**PROGRAM EVALUATION**

**OF THE USE OF**

# ALTERNATIVE DISPUTE RESOLUTION 

**IN THE**

**DEPARTMENT OF TRANSPORTATION**

## **OCTOBER 2001**

**PROGRAM EVALUATION TEAM**

**DISPUTE RESOLUTION COUNCIL**

**U.S. DEPARTMENT OF TRANSPORTATION**

> "People with problems, like people with pains, want relief, and they
> want it as quickly and inexpensively as possible."
>
> Chief Justice Warren E. Burger

### [TABLE OF CONTENTS]{.underline}

**EXECUTIVE SUMMARY**

**I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . 1**

**II. AN OVERVIEW OF ALTERNATIVE DISPUTE RESOLUTION (ADR) . . . . . . .
. 3**

## 

## **III. ADR TO RESOLVE COMPLAINTS OF DISCRIMINATION . . . . . . . . . . . . . . . . . 4**

**A. Types of Disputes That Arise**

**B. Traditional Ways of Resolving EEO Disputes**

**C. Alternative Ways of Resolving EEO Disputes**

#####  **D. DOT Mediation Programs (ONE DOT Sharing Neutrals, FAA and USCG)**

1.  **Designing an ADR Program**

2.  **Program Structure and Process**

> **3. Program Goals and Objectives**

**4. Mediators**

**a. Internal Mediators**

**b. External Mediators**

**5. Marketing**

**6. Program Results**

**a. Case Resolution**

**b. Customer Satisfaction**

**7. Future Plans**

**IV. ADR TO RESOLVE OTHER TYPES OF DISPUTES . . . . . . . . . . . . . .
. . . . . . . . 35**

**A. Overview of Types of Disputes**

**B. DOT Non-EEO ADR Uses**

> **1. Office of the Secretary (OST)**
>
> **2. United States Coast Guard (USCG)**
>
> **3. Federal Aviation Administration (FAA)**
>
> **4. Federal Railroad Administration (FRA)**
>
> **5. National Highway Traffic Safety Administration (NHTSA)**
>
> **6. Federal Transit Administration (FTA)**
>
> **7. St. Lawrence Seaway Development Corporation (SLSDC)**
>
> **8. Maritime Administration (MARAD)**
>
> **9. Research and Special Programs Administration (RSPA)**
>
> **10. Federal Motor Carrier Safety Administration (FMCSA)**

####### 

####### V. RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

**VI. FURTHER ANALYSIS AND ACTIVITY . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . 52**

# APPENDICES

**EXECUTIVE SUMMARY**

#### **Background**

In its Strategic Plan for FY 2001-2005, the Department of Transportation
(the Department or DOT) announced that it would conduct an intermodal
program evaluation on the Department's use of Alternative Dispute
Resolution (ADR) in FY 2001. A Program Evaluation Team was formed to
undertake this effort. This Program Evaluation furthers President Bush's
agenda for improving the management and performance of the Federal
government.

The purpose of the ADR Program Evaluation was to:

1)  collect data on how DOT is resolving disputes of all kinds using
    ADR;

2)  focus on one program area of ADR use, (Equal Employment
    Opportunity/Equal Opportunity (EEO/EO) was selected), to examine and
    assess whether DOT is resolving disputes in the selected area in a
    cost-effective, mutually acceptable manner as compared to
    traditional processes or no action;

3)  identify best practices for resolving disputes in the selected area
    through ADR; and

4)  make recommendations for improving dispute resolution in the
    Department.

Because the Equal Employment Opportunity Commission requires Federal
agencies to offer ADR to resolve EEO complaints and because DOT is also
using mediation to resolve these types of disputes, this Program
Evaluation focuses on disputes involving allegations of discrimination.
When the ADR Program Evaluation originated, there were three different
EEO ADR programs within the Department. The Departmental Office of Civil
Rights (DOCR) was responsible for a Department-wide, ONE DOT Sharing
Neutrals Program. The Federal Aviation Administration (FAA) had a
nationwide mediation program. Finally, the U.S. Coast Guard (USCG or the
Coast Guard) had established policies and procedures on the use of ADR
to resolve discrimination complaints and had trained employees to act as
mediators. It was poised to launch a marketing campaign for its own
autonomous program, but intervening circumstances have delayed the
service-wide launch. The USCG program is included as part of this ADR
Program Evaluation because resources have been and still are dedicated
to this endeavor and ADR program planning in USCG continues.

An evaluation at this time will allow decision-makers to capitalize on
the successful aspects of the EEO/EO mediation programs and make
adjustments where needed. Because ADR is also appropriate to address
other disputes, the Program Evaluation Team surveyed the Department\'s
operating administrations, secretarial offices and the Office of the
Inspector General about other uses of ADR and reports that information
in this Program Evaluation.

***Alternative Dispute Resolution (ADR)***

ADR is a collaborative, voluntary dispute prevention and resolution
approach. It describes a variety of problem-solving processes available
to parties who are ready, willing and able to try them in lieu of
litigation or other adversarial proceedings to resolve disagreements.
ADR encompasses mediation, facilitation, conciliation, fact-finding,
mini-trials, negotiation, negotiated rulemaking, neutral evaluation,
policy dialogues, use of ombudsmen, arbitration and other processes that
usually involve a neutral third party who assists the parties in
minimizing the escalation of and resolving their dispute. Parties meet
with a neutral third party who is trained and experienced in handling
disputes, and together they search for a resolution to the problem. ADR
gives parties an opportunity to talk with each other directly under the
guidance of a dispute resolution professional. It provides for
confidentiality and flexibility in resolving disputes.

***ADR and Complaints of Discrimination***

There are several laws that protect employees against discrimination in
the workplace and provide a basis for action against the Federal
government if violated. Despite these protections, some Federal
employees have experienced, or believe they have been subject to,
discrimination. Their claims arise from a variety of circumstances,
including: non-selection for a job; denial of a promotion; disciplinary
actions; and a hostile work environment.

In the Federal workforce, before a discrimination complaint can be
raised in court, a Federal employee or applicant for Federal employment
must use the procedures set forth in regulations issued by the Equal
Employment Opportunity Commission. The regulations set forth a complaint
system for Federal employees or applicants for Federal employment with
strict time frames and deadlines. Complainants also have the right to
request a hearing before an EEOC Administrative Judge or file a claim in
an appropriate United States District Court.

These processes take a significant amount of time and can be expensive
for the individual filing the complaint and for the Federal agency
responding to it. These traditional approaches can destroy the
underlying relationships between the parties. Formal complaints often
force employees working in the same office to take sides against one
another. During the months or years required to process a complaint, and
even long after it is over, the dispute can be extremely corrosive to
the productivity of the office and the morale of its employees.

In the 1990s, many agencies began to respond to the increased numbers of
EEO complaints and the costs associated with them by adopting ADR
processes. Within the Department, there are three different EEO/EO ADR
programs. The Departmental Office of Civil Rights (DOCR) is responsible
for a Department-wide, ONE DOT Sharing Neutrals Program. The Federal
Aviation Administration (FAA) has a nationwide mediation program.
Finally, the U.S. Coast Guard (USCG) has established policies and
procedures on the use of ADR to resolve discrimination complaints and
has trained employees to act as mediators.

The Team reviewed the following aspects of these three programs:
designing an ADR program, program structure and process, program goals
and objectives, mediators, marketing, program results, and future plans.
Overall, the Program Evaluation Team found a cadre of employees
committed to the Department\'s Organizational Excellence goal, with a
strong interest in improving employee satisfaction and effectiveness.

With regard to designing a program, ONE DOT Sharing Neutrals and FAA
both started with pilot programs, reviewed their operation and
effectiveness, and eventually went on to permanent programs. They also
followed a collaborative design approach involving a variety of
stakeholders. However, neither ONE DOT Sharing Neutrals nor FAA appears
to have conducted a formal needs assessment prior to initiating their
pilot programs, or even their permanent programs. The latest USCG plan
for a mediation program appears to begin with a pilot program.

The ONE DOT Sharing Neutrals and FAA Orders and the USCG Commandant
Instruction establishing mediation programs address the core principles
established by the EEOC and the Federal ADR Council.

The goals of the ONE DOT Sharing Neutrals, FAA and USCG programs are the
same: early resolution, time savings, cost savings and creating a more
hospitable work environment. Both the ONE DOT Sharing Neutrals and FAA
program provide facilitation and/or conciliation services in support of
the goal of reaching an early resolution. The ONE DOT Sharing Neutrals
program has developed a computerized tracking system to determine the
time involved in the mediation process. It takes between 16--117 days
from the filing of a complaint to the end of the mediation. FAA relies
upon a spreadsheet system and finds that mediation is usually completed
within 90 days. FAA undertook an assessment to establish a baseline for
the EEO process and mediation costs. Neither ONE DOT Sharing Neutrals
nor FAA has a system to determine whether their programs are meeting the
goal of creating a more hospitable work environment.

There are pros and cons to the use of both internal and external sources
for neutrals. ONE DOT Sharing Neutrals and FAA have had different
experiences with the Federal Interagency Sharing Neutrals Project. While
FAA has been able to arrange mediations within seven days, it has taken
ONE DOT Sharing Neutrals an average of 72.9 days to arrange mediations
with external, government neutrals. The use of internal, collateral duty
mediators is not without cost. The costs include the cost of training
and the cost of employee time lost from the job during training and
mediation.

As for marketing, ONE DOT Sharing Neutrals, FAA and USCG have undertaken
a variety of strategies to ensure employees are aware of their programs,
how they operate and the benefits they provide. FAA and USCG have made a
concerted effort to reach out to employees through awareness briefings
and training.

With regard to program quality and results, the Program Evaluation Team
has learned that since the beginning of the programs, the resolution
rate for ONE DOT Sharing Neutrals is 52%. Since its inception, FAA's
resolution rate is 51%. USCG's resolution rate is 87.5%. ONE DOT Sharing
Neutrals and USCG utilized the same surveys. Based on information
reported by the surveys, customer satisfaction appears high.

As for the future of these EEO/EO ADR programs, ONE DOT Sharing
Neutrals, FAA and USCG have identified a variety of ADR activities to
further the goal of resolving EEO disputes.

#### **ADR to Resolve Other Types of Disputes**

Disputes in the Federal sector are not limited to the EEO/EO arena. They
arise in a variety of areas and contexts. For example,
acquisition-related disputes typically take the form of bid protests
brought by parties who are seeking awards of government contracts, or
contract disputes arising during or in connection with contract
performance. Bid protests seek to modify the terms of a solicitation in
some way, or to overturn the award of a contract. Contract disputes may
seek payment of additional monies for delays or additional work mandated
by the Agency, or they may seek non-monetary relief.

Disputes in the workplace may be between or among employees, between
employees and their managers, union grievances and other non-EEO
disputes. Generally, in disputes between a supervisor and an employee,
the employee may have the option of filing a grievance through the
agency's grievances procedure or utilize the grievance procedure in the
collective bargaining agreement. The employee also may have the right to
file an appeal with the Merit Systems Protection Board.

The civil enforcement disputes that arise at DOT are as varied as the
enforcement roles of the different modal administrations of the
Department itself. In civil enforcement cases, each of the operating
administrations is working with established as well as with evolving
regulatory and enforcement processes and considerations.

Disputes arise under environmental laws and with regard to environmental
issues in many contexts. Environmental laws covering emissions and
discharges to the air and water, protecting endangered and threatened
species, and cleanup of contaminated sites all pose the possibility of
disputes among the parties seeking access to or protecting these
resources.

While the traditional rulemaking procedures help ensure that agencies
develop sound factual bases for exercising their discretion, the
increased formalization of the rulemaking process has also had adverse
consequences. The various affected interests tend to develop adversarial
relationships with each other causing them to take extreme positions, to
withhold information from one another and to attack the legitimacy of
opposing positions. Participants in rulemaking rarely meet with each
other and with the agency as a group to communicate their respective
views, so that each can react directly to the concerns and positions of
others in an effort to resolve conflicts. Negotiated rulemaking has
emerged as an alternative to the traditional rulemaking process to
achieve better regulations through cooperative efforts that involve the
use of a third-party neutral.

To collect data on how the Department is resolving disputes using ADR in
a variety of areas, the Dispute Resolution Council designed a
questionnaire and used it as a tool to survey each operating
administration, secretarial offices and the Office of the Inspector
General. The Council limited the scope of inquiry to activities that
occurred in FY 2000 or 2001.

Dispute Resolution Council members noted that their biggest challenge
was trying to uncover ADR activity that was not part of a formal
program. Most of the general ADR activity reported was in Washington;
however, several Council members believe that there is significantly
more ADR activity in the regions than captured by the survey. Because
ADR is not centralized, Council members initiated contact with offices
commonly associated with ADR, *e.g.*, Human Resources and Legal, and
asked individuals in those offices if they knew of others using ADR.
Given the limitations of this approach, the survey responses underreport
the amount of ADR activity in the Department.

The Department is employing ADR techniques in its day‑to‑day operations.
The Program Evaluation presents the information by operating
administration and does not evaluate ADR uses in the non-EEO/EO context.
The descriptions include: a general overview of activity for 2000-2001;
costs-benefits analysis; approximate number of cases handled; training
initiatives; and the barriers encountered when attempting ADR.

**Recommendations**

One of the purposes of the ADR Program Evaluation was to make
recommendations for improving dispute resolution in the Department. In
conducting the evaluation of the EEO/EO mediation programs, the Program
Evaluation Team found a cadre of employees committed to the Department's
Organizational Excellence goal, with a strong interest in improving
employee satisfaction and effectiveness. The Team, however, makes
recommendations to allow the ONE DOT Sharing Neutrals, FAA and USCG
EEO/EO mediation programs to capitalize on the success of their efforts
and make adjustments where needed.

***[The Team recommends that ONE DOT Sharing Neutrals, FAA and
USCG:]{.underline}***

1.  *Track data to ensure that they are meeting the goals they have
    established.*

2.  *Work together to develop a system to collect and track data about
    shared goals and objectives.*

3.  *Require extensive training and practical experience, including
    annual knowledge and skills maintenance, for internal neutrals, or
    use external neutrals with extensive training and experience.*

4.  *Use the same customer satisfaction survey to allow evaluators to
    compare customer satisfaction and program results.*

5.  *Work together to leverage resources and avoid redundancy of
    efforts, consistent with the Secretary's ONE DOT management
    objective.*

6.  *Coordinate future budget requests prior to submission to the
    Assistant Secretary for Budget and Programs.*

***[The Team recommends that USCG:]{.underline}***

> *7. Assess the results of any pilot against use of ONE DOT Sharing
> Neutrals, because of the high resolution and reported high
> satisfaction rate with its use.*
>
> *8. Conduct a needs assessment that includes an analysis of use of the
> ONE DOT Sharing Neutrals Program, before expanding the pilot program.*

***[The Team recommends that all Secretarial offices and operating
administrations:]{.underline}***

> *9. Ensure that, through awareness briefings, employees are advised of
> the benefits of mediation and the availability of DOT EEO/EO mediation
> programs.*

The Program Evaluation Team shared these recommendations with the ONE
DOT Sharing Neutrals, FAA and USCG program managers. They have not
objected to the recommendations. The Program Evaluation Team believes,
however, that without a Secretarial mandate to the programs to work
together and specific reporting requirements, the programs will continue
to act independently.

***[In addition, the Program Evaluation Team makes one recommendation to
improve dispute resolution generally:]{.underline}***

> *10. Prior to the implementation of any ADR programs, conduct a needs
> assessment and begin with a pilot program that is evaluated prior to
> program expansion.*

## ***Further Analysis and Activity***

As part of the review of the EEO/EO mediation programs, the Program
Evaluation Team learned that some matters come to the EEO/EO mediation
programs when miscommunication, rather than discrimination, is the cause
of the conflict. Furthermore, the Program Evaluation Team recognizes
that the Department\'s strategic plan addresses measuring employee
satisfaction regularly. This information should be evaluated to
determine whether there should be a Department-wide human resource
strategy to make ADR available for workplace disputes. Given the
preliminary findings of ADR effectiveness, efficiency and overall value,
the Program Evaluation Team encourages the Department to initiate a
needs assessment for an early resolution workplace pilot program.

Finally, the Program Evaluation Team identified a number of issues that
merit a more detailed examination. These issues include: tracking data;
creating incentives for using ADR; external and internal sources for
neutrals; and support for ADR use generally. Building on its successes
and progress during the last two years, the Dispute Resolution Council
will continue to work together to: facilitate the sharing of ADR
information; examine how the Department is currently using ADR and
recommend improvements; explore the use of ADR techniques in connection
with a variety of dispute areas; assist in identifying future ADR uses;
and coordinate the development of ADR programs.

**I. INTRODUCTION**

The Government Performance and Results Act of 1993 (GPRA) requires
Federal departments to bring about a fundamental transformation in the
way government programs and operations are managed and administered. One
of the purposes of the GPRA is to improve Federal program effectiveness
and public accountability by promoting greater emphasis on results,
service quality and customer satisfaction. Among the key tools for
implementing GPRA is the requirement that agencies develop strategic
plans and annual performance plans. In its Strategic Plan for FY
2001-2005, the Department of Transportation (the Department or DOT)
announced that it would conduct an intermodal program evaluation on the
Department's use of Alternative Dispute Resolution (ADR) in FY 2001.

A Program Evaluation Team[^1] (the Team) was formed in November 2000 to
undertake this effort. The Team was a subgroup of the Department's
Dispute Resolution Council (DRC or the Council), which was established
in September 1999 as part of the Department's ONE DOT management
strategy for improving work relations and hence productivity by using
collaborative, consensual dispute resolution approaches across the
Department. The Council, chaired by the Department's Dispute Resolution
Specialist, is comprised of representatives appointed by heads of modal
administrations, secretarial officers and the Inspector General. The
members of the DRC serve as Deputy Dispute Resolution Specialists
promoting and coordinating the use of ADR within their organizations.
Also, they coordinate on ADR policy with their Regulation or Liaison
Officer as it relates to rulemaking under the Negotiated Rulemaking Act
of 1996. The Council supports the Dispute Resolution Specialist and
works with that individual to:

1)  facilitate the sharing of ADR information;

2)  examine how the Department is currently using ADR at Headquarters
    and in the regions and recommend improvements;

3)  explore the use of ADR techniques in connection with a variety of
    areas; and

4)  assist in identifying future ADR uses and coordinate the development
    of ADR programs.

In determining the scope of the ADR Program Evaluation, the Team
considered several options, including: evaluating how the Department
manages disputes; evaluating how ADR is used in a variety of areas such
as procurement, environmental, personnel and rulemaking; evaluating how
ADR is used in a particular field; and evaluating various combinations
of the preceding options.

The purpose of the ADR Program Evaluation was to:

5)  collect data on how DOT is resolving disputes of all kinds using
    ADR;

6)  focus on one program area of ADR use, (Equal Employment
    Opportunity/Equal Opportunity (EEO/EO) was selected), to examine and
    assess whether DOT is resolving disputes in the selected area in a
    cost-effective, mutually acceptable manner as compared to
    traditional processes or no action;

7)  identify best practices for resolving disputes in the selected area
    through ADR; and

8)  make recommendations for improving dispute resolution in the
    Department.

