+---+-----------+---+------------------------------------------------+
| # |           | # | ## DOT ADR UPDATE  {#dot-adr-update .NL-Title} |
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+---+-----------+---+------------------------------------------------+
|   |           |   | > A Funny Thing Happened on My Way to          |
|   |           |   | > Resolution!                                  |
+---+-----------+---+------------------------------------------------+
| ! |           |   | **Question:** "How many mediators does it take |
| [ |           |   | to screw in a lightbulb?"                      |
| ] |           |   |                                                |
| ( |           |   | **Mediator:** "So what I hear you saying is    |
| m |           |   | that you would like the room to be brighter."  |
| e |           |   |                                                |
| d |           |   | The thought about humor in mediation came to   |
| i |           |   | me when I read a comment made by a disputant   |
| a |           |   | on a post-mediation evaluation form.           |
| / |           |   |                                                |
| i |           |   | The disputant, Joe, was a large, unkempt,      |
| m |           |   | rough and rambling man. He presented his story |
| a |           |   | to the panel of 3 volunteer community-based    |
| g |           |   | mediators. He had been injured in the laundry  |
| e |           |   | room of the apartment building where he lived, |
| 2 |           |   | because a leaky washer had caused water to be  |
| . |           |   | on the floor. While doing the family laundry,  |
| j |           |   | he had slipped in the water, and fallen and    |
| p |           |   | injured his back. He worked as a heavy         |
| e |           |   | equipment operator, and had lost several weeks |
| g |           |   | of work due to his injury. He wanted the       |
| ) |           |   | apartment owners to pay him for his injuries   |
| { |           |   | and his lost wages. He talked about how the    |
| w |           |   | injury had affected his life, his income---he  |
| i |           |   | was quite agitated---and it is fair to say the |
| d |           |   | mediators felt a little worried about the      |
| t |           |   | possibility that he might, well, erupt. They   |
| h |           |   | listened to his story, asked questions, kept   |
| = |           |   | him on track, and helped him communicate with  |
| " |           |   | the others at the table.                       |
| 1 |           |   |                                                |
| . |           |   | *(continued on page 2)*                        |
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+---+-----------+---+------------------------------------------------+

A Funny Thing Happened on My Way to Resolution! (cont.)

The property manager and adjustor talked about their view of the case.
The adjustor felt Joe had not been injured as claimed, suggested he had
"made up" his injury, and that he was just trying to get money from the
insurance company. She acknowledged his medical expenses, (Joe had
copies of bills) questioned his lost income, explained that her company
had denied Joe's claim because of lack of proof.

As the process went on, Joe and his spouse, and the property manager and
insurance adjustor, had engaged in occasionally heated discussions about
the issues. The panel of mediators helped in keeping things peaceful.
The result of these discussions was that the adjustor agreed to arrange
for payment to Joe of an amount that he felt was fair, and the property
manager agreed to assure that the laundry room equipment was in good
operating condition. The parties thanked each other and the mediators,
hands were shaken, and they departed.

A few days later the mediation center received a letter from Joe in
response to its standard request for feedback on the mediation process.
Joe's response was: "You listened to me. No one listens to me. I
wouldn't have listened to me. Thanks for your help. "

Joe had, through the mediation process, been able to look within himself
and take the time to comment, in a fairly insightful way, on his
perceptions, of himself, of the process. That his comment contained an
aspect of humor, in a self-deprecating way, caused me to think about the
issue of humor and mediation. And to wonder whether we mediators may not
tend to look at what we do with an eye toward its humorous aspects. Not
that we take ourselves too seriously, but that we do not always
appreciate the possibilities of humor in our field, in what we do, in
our unique culture. I suggest that the opportunity to look at the funny
side of mediating offers an extensive opportunity for creative insight
finding, as well as fun making.

