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Welcome

Disputes happen. At the Department, disputes in the workplace may be
between employees or between employees and their managers. They also
arise in contracting and procurement as bid protests or contract
disputes. Disputes occur when working with outside stakeholders on
environmental issues and when issuing and enforcing the Department's
regulations. Disputes can be avoided. When they do occur, we can respond
to them in different ways. We can respond in ways that lead to
escalating battles or we can work things out ourselves. Or we can seek
assistance in order to reach a constructive solution.

Alternative dispute resolution (ADR) is a voluntary dispute resolution
approach that leads to constructive solutions. It describes a variety of
processes that are used 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
ombuds, arbitration, and other processes that usually involve a neutral
third party who assists the parties in preventing and resolving
disputes. ADR participants can generally arrive at resolutions much more
quickly than decisions can be issued in more formal processes, and
resolutions are designed by the participants rather than by an external
party.

In a survey conducted by the Department's Dispute Resolution Council,
\"lack of information about ADR and lack of ADR training\" were
identified as barriers to ADR use. The purpose of **DOT ADR Update** is
to eliminate these barriers by providing information about ADR and
making ADR opportunities and resources available to everyone.

##### 

##### What's Inside

1.  Secretary Mineta's Statement of Policy on
    ADR...........................Page 2

2.  DOT's ADR
    Resources........................................................Page
    3

3.  MARAD Office of Chief Counsel Promotes
    ADR........................Page 3

4.  ADR At The DOT Board of Contract
    Appeals.............................Page 4

5.  Avoiding Project Delays: Dispute Resolution
    Professionals............Page 5

6.  Training
    Opportunities......................................................\...Page
    6

> 7\. Closing
> Thoughts...............................................................Page
> 7

Secretary Mineta's Statement of Policy on ADR

ADR is a collaborative, consensual dispute resolution approach. It
describes a variety of problem-solving processes that are used 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 ombuds, arbitration, and other processes that
usually involve a neutral third party who assists the parties in
preventing, minimizing the escalation of, and resolving disputes. The
efficient and effective use of ADR will help us resolve disputes at an
early stage, in an expeditious, cost-effective, and mutually acceptable
manner.

The Department of Transportation is committed to advancing our national
transportation goals through alternative dispute resolution. We will
consider using ADR in all areas including workplace issues, formal and
informal adjudication, issuance of regulations, enforcement and
compliance, issuing and revoking licenses and permits, contract and
grant award and administration, litigation brought by or against the
Department, and other interactions with the public and the regulated
community.

We will ensure that neutrals disclose any actual or potential conflicts
of interest.

We will provide learning and development opportunities for our employees
so that they will be able to use conflict resolution skills, understand
the theory and practice of ADR, and apply ADR appropriately.

We will use a variety of evaluation and assessment strategies to measure
and improve our processes and our use of ADR.

We will allocate resources to support the use of ADR.

We will provide confidentiality consistent with the provisions of the
Administrative Dispute Resolution Act and other applicable Federal laws.

The Department will attempt to incorporate ADR in its dispute
resolution, or as appropriate, rulemaking processes. In addition, either
on our own initiative or in response to a request, the Department will
examine the appropriateness of using ADR on a case-by-case basis. ADR is
voluntary and the Department will not impose its use on parties. The
decision-making on when to use ADR should reflect sound judgment that
ADR offers the best opportunity to resolve the dispute. In appropriate
disputes, the Department will use ADR in a good-faith effort to achieve
consensual resolution. However, if necessary, we will litigate or
participate in some other process to resolve a dispute.

We are committed to eliminating all barriers to equal opportunity for
all employees and persons who participate in our programs. A disability
on the part of one or more parties otherwise willing to use ADR will not
act as a bar to its use.

We will work together, internally and with external stakeholders and
experts, to further ADR use across the Department. However,
decision-making on incorporating ADR into dispute resolution processes,
using ADR to resolve a particular dispute, and allocating resources
rests with the Department's operating administrations, secretarial
offices, or Office of the Inspector General.

All employees and persons who interact with the Department are
encouraged to identify opportunities for collaborative, consensual
approaches to dispute resolution or rulemaking.

*This policy statement was published in the Federal Register on June 12,
2002.*

*(67 Fed. Reg. 40367)*

Text:

<http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&docid=02-14692-filed>

PDF:

<http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&docid=02-14692-filed.pdf>

######## DOT\'s ADR Resources

The Department's Dispute Resolution Council was established to further
the use of ADR across the Department. It is made up of representatives
appointed by heads of modal administrations and secretarial officers and
by the Inspector General, who serve as Deputy Dispute Resolution
Specialists to promote and coordinate the use of ADR within their
organizations and coordinate with their Regulation or Liaison Officer
with regard to ADR policy as it relates to rulemaking under the
Negotiated Rulemaking Act of 1996.