The decision to focus specifically on disputes involving allegations of
discrimination evolved from the fact that the Equal Employment
Opportunity Commission requires Federal agencies to offer ADR to resolve
EEO complaints and because DOT is also using mediation to resolve these
types of disputes. When the ADR Program Evaluation originated, there
were three different EEO ADR programs within the Department. The
Departmental Office of Civil Rights (DOCR) was responsible for a
Department-wide, ONE DOT Sharing Neutrals Program.[^2] The Federal
Aviation Administration (FAA) had a nationwide mediation program.[^3]
Finally, the U.S. Coast Guard (USCG or the Coast Guard) had established
policies and procedures on the use of ADR to resolve discrimination
complaints and had trained employees to act as mediators. It was poised
to launch a marketing campaign for its own autonomous program, but
intervening circumstances have delayed the service-wide launch. The USCG
program is included as part of this ADR Program Evaluation because
resources have been and still are dedicated to this endeavor and ADR
program planning in USCG continues.

Because of the stages of each of these three programs, an evaluation at
this time will allow decision-makers to capitalize on the successful
aspects of the programs and make adjustments where needed. Because ADR
is also appropriate to address other disputes, the Team surveyed
Departmental offices about other uses of ADR and reports that
information in this Program Evaluation.

To collect data on how the Department is using ADR to resolve EEO/EO
disputes, the Council members interviewed program managers. The members
also reviewed customer satisfaction surveys and case tracking
information. To collect data on how the Department is resolving disputes
using ADR in other areas, DRC members designed a questionnaire and used
it to survey each operating administration, secretarial offices and the
Office of the Inspector General.

To assess whether the Department is resolving EEO/EO disputes in a
cost-effective and mutually acceptable manner, the Team reviewed the
monetary and time costs of the traditional process. Then, the Team
compared the findings to the operations, case tracking information and
reports of the Department's EEO/EO mediation programs. The Team also
compared the DOT programs to guidance established by the EEOC and to the
core principles of workplace programs published by the Federal ADR
Council.

To identify best practices for resolving EEO/EO disputes through ADR,
the Team reviewed the Federal ADR Program Manager's Resource Manual and
compared it to each of the Department's EEO/EO mediation programs. The
Team also compared the Departmental EEO/EO programs to other Federal
EEO/EO programs where time and money have been saved through ADR. The
ADR programs at the United States Postal Service and the Department of
the Air Force have been reviewed for comparative purposes. Those
programs have been recognized by the U.S. Office of Personnel Management
Director's Award for Outstanding ADR Programs.

President George W. Bush stated, "\...good beginnings are not the
measure of success. What matters in the end is completion. Performance.
Results."[^4] This Program Evaluation furthers President Bush's agenda
for improving the management and performance of the Federal government.

**II. AN OVERVIEW OF ALTERNATIVE DISPUTE RESOLUTION (ADR)**

ADR is a collaborative, voluntary dispute prevention and resolution
approach. It describes a variety of problem-solving processes available
to parties who are ready, willing and able to try them in lieu of
litigation or other adversarial proceedings to resolve disagreements.
ADR encompasses mediation, facilitation, conciliation, fact-finding,
mini-trials, negotiation, negotiated rulemaking, neutral evaluation,
policy dialogues, use of ombudsmen, arbitration and other processes that
usually involve a neutral third party who assists the parties in
minimizing the escalation of and resolving their dispute. Parties meet
with a neutral third party who is trained and experienced in handling
disputes, and together they search for a resolution to the problem. ADR
gives parties an opportunity to talk with each other directly under the
guidance of a dispute resolution professional. It provides for
confidentiality and flexibility in resolving disputes.

In 1990, President George H.W. Bush signed into law the Administrative
Dispute Resolution Act.[^5] The use of ADR processes was intended to be
and is voluntary ("if the parties agree to such proceeding"[^6]), and it
is used in place of traditional adjudication or other formal processes.
The Act required agencies to do the following:

1\. adopt an alternative dispute resolution (ADR) policy;

> 2\. designate a senior official to be the Dispute Resolution
> Specialist;
>
> 3\. provide ADR training on a regular basis; and
>
> 4\. review standard agreements for contracts, grants and other
> assistance to
>
> encourage the use of ADR.

These procedural requirements have resulted in the increased use of ADR
within the Federal government. As part of the policy development,
agencies were to examine ADR in connection with formal and informal
adjudications; rulemakings; enforcement actions; issuing and revoking
licenses or permits; contract administration; litigation brought by or
against the agency; and other agency actions. Agencies began to think
about ADR in a variety of contexts. In addition, requiring agencies to
adopt policies led to the publication of policies and rules in the
Federal Register, which in turn increased awareness about opportunities
for the successful use of ADR. Requiring agencies to designate Dispute
Resolution Specialists resulted in appropriate leadership within
agencies for ADR activity.

The Administrative Dispute Resolution Act of 1996[^7] was enacted
because of the sunset of the 1990 Act. The primary purpose of this new
statute was to reauthorize the 1990 Act. In addition, it enhanced
confidentiality protections, authorized fully binding arbitration, and
it 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[^8] requires each
district court to: devise and implement its own ADR program; encourage
and promote the use of ADR in its own district; require litigants in all
civil cases to consider the use of an ADR process at an appropriate
stage in litigation; and provide litigants with at least one ADR
process.[^9]

Both the government and the private sector have learned that ADR can
help resolve conflicts quicker and more economically than traditional
dispute resolution approaches, and that ADR preserves the relationships
of the people involved in the disputes. ADR is a tool that assists
employees, managers, leaders and resource planners in determining their
best short- and long-term interests. It gives disputants an opportunity
to fully participate in the outcome of their dispute. They often find
the process is far more satisfying and effective than a traditional
adversarial resolution.

**III. ADR TO RESOLVE COMPLAINTS OF DISCRIMINATION**

> *"President Bush has emphasized that our goal must be that of a
> welcoming society -- a Nation where no one is dismissed or forgotten.
> That is our mandate at the Department, as well. I ask that each of us,
> as employees and managers, join in the work of building a Department
> in which everyone, our colleagues and our customers, are given the
> equal opportunity to succeed and contribute."*
>
> *Secretary of Transportation Norman Y. Mineta*
>
> *Equal Opportunity Policy Statement, May 2001*

**A. Types of Disputes That Arise**

There are several laws that protect employees against discrimination in
the workplace and provide a basis for action against the Federal
government if violated. Title VII of the Civil Rights Act of 1964
prohibits discrimination based on race, color, religion, sex and
national origin.[^10] It also prohibits reprisal or retaliation for
participating in the discrimination complaint process or for opposing
any employment practice that the individual reasonably and in good faith
believes violates Title VII.[^11] The Age Discrimination in Employment
Act of 1967 prohibits discrimination on the basis of age when the
employee is at least 40 years old.[^12] The Rehabilitation Act of 1973
prohibits discrimination on the basis of physical and mental
disabilities.[^13] The Equal Pay Act of 1963 prohibits discrimination in
the payment of wages based on gender.[^14] It prohibits Federal agencies
from paying employees of one gender lower wages than those of the
opposite gender for performing substantially equal work.[^15] Despite
these protections and others,[^16] some Federal employees have
experienced, or believe they have been subject to, discrimination. Their
claims arise from a variety of circumstances, including: non-selection
for a job; denial of a promotion; disciplinary actions; and a hostile
work environment.

Reviewing the following scenarios may help to understand how allegations
of discrimination may arise:

> *[Scenario 1]{.underline}*
>
> *Deborah's male co-workers frequently engage in bawdy sexual banter
> and horseplay around the office. They trade stories about their sexual
> exploits and kid about each other's sexual prowess. Deborah sometimes
> has conversations of a sexual nature with one of the male co-workers,
> but she has let others know that she is offended by their banter or
> horseplay. Deborah has complained to her supervisor, but he has taken
> no action.*[^17]
>
> *[Scenario 2]{.underline}*
>
> *When Bob was 16, he developed a rare form of bone cancer that led to
> the amputation of his left leg just below the knee. Bob had been an
> all-American state basketball player. Several weeks after the
> amputation, Bob was fitted with a prosthesis that enabled him to play
> basketball, not at the level he could previously, but well enough to
> earn him a non-scholarship slot on a Division I NCAA basketball team.
> Several years later and now an agency employee, Bob seeks, and is
> denied, a promotion to an on-site inspection position that would have
> required substantial walking.*[^18]

These scenarios may or may not result in a formal finding of
discrimination. Of the 27,176 cases within the discrimination complaint
process under EEOC's jurisdiction that were closed in FY 2000, only 325
of them (about 1%) contained a finding of discrimination.[^19] However,
such experiences or perceptions of prejudice, coupled with the
complaints and lawsuits that result, disrupt the lives and workplace
relationships of the affected employees and undermine the ability of DOT
to carry out its mission. Discrimination can also "undermine the
efficient and effective delivery of government services to the public
and discourage a diverse, pluralistic, and accountable workforce."[^20]

**B. Traditional Ways of Resolving EEO Disputes**

In the Federal workforce, before a discrimination complaint can be
raised in court, a Federal employee or applicant for Federal employment
must use the procedures set forth in regulations issued by the Equal
Employment Opportunity Commission.[^21] The regulations set forth a
complaint system for Federal employees or applicants for Federal
employment with strict time frames and deadline.

When a DOT employee or applicant for DOT employment reasonably believes
that s/he has been discriminated against and wishes to pursue a
discrimination complaint, then the employee or applicant must contact
(orally or in writing) a DOT EEO Counselor to begin the initial stage of
the complaint process known as EEO Counseling. This contact must occur
within 45 days of the alleged discriminatory action or within 45 days of
the date the aggrieved person should have known of the action. In the
case of a personnel action, the complainant must contact the EEO
Counselor within 45 days of the effective date of the personnel
action.[^22]

The EEO Counselor, through interviews and inquiries, serves as a bridge
between applicants, employees and management to raise questions, discuss
issues and explore amenable solutions. During the initial interview, the
EEO Counselor informs the complainant of the complainant's rights and
responsibilities in the EEO process and also about the availability of
ADR. The EEO Counselor advises the aggrieved person about the EEO
complaint process, including the applicable administrative and court
time frames.[^23] The EEO Counselor determines what action(s) the agency
has taken or is taking that have caused the aggrieved person to believe
s/he is the victim of discrimination. This first step is essential to
proceeding with the inquiry and resolution attempt. The EEO Counselor
should determine if the aggrieved person believes that his/her problem
is the result of discrimination on one or more of the EEO complaint
bases (*i.e.*, race, color, religion, gender, national origin, age,
disability, sexual orientation or reprisal).

If it is clear that the aggrieved person\'s problem does not involve a
basis covered by the regulations, the EEO Counselor should inform the
aggrieved person and, if possible, advise the aggrieved concerning other
procedures that may be available to address his or her allegation. On
the other hand, if the EEO Counselor determines that the claim(s) do
involve a basis covered by EEO regulations, then the Counselor should
conduct a limited inquiry. The purpose of the limited inquiry is to
obtain information relevant to determining jurisdiction and negotiating
possible settlement. This inquiry will vary in scope depending upon the
complexity of the claims.

The EEO Counselor will not disclose the aggrieved person's identity
during the inquiry without prior approval.[^24] The aggrieved person may
be accompanied, represented and advised at all counseling interviews by
a representative.[^25] At the end of 30 days, the aggrieved person may
elect to file a formal complaint on the same basis(es) and claim(s).
Although someone may believe that a particular individual discriminated
against him/her, EEO complaints are filed against the agency, not
against individuals. An EEO Investigator, assigned by the agency, must
complete the investigation within 180 days after the formal complaint is
filed.[^26]

Upon completion of the investigation, the agency will provide the
complainant with a copy of the investigative file and will notify the
complainant of the complainant's right to request a hearing before an
EEOC Administrative Judge or to request an immediate final agency
decision.

In a hearing, the EEOC Administrative Judge hears testimony and
considers documentary evidence about the alleged discrimination. A
complainant may appeal an agency's final action on a request for an
immediate final agency decision or order after receiving an
administrative judge's decision or dismissal of a complaint to the
EEOC.[^27] The administrative judge issues a decision, which may include
appropriate remedies and relief where discrimination is found. After
receiving the administrative judge's decision, the agency must take
formal action on the complaint within 40 days of receipt of the judge's
decision. The agency's final order must indicate whether or not the
agency will fully implement the decision of the administrative judge. If
the agency's final order does not fully implement the administrative
judge's decision, then the agency must simultaneously file an appeal to
the EEOC's Office of Federal Operations.[^28] A complainant may also
file a claim in an appropriate United States District Court.[^29]

These processes take a significant amount of time. In FY 1995, a case
going from initial filing of a formal complaint in an agency through a
hearing and appeal at the EEOC could be expected to take 801 days (two
years and two months). Based on FY 1999 data, a case could be expected
to take 1,275 days (three years and six months).[^30] As reported by the
EEOC, the Department has estimated that the average number of days just
to complete an investigation within DOT is 353 (almost one year).

###### FY 1999 DOT Federal Sector Investigation Completion Times[^31]

+-------------+--------------------+------------------+---------------+
| **Total**   | **Completed        | ####### C        | **Completed   |
|             | within**           | ompleted within  | after 270     |
|             |                    |                  | days**        |
|             | **180 days**       | #######          |               |
|             |                    | 90-day extension |               |
+-------------+--------------------+------------------+---------------+
| 510         | 84                 | 111              | 315           |
+-------------+--------------------+------------------+---------------+

In addition, these processes can be expensive for the individual filing
the complaint and for the Federal agency responding to it. In 1996, the
American Federation of Government Employees estimated that Federal
agencies spend over \$30,000 to process each case of
discrimination.[^32] More recently, the Air Force Audit Agency undertook
a study to determine the Air Force costs in processing informal and
formal EEO complaints. The Air Force Audit Agency concluded that, on
average, it takes the Air Force approximately 45 labor hours to process
each informal EEO complaint and approximately 321 hours to process each
formal EEO complaint. Based on the grade levels of the personnel
involved in these disputes, the Air Force Audit Agency estimated that
the average cost of processing an informal complaint is \$1,795 and the
average cost of a formal complaint is \$16,372.[^33] As reported by the
EEOC, the Department has estimated that the cost of all formal EEO
investigations, 510 cases in FY 1999, was \$1,520,618.18. This is an
average of \$2,981.60 per investigation.[^34]

###### FY 1999 DOT Federal Sector Investigation Costs[^35]

######## [Agency Investigations]{.underline}

+--------------------+----------------+-------------+-----------------+
| **Number of        | **Total Days** | ####        | **Cost**        |
| Cases**            |                | ### Average |                 |
+--------------------+----------------+-------------+-----------------+
| 298                | 110,187        | 370         | \$760,618.18    |
+--------------------+----------------+-------------+-----------------+

####### [Contractor Investigations]{.underline}

+--------------------+----------------+-------------+-----------------+
| **Number of        | **Total Days** | ####        | **Cost**        |
| Cases**            |                | ### Average |                 |
+--------------------+----------------+-------------+-----------------+
| 212                | 75,102         | 354         | \$760,000.00    |
+--------------------+----------------+-------------+-----------------+

######### Total Investigations

+--------------------+----------------+-------------+-----------------+
| **Number of        | **Total Days** | ####        | **Cost**        |
| Cases**            |                | ### Average |                 |
+--------------------+----------------+-------------+-----------------+
| 510                | 185,289        | 363         | \$1,520,618.18  |
+--------------------+----------------+-------------+-----------------+

In a May 2000 report to the President of the Interagency ADR Working
Group, the Attorney General pointed out that these traditional
approaches can destroy the underlying relationships between the parties.
The report noted that formal complaints often force employees working in
the same office to take sides against one another. In addition, it
stated that during the months or years required to process a complaint,
and even long after it is over, the dispute can be extremely corrosive
to the productivity of the office and the morale of its employees.[^36]

To understand the steps included in the traditional process and how they
impact on individuals and the organization, the following hypothetical
circumstances build upon the scenarios first presented in subsection A:

> *[Scenario 1]{.underline}*
>
> *Deborah meets with the EEO counselor and alleges sexual harassment
> and a hostile work environment. The EEO counselor explains the EEO
> process to Deborah and then makes an inquiry into the allegations. The
> EEO counselor interviews all of Deborah's co-workers and her
> supervisor. Her co-workers are uncomfortable. They do not want to be
> seen as taking sides. When the EEO counselor interviews Deborah's
> supervisor, he is infuriated that Deborah has raised his name in
> connection with anything involving discrimination. He says he will
> fight this no matter how much time it takes and consults with staff in
> the human resources and legal offices. Unable to resolve the
> complaint, the Counselor advises Deborah that she may file a formal
> EEO complaint. After speaking with an attorney, Deborah files a formal
> complaint. Tension in the office escalates. Deborah feels isolated.
> Teamwork on joint projects breaks down. Three months have now passed
> and an investigator comes in to talk with all employees again. They
> lose time on their projects by preparing for those interviews,
> participating in them, and comparing notes afterward. When the
> investigator completes his report six months later, Deborah reads what
> her colleagues and supervisor said about her. Rather than seeking a
> final agency decision, Deborah files for an EEOC hearing and continues
> on the path that costs her and the agency time and money.*
>
> *[Scenario 2]{.underline}*
>
> *Bob believes that he was not promoted because his supervisor
> wrongfully thinks that Bob cannot do a job that requires substantial
> walking. Bob feels that he is being discriminated against because of
> his prosthesis. He is very angry, but he does not want to be seen as a
> troublemaker. Bob decides against filing an EEO complaint. Feeling
> humiliated and unsupported by his supervisor, Bob turns bitter.
> Formerly an outstanding performer, Bob begins to do just enough to get
> by. He often complains to other employees and customers about his
> supervisor and his office. He begins to use more sick leave than he
> had in the past. Morale in the office begins to suffer and projects
> take longer to accomplish.*

**C. Alternative Ways of Resolving EEO Disputes**

In the 1990s, many agencies began to respond to the increased numbers of
EEO complaints and the costs associated with them by adopting ADR
processes. Of the 109 agencies that responded to a questionnaire from
the EEOC in 1998, over 50% (57) reported having an active EEO ADR
program, an increase of 32% from a 1996 survey and an increase of nearly
150% over a 1994 survey.[^37] According to the 1998 survey, the primary
ADR technique being used by Federal agencies was mediation.[^38]

Mediation is "a process in which a neutral, a mediator, assists open
discussions between parties in dispute and helps them come to a mutually
agreeable solution."[^39] Mediation is the fastest growing form of ADR
in the Federal government, particularly in the area of employment
disputes, including EEO disputes.[^40] There are three mediation models:
facilitative, evaluative and transformative. In a facilitative model,
the mediator focuses on using interest-based negotiation techniques to
help the parties engage in creative problem-solving concerning their
conflict. Under the evaluative model, the mediator estimates chances of
success in litigation, and pushes the parties toward reasonable
settlement. The transformative model aims at facilitating change in the
capacity of the parties to make choices and handle conflict. The
mediator focuses on the communication between the parties, not on the
issues and elements of a possible settlement.