*(taken from mediate.com, "A Funny Thing Happened on My Way to
Resolution!" by Carl J. Debevec)*\
![](media/image3.png){width="2.1479166666666667in"
height="2.4923611111111112in"}

ADR at DOT

In 2002 the Department of Transportation published a Statement of Policy
to further its commitment to using ADR to advance national
transportation goals by preventing, minimizing and resolving disputes
among our employees and with external parties, in a mutually acceptable
and cost effective manner. The DOT Policy is applicable to a variety of
areas throughout the Department. These include workplace issues, formal
and informal adjudication, issuance of regulations, enforcement and
compliance, issuing and revoking licenses and permits, contract and
grant award and administration, litigation and interactions with the
public and regulated community. Below are some examples of ADR programs
that have been set up at DOT.

-   **The One DOT Sharing Neutrals Program:** The One DOT Sharing
    Neutrals Program is a Department wide program that uses mediation to
    resolve EEO complaints. The program maintains a cadre of collateral
    duty mediators and contract mediators. The program also uses
    qualified mediators from the Federal Shared Neutrals Program and
    other ADR Programs for use in locations outside the DOT metropolitan
    area.

-   **Federal Motor Carrier Safety Administration Binding Arbitration
    Program:** The FMCSA Binding Arbitration Program was developed to
    expand the options for adjudication available to motor carriers,
    brokers, shippers, freight forwarders and other individuals and
    entities engaged in the use of commercial motor vehicles in
    interstate transportation. Through this voluntary program carriers
    may elect to submit cases that only involve the amount of a civil
    penalty to an arbitrator rather than to the Chief Safety Officer.
    Parties may elect to use private arbitrators or use arbitrators from
    DOT Board of Contract Appeals.

-   **Federal Transit Administration Workplace Alternative Dispute
    Resolution:** On February 14, 2005, Administrator Jennifer Dorn
    issued FTA Order 3710.1, "Federal Transit Administration Workplace
    Alternative Disputer Resolution Program." The program is open to all
    FTA employees to address matters of concern or dissatisfaction
    relating to the workplace.  These disputes may involve a supervisor
    and employee, two employee peers, two supervisors or any other
    combination of employees.  Program goals are to enhance
    communication, increase morale and help employees work as a more
    cohesive team to accomplish FTA's mission.   The program may also
    save time and money by decreasing formal complaints. 

 

-   **Office of Dispute Resolution for Acquisition:** Pursuant to
    [Section 224 of Public Law No. 108-176, the \"Vision 100 \-- Century
    of Aviation Reauthorization
    Act,\"](http://www.faa.gov/agc/odra/Section 224, Excerpt.htm)  a
    series of [delegations from the FAA
    Administrator](http://www.faa.gov/agc/odra/DELEG2.HTM), and the
    ODRA\'s [Procedural
    Regulations](http://www.faa.gov/agc/odra/rule.htm), the ODRA is
    charged with responsibility for resolving all protests and contract
    disputes arising out of procurements and contracts entered into
    under the FAA\'s [Acquisition Management System
    (AMS)](http://fast.faa.gov/ams/ams_tableofcontents.htm).  The ODRA
    also has been delegated responsibility for resolving contests
    involving Agency actions associated with the FAA\'s adaptation of
    Office of Management and Budget (\"OMB\") Circular A-76, which
    pertains to competitive sourcing of \"commercial activities\" \--
    activities deemed not \"inherently governmental\" under the FAIR
    Act, 31 U.S.C. §501.

Federal ADR Policy and Law

Federal laws and policies have helped increase the use of alternative
dispute resolution (ADR) in the Federal government as well as guide its
development. The origins of Federal ADR can be traced to the late 19th
century. The use of ADR has expanded considerably since then, with the
greatest changes starting around 1990.

# **The Administrative Dispute Resolution Act of 1990**

*** ***

The most significant development in enhancing the use of ADR across the
Federal government occurred in 1990. President George H.W. Bush signed
into law the Administrative Dispute Resolution Act of 1990. The Act
authorized agencies to use a dispute resolution proceeding for the
resolution of an issue in controversy that relates to an administrative
program. The use of ADR processes was intended to be (and is) voluntary.
The Act stated that a dispute resolution proceeding was authorized \"if
the parties agree to such proceeding.\"

 

The Administrative Dispute Resolution Act included several key
provisions. First, it required each agency to adopt a policy that
addresses ADR and case management. Second, each agency shall designate a
senior official to be its dispute resolution specialist, with
responsibility to implement the act and the agency\'s ADR policy. Third,
each agency is required to provide regular training on the practice of
negotiation, mediation, arbitration, and related techniques. Fourth,
each agency shall review each of its contracts, grants, and related
agreements and consider amending them to authorize and encourage the use
of ADR.