The Dispute Resolution Council:

1\) facilitates the sharing of ADR information; 2) examines how the
Department is currently using ADR, in headquarters and the regions, and
makes recommendations for improvements; 3) explores the use of ADR
techniques in connection with a variety of areas; and 4) assists in
identifying future ADR uses and coordinating the development of ADR
programs.

Council members can assist you in learning more about ADR, designing a
conflict resolution system, providing ADR awareness training, and
finding mediators or other ADR neutrals.

See the Department's ADR web site for the name of your Council member:
<http://www.dot.gov/adr>

## MARAD Office of Chief Counsel Promotes ADR

The Maritime Administration Office of Chief Counsel advocates the use of
alternate dispute resolution techniques (ADR) to resolve EEO and other
employment disputes. In the first year of its own ADR program, the MARAD
Office of Chief Counsel has used the ADR process internally, through the
ONE DOT Sharing Neutrals Program, the EEOC administrative process, and
the U.S. District Court in resolving five of its cases. Among these five
cases, two were resolved prior to the formal EEO complaint stage (but
would have probably risen to complaints if they had not been resolved),
two cases were resolved in the EEO formal complaint stage, and one case
was resolved at the U.S. District Court level through the court's ADR
process. In all of these cases where ADR was attempted, the Office of
Chief Counsel was involved and all were successful.

The ADR process used in all of these cases was mediation. Mediation is a
process in which the affected employee meets with supervisory and/or
management officials with a non-MARAD third party who is neutral. The
mediator neither sits in judgment nor renders a decision, but rather
facilitates a discussion that assists the parties in resolving the
dispute.

A common denominator in these cases was a lack of communication and/or
understanding between the employee and the agency. Mediation provided a
forum for these employees to articulate and vent their complaints with
management officials present, and for management officials to learn the
underlying concerns. In each of these cases the employee needed an
opportunity for someone to listen to his concerns, acknowledge these
concerns, and address them. In these cases, simple remedies were used to
settle the disputes which would have cost the Agency time, money, and
resources had the cases progressed to litigation.

The MARAD Office of Chief Counsel fosters a closely-knit working
relationship with the Office of Human Resources, the Office of Civil
Rights and the MARAD ADR coordinator. This "management team" believes in
the value of human resources, communication, and the promotion of civil
rights. Their interest is not in winning or losing -- it's about
promoting fairness and equitably resolving conflicts, e.g., "doing the
right thing."

MARAD has had success through ADR. The MARAD Office of Chief Counsel
believes that the ADR process is invaluable because the results have
proven remarkable in conflict resolution and highly recommend its use,
especially at the earliest stages of any conflict.

**ADR AT THE DOT BOARD OF CONTRACT APPEALS**

The DOT Board of Contract Appeals (DOTBCA) provides ADR services in both
contract and non-contract matters to the Department and its operating
administrations on a non-reimbursable basis.

Pursuant to the Contract Disputes Act, the statutory function of the
Department of Transportation Board of Contract Appeals (DOTBCA) is to
provide an independent, quasi-judicial forum for the informal and
expeditious resolution of contract disputes with impartiality to both
the Government and the contractor. The DOTBCA is a longstanding advocate
of the use of ADR to resolve contract disputes. In 1988, the DOTBCA was
the first federal agency Board of Contract Appeals to amend its rules to
specifically provide for alternative dispute resolution processes. 48
C.F.R. 6302.30. Pursuant to the Administrative Dispute Resolution Act,
the Secretary designated the DOTBCA judges to serve as neutrals in
contract related matters. 49 C.F.R. § 1.23. The Board provides ADR
services on a non-reimbursable basis:

-   For all contract matters, including pre-award disputes, disputes
    arising during contract administration regardless of whether a claim
    has been filed, and appeals to the DOTBCA from contracting officers'
    final decisions

-   For any non-contract dispute that may arise within the Department.

The DOTBCA is comprised of three judges, each of whom has over 25 years
of extensive experience in a broad spectrum of both acquisition and
litigation matters. The judges have provided ADR assistance in complex
contract claims as well as in non-contract disputes.

Some of the features of ADR at the DOTBCA are:

-   ADR proceedings are voluntary and confidential. Records are not kept
    and information disclosed in the proceeding is not released except
    as required by law.