On July 12, 1999, the EEOC published a final rule[^41] requiring
agencies to establish or make available an ADR program for the EEO
process. EEOC provides agencies an additional 60 days in the
pre-complaint stage to allow for informal resolution through the use of
ADR, if all parties agree. Similarly, if an individual enters into an
ADR process after a formal complaint is filed, the time period for
processing the complaint may be extended by agreement for not more than
90 days. If the dispute is not resolved, the complaint must be processed
within the extended time period.

> Each of the Department's programs has adopted the facilitative model.

To understand the mediation process, the following hypothetical
situations build upon the employees' experiences presented in the
scenarios in subsection A and are alternatives to the outcomes presented
in the scenarios in subsection B. In these new scenarios, a mediation
session has been arranged for the employee and the supervisor. They have
set aside a day, with an understanding that they will spend some time
together in joint session with the mediators and some time with the
mediators in a private caucus. The mediators review the mediation
process and discuss ground rules: the parties will listen to each other
with respect and agree that what is said during mediation will be
confidential.

> *[Scenario 1]{.underline}*
>
> *Deborah presents her side of the story, while her supervisor listens.
> She reminds him of the times in the office when her male co-workers
> traded stories of their sexual exploits. She also mentions how her
> co-workers stand around the office bulletin board kidding each other
> about their sexual prowess. She provides him with dates of these
> events and the names of the co-workers involved. After she finishes,
> Deborah's supervisor tells Deborah that he has heard her conversations
> with her co-worker that are of a sexual nature. He didn't realize that
> she was uncomfortable with some of the banter. The mediators then meet
> separately with Deborah and her supervisor. Deborah admits that she
> has brought some of this behavior on herself by engaging in some
> inappropriate conversations and activities. Deborah agrees to modify
> her behavior. Her supervisor admits that he should have taken her
> complaints more seriously. He agrees to apologize and to create an
> internal policy to remind employees that sexual harassment will not be
> tolerated. Deborah agrees to withdraw her complaint.*
>
> *[Scenario 2]{.underline}*
>
> *Bob tells his supervisor that he knows the only reason he was not
> promoted was because he has a prosthesis. Bob says that he is fully
> able to get around for an on-site inspection. His supervisor says that
> he doesn't doubt Bob's ability to walk around to conduct inspections.
> He says that the reason he didn't promote Bob was because Bob's
> reports were not well-written and did not demonstrate a level of
> knowledge about the agency regulations needed by an on-site inspector.
> In private caucus, Bob admits to the mediator that he finds the
> regulations confusing and has only had on-the-job training and no
> classroom instruction. He also admits that his supervisor has pointed
> out his lack of knowledge and often corrects his grammar. When talking
> with the mediators, Bob's supervisor is angry that he has been accused
> of discriminatory behavior. He admits that Bob has been a team player
> and a high volume producer. Bob agrees to withdraw his complaint if
> his supervisor agrees to update his individual development plan to
> include courses on the regulations and on grammar improvement. Bob's
> supervisor sees this as a good business decision and agrees.*

**D. DOT Mediation Programs (ONE DOT Sharing Neutrals, FAA and USCG)**

When the ADR Program Evaluation originated, there were three different
EEO ADR programs within the Department. The Departmental Office of Civil
Rights (DOCR) was responsible for a Department-wide, ONE DOT Sharing
Neutrals Program. The Federal Aviation Administration (FAA) has a
nationwide mediation program. Finally, the U.S. Coast Guard (USCG) had
established policies and procedures on the use of ADR to resolve
discrimination complaints and had trained employees to act as mediators.

This subsection of the report focuses on the following aspects of these
three programs: designing an ADR program, program structure and process,
program goals and objectives, mediators, marketing, program quality
results, and future plans.

**1. Designing an ADR Program**

The Federal ADR Program Manager's Resource Manual advises that before an
agency implements ADR on a large scale or permanent basis, the agency
should start with one or more pilot projects.[^42] It outlines a
four-step process for designing an ADR program: 1) needs assessment (to
identify dispute resolution needs and concerns); 2) program design; 3)
program implementation; and 4) program evaluation.[^43]

The administration of an ADR program requires a variety of assets and
tasks, including: human resources; organizational resources;
communications resources; evaluation of neutrals and program success;
and training. A program needs staff to handle the intake process
(*i.e.*, respond to inquiries about the process and distribute and
manage forms) and schedule cases (*i.e.*, match cases with neutrals,
schedule mediations and address logistics such as room location,
flipcharts, forms and surveys.)[^44] The Program Evaluation Team
interviewed employees and managers involved with three EEO ADR programs
and reviewed Memoranda and Orders to learn about how and why the
programs were established.

***ONE DOT Sharing Neutrals***

In 1995, the Departmental Office of Civil Rights (DOCR), working with
the Federal Mediation and Conciliation Service and the Administrative
Conference of the United States, began a pilot program to resolve EEO
complaints. At that time, DOCR arranged to have approximately 50
DOT-wide collateral duty mediators trained.[^45] DOCR conducted an
interim assessment of the pilot program. The assessment found the
following: lack of logistical support; lack of communication; lack of
internal procedures; incomplete training of mediators; no tracking of
cases mediated; limited participation by management; and the need to
educate parties (awareness training for all employees). There were
subsequent management changes in DOCR, and the pilot program was
discontinued.

In 1999, to further the Department's ONE DOT management strategy, the
FAA Office of Civil Rights launched a ONE DOT Sharing Neutrals effort to
establish a Departmental mediation program management strategy; the
concept for a shared pool of neutrals to resolve EEO complaints surfaced
once again. A steering committee comprised of civil rights staff,
attorneys and ADR experts from throughout the Department was established
to: identify mediator qualification; draft an order; address employee
awareness of the program; and develop a program evaluation component.
Subsequently, DOCR assumed management responsibility for the program,
consistent with its role in EEO investigations. The ONE DOT Sharing
Neutrals Program began in October 1999 under a Draft Order modeled after
the FAA Headquarters Mediation Program Order. The first mediation was
held in December 1999. On May 22, 2001, Secretary of Transportation
Norman Mineta signed DOT Order 1010.1A, "Procedures for the ONE DOT
Sharing Neutrals Equal Employment Opportunity/Equal Opportunity
Alternative Dispute Resolution Program." The program is open to all DOT
employees and applicants for employment.

The ONE DOT Sharing Neutrals Program is managed on a full-time basis by
the DOCR. This function is staffed by two FTE positions: an ADR
Coordinator (GS-12/13) and Staff Assistant (GS-09). Approximately 40% of
staff time is providing administrative support, such as managing and
monitoring the EEO ADR Database, and the other 60% of staff time is
utilized providing coordination of mediation services as well as
providing mediators through the sharing neutrals roster.

A steering committee comprised of representatives from each Operating
Administration continues to collaborate on EEO ADR program operations.

***FAA***

In the early 1990s, FAA began to experiment with using mediation to
resolve EEO complaints. For example, the Northwest Mountain Region made
mediation available but did not establish procedures or a formal
program.

When the Department-wide effort to use mediation to resolve EEO
complaints was discontinued in 1996, FAA began to develop a program for
FAA Headquarters. On March 4, 1998, FAA Order 1400.2 established a
mediation program for FAA Headquarters personnel as part of the EEO
process. Using the Headquarters program as a model, FAA began to work
with the unions to make mediation available to all employees. After 21
months, on December 13, 1999, FAA established a mediation program to
resolve allegations of workplace discrimination and/or harassment raised
through the EEO process for all employees under FAA Order 1400.10.

The Complaints Services Team within the Office of the Assistant
Administrator for Civil Rights in Headquarters has overall
responsibility for the EEO Mediation Program. There are two members of
the team. They are Professional Levels 4 and 5 within payband J
(equivalent to the GS-13 and GS-14 levels).

FAA announced Equal Employment Specialist (Mediator) positions in eight
regional/center offices. The closing date for the announcement was July
23, 2001. The individuals selected started in their new positions in
early October.

***USCG***

In the mid-1990s, USCG began to offer mediation as a way of resolving
EEO/EO disputes.

On March 15, 1999, the Commandant issued the current USCG Equal
Opportunity Program Manual, COMDTINST M5350.4. Chapter 2: Organization
and Leadership Responsibilities contains duties, responsibilities and
certification standards of mediators. Chapter 5: Discrimination
Complaint Programs contains information on the ADR mediation process.
The USCG's mediation program applies to both military and civilian
personnel. At the same time, the Coast Guard began identifying
candidates for mediator training and designing a marketing strategy to
promote command-level buy-in for the program and to raise awareness
throughout the service. This occurred simultaneously with USCG's
participation on the steering committee responsible for developing
policies and procedures for the ONE DOT Sharing Neutrals Program.

When program decisions resulted in the indefinite delay of the marketing
campaign launch, USCG recast the initiative as a district-wide pilot
program in the Eighth District that would be evaluated to determine
whether a business case could be made for a service-wide program. This
program will give USCG the opportunity to determine whether there is a
need for additional implementation. USCG continues to support the
training of USCG personnel as mediators and participates in the ONE DOT
Sharing Neutrals Program. USCG mediators obtain required co-mediation
experience, thereby fulfilling USCG's obligation to provide mediators as
part of the ONE DOT Sharing Neutrals Program. Under the direction of the
Assistant Commandant for Civil Rights, there is one full-time employee,
the ADR Program Manager in the Military & Civilian Internal Programs
Directorate, responsible for the operations of the mediation program.
The anticipated funding available for ADR activity is \$16,000 per year.
This money will fund: initial and refresher training; travel and per
diem associated with mediation; co-mediation; and marketing efforts.

Over a three-month period, the Coast Guard undertook a "top to bottom
review" of its EEO/EO program. The period ended September 21, 2001, and
USCG is still reviewing the results. The effort included examining legal
mandates, strategic objectives, required policies, program functions,
performance standards, infrastructure and the organizational
relationship upon which the comprehensive civil rights program should be
based and carried out. In addition, the review included the
identification of a Most Efficient Organization (MEO), a future
organizational structure; functions, including ADR; and operations to
maximize efficiency and effectiveness. [^46] The review also included a
transition plan for moving to the Most Efficient Organization model.

***Summary***

The ONE DOT Sharing Neutrals and FAA both started with pilot programs,
reviewed their operation and effectiveness, and eventually went on to
permanent programs. They also followed a collaborative design approach
involving a variety of stakeholders. However, neither ONE DOT Sharing
Neutrals nor FAA appear to have conducted a formal needs assessment
prior to initiating their pilot programs, or even their permanent
programs. The latest USCG plan for a mediation program appears to begin
with a pilot program. USCG believes that mediation effectiveness cannot
be accurately measured until its employees become more aware (through a
systematic publicity campaign) of the availability of mediation in
EO/EEO disputes.

***Recommendations***

Prior to the implementation of any ADR programs in the Department, the
sponsoring organization should conduct a needs assessment and begin with
a pilot program that is evaluated prior to program expansion.

Before USCG expands its pilot, USCG should conduct a needs assessment
that includes an analysis of its use of the ONE DOT Sharing Neutrals
Program.

**2. Program Structure and Process**

This Section examines whether the structures of the EEO/EO mediation
programs are consistent with underlying laws, regulations and policies.
The Program Evaluation Team compared documents establishing each program
to the policy and guidance established by the EEOC and the Federal ADR
Council.

In 1995, the EEOC issued Notice Number 915.002, "Equal Employment
Opportunity Commission's Alternative Dispute Resolution Policy
Statement." The policy statement sets forth core principles regarding
the use of ADR. The core principles are: 1) furthering the agency's
mission; 2) fairness (which includes voluntariness, neutrality,
confidentiality and enforceability); 3) flexibility; and 4) training and
evaluation.

The following chart notes whether the mediation programs include the
EEOC's core principles in the documents establishing the programs, and
if so, identifies the provision which addresses the principle.

###### EEOC CORE PRINCIPLES FOR ADR PROGRAMS

+-----------------+----------------+-----------------+-----------------+
| **Principle**   | **DOT Order    | **FAA Order     | **USCG          |
|                 | 1010.1A**      | 1400.10**       | COMDTINST       |
|                 |                |                 | M5350.4**       |
+-----------------+----------------+-----------------+-----------------+
| Further mission | Forward        | Forward         | 1.B             |
+-----------------+----------------+-----------------+-----------------+
| Fairness        | Forward        | Forward         | 2.D.10;         |
|                 |                |                 | 5.B.4.a.3,4     |
| (voluntariness  | 3-9            | 3-9             |                 |
|                 |                |                 | 5.B.15.b;       |
| neutrality      |                | 2-5e/Appendix   | 5.C.15.b        |
|                 |                |                 |                 |
| confidentiality |                |                 | 5.B.18; 5.C.18  |
|                 |                |                 |                 |
| enforceability) |                |                 |                 |
+-----------------+----------------+-----------------+-----------------+
| Flexibility     | Forward        | Forward         | 5.B.4.a.3,4     |
+-----------------+----------------+-----------------+-----------------+
| Training &      | 3-11           |                 | 2.D.10          |
| Evaluation      |                |                 |                 |
+-----------------+----------------+-----------------+-----------------+

The Federal ADR Council was created by the Attorney General in 1999 to
develop policy guidance on crosscutting issues that involve the creation
and operation of Federal ADR programs. In August 2000, the Federal ADR
Council published "Core Principles for Non-Binding Workplace ADR
Programs"[^47] to assist Federal agencies in developing ADR programs.
The Council found that "any fair and effective program must address the
following issues: confidentiality, neutrality, preservation of rights,
self-determination, voluntariness, representation, timing, coordination,
quality and ethics." Because the workplace programs in the Federal
government have included equal employment opportunity disputes in
addition to employee and labor relations matters, these principles are
relevant to this program evaluation.

The following chart notes whether the mediation programs include the
core principles identified by the Federal ADR Council in the individual
programs' establishing documents, and if so, identifies the provision
which addresses the principle.

**[FEDERAL ADR COUNCIL CORE PRINCIPLES]{.underline}**

**[FOR WORKPLACE ADR PROGRAMS]{.underline}**

+-----------+-----------------+-----------------+---------------------+
| ## **Pr   | ### DO          | **FAA Order     | **USCG COMDTINST    |
| inciple** | T Order 1010.1A | 1400.10**       | M5350.4**           |
+-----------+-----------------+-----------------+---------------------+
| Confid    | 2-5 e; Appendix | 2-5 e; Appendix | 5.B.18; 5.C.18      |
| entiality | 1               | 3               |                     |
+-----------+-----------------+-----------------+---------------------+
| N         | 3-9             | 3-9             | 2.D.10; 5.B.4.a.3,4 |
| eutrality |                 |                 |                     |
+-----------+-----------------+-----------------+---------------------+
| Pre       | Forward         | Forward         | 5.B.15.b; 5.C.15.b  |
| servation |                 |                 |                     |
| of rights |                 |                 |                     |
+-----------+-----------------+-----------------+---------------------+
| Self-dete | Forward         | Forward         | 5.B.18; 5.C.18      |
| rmination |                 |                 |                     |
|           |                 |                 | 5.B.4.a.3,4         |
+-----------+-----------------+-----------------+---------------------+
| Volu      | Forward         | Forward         | 5.B.18; 5.C.18      |
| ntariness |                 |                 |                     |
+-----------+-----------------+-----------------+---------------------+
| Repre     | 1-6 b. and s.   | 1-7 c. and l.   | 5.B.9; 5.C.9        |
| sentation |                 |                 |                     |
+-----------+-----------------+-----------------+---------------------+
| Timing    | 1-3             | 1-5             | 5.B.15.b; 5.C.15.b. |
+-----------+-----------------+-----------------+---------------------+
| Coo       | 2-5 f.          | 2-3 b; 2-5 f.   | 5.B.15.g; 5.C.15.g. |
| rdination |                 |                 |                     |
+-----------+-----------------+-----------------+---------------------+
| Quality   | 3-6             | 3-6             | 2.D.10              |
+-----------+-----------------+-----------------+---------------------+
| Ethics    | 3-4; 4-5        | 3-4; 4-5        | 2.D.10              |
+-----------+-----------------+-----------------+---------------------+

***Summary***

The ONE DOT Sharing Neutrals and FAA Orders and the USCG Commandant
Instruction establishing mediation programs address the core principles
established by the EEOC and the Federal ADR Council.

**3. Program Goals and Objectives**

The Federal ADR Program Manager's Resource Manual contains a checklist
for the consideration of ADR program designers. The checklist includes
program goals and objectives. It states that a "clear statement of
program goals and objectives will inform stakeholders of the importance
of the programs and what the agency hopes to accomplish by using ADR."
This Section focuses on the goals and objectives of the mediation
programs and whether they are meeting their goals and/or having the
desired impact.

***ONE DOT Sharing Neutrals***

According to DOT Order 1010.1A, the objective of the ONE DOT Sharing
Neutrals Program is:

> to resolve allegations of workplace discrimination at the earliest
> possible stage of the EEO/EO process. Early resolution benefits the
> agency and its employees by creating a more hospitable workplace for
> all. Other benefits include reduction of time and the significant
> costs associated with processing EEO/EO complaints.

*Early resolution*. When an employee contacts an EEO counselor or
another official designated to address ADR questions, the counselor or
other designated official provides information about the ONE DOT Sharing
Neutrals Program which includes, at a minimum, giving the employee a
brochure which discusses the program. If the employee is interested in
pursuing mediation, the counselor or designated official will provide
the employee with a Request for Mediation form to ensure that the
employee clearly understands that the employee is making a request for
mediation and that the agency will review the request. In some
instances, the EEO counselor or other designated official engages in
conciliation (a process in which a neutral independently communicates
with the parties either to improve relations, resolve a dispute or pave
the way for mediation). Conciliation is intended to help establish trust
and openness between parties to a dispute and resolve the dispute if
possible.

*Time Savings*. Through the efforts of the Bureau of Transportation
Statistics, the ONE DOT Sharing Neutrals Program has a mediation
tracking system to determine how long it takes from the filing of a
complaint to when the parties involved arrive at a resolution (via
mediation).[^48] The number of days to mediate a complaint ranges
between 16.3 to 117. The average number of days is 73. The length of
mediation is usually dependent upon the travel schedule of the
participants. The usual mediation session lasts four to eight hours.

At the informal stage, the authority to address EEO matters rests with
the Department's operating administrations, not with DOCR. The DOCR
Compliance Division does not presently maintain data on the time it
takes from the filing of an informal EEO complaint to the completion of
the EEO process when an employee does *not* choose mediation.

*Cost Savings.* DOCR has not attempted to calculate the costs of the
traditional EEO process. However, the Departmental Mediation Coordinator
has identified a methodology for determining those costs. The costs
would include the salaries of the following persons who would be
involved in the process: investigator; agency staff (*i.e.*, attorneys,
complainant, management and clerical staff); and the EEOC Administrative
Judge (this does not include any monetary judgment for the complainant).
The Departmental Mediation Coordinator noted estimates calculated by
other Federal agencies. For example, at a recent conference, a
representative of the Navy estimated that the cost of the traditional
process was between \$80,000 and \$110,000.