  

# **The Administrative Dispute Resolution Act of 1996**

*** ***

The Administrative Dispute Resolution Act of 1996 was enacted because of
the sunset of the 1990 Act. The primary purpose of this new statute was
to reauthorize the 1990 Act, but at the same time, Congress removed the
limitations of the earlier legislation. The government can no longer
back out of an arbitration award. In addition, there is now an exemption
from the Freedom of Information Act that generally provides for
confidentiality of ADR documents. Finally, the law has no expiration
date. To further promote the use of ADR, Congress simplified the process
for acquiring neutrals by addressing the development of procedures for
obtaining neutral third parties as mediators on an expedited basis.

             

# **The Alternative Dispute Resolution Act of 1998**

 

The introduction to the Alternative Dispute Resolution Act of 1998 notes
how ADR can be valuable in the court setting. This Act requires each
district court to \"devise and implement its own alternative dispute
resolution program,\" \"encourage and promote the use of alternative
dispute resolution in its district,\" \"require that litigants in all
civil cases consider the use of an alternative dispute resolution
process at an appropriate stage in the litigation,\" and \"provide
litigants in all civil cases with at least one alternative dispute
resolution process.\" Courts can require that parties participate in
mediation and early neutral evaluation (although they cannot order
parties to use arbitration.)

 

**Presidential Actions Promoting ADR**

 

Several presidents have issued Executive Orders requiring the Federal
government to increase its use of ADR. In 1991, President George H.W.
Bush issued an Executive Order calling for the training of Federal
government attorneys in ADR, noting that ADR can \"contribute to the
prompt, fair, and efficient resolution of claims.\" This Executive
Order, however, included a caveat: \"Whenever feasible, claims should be
resolved through informal discussions, negotiations, and settlements
rather than through utilization of any formal or structured Alternative
Dispute Resolution (ADR) process.\"

 

President Bill Clinton endorsed ADR even more strongly in a 1996
Executive Order: \"Where the benefits of Alternative Dispute Resolution
(\'ADR\') may be derived, and after consultation with the agency
referring the matter, litigation counsel should suggest the use of an
appropriate ADR technique to the parties. . . .\"

 

In 1998, President Clinton issued a presidential memorandum stating,
\"As part of an effort to make the Federal Government operate in a more
efficient and effective manner, and to encourage, where possible,
consensual resolution of disputes and issues in controversy involving
the United States, including the prevention and avoidance of disputes, I
have determined that each Federal agency must take steps to . . .
promote greater use of mediation, arbitration, early neutral evaluation,
agency ombuds, and other alternative dispute resolution techniques."

 

This memorandum created the Interagency ADR Working Group and appointed
the Attorney General to act as its chair. The working group is to
\"facilitate, encourage, and provide coordination for agencies in such
areas as: 1) development of programs that employ alternative means of
dispute resolution, 2) training of agency personnel to recognize when
and how to use alternative means of dispute resolution, 3) development
of procedures that permit agencies to obtain the services of neutrals on
an expedited basis, and 4) recordkeeping to ascertain the benefits of
alternative means of dispute resolution.\"

 

The Interagency ADR Working Group began on September 14, 1998, and has
since hosted training sessions, meetings, and colloquia on all aspects
of ADR.

For more information on federal ADR policy and law go to
<http://www.dot.gov/ost/ogc/CADR/policy.htm>.

