Office of the Attorney General 

Washington, D,C. 

Apri l 27 , 2007 

The President 

The White House 

Washington, D.C. 20500 

Dear Mr. President: 

On May 1, 1998, the President directed the Attorney General to coordinate interagency 

efforts to promote the use of alternative dispute resolution in the Executive Branch and to report 

to him periodically on that work. The Attorney General submitted an initial report on these 

efforts in 2000. 

With this letter, I am transmitting an updated Report entitled, "Report for the President 

on the Use and Results of Alternative Dispute Resolution in the Executive Branch of the Federal 

Government." The Report is the product of a collaborative effort of Executive Branch agencies 

and, in particular, of the Federal Interagency Alternative Dispute Resolution Working Group 

Sections and Steering Committee. The Report outlines the significant growth that has occurred 

in federal use of alternative dispute resolution since 2000. It also describes the positive results of 

federal alternative dispute resolution, including cost savings, increased workforce productivity, 

and the promotion of the efficient delivery of services. Finally, the Report discusses 

opportunities to further develop the full potential of federal alternative dispute resolution. 

The Report concludes that alternative dispute resolution is often a useful tool, but is not 

necessarily appropriate for all cases. Since the interests of the United States often are unique and 

may involve many interested parties, federal officials must resolve cases in ways that will not 

undermine important legal positions, jurisdictional defenses, or policy interests. However, 

federal agencies are finding that, in appropriate cases, alternative dispute resolution is a costeffective and time-efficient option which can give the parties control over the outcome and 

involve stakeholders in decisions that affect them. 

Respectfully, 

Alberto R. Gonzales 

Attorney General 
REPORT FOR THE PRESIDENT 

ON 

THE USE AND RESULTS OF ALTERNATIVE 

DISPUTE RESOLUTION IN THE EXECUTIVE 

BRANCH OF THE FEDERAL GOVERNMENT 

Giving the American People 

Better Results and More Value 

April 2007 

A Collaborative Project of Representatives From: 

-Federal Interagency Alternative Dispute Resolution Working Group Sections 

-Federal Interagency Alternative Dispute Resolution Working Group Steering Committee 

-Agencies in the Executive Branch of the Federal Government 
Table of Contents

Page 

Acknowledgments .........................................................................................................ix 

Executive Summary ......................................................................................................1 

I. Introduction .............................................................................................................1 

A. A Brief History of Federal Alternative Dispute Resolution .........................1 

B. Overview of the Interagency Working Group Sections and Steering 

Committee ...........................................................................................................2 

C. Survey of Federal Alternative Dispute Resolution Programs .......................3 

II. Alternative Dispute Resolution Programs: Enhancing Agency Missions ...............3 

III. Advantages of Alternative Dispute Resolution .........................................................5 

A. Promoting a Citizen-Centered Government ..................................................5 

B. Managing Costs ............................................................................................6 

C. Managing Strategically .................................................................................6 

IV. Areas of Alternative Dispute Resolution Programs and Use ....................................7 

A. Civil Enforcement and Regulatory ...............................................................7 

B. Claims Against the Government ..................................................................8 

C. Contracts and Procurement ...........................................................................9 

D. Workplace .....................................................................................................11 

V. The Future of Alternative Dispute Resolution ..........................................................13 

A. Capitalizing on the Potential of Alternative Dispute Resolution ..................13 

B. Challenges and Opportunities .......................................................................14 

VI. Conclusion ...............................................................................................................15 

ii 
Report for the President on the Use and Results of Alternative Dispute Resolution 

In the Executive Branch of the Federal Government 

I. Introduction .............................................................................................................16 

A. A Brief History of Federal Alternative Dispute Resolution .........................17 

B. Overview of the Interagency Working Group Sections and Steering 

Committee ...........................................................................................................19 

1. Civil Enforcement and Regulatory Section ......................................19 

2. Claims Against the Government Section ..........................................20 

3. Contracts and Procurement Section ..................................................21 

4. Workplace Section ...........................................................................22 

5. Steering Committee ...........................................................................22 

a) Protecting the Confidentiality of Dispute Resolution 

Proceedings: A Guide for Federal Workplace ADR Program 

Administrators ...........................................................................23 

b) Guide for Federal Employee Mediators ................................23 

c) Guide for Federal Employee Ombuds ..................................24 

d) Finding Neutrals Handbook ..................................................24 