DOCR also has not yet calculated the cost of the mediation process.
However, the Departmental Mediation Coordinator believes that mediation
costs less than the traditional process, basing that conclusion on the
decrease in the amount of time it takes to reach resolution of a
complaint and the fewer number of persons involved in the process.

*More Hospitable Work Environment.* The ONE DOT Sharing Neutrals Program
does not include a formal post mediation follow-up that focuses on the
work environment. However, the Departmental Mediation Coordinator
indicated that if more resources were made available, follow-up could
become more consistent. In cases where settlement agreements are
breached, though, Departmental procedures require (consistent with
requirements of the EEOC)[^49] that the complainant notify the Director
of the Office of Civil Rights in writing.

At an informal level, however, the Departmental Mediation Coordinator
calls employees and supervisors in about 15% of the cases to determine
whether the working relationship has improved. In addition, in two
instances in which a breach of agreement was alleged, the ONE DOT
Sharing Neutrals Program was utilized to intervene or mediate the issues
surrounding the breach.

***FAA***

As noted in FAA Order 1400.10, the objective of the mediation program is
to:

> resolve allegations of workplace discrimination at the earliest
> possible stage of the EEO process. Early resolution benefits the
> agency by creating a more hospitable workplace for all. Other benefits
> for the agency include reduction of the time and significant costs
> associated with processing complaints.[^50]

*Early resolution.* When an employee contacts an EEO counselor, the
counselor provides information about the EEO complaint process and the
opportunity for mediation. The FAA Office of Civil Rights provides all
counselors with substantive information about the mediation process to
use in their discussion with employees to ensure that all relevant
points are covered.[^51]

If an employee is interested in pursuing mediation, the counselor will
ask the employee to sign an Agreement to Mediate form. The EEO counselor
will forward the form to the EEO ADR Program Manager, who then works
with the employee and the management official. If the employee declines
mediation, the EEO counselor will present the idea of ADR and the form
to the management official. If the management official agrees to
mediation, the counselor will forward that information to the EEO ADR
Program Manager who then encourages the employee to enter into
mediation.

In some instances, the Complaints Services Team in the FAA's
Headquarters Civil Rights Office is called upon to mediate employee
disputes. In this way, disputes resulting from miscommunication are
resolved prior to escalating into allegations of discrimination.

*Time Savings*. FAA tracks how long it takes from the filing of a
complaint to resolution when mediation occurs. The number of days to
schedule a mediation is between five to seven days. The usual mediation
session is four hours long. Sometimes, more than one session is needed.
Usually, mediation is completed within three months. In one instance,
the mediation was completed and the complaint resolved in six months.

*Cost Savings*. FAA conducted an EEO complaint baseline study to
determine the cost of the EEO process and mediation costs.[^52] To
determine those costs, FAA: interviewed subject matter experts to
generate assumptions; designed an EEO/mediation process chart; affirmed
cost and time assumptions by applying 1,400 random cases to the process
chart; and analyzed 122 settlement agreements.

FAA determined that, for a complainant who uses mediation and if such
mediation is successful, the process costs between \$1,900 and \$3,600.
Where mediation has been unsuccessfully attempted, and the complainant
thereafter files a claim formally, the cost of the formal complaint
process is between \$8,000 and \$10,800.

*More Hospitable Work Environment.* FAA's Complaint Services Team does
not have a post mediation follow-up that focuses on the work
environment. The resolution agreements do include a breach of agreement
clause. Because the agreement is between the parties, however, the
Complaint Services Team does not undertake any monitoring activity.

***USCG***

The USCG Equal Opportunity Manual, COMDTINST M5350.4 sets forth the
goals of the ADR program in the Field Infrastructure Civil Rights
Missions. The fourth of the five missions is to "Resolve Complaints at
the Lowest Level." EEO counseling, ADR and feedback to involved parties
are some of the available tools that can resolve complaints at the
lowest level. USCG believes that resolution of workplace disputes at the
lowest level has been shown to save time by narrowing the issues at the
outset, by bringing the individuals with authority to resolve disputes
together at earliest opportunity, and by providing an opportunity to
repair relationships before positions become hardened. It saves money by
short-circuiting a potentially expensive process, by avoiding, in most
cases, the need for costly legal representation, and by limiting the
accumulation of damages and settlement liabilities that accrue with
time.

*Early Resolution.* When a civilian employee contacts an EEO counselor,
or military personnel contact and Equal Opportunity Advisor, the
counselor or advisor explains the availability, benefits and operation
of mediation as a means of resolving a discrimination dispute at the
lowest possible level. If the employee is interested in pursuing
mediation, the counselor or advisor refers the request to the EEO ADR
Program Manager, who then ensures that the appropriate management
official is identified and that sufficient information is elicited from
the parties for a determination that mediation is appropriate in the
case. The EEO ADR Program Manager will then contact DOCR to arrange for
mediation under the ONE DOT Sharing Neutrals Program.

*Time Savings.* USCG does not currently possess the capability of
maintaining statistics on the duration of complaint processes occurring
after the filing of formal complaints, but notes that the EEOC's federal
sector complaint processing regulations provide for up to 315 days from
the initiation of counseling to the issuance of a Final Agency Decision
(FAD). Of the 10 Coast Guard disputes submitted to mediation in 2000 and
2001, eight were successfully resolved with an average interval of 39
days between requests for mediation and resolutions.

*Cost Savings.* Estimates by various federal agencies of the average
cost of traditional complaint processing range from \$5,000 to \$80,000
per complaint. The Coast Guard has not captured the cost of ADR
processing, but infers from the statistical experience of the Air Force
that the cost of traditional complaint processing can be cut in half
with the use of ADR.

*More Hospitable Work Environment.* An intended and natural consequence
of successful mediation is the repair of working relationships.
Collateral benefits include: a reduction of downtime attributed to
polarization of disputants' co-workers; restoration of workplace peace
and equilibrium; and enhancement of morale. These aspects are stressed
in Coast Guard ADR orientation training for rank and file as well as in
the promotional/informational materials prepared for USCG's concept
program.

***Summary***

The goals of the ONE DOT Sharing Neutrals, FAA and USCG programs are the
same: early resolution, time savings, cost savings and creating a more
hospitable work environment. USCG shares the goal of early resolution
with ONE DOT Sharing Neutrals and FAA. It is notable that both the ONE
DOT Sharing Neutrals and FAA program provide facilitation and/or
conciliation services in support of the goal of reaching an early
resolution, but that neither organization provides that information on
its marketing materials.

The ONE DOT Sharing Neutrals Program has developed a computerized
tracking system to determine the time involved in the mediation process.
It takes between 16--117 days from the filing of a complaint to the end
of the mediation. FAA relies upon a spreadsheet system and finds that
mediation is usually completed within 90 days. FAA undertook an
assessment to establish a baseline for the EEO process and mediation
costs.

Neither ONE DOT Sharing Neutrals nor FAA have a system to determine
whether their programs are meeting the goal of creating a more
hospitable work environment.

***Recommendations***

ONE DOT Sharing Neutrals, FAA and USCG should track data to ensure that
they are meeting the goals they have established.

To the extent that their programs share goals and objectives, the
programs should work together to develop a system to collect and track
data about those shared goals and objectives.

**4. Mediators**

The Administrative Dispute Resolution Act defines a neutral as "an
individual who, with respect to an issue in controversy, functions
specifically to aid the parties in resolving the controversy."[^53] A
neutral may be a permanent or temporary officer or employee of the
Federal government or any other individual who is acceptable to the
parties.[^54] A mediator is a neutral who assists the disputing parties
in their negotiations. A mediator does not issue a decision that the
parties must obey. Rather the mediator "listens, empathizes, encourages
emotional outbursts only when constructive, presses parties to face
facts, urges them to listen and comments on their efforts to
accommodate."[^55]

Federal agencies have a variety of options available to them for
selecting neutrals. They may use internal neutrals, their own personnel
on a collateral duty or full-time basis. Agencies may rely on internal
neutrals to avoid a direct cost of neutral services because they may not
have funds to pay for private sector neutrals. Alternatively, they may
use external neutrals, employees from other Federal agencies under a
sharing neutrals agreement or private sector neutrals.

The Department has relied upon both internal and external neutrals. In
response to a request for comments on the Department's interim policy
statement on the use of alternative dispute resolution,[^56] the
Department received comments from several private neutrals. One
commenter recommended that the Department rely on outside contractors to
serve as neutrals in ADR proceedings. The commenter stated that in-house
staff may "have an opinion about the general nature of the problem and
therefore may not be neutral." In addition, the commenter noted that
there may be a perception of bias by the parties. Another commenter
noted that the United States Postal Service has successfully used
private mediators to resolve employment disputes and that feedback from
employees and management has been extremely positive.

EEOC guidance "strongly encourages" agencies to look outside the agency
when the need for a neutral arises: "An external neutral provides the
best assurance of impartiality and the greatest likelihood of a
successful mediation."[^57] EEOC, however, does not require the use of
external neutrals.[^58]

The Program Evaluation Team, therefore, looked into how the programs are
using both internal and external mediators.

**a. Internal Mediators**

***ONE DOT Sharing Neutrals***

In the ONE DOT Sharing Neutrals Program, an internal mediator is a
mediator who is an employee of the Department of Transportation. Chapter
3 of DOT Order 1010.1A delineates the specific attributes of the ideal
DOT internal mediator and the selection process for such a position. It
addresses: recruitment of mediators; mediator skills and abilities;
mediator standards of conduct; mediator training; and mediator conflict
of interests and removal.

As its name implies, the ONE DOT Sharing Neutrals Program is based on a
premise of sharing internal mediators among the Office of the Secretary
(OST) and DOT's operating administrations. Employees are nominated to
serve as mediators on a collateral duty basis. In this way, the program
incurs no direct costs for neutral services. The ONE DOT Sharing
Neutrals Program has a roster of 19 mediators. At a minimum, each
mediator has received 40 hours of classroom training which, consistent
with DOT Order 1010.1A, includes basic skills, role play, observation,
EEO/EO training for mediators and disability awareness training. The
cost of this training is approximately \$575 per person. Many of the
mediators also participated in advanced mediator training to enhance
their proficiency and skills in conflict resolution. This advanced
training was an eight hour course at a total cost of \$2,000 per
student.

In addition, DOCR sponsored the first annual ONE DOT Sharing Neutrals
EEO ADR Conference[^59] on May 22-24, 2001. The agenda for the
conference included an orientation ADR, disability awareness, cultural
diversity, diffusing anger and skills training on mediating disability
complaints. Many volunteer trainers from other government agencies
presented the programs. The cost of the conference was approximately
\$5,000.

Of the 19 mediators on the roster, five are senior mediators who have
completed at least 40 hours of training and three supervised
co-mediations. There are 14 developmental mediators on the roster. These
mediators were nominated by their operating administrations or are from
DOCR. The grade levels range from GS-7 to SES, with the average grade
being GS-11 or GS-12. They come from a variety of backgrounds:
administrative, civil rights and legal.

Not all of these trained mediators have been provided with an
opportunity to mediate. None have been removed from the roster of
neutrals either. According to the Departmental Mediation Coordinator,
she has focused on developing individuals "who have demonstrated the
most potential and skills to expedite their ability to function as
senior mediators."

It takes the Departmental Mediation Coordinator an average of 54.4 days
to arrange a mediation using an internal neutral. The range is from 16.8
to 123 days. The Departmental Mediation Coordinator noted that it is
difficult to arrange mediations with some internal mediators. For
example, it has taken approximately four months to arrange for a
Director of an Office of Civil Rights to serve as a mediator; sometimes
others have been called but have been unavailable to mediate because of
other responsibilities.

To maintain a cadre of motivated mediators and encourage continued
support by the operating administrations, DOCR sponsored an awards
ceremony in May 2001. The awards included a "Mediator of the Year."

The Departmental Mediation Coordinator noted that the advantage of
having internal mediators is that the Coordinator will already be aware
of the skills and capabilities of the mediators. The disadvantage is
that employees sometimes feel uncomfortable with internal mediators,
particularly in the regions. Employees may perceive other employees who
are functioning as mediators as part of the system and concerned with
their own position in the organization, thus impeding their ability to
be neutral or fair.

***FAA***

In the FAA mediation program, an internal mediator is a mediator who is
an FAA employee. The Offices of Civil Rights in Headquarters and the
regions each have their own cadre of mediators. Chapter 3 of FAA Order
1400.10 addresses: the recruitment of mediators; mediator skills and
abilities; mediator standards of conduct; mediator training; mediator
conflict of interests; and removal of a mediator.

There are approximately 125 internal mediators nationwide at FAA. At a
minimum, each mediator has received 40 hours of classroom training
which, consistent with DOT Order 1010.1A and FAA Order 1400.10, includes
basic skills, role play, observation, EEO/EO training for mediators and
disability awareness training. The cost of this training ranges from an
average of \$575 to \$600 per person. To fund mediation training, each
line of business or staff office contributes a proportionate dollar
amount based on its percentage of employees being trained. To maintain
their skills, mediators are required to take an annual advanced or
refresher mediation course that lasts one day. FAA has used a variety of
sources to provide the training, such as the Federal Mediation and
Conciliation Service, Virginia Mediation Services and also their own
Office of the Associate Counsel for Dispute Resolution. In addition, to
maintain an *esprit de corps* and to emphasize the benefits of
continuous learning, the Complaint Services Team sponsors a monthly
meeting for mediators and EEO counselors.

Of the 25 mediators on the Headquarters roster, five are senior
mediators and 20 are developmental mediators. These mediators were
nominated by their lines of business or staff office. The grade levels
range from GS-13 to GS-15 equivalents. They come from a variety of
backgrounds including contracts, legal and security. Some of them are
managers.

All trained mediators have been provided with an opportunity to mediate.
Some mediators have done facilitations for their lines of business. For
example, where co-workers were having problems communicating effectively
but neither had yet filed any allegations of discrimination, the manager
contacted the Civil Rights Office and asked them to facilitate the
dispute between the two employees.

Finally, all mediations are conducted with two mediators: one from FAA
and the other from the Federal Interagency Sharing Neutrals Project. All
mediations are arranged within seven days.

***USCG***

For the USCG mediation program, an internal mediator is a mediator who
is a military or civilian member of USCG. The USCG ADR Program Manager
sees several advantages to using internal mediators: insurance that
mediations are conducted by individuals with adequate training and
experience; reduction of the response time for mediation requests; and
facilitation of mediation in cases complicated by the Coast Guard's
military/civilian context, including military protocol, USCG
organizational structure, operational requirements and incongruities
between the availability of certain remedies to military members and
civilian employees. Chapter 2 of COMDTINST M5350.4 addresses internal
mediators: the purpose of the mediator; major duties and
responsibilities; desired knowledge, skills and abilities; and specific
training and certification standards. Consistent with EEOC Management
Directive 110, USCG discourages the use of EEO Counselors as mediators
based on their perceived identification with management.

USCG has a roster of 21 individuals who are at various stages of
qualification and certification. These developmental mediators were
nominated by the civil rights officers in their respective areas of
responsibility. They represent a diverse population and include
civilians, officers and non-commissioned officers from a variety of
specialties, ranks and grades.

At a minimum, each mediator must be a graduate of an approved mediation
and conflict management skills course some of which are listed in
COMDTINST M5350.4. Additionally, each mediator must participate as a
co-mediator in at least four mediations with a certified mediator before
being certified himself or herself as a Coast Guard mediator. Every year
thereafter, each mediator must complete eight hours of refresher
training and participate in four mediations in order to maintain
technical currency. The cost of this training varies by source.

While none of the mediators has mediated a dispute as sole neutral,
several have participated successfully as co-mediators as a step toward
certification. USCG has decided to rely on the ONE DOT Sharing Neutrals
Program until a further determination is made to implement fully its own
mediation program. This will depend on a determination of the Coast
Guard leadership.

**b. External Mediators**

Agencies may take a variety of approaches to procuring external
neutrals.

As part of the Federal Supply Schedules Program, the General Services
Administration (GSA) has developed a list of approved contractors to
serve as ADR neutrals, including mediators. Generally, the steps for
ordering from the schedule, through a designated contracting officer,
are:

1\. prepare a Request for Quotation using a performance-based statement
of work;

> 2\. transmit the Request for Quotation to contractors;
>
> 3\. evaluate the quotes; and
>
> 4\. select the contractor to receive the order.

To avoid a case-by-case procurement requirement, some agencies have
developed indefinite quantity contracts with private organizations that
maintain rosters of qualified neutrals.

The United States Postal Service has implemented the largest Federal
program for using external neutrals to mediate EEO disputes. Under this
program, called Resolve Employment Disputes and Reach Equitable
Solutions Swiftly (REDRESS), the Postal Service established
qualifications for external mediators. These qualifications require that
the mediator has been the lead mediator on at least 10 mediations. In
addition, the Postal Service requires participation in a 20-hour
training program given over two days for every mediator on the Postal
Service roster. This course includes information on the Postal Service,
instruction on transformative mediation and role plays.[^60] In the
first 22 months of the program, 17,645 disputes were mediated and 80%
were resolved.[^61] In the thousands of exit surveys completed, over 90%
of supervisors, employees and employee representatives (usually union
stewards) who participated in mediation reported being satisfied or
highly satisfied with the outcome.[^62] Evaluators of REDRESS found
that, given a choice, employees might opt for an outside neutral over an
internal one, and they noted that "there are no systematic studies
examining comparative costs and benefits" for programs using internal
and external neutrals.[^63] The Postal Service, however, is "convinced
that the high quality of REDRESS mediators is key to the satisfaction of
participants."[^64]

Some agencies require the office requesting mediation to pay for the
neutral services. Others may establish a central fund. For example, the
Attorney General created a \$1 million fund to pay for mediators.
Department of Justice Managers reported that this was the single most
effective way to encourage them to use ADR because they no longer had to
pay mediator fees out of their own office budgets.[^65]

***ONE DOT Sharing Neutrals***

In the ONE DOT Sharing Neutrals Program, an external mediator is a
mediator who is not an employee of the Department of Transportation.
Chapter 4 of DOT Order 1010.1A addresses the use of external mediators.
External mediators may come from a variety of sources: Federal Executive
Boards, the Federal Interagency Sharing of Neutrals Project[^66] or from
a number of private sector companies which provide mediation services
for a fee.

Because the ONE DOT Sharing Neutrals Program is new and the newly
trained, developmental mediators were not eligible to serve as senior
mediators, the Program has utilized mediators from the Federal
Interagency Sharing Neutrals Project or the Departmental Mediation
Coordinator. In addition, although not referenced in the Order, the ONE
DOT Sharing Neutrals Program has sought mediators from local community
organizations. The average number of days it takes to arrange a
mediation with a neutral external to the government is 72.9. The range
is from 18 to 209 days. In two cases, the ONE DOT Sharing Neutrals
Program utilized the services of private sector mediators. The cost was
\$150 to \$175 per hour plus other costs (incidentals such as parking).
The average number of days it takes to arrange a mediation with an
external neutral (non-government) is 111. The range is from 18 to 209
days.