![](media/image4.png){width="3.1256944444444446in"
height="3.2909722222222224in"}

ADR Around the Federal Government

![](media/image5.png){width="0.3548611111111111in"
height="0.44305555555555554in"}

> [National Park Service (NPS) Uses Negotiated Rulemaking]{.underline}

NPS is undertaking two reg-negs in the Golden Gate National Recreation
Area (GGNRA) in San Francisco and at the Cape Hatteras National Seashore
in South Carolina. For GGNRA the reg-neg will address the regulations of
dog walking in the park, including what areas of the park should be
considered for off-leash dog use, and what times of day and what times
of year those areas could be used. At Cape Hatteras, the issue is the
regulation of off-road vehicle use. Visitors to the Seashore have long
enjoyed the ability to drive off-road. However, recent studies indicate
that the current level of usage might endanger wildlife and the
resources of the Seashore. NPS has engaged the U.S. Institute for
Environmental Conflict resolution to conduct a situation assessment to
determine if a reg-neg is appropriate for Cape Hatteras.

![](media/image6.png){width="0.3541666666666667in"
height="0.36041666666666666in"}

[National Mediation Board Parterning with University of Massachusetts at
Amherst (UMass)]{.underline}

The NMB has partnered with UMass, supported by a three-year, \$700,000
grant from the National Science Foundation, to design, develop, and
pilot new online dispute resolution technology. Integrating technology
in the ADR process can help parties improve productivity, increase
creative optioning, decrease decision-making time, and decrease travel
time and expenses.

![](media/image7.wmf){width="0.3972222222222222in"
height="0.4534722222222222in"}

[US-Led Judicial Reform Project for Colombia]{.underline}

A new Judicial Reform & Modernization Program for Colombia has been
unveiled by the U.S. Agency for International Development (USAID), whose
goals are to strengthen the government of Colombia\'s justice system as
well as to enhance access to justice (especially for the poor and
disenfranchised). The U.S. Dept. of Justice will operate on behalf of
USAID as the lead U.S. government agency for the initiative. One of
USAID's policy goals is a "Responsive Judicial Processes for Peace
(JPP)\" which seeks to enhance the \"capacity of the Foreign Ministry,
judiciary, inspector general office (Procuraduria) and public defense to
effectively plan for and manage responses to transition to peace
requirements\" through three sub-areas. One of the sub-areas is
increased access to justice, especially for the poor and disenfranchised
through expanded availability of public defense, legal assistance and
alternative dispute resolution services; also, modest expansion of
regional justice houses in priority (isolated or conflict affected)
jurisdictions.

![](media/image8.png){width="0.4736111111111111in"
height="0.4736111111111111in"}

[Dispute Resolution on the Anacostia]{.underline}

The Department of the Navy (DON) was involved in a dispute over water
quality concerning storm water draining into the Anacostia River from
the Washington Navy Yard (WNY). The dispute involved a storm water
permit issued by the Environmental Protection Agency (EPA). The Navy
appealed the permit alleging that certain permit conditions, involving
effluent limits, monitoring parameters and frequency, and additional
study requirements, were based on erroneous findings of fact or
conclusions of law. The Anacostia Watershed Society (AWS), also appealed
the permit. Through the DON ADR Program, the parties used the services
of the U.S. Institute for Environmental Conflict Resolution, to convene
a mediation. The four full participants to this ADR were USEPA Region
III, the District of Columbia (the "State" required to Certify the
Permit), Anacostia Watershed Society and the Navy. From start to finish,
the mediation process lasted only 5 months. The mediation produced an
environmentally protective permit that met the varied interests of each
party.

ADR Use in the Transportation Industry

[Mediators Offer Arbitration in Northwest Airlines Corp. Mechanics
Talks]{.underline}

Mediators offered binding arbitration to Northwest Airlines Corp. and
its mechanics, a sign that talks have broken down. However, Northwest
Airlines Corp. rejected binding arbitration with its mechanics\' union
saying that binding arbitration would take too long and would not lead
to the labor cost savings. Eagan-based Northwest, the nation\'s
fourth-largest carrier, is seeking \$176 million in annual labor savings
from mechanics. That would translate into a pay cut of about 25%, and
the mechanics have said Northwest also wants to send more of their work
to outside contractors. Mechanics have offered temporary pay cuts in a
package they say would save Northwest \$143.5 million. But Northwest has
said the mechanics\' offer is really worth only \$87 million because
mechanics are counting funds saved from earlier layoffs.

