation that were most successful in achieving customer
satisfaction and the cost-effective implementation of mutually
agreeable rulemakings. This report will be based upon evaluations
conducted by the bureaus and submitted to ORA, IDRC, and the DRS for
review and assimilation into the report to the Secretary.
IV. Executive Order 12866
This interim policy was not subject to Office of Management and
Budget review under Executive Order 12866.
Dated: June 2, 1994.
Bonnie R. Cohen,
Assistant Secretary, Policy, Management and Budgets.
Appendix I--Glossary of ADR Terms
Appendix II--Examples of ADR Initiatives
Appendix I--Glossary of ADR Terms
The following terms are commonly associated with ADR and negotiated
rulemaking and contain many recognized forms of ADR. They are provided
for the reader's convenience and have been adapted from the ADR Act,
the Negotiated Rulemaking Act, and other sources.
Alternative means of dispute resolution--An inclusive term used to
describe a variety of problem-solving processes that are used in lieu
of litigation or administrative adjudication to resolve issues in
controversy, including but not limited to, settlement negotiations,
conciliation, facilitation, mediation, fact-finding, minitrials, and
arbitration, or any combination thereof.
Arbitration--A process, quasi-judicial in nature, whereby a dispute
is submitted to an impartial and neutral third party who considers the
facts and merits of a case and decides the matter. To be revised
consistent with 5 U.S.C. 588, et. seq.
Conciliation--Procedures intended to help establish trust and
openness between the parties to a dispute.
Dispute--An issue which is material to a decision concerning an
administrative or mission-related program of an agency and with which
there is disagreement between the agency and a person or persons who
would be substantially affected by the decision.
Dispute resolution communication--Any oral or written communication
prepared for the purposes of a dispute resolution proceeding, including
any memoranda, notes, or work product of the neutral, parties, or
nonparty participants. A written agreement to enter into a dispute
resolution proceeding, or a final written agreement or arbitration
award reached as a result of a dispute resolution proceeding, is not a
dispute resolution communication.
Dispute resolution proceeding--Any process in which an alternative
means of dispute resolution is used to resolve an issue in controversy
in which a neutral is appointed and specified parties participate.
Facilitation--Involves the assistance of a third party who is
impartial toward the issues under discussion and who works with all
participants in a whole group session providing procedural directions
on how the group can effectively move through the problem-solving steps
of the meeting and arrive at the jointly agreed upon goal.
Fact-finding--Involves the use of neutrals acceptable to all
parties to determine disputed facts. This can be particularly useful
where disagreements about the need for or the meaning of data are
impeding resolution of a dispute, or where the disputed facts are
highly technical and would be better resolved by experts. Fact-finding
usually involves an informal presentation of its case by each party.
The neutral(s) then provide an advisory opinion on the disputed facts,
which can be used by the parties as a basis for further negotiation.
Litigation--A dispute brought in a court of law to enforce a
statute, right, or legally created cause of action that will be decided
based upon legal principles or evidence presented.
Mediation--Involves the intervention into a dispute of an impartial
and neutral third party, who has no decisionmaking authority but who
will procedurally assist the parties to reach voluntarily an acceptable
settlement of issues in dispute.
Minitrial--A structured settlement process in which the disputants
agree on a procedure for presenting their cases in highly abbreviated
versions (usually no more than a few hours or a few days) to senior
officials for each side with authority to settle the dispute. This
process allows those in senior positions to see firsthand the relative
strengths and weaknesses of their cases and can serve as a basis for
more fruitful negotiations. Often, a neutral presides over the hearing,
and may, subsequently, mediate the dispute or help parties evaluate
their cases.
Negotiated rulemaking--Rulemaking accomplished through the use of a
negotiated rulemaking committee.
Negotiated rulemaking committee--An advisory committee established
by an agency in accordance with the Negotiated Rulemaking Act and the
Federal Advisory Committee Act to consider and discuss issues for the
purpose of reaching a consensus in the development of a proposed rule.
Negotiation--Involves a bargaining relationship between two or more
parties who have either perceived or actual conflicts of interest. The
participants join voluntarily in a temporary relationship to educate
each other about their needs and interests and exchange specific
resources or promises that will resolve on or more issues. Almost all
of the ADR procedures, in which the parties maintain control over the
outcome of the conflict, are variations upon or elaborations of the
negotiation process.
Neutral--An individual, who with respect to an issue in
controversy, functions specifically to aid the parties in resolving the
controversy. The individual may be a permanent or temporary officer or
employee of the Federal Government, or any other individual who is
acceptable to the parties to a dispute resolution proceeding. A neutral
shall have no official, financial, or personal conflict of interest
with respect to the dispute, unless such interest is fully disclosed in
writing to all parties and all parties agree that the neutral may
serve.
Ombudsman--A person designated to address selected categories of
disputes by investigating the circumstances that gave rise to the
matter; and based upon the investigative findings, recommending
corrective action, as appropriate.