The Departmental Mediation Coordinator noted that a disadvantage of
using external mediators is the need to rely on the judgment of others
regarding the skills level and experience of the mediators. In addition,
as her tracking report indicates, it has taken more time to arrange
mediations with external, government mediators than with internal
mediators, particularly when using the Federal Interagency Sharing
Neutrals Project. In addition, the Departmental Mediation Coordinator
noted that mediation participants told her that in the two instances in
which external mediators were used, the participants felt that the
external mediators focused more on pushing the parties to a resolution
rather than on building a relationship.

***FAA***

Chapter 4 of FAA Order 1400.10 addresses the use of external (non-FAA)
mediators. External mediators may come from a variety of sources:
Federal Executive Boards, Federal Interagency Sharing of Neutrals
Project or from a number of private sector companies which provide
mediation services for a fee.

FAA's mediation program uses co-mediation as its model. FAA believes
that co-mediation serves the process well by assisting with diversity at
the table, allowing mediators to share and talk about information
provided, and assisting with particularly difficult cases. In addition,
co-mediation provides mentoring for developmental mediators. In 95% of
its mediations, the FAA mediation program in Headquarters has utilized
mediators from the Federal Interagency Sharing Neutrals Project. FAA
uses this Project to allow developmental mediators to be exposed to a
variety of styles in senior mediators and because developmental
mediators have not yet achieved senior mediator status. Because of FAA's
use of the Federal Interagency Sharing Neutrals Project, FAA senior
mediators are on the Project's roster and are occasionally called upon
to mediate. In addition, the Complaint Services Team has built a network
with other Federal mediators and calls upon them to mediate. FAA has not
utilized the services of private sector mediators for any Headquarters
complaints. The regions use the local Federal Executive Board mediators
in addition to their own employees.

FAA's Complaints Service Team Manager noted that employees and managers
"have expressed a high comfort level with the mediation process when
they learn that there will be two mediators, one from FAA who does not
know either party and one totally external to FAA."

***USCG***

The Coast Guard's program contemplates the use of external mediators.
The Coast Guard will continue to use the services of ONE DOT Sharing
Neutrals certified mediators and experienced resources from other
federal agencies to provide USCG developmental mediators with
opportunities to obtain co-mediation experience as part of their
journeyman training toward certification, or whenever aggrieved members
of Team Coast Guard express a preference for external mediators.

***Summary***

There are pros and cons for both internal and external sources of
neutrals and questions to consider in roster development, roster
management, neutral selection, neutral training and neutral evaluation.

ONE DOT Sharing Neutrals and FAA have had different experiences with the
Federal Interagency Sharing Neutrals Project. While FAA has been able to
arrange mediations within seven days, it has taken ONE DOT Sharing
Neutrals an average of 72.9 days to arrange mediations with external,
government neutrals.

The use of internal, collateral duty mediators is not without cost. The
costs include the cost of training and the cost of employee time lost on
the job during training and mediation.

However, it is noteworthy that the Postal Service, with its high
resolution and high satisfaction rates, requires much more extensive
training for their mediators.

***Recommendations***

In light of the low resolution rate achieved by DOT's use of internal
mediators as compared to a program using highly skilled external
mediators, each program should require extensive initial training and
practical experience for internal neutrals, including annual knowledge
and skills maintenance, or use external neutrals with extensive training
and experience.

**5. Marketing**

"The success or failure of an ADR program will depend on the buy-in of
key stakeholders."[^67] The challenge to the program managers is to get
the word out to all potential users. The Program Evaluation Team,
therefore, examined how the programs have used a variety of techniques
to market mediation to resolve EEO/EO complaints.

***ONE DOT Sharing Neutrals***

The Marketing Subcommittee of the ONE DOT Sharing Neutrals Program
Steering Committee developed a marketing plan that took into account the
target audience and the funding that would be available. Based on the
work of the subcommittee, the ONE DOT Sharing Neutrals Program has
undertaken a variety of activities to market the Program. A kick-off
event was held in the plaza of the DOT Headquarters building. To
advertise the event, posters were placed at entrances to the building.
As an incentive to talk with the members of the steering committee, in
addition to a brochure about the program, a variety of promotional
materials were provided.

Since the kick-off, the Program has been publicized in a number of other
ways. Posters from the kick-off are on display in several of the
operating administrations. Several agencies have included articles in
intra-agency newsletters and announced the program in intra-agency web
sites. The website for the ONE DOT Sharing Neutrals Program is
<http://www.dot.gov/ost/docr/adr/main.html>.

In addition, information about the Program has appeared in the
Department's telephone directory and on employee pay stubs. The
Departmental Mediation Coordinator has worked with the Department's
Disability Awareness Steering Committee and has given presentations
about the Program to DOCR, FHWA and FAA regional employees.

While no formal assessment have been done to determine the benefits of
any of the marketing activities, the Departmental Program Manager noted
that she has received calls from persons interested in conflict
resolution and in becoming mediators.

With regard to awareness briefings and user training, it was eventually
determined that each of the Department's Civil Rights Offices would be
responsible for that aspect of marketing within their organizations.

***FAA***

FAA has undertaken a number of activities to inform employees about
mediating EEO complaints. The FAA Headquarters produced two brochures
which explain the agency's mediation program: one is for all employees
and the other outlines the responsibilities of the management
representative. The cost of these brochures was \$5,000. In addition, a
regional newsletter may include information about the availability or
benefits of mediation.

In April 2000, FAA released an ADR video.[^68] After an introduction by
the Assistant Administrator for Civil Rights, the video includes an
endorsement of the process by another senior level official from a
regional facility. A 15-minute segment of the video takes the observer
through a mediation of an age discrimination complaint that resulted
from a non-selection for a position. A 10-minute segment outlining nine
responsibilities of the management representatives follows. The video
was a joint venture of FAA's Headquarters Office of Civil Rights and the
Northwest Mountain Region with a cost of approximately \$10,000.

FAA's Office of Civil Rights has a website at
<http://www.faa.gov/acr/adr.htm>.[^69] The site notes the establishment
of "a formal mediation program to resolve allegations of workplace
discrimination and/or harassment raised through the Equal Employment
Opportunity (EEO) pre-complaint process." The site includes a copy of
the order and provides an opportunity to e-mail the program manager with
questions or comments. It also includes a link to FAA's regional contact
points.

Recognizing that written outreach cannot replace the impact of
face-to-face presentation to all managers and employees, FAA has
explained the program to employees and managers in mediation awareness
briefings. The briefing objectives are to 1) provide a basic knowledge
of the EEO complaint process; 2) provide a basic knowledge of mediation;
3) provide an understanding of the parties' roles during a mediation
session; and 4) encourage the use of mediation in the EEO process. In FY
2000, FAA's goal was to provide briefings to 25% of its management
officials. It exceeded its goal by providing briefings to over 2,300 or
39% of its management officials. In FY 2001, FAA's goal was to provide
briefings to 75% of its management officials and 50% of its employees.
To date, FAA has provided briefings to 5,180 or 89% of its management
officials.

Employee and management briefings are to continue to ensure all are
aware of the mediation program. FAA has worked with the unions to get
the message out. In addition, FAA has partnered with a variety of
employee organizations at the national and regional level to ensure that
employees are aware of the availability of mediation, its benefits and
what it involves. These organizations include the Black Coalition, the
Hispanic Coalition and the Technical Women's Organization.

The Assistant Administrator for Civil Rights has also provided
information on EEO complaint activity and corporate trends to FAA's
Management Board.

***USCG***

USCG has provided rudimentary information about the availability and
principles of mediation for EEO to its entire workforce as part of its
triennial Human Relations Awareness training. Additionally, mediation is
a topic that is stressed to the senior leadership at periodic senior
management conferences. USCG's plans for its own program include
extensive marketing and informational briefings. This approach is
consistent with the overall web-based awareness training provided in
2001.

***Summary***

ONE DOT Sharing Neutrals, FAA and USCG have undertaken a variety of
strategies to ensure employees are aware of their programs, how they
operate and the benefits they provide. FAA and USCG have made a
concerted effort to reach out to employees through awareness briefings
and training. None of the programs has summarized any positive comments
from employees or managers to support their program. Furthermore, none
of the programs have attempted to survey whether its marketing strategy
is reaching employees.

***Recommendations***

All secretarial offices and operating administrations should ensure
that, through awareness briefings, employees are advised of the benefits
of mediation and the availability of DOT EEO/EO ADR programs.

**6. Program Quality/Results**

"Evaluation is an essential part of the design and implementation of an
ADR program, and designers should address evaluation issues early before
beginning the official design phase."[^70] The Program Evaluation Team,
therefore, looked into whether the programs have established any
approaches to evaluate the programs.

**a. Case Resolution**

***ONE DOT Sharing Neutrals***

From December 1999, when mediation was first offered, until May 2001,
mediation was requested 43 times: 35 at the informal stage and eight at
the formal stage. In four cases, the complainant declined mediation; in
five cases, the agency declined mediation. Mediation is pending in five
cases and is underway in two cases.

In the 17 months since mediation has been available, 28 cases were
mediated.[^71] Thirteen cases, or 46% of the cases, resulted in a
settlement. Fourteen remained unresolved and have reverted back to the
traditional process.

  ----------------- ----------------- ----------------- -----------------
  **Year**          **Mediations**    **Resolutions**   **Resolution
                                                        Rate**

  1999              3                 2                 66%

  2000              16                7                 44%

  2001              9                 4                 44%

  TOTAL             28                13                46%
  ----------------- ----------------- ----------------- -----------------

***FAA***

From March 1998, when mediation was first offered, until July 31, 2001,
mediation was agreed to by both the complainant and the management
official in 446 cases.

  ----------------- ----------------- ----------------- -----------------
  **Year**          **Mediations**    **Resolutions**   **Resolution
                                                        Rate**

  1998\*            53                23                43%

  1999              123               71                58%

  2000              127               65                52%

  2001\*\*          143               69                48%

  TOTAL             446               228               51%
  ----------------- ----------------- ----------------- -----------------

\*Headquarters only

\*\*Through July 31, 2001

***USCG***

From January 2000 through July 31, 2001, USCG received 15 requests for
mediation. Mediation was determined to be appropriate and offered in 10
of those instances. Each of these mediations was arranged and conducted
by the ONE DOT Sharing Neutrals Program. Eight resulted in a successful
resolution. The overall resolution rate was 80%.

  ----------------- ----------------- ----------------- -----------------
  **Year**          **Mediations**    **Resolutions**   **Resolution
                                                        Rate**

  2000              8                 6                 75%

  2001\*            2                 2                 100%

  TOTAL             10                8                 80%
  ----------------- ----------------- ----------------- -----------------

\*Through July 31, 2001

**b. Customer Satisfaction**

***ONE DOT Sharing Neutrals***

Each program participant is asked to complete an exit survey. The survey
contains 22 questions, some requiring a yes/no response; some requesting
a ranking; and others requiring a narrative response. The survey
requests information about the intake and mediation processes as well as
the mediators' performance.[^72] Based on a report generated from the
database, out of 86 participants, 17 surveys were returned: 10 from
complainants, five from respondents and two from the representatives of
the parties.

Generally, participants gave mediators high marks (excellent or good)
for impartiality, assisting in generating realistic options, clarifying
the issues, maintaining an effective manner and inspiring confidence in
the mediation process. Only one respondent identified the mediator's
performance as poor. That respondent and one other "strongly disagreed"
that the mediation was fair.

Of the 13 participants who answered the question, "Would you participate
in mediation again?", all 13 answered "yes."

In the five cases in which there was no settlement, the parties noted
that there were positive outcomes. One complainant said, "I just felt
better."

***FAA***

Each program participant is asked to complete an exit survey. The survey
contains 10 questions, some requiring a yes/no response and others a
yes/no/somewhat response. It also asks the participant to identify
whether s/he was the "Aggrieved Person" or the "Agency Representative."
Participants are given an opportunity to provide suggestions for
improving the process. The survey requests information about the
mediation process as well as the mediators' performance.[^73]

The Complaint Services Team closely monitors all responses, but it pays
particular attention to question #7: "If you participated in the
pre-complaint process again, would you use mediation to resolve your
dispute?" According to the Program Coordinator, the responses are
usually positive.

***USCG***

Because USCG has relied on the ONE DOT Sharing Neutrals Program for its
mediations, it has also used the ONE DOT Sharing Neutrals surveys.
According to the Coast Guard ADR Program Manager, exit surveys completed
by the participants in mediations of USCG dispute reveal moderate to
enthusiastic satisfaction with the process and willingness to use it for
future disputes.

***Summary***

Since the beginning of the programs, the resolution rate for ONE DOT
Sharing Neutrals is 46%. Since its inception, the FAA's resolution rate
is 51%. USCG's resolution rate is 80%. ONE DOT Sharing Neutrals and USCG
utilized the same surveys. Based on information reported by the surveys,
customer satisfaction appears high.

***Recommendations***

The ONE DOT Sharing Neutrals, FAA and USCG EEO/EO mediation programs
should use the same customer satisfaction survey to allow evaluators to
compare customer satisfaction and program results.

Because of the high resolution and reported high satisfaction rate with
its use of ONE DOT Sharing Neutrals, USCG should assess the results of
any pilot against this effort.

**7. Future Plans**

***ONE DOT Sharing Neutrals***

DOCR is considering conciliation training for all EEO ADR Program
Managers and EEO counselors to attempt to resolve disputes prior to
scheduling mediation. In addition, DOCR is undertaking a pilot project
to attempt mediation to resolve complaints at the investigation and
hearing level. A meeting is being scheduled with various EEO experts to
form a team to establish a process for case review.

Action items for FY 2002 include:

1.  Developing and producing an EEO ADR video using actors who are
    theatre

> majors at a local university or college. The script would be developed
> by subject matter experts from the ONE DOT Sharing Neutrals Program
> Steering Committee, the Department's Dispute Resolution Council, DOCR
> and the EEOC.

2.  Reviewing the roster, considering a term limitation on mediators and
    ensuring

> that the mediator's responsibilities are including in the employee's
> position description and performance evaluation forms.

3.  In cooperation with several operating administrations, DOCR plans to
    pilot an

> EEO data system to track EEO counseling (pre-complaint activity) in
> addition to ADR activity. This system maintains and calculates all
> data currently required by EEOC Form 462. The estimated cost of the
> system is \$38,000. If the pilot is successful, DOCR would expand it
> to include all operating administrations.

***FAA***

Goals for FY 2002 include conducting EEO mediation awareness briefings
for the remaining FAA employees.

FAA is currently piloting an EEO Complaint Tracking System that will
include mediation data. FY 2002 plans are to expand the pilot
agency-wide.

Future plans also include developing a video outlining the
responsibilities of employees who participate in the mediation process;
additional analysis of exit surveys; and follow-up with mediation
participants six months after mediation to measure whether mediation has
resulted in a more hospitable work environment.

***USCG***

USCG will continue to rely heavily on the ONE DOT Sharing Neutrals
Program, even beyond the point that its senior leadership makes a
determination to implement its own mediation program, and a sufficient
number of its developmental mediators have been certified as senior
mediators. The Coast Guard will continue to request the services of ONE
DOT Sharing Neutrals mediators whenever an aggrieved member of Team
Coast Guard expresses a preference for an external mediator and/or
whenever the use of the ONE DOT Sharing Neutrals program is most likely
to lead to effective resolution and avoid the appearance of conflict of
interest or other unfairness.

USCG is preparing to launch a pilot mediation program for EEO/EO
disputes in the Eighth Coast Guard District with the following
milestones:

+-------------+--------------------------------------------------------+
| **MONTH**   | **GOALS**                                              |
+-------------+--------------------------------------------------------+
| ####### O   | Identify legal and personnel officials to review       |
| ctober 2001 | resolution options and terms; finalize training and    |
|             | experience prerequisites for mediators                 |
+-------------+--------------------------------------------------------+
| ## **Nove   | Identify and prioritize candidates for development     |
| mber 2001** | into senior mediators; finalize procedures for         |
|             | mediator assignment and mediation expense accounting;  |
|             | identify appropriate standards and measure of          |
|             | effective design reporting mechanism; draft proposed   |
|             | instruction program policies and procedures            |
+-------------+--------------------------------------------------------+
| **December  | Design marketing and education plan; compile           |
| 2001**      | "management toolkit," including program policies and   |
|             | procedures                                             |
+-------------+--------------------------------------------------------+
| **January   | Brief command and civil rights service providers on    |
| 2002**      | the mediation program's nature, benefits and           |
|             | operation; launch marketing plan and implement program |
+-------------+--------------------------------------------------------+
| **Monthly** | Collect and report measurement data; adjust emphasis   |
|             | as warranted                                           |
+-------------+--------------------------------------------------------+

The lessons learned from the pilot experience would provide a model for
a service-wide ADR program and rationale for enhanced funding of the
total program, if warranted.

***Summary***

All the programs have identified a variety of ADR activities to further
the goal of resolving EEO disputes.

***Recommendations***

Consistent with the Secretary's ONE DOT management objective, ONE DOT
Sharing Neutrals, FAA and USCG should work together to leverage their
resources and avoid redundancy of efforts.

Future budget requests concerning ONE DOT Sharing Neutrals, FAA and USCG
EEO/EO mediation programs should be coordinated prior to submission to
the Assistant Secretary for Budget and Programs.

**IV. ADR TO RESOLVE OTHER TYPES OF DISPUTES**

\"Transportation solutions involve some really tough issues, but
they\'re not\
problems we can\'t resolve if we can get people with diverse interests
to sit\
down with each other.\"\
\
Secretary of Transportation Norman Y. Mineta\
San Francisco, Oakland & Silicon Valley Chambers of Commerce\
September 10, 2001

Disputes in the Federal sector are not limited to the EEO/EO arena. They
arise in contracting and procurement, in working with outside
stakeholders on environmental issues, and when issuing and enforcing the
Department\'s regulations. This portion of the evaluation is to report
on how disputes may arise in the Department and the various ways the
Department is using ADR to resolve disputes in these and other areas.

**A. Overview of Types of Disputes**

*Procurement*. Acquisition-related disputes typically take the form of
bid protests brought by parties who are seeking awards of government
contracts, or contract disputes arising during or in connection with
contract performance. Bid protests seek to modify the terms of a
solicitation in some way, or to overturn the award of a contract.
Contract disputes may seek payment of additional monies for delays or
additional work mandated by the Agency, or they may seek non-monetary
relief. Such non-monetary relief may include conversions of default
contract terminations or extensions of time for performance of contract
work. Generally, Federal contracts are subject to the processes and
rules in the Federal Acquisition Regulations (FAR).[^74] The FAR is
issued as Chapter 1 of Title 48, CFR. Subsequent chapters are reserved
for agency acquisition regulations that implement or supplement the
FAR.[^75] Bid protests are typically brought at the General Accounting
Office under the bid protest regulations,[^76] and disputes are governed
by the Contract Disputes Act of 1978.[^77] With the exception of
contract disputes involving the FAA, DOT contract claim-related appeals
are heard by the Department of Transportation Board of Contract Appeals,
U.S. Court of Federal Claims or District Court. FAA bid protests and
contract disputes are within the exclusive jurisdiction of the FAA's
Office of Dispute Resolution for Acquisition (ODRA).