C. Survey of Federal Alternative Dispute Resolution Programs .......................24 

II. Alternative Dispute Resolution Programs: Enhancing Agency Missions ...............26 

A. Cabinet Agencies ..........................................................................................26 

1. Department of Agriculture ................................................................26 

2. Department of Commerce .................................................................26 

3. Department of Defense ..................................................................27 

a) Department of the Air Force .................................................27 

b) Department of the Army ......................................................29 

c) Army Corps of Engineers .....................................................30 

d) Department of the Navy ........................................................30 

e) Defense Commissary Agency ...............................................31 

f) Defense Contract Audit Agency ...........................................31 

g) Defense Contract Management Agency ...............................31 

h) Defense Finance and Accounting Service ............................32 

i) Defense Information Systems Agency ..................................32 

j) Defense Logistics Agency ....................................................32 

k) Department of Defense Education Activity ..........................33 

l) National Geospatial-Intelligence Agency .............................33 

m) National Guard Bureau .........................................................33 

n) National Security Agency .....................................................34 

o) Uniformed Services University of the Health Sciences ........34 

p) Washington Headquarters Service ........................................34 

iii 
4. Department of Education ..................................................................35 

5. Department of Energy .....................................................................36 

6. Department of Health and Human Services ......................................37 

a) Agency for Healthcare Research and Quality 

b) Centers for Disease Control and Prevention 

c) Centers for Medicare and Medicaid Services 

d) Departmental Appeals Board 

e) Food and Drug Administration 

f) Health Resources and Services Administration 

g) National Institutes of Health 

h) Office of Equal Opportunity and Civil Rights 

i) Office of Hearings 

7. Department of Homeland Security ...................................................40 

a) Civil Rights and Civil Liberties 

b) Citizenship and Immigration Services 

c) Federal Emergency Management Agency 

d) Secret Service 

e) Transportation Security Administration 

8. Department of Housing and Urban Development ............................42 

9. Department of the Interior ................................................................42 

10. Department of Justice .....................................................................44 

a) Civil Division 

b) Civil Rights Division 

c) Community Relations Service 

d) Environment and Natural Resources Division 

e) Executive Office for United States Attorneys 

f) United States Attorneys’ Offices 

g) Federal Bureau of Investigation 

h) Federal Bureau of Prisons 

i) Justice Management Division, Equal Employment Opportunity 

Staff 

j) Tax Division 

11. Department of Labor ........................................................................49 

12. Department of State ........................................................................49 

13. Department of Transportation ...........................................................49 

a) Federal Aviation Administration 

b) Federal Highway Administration 

c) Federal Motor Carrier Safety Administration 

d) Federal Transit Administration 

e) Office of the Inspector General 

14. Department of the Treasury ..............................................................52 

a) The Alcohol and Tobacco Tax and Trade Bureau 

b) Bureau of Engraving and Printing 

c) Bureau of Public Debt 

d) Departmental Offices (Departmental Oversight Office) 

e) Financial Crimes Enforcement Network 

iv 
f) Financial Management Service 

g) Internal Revenue Service 

h) Internal Revenue Service Appeals 

i) Office of the Comptroller of the Currency 

j) Treasury Inspector General for Tax Administration 

k) United States Mint 

15. Department of Veterans Affairs ........................................................55 

B. Independent Agencies .................................................................................56 

1. Commodity Futures Trading Commission .......................................56 

2. Consumer Product Safety Commission ............................................56 

3. Corporation for National and Community Service ...........................57 

4. Environmental Protection Agency ....................................................57 

5. Equal Employment Opportunity Commission ..................................58 

6. Export-Import Bank of the United States .........................................59 

7. Federal Communications Commission .............................................59 

8. Federal Deposit Insurance Corporation ............................................60 

9. Federal Election Commission ...........................................................60 

10. Federal Energy Regulatory Commission ..........................................61 

11. Federal Maritime Commission .........................................................62 

12. Federal Mediation & Conciliation Service .......................................62 

13. Federal Reserve Board .....................................................................63 

14. Federal Trade Commission ...............................................................63 

15. General Services Administration ......................................................63 

16. National Archives and Records Administration ...............................64 

17. National Labor Relations Board .......................................................64 

18. National Mediation Board .................................................................64 

19. National Science Foundation ............................................................64 

20. Nuclear Regulatory Commission ......................................................64 

21. Office of Personnel Management .....................................................65 

22. Peace Corps .......................................................................................66 

23. Pension Benefit Guaranty Corporation .............................................66 

24. Securities and Exchange Commission ..............................................66 

25. Small Business Administration .........................................................67 

26. Social Security Administration .........................................................67 

27. Tennessee Valley Authority ..............................................................67 

28. United States Agency for International Development ......................68 

29. U.S. Institute for Environmental Conflict Resolution of the 

Morris K. Udall Foundation ....................................................................68 