-   Each party must have a person with settlement authority present at
    the ADR proceeding.

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-   ADR proceedings are informal. The parties control the ADR proceeding
    by determining how the proceeding will be conducted subject only to
    the approval of the participating judge.

-   Popular ADR methods include evaluative mediation or binding summary
    trial.

> For more information concerning ADR at the DOTBCA, see
> [www.dot.gov/adr](http://www.dot.gov/adr)

####### 

####### Avoiding Project Delays: Dispute Resolution Professionals

The Transportation Roster, part of the U.S. Institute for Environmental
Conflict Resolution\'s (IECR) larger National Roster of Environmental
Dispute Resolution and Consensus Building Professionals, provides state
and Federal agencies with access to a list of qualified neutral
facilitators and mediators who have experience in transportation cases
and are already familiar with the National Environmental Policy Act
(NEPA), the Alternative Dispute Resolution (ADR) system, the objectives
of environmental streamlining, and the transportation and environmental
review processes. The Transportation Roster is an optional tool project
sponsors can use to minimize project delays, resolve conflicts, and
avoid the costs of potential litigation. State departments of
transportation (DOT's) now have a source of qualified, effective
facilitators and mediators they can use without investing a lot of time
getting them up to speed on NEPA and transportation streamlining
objectives. When all parties agree to use qualified neutral facilitators
and mediators, transportation and resource agencies can improve working
relationships and shorten the time it takes to reach interagency
consensus.

The use of neutral mediators and facilitators with experience in NEPA,
the transportation process, and environmental streamlining allows
involved agencies to focus on the pertinent issues and arrive at joint
solutions. Neutral mediators and facilitators can provide many services,
including:

-   Conflict assessment

-   Facilitation of interagency partnering agreements

-   Design of conflict management processes

-   Mediation of disputes.

For further information on this topic see

<http://www.fhwa.dot.gov/environment/strmlng/apr02nl.htm>

####### Training Opportunities

Looking to enhance your leadership competencies? Want to resolve
conflicts in a positive and constructive manner? Check out the course
offerings on our web site at [www.dot.gov/adr](http://www.dot.gov/adr).

or contact Fern Kaufman at (<Fern.Kaufman@ost.dot.gov> or 202- 366-8067)
who will assist you in designing a course to meet your needs. In
addition, the following courses may be of interest to you.

**Alternative Dispute Resolution: Innovative Conflict Management** OPM
Eastern Management Development Center (February 24-28, 2003; September
29, October 3, 2003; Shepherdstown, WV)

For additional information see:
<http://www.leadership.opm.gov/content.cfm?cat=ADR>

**Conflict Resolution Skills: Positive Approaches to Difficult People: A
Practical Course Towards Positive Outcomes**

OPM Western Management Development Center

(March 24-28, 2003)

<http://www.leadership.opm.gov/content.cfm?cat=CSR-PADP>

**How to Deal with Conflict: Principles and Practices**

Graduate School, USDA (August 29-30, 2002, Washington, DC)

For additional information, see
[http://grad.usda.gov](http://grad.usda.gov/)

**Alternative Dispute Resolution** Graduate School, USDA (August 29-30,
2002, Washington, DC; September 9-10, 2002, Atlanta, GA)

For additional information, see
[http://grad.usda.gov](http://grad.usda.gov/)

**Constructive Conflict Resolution** Graduate School, USDA (New Orleans,
LA; September 9-11, Philadelphia, PA; November 25-27, 2002, Washington,
DC)

For additional information, see
[http://grad.usda.gov](http://grad.usda.gov/)

**Negotiating Techniques**

Graduate School, USDA

(August 22-23, 2002, San Francisco, CA; August 22-23, 2002, Boston, MA;
September 10-11, 2002, Kansas City, MO; September 24-25, 2002,
Washington, DC; November 20-21, 2002, New Orleans, LA; December 11-12,
2002, Washington, DC)

For additional information, see
[http://grad.usda.gov](http://grad.usda.gov/)

**The Seventh Annual Federal Dispute Resolution Conference**

(August 18-22, 2002, Palm Desert, CA)

For additional information, see
[http://www.fdr-conference.org](http://www.fdr-conference.org/).

####### 

####### Closing Thoughts

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

"Behind every successful mediation of a dispute is the prospect of
aggressive litigation. And behind all successful litigation must be the
opportunity for citizens to work together to reach a mutually beneficial
outcome." Attorney General John Ashcroft.