*Workplace.* Workplace disputes can arise in many different ways.
Disputes in the workplace may be between or among employees, between
employees and their managers, union grievances and other non-EEO
disputes. Generally the disputes will be between the supervisor and the
employee and may involve such matters as disputes over granting annual
or sick leave, or conduct issues. Depending on the severity of the
punishment the employee may have the option of filing a grievance
through the agency's grievance procedure or, if the employee is a member
of a collective bargaining unit, he may utilize the grievance procedure
in the collective bargaining agreement. If the punishment is
sufficiently severe the employee has the right to file an appeal with
the Merit Systems Protection Board. A workplace dispute might involve an
agency's telecommuting program. ADR mechanisms may be used to address
disagreements regarding eligibility, denial of telecommuting
participation or termination of agreements.

*Civil Enforcement*. The civil enforcement disputes that arise at DOT
are as varied as the enforcement roles of the Department itself. For the
Coast Guard, many civil enforcement actions involve mariners' licensing
and documentation issues, fisheries law enforcement and clean water
issues. For FAA, air safety standards and related issues can lead to
disputes. At the Maritime Administration, disputes may arise in
connection with seamen's injury claims. Research and Special Program
Administration's hazardous materials and pipeline safety offices hold
compliance proceedings to address violations of safety standards by
entities that offer hazardous materials for transport and distribution.
Similarly, the Federal Motor Carrier Safety Administration and the
Federal Railroad Administration conduct proceedings to enforce
compliance with trucking and rail safety statutes and regulations.

*Environmental.* Disputes arise under environmental laws and with regard
to environmental issues in many contexts. Environmental laws covering
emissions and discharges to the air and water, protecting of endangered
and threatened species, and cleanup of contaminated sites all pose the
possibility of disputes among the parties seeking access to or
protecting these resources. The most frequent area of controversy has
developed under the Superfund law, The Comprehensive Environmental
Response, Compensation and Liability Act.[^78] Parties who have
contributed wastes to a site requiring cleanup must negotiate their
individual portions of liability. Implementing these agreements often
leads to disputes. The Maritime Administration has successfully engaged
in mediation to resolve these types of disputes. Species protection laws
require that entities potentially impacting individual members of the
species or their habitat must consult with the appropriate regulatory
authority before engaging in activities that could be harmful. These
requirements are regulated pursuant to the Endangered Species Act[^79]
and similar laws. Disagreements concerning the level of activity
permitted in areas where protected species breed or transit will arise
and must be resolved before the subject activity can take place. The
ability to release pollutants into the environment is also heavily
regulated. When a pollution permit is ripe for renewal or a new source
of pollution is proposed, the permit applicant must seek permission to
conduct the polluting activity. Disputes can arise concerning the amount
of pollution that can be discharged into the receiving water or air
resource area such that its quality will not deteriorate. These
regulations are promulgated pursuant to authorities found in the Clean
Air Act,[^80] the Clean Water Act[^81] and other environmental media
statutes. The Federal Highway Administration is working with the U.S.
Institute for Environmental Conflict Resolution to develop a project
level ADR system that may address these types of issues.

*Negotiated Rulemaking.* The Administrative Procedure Act imposes on
Federal agencies certain procedural requirements for rulemaking. While
these procedures help ensure that agencies develop sound factual bases
for exercising their discretion, the increased formalization of the
rulemaking process has also had adverse consequences. \"The various
affected interests, including the Federal agency, tend to develop
adversarial relationships with each other causing them to take extreme
positions, to withhold information from one another and to attack the
legitimacy of opposing positions. Participants in rulemaking rarely meet
with each other and with the agency as a group to communicate their
respective views, so that each can react directly to the concerns and
positions of others in an effort to resolve conflicts.\"[^82] Negotiated
rulemaking has emerged as an alternative to the traditional rulemaking
process to achieve better regulations through cooperative efforts that
involve the use of a third-party neutral. The Department was the first
Federal agency to use negotiated rulemaking back in 1983, and has a
long, successful experience with the process. The Department continues
to provide information about and encourage the use of negotiated
rulemaking.

*Ad Hoc Uses.* In addition to these areas, there are a range of uses
which are specific to Departmental programs and activities, or carried
out on a case by case basis. While not fitting into a broad category
above, or necessarily being long-term on-going activities, they are
frequently innovative, and are valuable models for broader uses in the
more "established" areas. They may include negotiation and facilitation
of dialogue with persons affected by agency actions, as with Coast Guard
use in issues involving the Great Lakes Pilots, and uses in a variety of
interagency Memoranda of Agreement for support of various projects.

**B. DOT Non-EEO ADR Uses**

In 1999, the Department of Justice surveyed Federal agencies about their
use of ADR and their progress on an initiative to make greater use of
ADR. The Department reported to the Deputy Attorney General on its
efforts to use dispute resolution techniques in resolving contract
disputes, its new initiatives to address workplace disputes and the
creation of the Dispute Resolution Council.[^83] In addition, in
November 2000, the Department reported on ADR activities in the
Department\'s Interim Statement of Policy on the Use of ADR.[^84] As a
follow-up to these activities, to collect data on how the Department is
resolving disputes using ADR in a variety of areas, the Dispute
Resolution Council designed a questionnaire[^85] and used it to survey
each operating administration. The Council asked survey respondents to
limit their responses to activities that occurred in FY 2000 or 2001.
Council members noted that their biggest challenge was trying to uncover
ADR activity that was not part of a formal program.

Nine operating administrations completed a survey describing how they
used ADR to address issues or resolve disputes - even if they had no
formal ADR program in place.[^86] Most of the general ADR activity
uncovered was in Washington; however, several Council members believe
that there is significantly more ADR activity in the regions than
captured by the survey. Because ADR is not centralized, Council members
initiated contact with offices commonly associated with ADR, *i.e.*,
Human Resources and Legal, and asked individuals in those offices if
they knew of others using ADR. Given the limitations of this approach,
our results likely underreport the amount of ADR activity in the
Department.

The number of cases reported is low; however, we suspect that much of
the general ADR activity reported is occurring at the early stages of a
dispute, often before it rises to the level of a complaint in a
traditional resolution forum. Therefore, it is likely that many of the
cases are not reported because they are resolved before they are \"in
the system.\" Interestingly, many of the cases that were reported were
court‑ordered mediations. The backlog of cases in the federal courts
means that more and more courts are encouraging \-- if not mandating \--
that the parties attempt mediation before litigation.

The areas in which general ADR activities occurred included:
procurement; environmental justice; rulemaking; workplace/personnel;
accessibility to public transit; and discussions with regulated parties
(*e.g.*, Great Lakes pilots).

This subsection reports on the ways in which the Department is employing
ADR techniques in its day‑to‑day operations and is presented by
operating administration. It is not intended to evaluate ADR programs
and uses.

The descriptions include: a general overview of activity for 2000-2001;
costs-benefits analysis; approximate number of cases handled; training
initiatives; and barriers encountered when attempting ADR.

**1. Office of the Secretary (OST)**

*Overview.* The Department of Transportation is committed to using ADR
to advance its mission and OST has undertaken a variety of activities to
support the use of ADR. OST has considered ADR for workplace disputes,
in rulemaking, in compliance, and in contract and procurement matters.
OST has provided learning and development opportunities so that
employees understand the theory and practice of ADR. Finally, OST has
allocated resources to support the use of ADR.

*ADR Costs/Benefits.* The Office of the General Counsel has one
full-time employee who is the Department\'s principal legal and policy
advisor on ADR. The employee chairs the Dispute Resolution Council;
provides assistance in obtaining neutral services; and represents the
Department within the government, with private sector and professional
organizations, and users of the Department\'s programs. As chair of the
Department\'s Dispute Resolution Council, she works with the Council to
facilitate the sharing of ADR information; examine how the Department is
currently using ADR and make recommendations for improvement; explore
the use of ADR techniques in connection with a variety of areas; and
assist in identifying future ADR uses and coordinating the development
of ADR programs. The use of ADR is department-wide and fosters the
Department\'s ability to manage for results and innovation by reducing
the time, costs, inefficiencies, and contentiousness that too often are
associated with adversarial dispute resolution mechanisms.

*ADR Activity.* In 2000, the Associated Deputy Secretary, as Chair of
the Air Carrier On-Time Reporting Advisory Committee, used ADR
techniques to form and operate the committee. In 2001, the Office of the
General Counsel held facilitated meetings on working to improve air
travel for persons with disabilities and considered the appropriateness
of ADR in an enforcement case. The Telecommuting Workgroup, chaired by
an employee with ADR expertise and mediation experience in the Office of
Human Resource Management, included dispute resolution provision in the
draft policy. The Departmental Office of Civil Rights is exploring ADR
in environmental justice matters.

*Training.* Members of the Dispute Resolution Council were provided ADR
awareness training and mediation skills training. Through the Dispute
Resolution Council, the Department piloted a three-hour ADR awareness
course that includes an overview on ADR, the law and theory behind it,
and how ADR can be and is being used. The Human Resources Council was
briefed on the Department\'s ADR efforts. The Dispute Resolution Council
and the Procurement Management Council are partnering with the Defense
Acquisition University to provide ADR training for procurement
personnel. In addition, the Office of the General Counsel has provided
ADR orientation and skills training to its employees; sponsored ADR
awareness luncheon sessions open to all Departmental attorneys in the
Washington metropolitan area; and included a discussion of negotiated
rulemaking when briefing new appointees on the rulemaking process. The
ADR web site includes a glossary of ADR terms.

*Barriers.* Even with strong management support for ADR, employees often
mention a lack of funding for neutrals and for comprehensive ADR
training as barriers to increased ADR use.

**2. United States Coast Guard (USCG)**

*Overview*. USCG currently uses ADR in procurement, workplace, civil
enforcement, environmental and *ad hoc* disputes matters.

In procurement matters, Coast Guard's uses are in the context of awards
and administration of contracts using the Federal Acquisition
Regulation. Consonant with that broad base of users and the federal
procurement process' overall established systems for dispute resolution,
USCG has used ADR in contract related matters for a number of years.
Routine uses are made in conjunction with ADR processes available
through the established adjudication forums -- the General Accounting
Office (GAO) for solicitation and award issues and the Department of
Transportation Board of Contract Appeals (DOTBCA) for post award
Contract Disputes Act type issues and (potentially) in coordination with
Department of Justice personnel in matters before the Court of Federal
Claims (COFC) and District Court. These uses are coordinated through the
Procurement Law Program, headed by the Chief Trial Attorney/Chief,
Office of Procurement Law.

Additionally, in October 1994 a USCG Solicitation Ombudsman was
established through the Competition Advocate Assistant within the Office
of Procurement Management. The Solicitation Ombudsman provided an
internal avenue (in addition to working through the contracting office)
for informal resolution of pre-solicitation issues. In April 2001, the
ombudsman program was restructured and designated as the Ombudsman
Program for Agency Protests (OPAP). It provides independent (meaning
outside the procuring activity), formal reviews of agency protests in
addition to providing an informal forum alternative to contracting
officer issue review. The Ombudsman informal program uses outcome
prediction and independent neutral evaluation. The formal program
provides for an expert neutral's decision, which is binding on the
agency (unless otherwise appealed by the protester or an interested
party) but not on the protester or other interested party. The resources
used to resolve the cases are internal USCG employees with ADR and
subject matter expertise working in the Office of Procurement Management
(G-CPM). Formal actions are decided by the Head of Contracting Activity,
unless he has served as the Source Selection Authority, in which case
the Ombudsman for Agency Protests is the Vice-Commandant.

In addition to OPAP, USCG continues to use ADR in its resolution of
protest actions before the GAO and in appropriate contract disputes
appealed to the DOTBCA and the U.S. Court of Federal Claims through
trial attorneys in the Office of Procurement Law working with resources
established in those forums.

The GAO's ADR program uses outcome prediction and early neutral
evaluation for matters formally protested and also provides for early
neutral evaluation in pre-protest matters. The DOTBCA uses mini-trials
and settlement judge procedures for matters before it under formal
appeal, and also offers pre-formal filing early expert neutral
evaluation and mediation. The Court of Federal Claims program uses the
court's judges; as it is newly established (in contrast to the GAO and
DOTBCA programs), it has not yet been used by USCG.

Decisions to use ADR are made on a case‑by‑case basis. Because of the
highly technical nature of procurement law disputes, the third party
neutrals are highly trained professionals (most often judges and
attorneys) with significant experience and expertise in government
contracting and federal procurement law.

USCG also looks to partnering agreements when appropriate in contracts
for informal resolution of issues during contract administration. The
most striking current use is in the Deepwater Capabilities Replacement
Project -- the largest procurement action ever undertaken by the agency.
In that, USCG is requiring a partnering agreement to be negotiated
within a designated period after contract award.

In connection with workplace issues, USCG\'s National Vessel
Documentation Center (NVDC) is using interest-based bargaining (IBB) to
negotiate its collective bargaining agreement. FAA facilitators are
being used to assist in the IBB process.

USCG uses ADR in the civil enforcement arena through activities in the
Chief Counsel's Office of Claims and Litigation and in an Administrative
Law Judge (ALJ) based program. The Office of Claims and Litigation
handles matters addressing enforcement of multiple clean water
regulations and laws. The ALJ based program addresses enforcement
actions in connection with fisheries laws and mariners' licensing (and
attendant Equal Access to Justice Act matters). The ADR techniques used
include neutral evaluation and facilitation. The Office of Claims and
Litigation handles cases in cooperation with the U.S. Attorney's offices
and may use external resources to conduct ADR cases (ordinarily a
highly-trained, experienced mediator or Federal Magistrate). The
ALJ-based program uses its personnel and other internal/DOT resources.

In addition to its uses above, USCG uses ADR to improve its internal
operations and to help with disputes that arise between USCG and outside
parties on an "*ad hoc*" basis. Internal uses of ADR include the use of
facilitators to help organizations analyze work functions and improve
office efficiency. External uses include work-impacting environmental,
negotiated regulations, legal assistance and *ad hoc* uses. In
conjunction with environmental issues, ADR facilitators are also used to
chair the Marine Environmental Resource Coordinating Group which meets
periodically to address how to best approach the sometimes competing
priorities of Operations, Marine Safety and Systems/Engineering
professionals in connection with environmental matters. ADR is also used
externally by the Office of Environmental Law in coordinated clean-up
activities agreements and in helping to organize large environmental
justice cases with the Environmental Protection Agency (EPA).

In the area of Legal Assistance, two offices are using ADR to assist
USCG employees in resolving disputes. Currently there are no ongoing
negotiated rulemakings, but the Office Chief is interested in
benchmarking best practices from other modal administrations that have
recently experience success with negotiated rulemakings. ADR is also
utilized on an *ad hoc* basis. For example, ADR is being used to resolve
a dispute with the Great Lakes Pilots Association, and USCG includes an
ADR provision in the master draft of certain Memoranda of Agreement.

*ADR Costs/Benefits.* In procurement disputes, managing, organizing and
providing ADR services is a collateral duty for USCG employees, both in
the Ombudsman and Procurement Law administered activities. On occasion,
Coast Guard will utilize mediators outside of the Department of
Transportation, GAO or COFC, but it is highly unusual for the agency to
contract with private ADR service providers for a fee as significant and
respected expertise is so readily available at no cost. If there is a
fee, it is paid out of the contract project budget.

Because managing and providing ADR activities is a collateral duty
within the Office of Procurement Management for OPAP and a part of the
full practice range for procurement law attorney-advisors and trial
attorneys, the actual costs associated with ADR are not available.[^87]
Because there is no direct and segregated ADR funding or resource, there
hasn\'t been a need to measure the cost of providing ADR services
independent of reporting purposes. The benefits have been significant,
as evidenced by customer and agency satisfaction with ADR activity.
Anecdotally, the two reasons most often cited for producing satisfactory
results are: 1) time saved/compressed and 2) outcome satisfaction.

For workplace disputes, the USCG\'s Office of Personnel will provide
funds out of its general funding and the necessary technical staff to
support the bargaining process. The potential benefit is more experience
with an additional tool that management might use as appropriate in the
context of labor relations.

In a civil enforcement context, the programs do not have specific ADR
budgets nor do they have any full-time equivalent employees designated
to address ADR exclusively. The neutral resources are typically provided
without direct charge. ADR is considered when appropriate and carried
out as a collateral duty. While both programs support ADR activities,
and there is anecdotal information supporting some cost and time
savings, in the absence of a tracking model and a requirement to track
accurate records have not been maintained.

For its *ad hoc* uses, USCG does not track the costs associated with
this type of ADR activity. All of the third-party neutrals used in the
above cases have been internal USCG or DOT resources. The environmental
justice case identified *supra* will be paid for by the EPA.

*Numbers of Cases.* In calendar year 2000, USCG used ADR in
approximately eight procurement cases. [^88] Six of these cases were
handled by the Solicitation Ombudsman prior to program restructuring in
April 2001. The remaining two cases were DOTBCA cases, one of which was
successfully resolved. During that reporting period, there were no GAO
cases resolved using ADR.

As of July 2001, the Ombudsman Program for Agency Protests (OPAP)
handled six cases, and procurement attorneys also handled six cases
(five at GAO and one at DOTBCA) utilizing various ADR techniques. All 12
cases were resolved.

For civil enforcement matters, detailed ADR use records were not kept in
calendar year 2000 for the Office of Claims and Litigation, and
therefore there is no information regarding the number of ADR cases and
resolutions. To date in calendar year 2001, there have unfortunately
been no cases through the Office of Claims and Litigation utilizing ADR.
The Civil Enforcement Program reported two instances of using of ADR but
detailed information about the cases is not available.

In connection with workplace ADR uses, one contract negotiation session
has occurred using IBB at NVDC. The Office of Personnel continues to
evaluate the impact of IBB on both the bargaining process and contract
outcome.

For *ad hoc* uses, in calendar year 2000, two matters utilized ADR: one
was a legal assistance case and the other was a dispute between USCG and
the Great Lakes Pilot Association. The legal assistance case has been
resolved and the Great Lakes Pilot Association case is ongoing. Both
facilitations took place in 2001, and the inclusion of an ADR clause in
the agreement or resolution providing for potential DOTBCA ADR services
is currently being contemplated. The scope of the upcoming environmental
justice mediation is still being formulated.

*Training.* USCG provides training for its employees directly involved
with ADR program implementation and action through the Department of
Justice, the Department of Transportation and Chief Counsel training
program opportunities, as well as through private sector courses. All
Chiefs of Contracting Offices and their senior staff have also been
trained about ADR processes and have been made aware of the potential
benefits through presentations by the Chief Trial Attorney at Chiefs of
Contracting Offices Conferences. All procurement law attorneys have been
trained through programs at their conferences (including presentation by
the DOTBCA), and all procurement law trial attorneys may participate in
sessions with DOT and GAO, and in upcoming COFC programs. In addition,
and most critically for the success of the program in this area, in
every instance in which resolution of issues is not achieved at the
contracting office (all of which instances come forward to the Office of
Procurement Law) an assessment is made about using ADR, and it is
discussed by the trial attorney with the contracting officer.