30. U.S. Office of Government Ethics ....................................................69 

31. U.S. Postal Service ...........................................................................69 

III. Advantages of Alternative Dispute Resolution .........................................................70 

A. Promoting a Citizen-Centered Government ..................................................70 

1. Accessible .......................................................................................70 

v 
2. Responsive .......................................................................................73 

3. Inclusive .......................................................................................74 

B. Managing Costs ............................................................................................75 

1. Controlling the Costs of Conflict ......................................................76 

2. Producing Quicker and More Durable Results .................................77 

3. Preserving Resources for Mission ....................................................78 

C. Manage Strategically ....................................................................................78 

1. Maximizing Resources .....................................................................79 

2. Promoting Innovation ..................................................................80 

3. Promoting Continuous Improvement and Expansion .......................80 

IV. Areas of Alternative Dispute Resolution Programs and Use ....................................82 

A. Civil Enforcement and Regulatory ...............................................................82 

1. Promoting a Citizen-Centered Government ......................................82 

2. Managing Costs ..............................................................................86 

3. Managing Strategically ..................................................................89 

B. Claims Against the Government ..................................................................92 

C. Contracts and Procurement ...........................................................................98 

1. Promoting a Citizen-Centered Government ......................................98 

2. Managing Costs ................................................................................99 

3. Managing Strategically .....................................................................101 

D. Workplace .....................................................................................................102 

1. Background History of Workplace Alternative Dispute 

Resolution .............................................................................................103 

2. ADR Programs Are Successful in Resolving Workplace 

Disputes ................................................................................................105 

3. ADR Programs Are Cost-Effective ..................................................105 

4. ADR Saves Agency Funds ................................................................106 

5. ADR Saves Agency Time .................................................................106 

6. Alternate Dispute Resolution Programs Are Essential to Strategic 

Management of the Workplace ...............................................................107 

7. Workplace ADR Programs Create Collateral Benefits for the 

Agency ...................................................................................................109 

8. E-Government Makes Workplace ADR Accessible to All ...............111 

V. The Future of Alternative Dispute Resolution ..........................................................113 

A. Capitalizing on the Potential of Alternative Dispute Resolution ..................113 

vi 
B. Challenges and Opportunities .......................................................................114 

1. Leadership .......................................................................................114 

a) Proclamation by the President of a National Conflict 

Resolution Day 

b) Letter of Greetings and Commendation From the President to 

Federal Employees Responsible for Alternative Dispute Resolution 

c) Establishment of a Federal Council and Annual Conference for 

Agency Dispute Resolution Specialists 

d) Government-Wide Biennial Alternative Dispute Resolution 

Achievement Awards Program 

2. Performance Management ................................................................117 

a) Conflict Management As a Selection and Performance 

Appraisal Criterion for Executive and Management Positions 

b) Conflict Management As a Key Element in Recruitment, 

Training, and Planning 

c) Programmatic Reviews and Evaluations 

3. External Promotion and Facilitation .................................................119 

4. Training .............................................................................................120 

5. Interagency Sharing of Federal Resources .......................................120 

6. Management Support ........................................................................121 

a) Institutionalization of the ADR Program 

b) Integration or Coordination of ADR Programs 

VI. Conclusion ................................................................................................................123 

vii 
Appendix A: Definitions of Alternative Dispute Resolution Processes ........................124 

Appendix B: Use of Alternative Dispute Resolution Processes Reported 

by Agencies 2005-06 ......................................................................................................127 

Appendix C: Past and Current Leadership of the Interagency Alternative Dispute 

Resolution Working Group Sections and Steering Committee ......................................137 

Appendix D: Current Membership of the Interagency Alternative Dispute Resolution

Working Group Steering Committee ..............................................................................143 

Appendix E: Federal Agencies Which Provided the Information Used in 

This Report ..................................................................................................................149 

Appendix F: The Office of Management and Budget, Office of Federal 

Procurement Policy, Procurement ADR Awards Program.................................. 154 

Appendix G: Draft Proclamation by the President of a National Conflict 

Resolution Day ...............................................................................................................166 

Appendix H: Letter of Greetings and Commendation From the President to Federal 

Employees Responsible for Alternative Dispute Resolution ..........................................168 

ADDENDUM: Report from the Attorney General to the President on the Interagency 

Alternative Dispute Resolution Working Group (May 2000) ........................................170 

viii 
 ACKNOWLEDGMENTS 

This Report to the President is a collaborative project which was undertaken by 

representatives from the Federal Interagency Alternative Dispute Resolution Working 

Group Sections and Steering Committee, and by representatives from the agencies in the 

Executive Branch of the federal government. Appreciation is due to all of them. The 

following are specially noted for their exceptional dedication and work on this effort: 

• Report written by: Linda A. Cinciotta, Senior Counsel for Alternative Dispute 

Resolution and Director, Office of Dispute Resolution, U.S. Department of 

Justice; Joanna Jacobs, Deputy Director, Office of Dispute Resolution, U.S. 