[Strike Averted by Capital Metro Bus Driver's and Mechanics]{.underline}

A strike by the bus drivers and mechanics of Capital Metro, in Texas,
has been averted for now due to a contract extension between Cap Met\'s
largest contractor, StarTran, and the workers of Amalgamated Transit
Union 1091, which has 800-plus members. Workers are demanding no rate
cuts for new hires, benefits for retirees, no increases to their health
care plans, and no changes to current drug-testing procedures. Parties
will resume negotiations Aug. 15 with a mediator from the Federal
Mediation and Conciliation Service. The contract extension, the second
such measure, expires Aug. 19, which will see a resolution, another
extension, or a strike by the union.

####### 

####### 

####### [Arbitrator Finds MoDOT Liable in Fatal Accident]{.underline}

####### 

####### ![](media/image9.png){width="1.080708661417323in" height="1.3437007874015747in"}![](media/image10.png){width="1.080708661417323in" height="1.3437007874015747in"}![](media/image11.png){width="1.0799212598425196in" height="1.3437007874015747in"}![](media/image12.png){width="1.0799212598425196in" height="1.3437007874015747in"}![](media/image13.png){width="1.0716535433070866in" height="1.3334645669291338in"}The efforts by the Missouri Department of Transportation to correct a dangerous intersection in McDonald County were inadequate, leading to an accident that killed two people, injured a third and will now cost the state more than \$640,000 in damages. Arbitrators in Jackson County ruled against the Missouri Highways and Transportation Commission and MoDOT, and in favor of Kenneth Zeller, 63, of Independence, and Kenneth Henderson, of Lowell, Ark. The binding arbitration settled a lawsuit filed on behalf of Zeller and his wife, Royetta Zeller, 61. Royetta Zeller was killed in the Sept. 17, 2003, traffic crash, and Kenneth Zeller was injured.

Training Opportunities

Looking to enhance your leadership competencies? Want to resolve
conflicts in a positive and constructive manner? The Department of
Transportation Center for Alternative Dispute Resolution, in partnership
with the Department of Health and Human Services Office of Dispute
Resolution Specialist, offers a variety of courses. The following
courses are currently scheduled:

![](media/image14.wmf){width="1.375in"
height="1.1736111111111112in"}**Conflict Management Skills for
Managers**

September 20-21, 2005; January 31- February 1, 2006

**Basic Mediation Skills**

October 18-20, 2005

**Transformative Mediation**

November 15-17, 2005

For a description of these courses visit our website at
<http://www.dot.gov/ost/ogc/CADR/training.html>. To register for any of
these courses, email <CADR@ost.dot.gov> with your name, agency, and
course title.

  ------------- ---- ---- ---- ---- ---- ---- -- ----------- ---- ---- ---- ---- ---- ---- -- ------------ ---- ---- ---- ---- ---- ----
  **September                                    **October                                    **November                            
  2005**                                         2005**                                       2005**                                

  Su            Mo   Tu   We   Th   Fr   Sa      Su          Mo   Tu   We   Th   Fr   Sa      Su           Mo   Tu   We   Th   Fr   Sa

                               1    2    3                                            1                         1    2    3    4    5

  4             5    6    7    8    9    10      2           3    4    5    6    7    8       6            7    8    9    10   11   12

  11            12   13   14   15   16   17      9           10   11   12   13   14   15      13           14   15   16   17   18   19

  18            19   20   21   22   23   24      16          17   18   19   20   21   22      20           21   22   23   24   25   26

  25            26   27   28   29   30           23          24   25   26   27   28   29      27           28   29   30             

                                                 30          31                                                                     
  ------------- ---- ---- ---- ---- ---- ---- -- ----------- ---- ---- ---- ---- ---- ---- -- ------------ ---- ---- ---- ---- ---- ----

Closing Thoughts

The reverse side also has its reverse side.***\
*-**Japanese proverb-