In addition, awareness articles are presented periodically in the Office
of Procurement Management publication, the [Procurement Electronic
Newsletter]{.underline}, and, as new programs are initiated, such as
OPAP, special electronic mailings are provided to inform employees.
Finally, a power point presentation, printed articles and awareness
training sessions and information regarding external training
opportunities are provided to managers in the operational programs
(whose needs are met through the contracting process), so all members of
the acquisition/business solution team (*i.e.*, the contracting
professional, the customer and counsel) are aware of the possibilities
for effectively using ADR. USCG experience confirms that in the well
established area of government contract related ADR, there is a direct
correlation between educating the workforce team about ADR and its
successful and effective use.

For workplace disputes, bargaining team members were trained in IBB in
preparation for the NVDC negotiations.

For civil enforcement disputes, the Office of Claims and Litigation
offers periodic ADR presentations as personnel rotations occur so that
all staff attorneys are familiar with the use of ADR in their civil
enforcement practice and with how it is used at USCG in general. In
addition, training specifically on ADR and negotiations has been
completed by personnel within the ALJ program. Experience has shown that
the more counsel understand ADR, the more successful ADR can be in
resolving disputes, and the Office of Claims and Litigation reports that
ADR has been useful in settling cases beyond civil enforcement practice.

In its *ad hoc* uses, including environmental agreements, the Office of
Environmental Law has experienced ADR personnel available for internal
and external training. The Office also maintains a website with ADR
links, and it keeps senior and junior attorneys informed about
environmental ADR initiatives via electronic messaging. In addition, the
Deputy Dispute Resolution Specialist for the Coast Guard also: provides
computer-based awareness training for all personnel; submits bi-weekly
ADR updates to all personnel in the legal program; and has provided and
will continue to utilize the DOTBCA Memorandum provision as needed.

*Barriers.* For civil enforcement matters, the major barrier to the use
of ADR is the nature of the cases themselves. Many times the issues
presented simply do not lend themselves to negotiation or alternative
dispute resolution. Uniformity in enforcement is desired. Additionally,
it is noted that funding for ADR-related matters, specifically travel
and training, could be helpful. And it was noted that, particularly with
regard to some *ad hoc* uses, on occasion using attorneys as mediators
can be limiting because of the inherent nature of an attorney's focus or
purpose. For environmental issues, cognizant programs have also noted
that USCG often has a small role in environmental litigation and
therefore it should not be up to them to decide whether ADR should be
attempted. USCG employees responsible for ADR in the procurement and
workplace areas do not perceive any barriers to using ADR. Because of
the overall size of the organization and the broad range of program
activities, providing ADR information broadly across all programs is a
significant and challenging collateral duty. That noted, though,
generally management is supportive of efforts to use ADR and encourages
seizing opportunities to use ADR when it is appropriate.

**3. Federal Aviation Administration (FAA)**

*Overview.* FAA currently uses ADR in procurement, workplace, civil
enforcement, environmental and *ad hoc* disputes matters.

For procurement issues, FAA is in a unique position vis-à-vis the other
modal administrations. In 1996, Congress passed legislation that
exempted FAA from many of the federal acquisition regulations and laws
applicable to federal procurement activity and granted the FAA authority
to design its own procurement process. Part of this reform included the
development of an alternative resolution system to resolve contract
disputes and bid protests outside of the traditional GAO and DOTBCA
forums. The Office of Dispute Resolution for Acquisition (ODRA) is the
FAA\'s administrative adjudication process for resolving procurement
disputes. Because ODRA serves an adjudicative function, it is a
separate, independent office within the FAA Office of the Chief Counsel.
The ODRA has been delegated exclusive authority by the FAA Administrator
to serve as the adjudicative forum for all bid protests and contract
disputes under the FAA's Acquisition Management System.

The ODRA process utilizes ADR as the primary means of resolving matters
within its jurisdiction and the use of ADR is explored in every case.
The ODRA process has achieved ADR settlements in 83% of all contract
disputes and 58% of all bid protests filed. The ODRA uses a variety of
ADR techniques, including: mediation, neutral evaluation, arbitration
and facilitation. ODRA staff attorneys are available to serve as
mediators, however, the parties may agree to use non‑FAA mediators. If
the mediator chosen charges a fee, the parties will split the cost. In
most cases, the parties utilize FAA staff as mediators. More detailed
information about the program can be found at <http://www.faa.gov/agc>.

The FAA has workplace programs in several regions. The largest program
is the National Air Traffic Controllers Association (NATCA) Pilot
Program. As of July 2001, the NATCA pilot program was operating in four
regions. The program has two separate early resolution systems. One
system is a neutral evaluation program that is designed to address the
3‑5 year arbitration backlog. This program has been underway for about
18 months, and the reduction in backlog and savings have been
dramatic.[^89] The other program is a mediation program designed to
address employee issues before filing formal grievances. This program is
just starting to get underway. Both programs use external third-party
neutrals.

In addition to the NATCA pilot program, there are three other workplace
programs in FAA. Two of them are in the Labor Division in the Office of
Human Resource Management (HR). The third program is housed in the
Office of Research and Acquisitions (ARA). The method of ADR used in all
three programs is mediation. However, one of the programs will use other
methods of ADR if appropriate. All three programs rely on internal
neutrals, however, external mediators will be used when necessary.

In civil enforcement, an alternative approach to traditional enforcement
now underway at FAA is partnerships. FAA recently implemented Aviation
Safety Action Programs (ASAP), which are memorandums of understanding
(MOU) voluntarily entered into between a certificate holder (air carrier
or repair station), FAA and an employees\' labor organization. Under the
program, specific categories of employees report safety concerns,
including apparent violations of the Federal Aviation Regulations. To
encourage reporting, ASAP offers certain protections from enforcement
action to employees who self-report an apparent violation. Once an
employee submits a report, an Event Review Committee (ERC), which is
made up of one representative from FAA, the certificate holder (air
carrier or repair station) and the employee\'s labor organization,
review the event and strive to reach unanimous agreement on how the
report should be addressed, and the appropriate corrective action to be
taken by the employee or the air carrier/repair station. If the ERC
cannot reach unanimous agreement on decisions concerning a report, the
FAA ERC member will decide how the report will be handled.[^90] To date,
there are 15 accepted ASAP MOUs.

And finally, like USCG, FAA also has general uses of ADR in addition to
its formal programs. ADR is gaining popularity in the area of airport
disputes. There is an ever increasing amount of community and state
interest in airport development due to land use concerns and
environmental issues such as noise and fuel emissions. Because of the
variety of group interests in airport issues (such as Federal, State and
local community interests), litigation can become extremely complex,
often with more than one litigation forum involved. In some cases, one
court's decisions are impacted by another court's decision. It is common
to delay airport development for years by simply filing suits in various
state and federal courts. Given the renewed interest in airport
expansion to reduce air traffic delays, it is likely that FAA will be
engaging in facilitation and mediation to resolve airport disputes.

FAA is also expecting an increase in court‑ordered mediation in the
personnel and civil rights arenas.

*ADR Costs/Benefits.* The ODRA has a staff of three full-time attorneys.
The ODRA regularly surveys agency and private party participants in its
ADR process. The survey responses reflect a high degree of satisfaction
with the process and indicate that it is significantly more efficient
and less expensive than traditional processes.[^91] Litigation of
contract disputes before the courts and boards and contract appeals can
take one to two years, if not more, and consume substantial agency and
private party resources. By contrast, the ODRA process has resulted in
contract dispute resolution through ADR in an average of only 65
calendar days. The ODRA's settlements of bid protests through ADR have
averaged only 24 calendar days.

For workplace issues, the NATCA program has a dedicated budget, but
there is no specific amount. The cost is shared by FAA and the union.
There are approximately five full-time equivalent employees staffing the
NATCA program. In addition, there are about 12 FAA employees who have
collateral duty assignments involving the program. The NATCA neutral
evaluation program has been very successful in that there has been a
dramatic reduction in the FAA\'s arbitration backlog.[^92]

The other three workplace programs are funded by the offices that
sponsor them: two are funded by HR, and one is funded by ARA. The HR
programs are staffed by HR personnel on a collateral duty basis. The ARA
program is staffed with one full-time employee. The three programs do
not track cost/benefit data.

With regard to civil enforcement matters, the costs associated with the
program are mainly the cost of resources to serve on the ERC. The air
carrier and FAA absorb these costs. The remaining costs associated with
the program would be the costs of implementing procedures to address
issues raised. These are absorbed by the air carriers.

To date, the agency has not been tracking the costs associated with
airport or court‑ordered mediations in its *ad hoc* uses.

*Number of Cases*. From its inception in mid-1996 until October 5, 2001,
some 211 cases have been filed with the ODRA. Of these, 130 (63% of the
completed cases) have been resolved through the use of ADR. The overall
ADR resolution rates are 83% for contract disputes and 58% for bid
protests. During Fiscal Years 2000 and 2001, the ODRA handled a total of
66 cases and completed 63 of those cases, including 41 bid protests, 21
contract disputes, and one Equal Access to Justice Act (EAJA)
application. Of the 41 completed protests, 25 (61%) were resolved
through ADR. Of the 21 completed contract disputes, 16 (76%) were
resolved through ADR. The one EAJA case was adjudicated. The most common
method of ADR used by the ODRA is early neutral evaluation combined with
facilitative mediation. ADR has been employed successfully by the ODRA
in a wide variety of matters, ranging from simple disputes valued at no
more than a few thousand dollars, to procurements valued at over \$1
billion.

In 2000, the NATCA neutral evaluation program processed approximately
200 workplace cases with a 99% successful resolution rate. The two HR
programs used ADR in approximately five cases, two of which were
resolved. The ARA program had 11 cases, 10 of which were resolved.

As of July 2001, the NATCA neutral evaluation program processed
approximately 800 cases in the arbitration backlog with a 99% successful
resolution rate. One HR program used ADR in two cases and both were
resolved; the other HR program did not use ADR in 2001. The ARA program
had four cases, of which one was resolved and the other three are
ongoing.

For civil enforcement uses, each certificate holder with an approved MOU
is required to keep a database, and this information must be available
to the FAA. However, protection from public disclosure of certain
information prevents the FAA from maintaining a centralized database at
this time. When protection from disclosure of certain information is
established, an FAA database will be created.

In calendar year 2000, the FAA mediated one court-ordered personnel case
and one airport dispute. The personnel case was resolved, but the
airport case was not. In calendar year 2001, the FAA had one personnel
case that is currently being mediated.

*Training.* The ODRA has been actively involved in Federal ADR
activities, and ODRA Dispute Resolution Officers are active in a variety
of Interagency ADR Working Group (IADRWG) initiatives. The ODRA Director
chairs the Contracts and Procurement Section of the IADRWG and has
served on the Attorney General's Federal ADR Council. An ODRA Dispute
Resolution Officer has chaired the IADRWG Steering Committee. The ODRA
staff is responsible for creating and editing the IADRWG Electronic
Guide to Federal Procurement ADR, which is published on the Internet
(<http://www.adr.af.mil/iadrwg>). The ODRA also regularly organizes and
provides ADR related presentations for agency and private organizations
and has mentored several federal agencies on the use of ADR for the
resolution of procurement related disputes. The ODRA itself maintains an
informative website (<http://www.faa.gov/agc>) to educate agency and
private entity personnel on the use of ADR. The Department has nominated
the ODRA for recognition by the OMB's Office of Federal Procurement
Policy (OFPP) as an outstanding ADR program.

The FAA workplace programs use a variety of training mechanisms. Most of
the training consists of educating employees and managers about the
programs via presentations, broadcast messages, advocacy training and
model work environment programs. Program managers note that they have
seen a direct correlation between educating the workforce about ADR and
its success. There is no specialized training for civil enforcement, and
there are varied amounts of training generally for attorneys at FAA in
connection with *ad hoc* uses.

*Barriers.* Because the ODRA has been delegated authority by the FAA
Administrator to resolve all FAA bid protests and contract disputes,
using ADR to the "maximum extent practicable," the ODRA experiences few
barriers to its initiation and use of ADR. ADR is an integral part of
the ODRA's Procedural Regulations, 14 C.F.R. Part 17. There is, however,
a continuing need to train FAA contracting personnel on the appropriate
use of and participation in the ADR process at the ODRA.

For workplace issues, the most common barrier reported at the FAA was
that labor and management relations are too adversarial and the parties
are therefore often unwilling to come together to discuss resolution.
Other barriers mentioned included lack of training and insufficient
funding (non‑NATCA programs).

No barriers are perceived for using ADR in civil enforcement actions;
for *ad hoc* uses, the most significant barrier to ADR at the FAA is
lack of clarification on the difference between settlement negotiations
and mediation. Many believe these are the same process with the same
goal, and therefore believe that there is no need to pursue in ADR.

**4. Federal Railroad Administration (FRA)**

*Overview.* FRA uses ADR to resolve disputes concerning employee
telecommuting within the Office of Safety. A process has been developed
that brings together the Deputy Associate Administrator and the Union
President, who, as a pair, attempt to resolve the dispute. This process
is currently being modified to include others in the resolution process.
FRA also applies a variety of informal processes in its labor‑management
program to resolve disputes. If FRA's in‑house resources are not able to
reach a satisfactory resolution for the parties involved, then external
neutrals are brought in to assist.

*ADR Costs/Benefits.* FRA does not track the costs associated with these
activities. The major benefit is the resolution of disputes at the
earliest possible stage.

*Number of Cases.* Because the issues are resolved so early, FRA does
not track or count them. Resolutions are reached before disputes become
cases or filed complaints.

*Training*. All of the employees are informed of the internal processes
used to resolve disputes. However, there is no formal training provided.

*Barriers*. Many employees do not fully understand the ADR process and
are hesitant to choose it. Insufficient resources make it difficult to
adequately train the employees in the processes of ADR and to
standardize a reporting mechanism for all uses of ADR within FRA.

**5. National Highway Traffic Safety Administration (NHTSA)**

*Overview.* NHTSA\'s Office of Safety Performance Standards (NPS) in
Headquarters initiated a negotiated rulemaking (RegNeg) in May 2000 to
develop recommendations for regulations governing the certification of
vehicles built in two or more stages. There are approximately eight
participants representing seven interest groups. The rulemaking is still
underway and is expected to be completed sometime early next year. This
is the third negotiated rulemaking NHTSA has undertaken. In all cases,
they have used external, private contractor facilitators to assist them.

*ADR Costs/Benefits.* There is no designated funding for RegNeg
activity: contract funds for private facilitators are made available out
of the general operation budget. The employees participating in the
RegNeg do so on a collateral duty basis. The additional cost to the
agency to conduct the current negotiated rulemaking versus the
traditional method of rulemaking will be approximately \$75,000. The
anticipated benefits are an increased likelihood that the regulations
will be drafted with a fuller understanding of the manufacturing
processes for multistage vehicles and an increased likelihood that the
regulated parties will support the resulting regulation.

*Training.* NHTSA has participated in the DOT ADR Council\'s training
initiatives. Other training initiatives include a website message
promoting the ONE DOT Sharing Neutrals Program and briefings to senior
management on DOT\'s ADR policy. NHTSA has also explored ways of using
information technology to promote public participation in vehicle safety
initiatives. These include an internet forum on driver distraction, and
a possible pilot project on glare from vehicle headlights.

*Barriers.* Lack of funding and resources are a barrier to ADR use. And
furthermore, there are limited situations in agency disputes over
vehicle safety in which a third-party neutral would be beneficial.

**6.** **Federal Transit Administration (FTA)**

*Overview.* Recently, the Federal Transit Administration (FTA) started
to use ADR in its Office of Procurement. The ADR techniques they will
use are mediation and arbitration. FTA plans to use internal DOT
mediators and arbitrators. However, external third party neutrals will
be used when necessary. FTA\'s workplace program is organized out of the
Office of Human Resources. The methods of ADR used are mediation and
facilitation. The program used both internal and external mediators and
facilitators.

*ADR Costs/Benefits.* For procurement matters, ADR does not have a
direct budget or dedicated staff. The Office of Procurement absorbs the
costs associated with ADR and the responsibilities for ADR are a
collateral duty for office employees. For workplace issues, the program
is funded out of the Employee Assistance Program (EAP), and EAP
personnel are used as third-party neutrals when available. In addition
to EAP personnel, FTA has two other employees trained in ADR. There is
no specific ADR budget, and the costs of providing ADR services are not
tracked. The major benefit, according to anecdotal sources, is the quick
resolution of disputes.

*Number of Cases*. To date, ADR has been used in two procurement cases,
both of which were resolved. In calendar year 2000, FTA had
approximately five workplace disputes that attempted ADR. All five cases
were resolved. As of July 2001, another five cases used ADR, and all of
them were resolved.

*Training.* There are no training initiatives underway for procurement
matters. For workplace matters, in order to build up a qualified and
experience pool of internal neutrals, FTA desires to provide internal
neutral mediator training to its employees in the near future, but this
is subject to availability of funds.

*Barriers.* The most significant barrier to ADR for FTA for procurement
matters has been an insufficient pool of third-party neutrals. For
workplace matters, the major barriers experienced by FTA\'s workplace
program are: 1) a lack of organization and focus and 2) a lack of
sufficient funding to expand their ADR program.

**7. St. Lawrence Seaway Development Corporation (SLSDC)**

*Overview.* SLSDC (or the Corporation) has used ADR to resolve workplace
disputes. The main ADR method employed is mediation. The Corporation
uses both internal and external neutrals, but there is a preference for
the former: SLSDC uses DOT-internal neutrals when they are available,
practical and cost-effective; and it uses external neutrals from other
federal agencies when internal ones are not available or practical.
SLSDC requires that neutrals have some minimum training/qualifications.

*ADR Costs/Benefits.* ADR funding at SLSDC is *ad hoc* and there are no
expressly designated funds.

*Number of Cases.* SLSDC did not use ADR to resolve any disputes in 2000
or 2001. SLSDC does not currently track the costs associated with ADR.

*Training.* SLSDC does provide employees training regarding ADR. For
example, the Chief Counsel included a discussion of ADR in his
presentation on "violence in the workplace and related issues" at the
Annual Managers Symposium.

*Barriers*. The Corporation perceives no barriers to using ADR at
present. The Corporation's small amount of potentially eligible
cases[^93] gives little experience with ADR, but the possibility of ADR
is affirmatively communicated at early stages to the disputing parties
(*i.e.*, ADR information routinely given by EEO counselors at the
beginning of a new session). SLSDC encourages ADR via "top down
support."

**8. Maritime Administration (MARAD)**

*Overview.* MARAD uses ADR to resolve legal claims in the areas of
environmental law, civil rights, MSPB, labor/union disputes and
seamen\'s injury. Approximately 50% of MARAD\'s ADR cases were
frequently the result of court-directed mediations. In all cases, either
external, court-appointed mediators, arbitrators or judges are used.
MARAD\'s experience shows them that it is likely that DOT attorneys may
find themselves involved in more ADR activity in the future. Management
encourages employees to use ADR whenever appropriate.

*ADR Costs/Benefits.* MARAD does not track ADR costs. There are no
internal resources committed to ADR activities, and any costs associated
with conducting ADR are paid out of litigation overhead or by the
Department of Justice. MARAD's experience indicates that ADR is useful
for resolving certain issues and is usually cost-effective by limiting
the duration and scope of litigation. Anecdotal evidence indicates that
ADR resolutions in the environmental area have greatly limited
government liability.