Roster--A list of persons qualified to provide services as neutrals
that is maintained by the agency.
Appendix II--Examples of ADR Initiatives
Various bureaus and offices within the Department have been
involved in implementing ADR processes. Some of the more prominent
examples of ADR initiatives that reflect the Department's commitment to
ADR include:
In 1990, the Department disseminated to each of the Department's
bureaus and offices an ADR survey designed to identify program areas
that could be amenable to ADR techniques. Among the questions asked
were: (1) The categories of disputes in which the organization is
typically involved; (2) the number of cases during the prior 2 fiscal
years that were (a) docketed, (b) settled, and (c) litigated, and the
approximate cost involved; and (3) the organization's experience to
date in utilizing ADR techniques.
The Department conducted an orientation program on ADR. Included in
the orientation program was Senator Charles Grassley, one of the
sponsors of the ADR Act, together with representatives of the
Administrative Conference of the United States (ACUS) and the Federal
Mediation and Conciliation Service (FMCS).
The Department conducted a one day training program on ADR. The
training focused on the various methods of ADR and included
representatives from the U.S. Army Corps of Engineers, the
Environmental Protection Agency, the Department of Health and Human
Services, and the Department of Transportation, each of whom shared
their experiences in developing successful ADR programs.
The Department's Office for Equal Opportunity (OEO) provided
training in basic and advanced mediation skills for OEO and personnel
program officials and Equal Employment Opportunity (EEO) counselors.
OEO also issued a directive to bureaus and offices providing guidance
on the development and implementation of ADR pilot programs consistent
with 29 CFR part 1614. Under this directive each bureau and office is
to submit an ADR pilot program plan delineating specific actions to be
taken to incorporate ADR techniques into the EEO complaints process.
The Department recently made consideration of the use of ADR in the
resolution of discrimination complaints mandatory and has designated a
Departmental EEO/ADR Coordinator and directed each bureau to designate
a Bureau EEO/ADR Coordinator.
The Department designated the Bureau of Reclamation as a pilot
bureau in FY-93 for the purpose of testing the effectiveness of
mediation in the resolution of EEO complaints and administrative
grievances. The Bureau has relied exclusively on contract neutrals to
serve as mediators for all dispute referred for ADR. Mediation has also
been utilized by Reclamation in other program areas, including resource
management and contract administration. Reclamation is assessing the
results of its mediation program to determine whether to expand its
usage to other program areas.
The Department's Office of Hearings and Appeals has implemented ADR
as an alternative to administrative litigation. The Board of Indian
Appeals and the administrative law judges vested with authority for
adjudicating Indian probate cases have encouraged the use of settlement
agreements to resolve these matters. Under 43 CFR 4.207, administrative
law judges have been authorized to effect compromise settlements in
probate actions where the parties concerned agree to compromise and
where the judge establishes that all necessary conditions have been
met. The Board of Contract Appeals has been effectively implementing
ADR processes over the last 2 years in its cases. At the time a case is
docketed, the Board issues an order notifying the parties to the
dispute of the availability and benefits of ADR. Through actively
promoting ADR as a viable alternative, the Board has settled a majority
of its cases without the need to conduct a hearing.
The Bureau of Land Management (BLM) has recognized the benefits of
ADR techniques, and a presentation on the topic was made at the
Bureau's Solid Minerals Conference in Albuquerque, New Mexico, in April
1993. The BLM, in partnership with the Bowie State University's Center
for Alternative Dispute Resolution, has provided basic Conflict
Management ADR training to Personnelists and EEO practitioners, as well
as to key management officials. The BLM will continue to work with the
Center for ADR and other outside resources to provide training during
Fiscal Year 1994.
The Minerals Management Service (MMS) has a rich history of ADR.
The MMS's examples include (1) a process targeted at settling
outstanding and contentious mineral royalty claims which has reduced
appeals and litigation and increased royalty collections, and (2) more
than a decade of conflict resolution training for offshore minerals
management personnel and establishment and conduct of a joint review
panel for constituent review of environmental documents.
The Bureau of Mines (USBM) has recognized the benefits of ADR
techniques and has provided training to principal officials in the use
of ADR techniques. Training was provided by a contractor for the
Directorates of the Bureau on orientation to ADR techniques;
Information and Analysis on September 28, 1993; Finance and Management,
December 8, 1993; and Research on January 11, 1994. Training will also
be provided to EEO Counselors by the EEO Staff and the Federal
Mediation and Conciliation Service in June 1994. The Bureau plan to
continue the use of ADR for EEO complaints and to expand it to other
types of disputes. The EEO Office has used mediation and negotiation
for EEO complaints in the precomplaint stage and also the formal
complaint stage.
[FR Doc. 94-14288 Filed 6-10-94; 8:45 am]
BILLING CODE 4310-79-M