*Number of Cases.* In calendar year 2000, MARAD had eight cases
utilizing ADR. Six of those cases were resolved. As of July 2001, MARAD
had seven ADR cases, six of which were resolved.

*Training.* Training is provided to those involved with ADR on a needs
basis.

*Barriers.* MARAD does not perceive any barriers to using ADR, but notes
that limited funds are always a factor. Management encourages employees
to use ADR whenever appropriate.

**9. Research and Special Programs Administration (RSPA)**

*Overview.* RSPA's Volpe Center (the Center) has used ADR to resolve
workplace and procurement disputes. Employees mediate on a collateral
duty basis.

*ADR Costs/Benefits.* The costs associated with ADR are not tracked. ADR
responsibilities are handled as collateral duty. The costs associated
with workplace mediations are funded out of office overhead expenses,
and procurement mediations are funded through acquisition pool funds.
The Center reports that workplace mediation has helped to prevent the
escalation of disputes, thereby saving time and money. It has also
improved labor/management relations in the office. Applying ADR in its
contract disputes has saved RSPA and its contractors a significant
amount of money and other resources. In addition, mediated disputes
encourage cooperative dealings in ongoing contractual relationships
which would otherwise be disrupted if litigation was pursued. The Volpe
Center recommends that ADR mechanisms be included in procurement
agreements because they promote productive relationships and prevent
costly delays.

*Number of Cases.* The total number of workplace and procurement cases
in calendar year 2000 was two and one respectively, all of which were
resolved. The number of workplace and procurement cases as of July 2001
was two and one respectively, and again, all three cases were resolved.

*Training.* On an ongoing basis, the Volpe Center labor relations
officer provides periodic guidance in management team meetings to
managers on labor and employee relations, which includes information
about dispute prevention and resolution. In 2001, the Center\'s Labor
and Employee Relations office instituted a bulletin for supervisors,
which includes information about arbitration and advice on dispute
prevention. Since initiating employee training, the Volpe Center has
found that employee resistance to using ADR has been reduced.

*Barriers.* The only barrier to ADR observed at the Volpe Center is
resistance to try something new due to a lack of familiarity or
understanding, and progress is currently being made on this issue.

**10. Federal Motor Carrier Safety Administration (FMCSA)**

*Overview.* FMCSA uncovered the use of ADR techniques in a variety of
locations. In addition to Headquarters, there were three regions using
ADR to address workplace/grievance disputes. Mediation is the most
common technique used. FMCSA uses internal and external mediators. Most
of the ADR activities are informal. When an issue arises, for example,
it is not uncommon for managers outside of the chain of command to step
in and facilitate or mediate the dispute.

*ADR Costs/Benefits.* There are no dedicated funds or resources for ADR
activities. FMCSA does not track ADR costs.

*Number of Cases.* In calendar year 2000, there were approximately three
disputes resolved using ADR. In 2001, there was just one case that
utilized ADR: it was still ongoing at the time the survey was completed.

*Training.* The Office of the Chief Counsel included ADR awareness
training at its staff retreat. Managers are exposed to ADR in leadership
management courses.

*Barriers.* The biggest barrier is lack of funding. Without funding it
is difficult to obtain qualified third-party neutrals.

**V. RECOMMENDATIONS**

"At the Department of Transportation, crosscutting and collaboration are
in\--

stove piping and turf-guarding are out."

Secretary of Transportation Norman Y. Mineta

John C. Whitehead Forum, Council for Excellence in Government

June 11, 2001

One of the purposes of the ADR Program Evaluation was to make
recommendations for improving dispute resolution in the Department.
Overall, the Program Evaluation Team found a cadre of employees
committed to the Department's Organizational Excellence goal, with a
strong interest in improving employee satisfaction and effectiveness.
However, the Team recommends the following to allow the ONE DOT Sharing
Neutrals, FAA and USCG EEO/EO programs to capitalize on the success of
their efforts and make needed adjustments:

***[To ONE DOT Sharing Neutrals, FAA and USCG:]{.underline}***

> *1. Track data to ensure that they are meeting the goals they have
> established.*
>
> *2. Work together to develop a system to collect and track data about
> shared goals and objectives.*
>
> *3. Require extensive training and practical experience, including
> annual knowledge and skills maintenance, for internal neutrals, or use
> external neutrals with extensive training and experience*
>
> *4. Use the same customer satisfaction survey to allow evaluators to
> compare customer satisfaction and program results.*
>
> *5. Work together to leverage their resources and avoid redundancy of
> efforts consistent with the Secretary's ONE DOT management objective*
>
> *6. Coordinate future budget requests prior to submission to the
> Assistant Secretary for Budget and Programs.*

***[To USCG:]{.underline}***

> *7. Assess the results of any pilot against use of ONE DOT Sharing
> Neutrals, because of the high resolution and reported high
> satisfaction rate with its use.*
>
> *8. Conduct a needs assessment that includes an analysis of use of the
> ONE DOT Sharing Neutrals Program, before expanding the pilot program.*

***[To All Secretarial Offices and Operating
Administrations:]{.underline}***

9.  *Ensure that through awareness briefings employees are advised of
    the benefits of*

> *mediation and the availability of DOT EEO/EO mediation programs.*

***[An Additional Recommendation on How to Improve Dispute Resolution
Generally:]{.underline}***

> *10. Prior to the implementation of any ADR programs, conduct a needs
> assessment and begin with a pilot program that is evaluated prior to
> program expansion*.

The Program Evaluation Team shared these recommendations with the ONE
DOT Sharing Neutrals, FAA and USCG program managers. They have not
objected to the recommendations. The Program Evaluation Team believes,
however, that without a Secretarial mandate to the programs to work
together and specific reporting requirements, the programs will continue
to act independently.

## **VI. FURTHER ANALYSIS AND ACTIVITY**

As part of the review of the EEO/EO mediation programs, the Program
Evaluation Team observed that some matters that come to the EEO/EO
mediation programs raise allegations of discrimination when
miscommunication is the source of the conflict. The Departmental Office
of Civil Rights noted that some matters that come to the ONE DOT Sharing
Neutrals Program raise allegations of discrimination for the sole
purpose of the opportunity for mediation. FAA\'s Office of Civil Rights
noted that others in FAA are requesting mediation assistance when they
identify workplace disputes. As part of the data collection on how ADR
is being used in non-EEO/EO areas, several agencies responded that they
are using ADR to resolve workplace disputes. Furthermore, the Program
Evaluation Team recognizes that the Department\'s strategic plan
addresses measuring employee satisfaction regularly. This information
should be evaluated to determine whether there should be a
Department-wide human resource strategy to make ADR available for
workplace disputes. The Team believes that such an effort would be
consistent with the Department\'s effort to improve employee
satisfaction and performance.

Given the preliminary findings of ADR effectiveness, efficiency and
overall value, the Program Evaluation Team encourages that the
Department initiate a needs assessment for an early resolution workplace
pilot program.

In addition, during the program evaluation the Program Evaluation Team
identified a number of issues that merit tracking and perhaps a more
detailed examination. They include issues of: tracking data; creating
incentives for using ADR; external and internal sources for neutrals;
and support for ADR process uses generally. Building on its successes
and progress during the last two years, the Dispute Resolution Council
will continue to work together to: facilitate the sharing of ADR
information; examine how the Department is currently using ADR and
recommend improvements; explore the use of ADR techniques in connection
with a variety of dispute areas; assist in identifying future ADR uses;
and coordinate the development of ADR programs.

**[APPENDICES]{.underline}**

Appendix A Department of Transportation Interim Statement of Policy on
ADR

Appendix B Survey

Appendix C Program Evaluation Sponsors and Team Members

Appendix D ONE DOT & FAA Customer Satisfaction Surveys

Appendix E FAA Office of Dispute Resolution for Acquisition:

ADR Survey Results (Updated As Of August 21, 2001)

Appendix F National Air Traffic Controllers Association, Pilot Program:

Summary and Analysis of Savings using Neutral Evaluation

Appendix G FAA EEO Complaint Baseline Study to Determine Costs

[^1]: The Team was comprised of the Department's Dispute Resolution
    Specialist and representatives of the Dispute Resolution Council
    appointed by administrators of the Federal Aviation Administration,
    the National Highway Traffic Safety Administration, and the Research
    and Special Programs Administration; the Commandant of the United
    States Coast Guard; the Director of the Departmental Office of Civil
    Rights; and the Inspector General. The Dispute Resolution Council
    members as well as alternates also participated in the program
    evaluation. [See]{.underline} Appendix C.

[^2]: This mediation program is open to all DOT employees, and DOT
    operating administrations nominate employees who serve as mediators
    on a collateral duty basis.

[^3]: FAA employees may choose to participate in the FAA mediation
    program or seek mediation through the ONE DOT Sharing Neutrals
    Program.

[^4]: *President's Message*, Executive Office of the President, OMB,
    [The President's Management Agenda: Fiscal Year 2002]{.underline},
    (Aug. 2001) at 4, available at
    <http://www.whitehouse.gov/omb/budget/fy2002/mgmt.pdf>.

[^5]: Pub. L. No. 101-552, 104 Stat. 2736 (codified at 5 U.S.C. § 581).

[^6]: "An agency may use a dispute resolution proceeding for the
    resolution of an issue in controversy that relates to an
    administrative program, if the parties agree to such proceeding."
    [Id.]{.underline} at § 582(a).

[^7]: Pub. L. No. 104-320, 110 Stat. 3870 (codified at 5 U.S.C. § 571).

[^8]: Pub. L. No. 105-315, 112 Stat. 2993 (codified at 28 U.S.C. § 651).

[^9]: [Id.]{.underline} at § 651-658.

[^10]: 42 U.S.C. § 2000(e) [et seq.]{.underline}

[^11]: [Id.]{.underline}

[^12]: 29 U.S.C. § 621.

[^13]: 29 U.S.C. § 791.

[^14]: 29 U.S.C. § 206(d).

[^15]: [Id.]{.underline}

[^16]: Federal employees are also protected from discrimination on the
    basis of sexual orientation. Exec. Order No. 13,087, 63 Fed. Reg.
    30,097 (May 28, 1998). They may use the following avenues to seek
    relief: the Merit System Protection Board; the Office of Special
    Counsel; negotiated grievance procedures; agency grievance
    procedures; or the DOT EEO process (although review by EEOC is not
    available).

[^17]: EEOC, EEOC Training and Technical Assistance Program, [EEO
    Counselor Refresher Training: Participant's Manual]{.underline}, p.
    125.

[^18]: [Id.]{.underline} at 153.

[^19]: *The Federal Workforce: Observations on Protections from
    Discrimination and Reprisal for Whistleblowing: Hearing Before the
    House Comm. On the Judiciary*, 106^th^ Cong. 1 (2001) (statement of
    J. Christopher Mihm, Director, Strategic Issues, General Accounting
    Office, GAO-01-715 T).

[^20]: [Id]{.underline}. at 5.

[^21]: 29 C.F.R. § 1614.

[^22]: § 1614.105(a).

[^23]: § 1614.105(b).

[^24]: § 1614.105(g).

[^25]: § 1614.605(a).

[^26]: § 1614.108(e).

[^27]: § 1614.401(a).

[^28]: § 1614.110.

[^29]: § 1614.407.

[^30]: *Human Capital: The Role of Ombudsmen in Dispute Resolution,*
    GAO, Report to the Ranking Member, Subcommittee on International
    Security, Proliferation, and Federal Services, Committee on
    Government Affairs, U.S. Senate, GAO-01-466, (Apr. 2001) at 10,
    available at *<http://www.gao.gov/new.items/d01466.pdf>.*

[^31]: EEOC, [Federal Sector Report on EEO Complaints Processing and
    Appeals: Fiscal Year 1999]{.underline} (2000).

[^32]: Memorandum from Joseph F. Anderson, Attorney, Fair Practices
    Department, to Frank L. Lakis, President, Council of Locals (Sept.
    15, 1996).

[^33]: Air Force Audit Agency, Air Force Nomination for OPM Director's
    Award for ADR Excellence, June 15, 2001.

[^34]: The average is simply an estimate. Accuracy depends on the amount
    of time needed to complete each individual investigation.

[^35]: EEOC, [supra]{.underline} note 31.

[^36]: Letter from Janet Reno, U.S. Att'y Gen., U.S. Dept. of Justice,
    to William J. Clinton, President, United States of America (May 8,
    2000), available at
    <http://www.financenet.gov/financenet/fed/iadrwg/presi-report.htm>.

[^37]: EEOC, [1998 Study of Federal Sector EEO Alternative Dispute
    Resolution Programs]{.underline} at 3.

[^38]: [Id.]{.underline} at 7. Other ADR processes used include:
    factfinding, dispute panel and use of an ombudsman.

[^39]: [U.S. Dept. of Transportation Interim Statement of Policy on
    Alternative Dispute Resolution]{.underline}, 65 Fed. Reg. 69,121,
    69,124 (Nov. 15, 2000). [See]{.underline} Appendix A.

[^40]: Lisa B. Bingham [et al.]{.underline}, [Mediating Employment
    Disputes at the Postal Service: A Comparison of In-House and Outside
    Neutral Mediator Models]{.underline}, Review of Public Personnel
    Administration 5 (Winter 2000).

[^41]: 29 C.F.R. § 1614.

[^42]: The Interagency Alternative Dispute Resolution Working Group,
    [Federal ADR Program Manager's Resource Manual]{.underline}, pt.
    II., ch. 4 (May 2000) at 1, available at
    <http://www.financenet.gov/financenet/fed/iadrwg/manual/>.

[^43]: [Id.]{.underline} pt. I, ch. 2 at 1.

[^44]: [Id.]{.underline} pt. II, ch. 3 at 8.

[^45]: The cost for the course was \$542. Travel costs ranged from \$0
    to \$1,561.

[^46]: Statement of Work for the Top to Bottom Review of the United
    States Coast Guard Civil Rights/Equal Opportunity & Equal Employment
    Programs (Mar. 2001).

[^47]: 65 Fed.Reg. 50,005 (Aug. 16, 2000).

[^48]: EEO requires that this information be reported on SF 462.

[^49]: 29 C.F.R. § 1614.504(a).

[^50]: Ch. 1, para. 1-5, p. 2.

[^51]: The counselor's role in explaining the mediation process was
    emphasized after FAA realized that there was low participation in
    mediation at the outset of the program. FAA hoped that the
    counselors at the first level would increase interest in mediation.
    Now, a relatively small number of employees/managers are declining
    mediation.

[^52]: [See]{.underline} Appendix G.

[^53]: 5 U.S.C. § 571.

[^54]: 5 U.S.C. § 573.

[^55]: Rogers & McEwen, [Mediation Law, Policy, & Practice]{.underline}
    1 (2^nd^ ed. 1994).

[^56]: 65 Fed.Reg. 69,121 (Nov. 15, 2000).

[^57]: EEOC, [Federal Sector Complaints Processing Manual]{.underline},
    Management Directive 110, 3-9 (Oct. 28, 1999).

[^58]: [Id.]{.underline}

[^59]: The conference also provided a forum for mediators to interact
    with others involved in EEO and ADR issues, including Civil Rights
    Directors, attorneys, investigators and DOCR employees interested in
    learning more about the mediation process.

[^60]: Marshall J. Breger [et al.,]{.underline} [Federal Administrative
    Dispute Resolution Deskbook]{.underline} 624 (2001).

[^61]: Mickey Meece, *Postal Service Becomes a Model of Conciliation*,
    [N.Y. Times]{.underline}, Sept. 6, 2000, at C1.

[^62]: Breger, [supra]{.underline} note 60 at 629.

[^63]: Bingham, [supra]{.underline} note 40, at 18.

[^64]: Breger, [supra]{.underline} note 60, at 629.

[^65]: Jeffrey M. Senger, [Turning the Ship of State]{.underline}, J.
    Disp. Resol. 79, 83 (2000).

[^66]: The Federal Interagency Sharing Neutrals Project was originally
    administered by the Administrative Conference of the United States.
    Since the sunset of that agency in 1996, the Project has been
    monitored, at no cost to other Federal agencies, by the Department
    of Health and Human Services.

[^67]: The Interagency Dispute Resolution Working Group,
    [supra]{.underline} note 42, pt. I, ch. 1 at 4.

[^68]: The Federal Interagency Working Group Steering Committee has
    recommended this video to other federal agencies.

[^69]: As of September 6, 2001, the site had not been updated since
    September 28, 1998. The site does not include the current FAA Order.

[^70]: The Interagency Dispute Resolution Working Group,
    [supra]{.underline} note 42, pt. I, ch. 1 at 5.

[^71]: While not included in the number of mediations conducted, the ONE
    DOT Sharing Neutrals Program has provided senior mediators to both
    the FAA and USCG.

[^72]: [See]{.underline} Appendix D.

[^73]: [Id.]{.underline}

[^74]: The FAR System is in accordance with the requirements of the
    Office of Federal Procurement Policy Act of 1974 (Pub. L. 93-400),
    as amended by Pub. L. 96-83.

[^75]: In 1996, Congress passed legislation exempting the FAA from these
    regulations and associated statutes. FAA redesigned its procurement
    system and combined protest and performance disputes actions under
    one alternative system for pre- and post-award dispute resolution.
    The administrative adjudication process for this is handled by FAA's
    Office of Dispute Resolution for Acquisition (ODRA).

[^76]: GAO Bid Protest Regulations, 61 Fed. Reg. 39,039 (July 26, 1996)
    (codified at 4 C.F.R. pt. 21-1(b)).

[^77]: 41 U.S.C. §§ 601-603.

[^78]: 42 U.S.C. § 9601-9675.

[^79]: 16 U.S.C. § 1531-1544.

[^80]: 42 U.S.C. § 7401-7671.

[^81]: 33 U.S.C. § 1251-1387.

[^82]: Administrative Conference of the United States, Office of the
    Chairman, [Negotiated Rulemaking Sourcebook]{.underline}, (1995) at
    69.

[^83]: Available at
    <http://www.financenet.gov/financenet/fed/iadrwg/agenda/survey.pdf>.

[^84]: [See]{.underline} Appendix A.

[^85]: [See]{.underline} Appendix B.

[^86]: We have also received affirmative ADR use responses from TASC and
    the Office of the Inspector General; those are not included here.
    FHWA did not complete the survey.

[^87]: The Dispute Resolution Council did not impose or define a
    quantification method for costs and savings for the period covered
    by the survey supporting this Report. Therefore, the Coast Guard did
    not maintain uniform information for comparison purposes.

[^88]: This figure does not capture all the actions handled by the
    Ombudsman because of the informality of the Ombudsman program: much
    of the Ombudsman\'s work was handled via telephone and through other
    informal means that did not warrant the filing of paperwork.

[^89]: [See]{.underline} Appendix F.

[^90]: This description is very general. There are a number of
    conditions and provisions that must be met and followed.

[^91]: [See]{.underline} Appendix E.

[^92]: [Id.]{.underline}

[^93]: For instance, in year 2000, two cases in SLSDC could have made
    use of ADR, but both settled before doing so.