Department of Justice; and Deirdre McCarthy Gallagher, Attorney Advisor, 

Dispute Resolution Service, Federal Energy Regulatory Commission 

• Overall leadership and guidance: Linda A. Cinciotta, Office of Dispute 

Resolution, U.S. Department of Justice; Cindy Mazur, Alternative Dispute 

Resolution Director, Federal Emergency Management Agency, Department of 

Homeland Security, and Chair of the Interagency Alternative Dispute Resolution 

Working Group’s Workplace Section; Richard L. Miles, Director, Dispute 

Resolution Service and the Office of Administrative Litigation, Federal Energy 

Regulatory Commission, and Chair of the Interagency Alternative Dispute 

Resolution Working Group’s Civil Enforcement and Regulatory Section; Anthony 

N. Palladino, Associate Chief Counsel and Director, Office of Dispute Resolution 

for Acquisition, Federal Aviation Administration, Department of Transportation, 

and outgoing Chair of the Interagency Alternative Dispute Resolution Working 

Group’s Contracts and Procurement Section; and Hon. Richard C. Walters, 

Administrative Judge, United States Civilian Board of Contract Appeals, and 

incoming Chair of the Interagency Alternative Dispute Resolution Working 

Group’s Contracts and Procurement Section 

• Portions of the report dealing with civil enforcement and regulatory matters: 

Richard L. Miles, Federal Energy Regulatory Commission; Kirk Emerson, 

Director, U.S. Institute for Environmental Conflict Resolution of the Morris K. 

Udall Foundation; David Emmerson, Senior Program Coordinator, Office of 

Collaborative Action and Dispute Resolution, Department of the Interior; Jennifer 

Gatlan, Attorney Advisor, Federal Maritime Commission; Thomas Louthan 

(currently on detail as a Legislative Fellow, Senate Finance Committee), Internal 

Revenue Service, Department of the Treasury; Robert C. Manley, Associate 

Counsel (ADR), Office of the General Counsel, Department of the Navy, 

Department of Defense; and Ronald Murphy, Director of the Office of Consumer 

Affairs and Dispute Resolution Services, Federal Maritime Commission 

• Portions of the report dealing with claims against the government: Joanna Jacobs, 

U.S. Department of Justice; Deborah Ruth Kant, former Acting Deputy Director, 

Office of Dispute Resolution, U.S. Department of Justice 

ix
• Portions of the report dealing with contracts and procurement: Anthony N. 

Palladino, Federal Aviation Administration, Department of Transportation; Hon. 

Richard C. Walters, Board Judge, United States Civilian Board of Contract 

Appeals; John A. Dietrich, Assistant General Counsel (ADR), Office of the 

General Counsel, Department of the Navy, Department of Defense; Hon. Allan 

Goodman, Board Judge, United Stats Civilian Board of Contract Appeals; 

Elizabeth M. Grant, Defense Logistics Agency, Department of Defense; Hon. 

Martin J. Harty (Ret.), Armed Services Board of Contract Appeals; and Kenneth 

Lechter, Associate General Counsel (Dispute Resolution), Department of the Air 

Force, Department of Defense 

• Portions of the report dealing with workplace: Cindy Mazur, Federal Emergency 

Management Agency, Department of Homeland Security; Doretta BowmanDavis, Attorney (ADR), Social Security Administration (on loan to Federal 

Emergency Management Agency, Department of Homeland Security); Linda A. 

Cinciotta, Department of Justice; Kathryn A. Ellis, Senior Counsel to the Deputy 

General Counsel for Program Service and Agency Dispute Resolution Specialist, 

Office of the General Counsel, Department of Education; D. Leah Meltzer, 

Deputy Dispute Resolution Specialist, Securities and Exchange Commission; 

Sarah Rudgers, former Director, Dispute Resolution Program, National Archives 

and Records Administration; and Kim Snyder, Intern, Federal Emergency 

Management Agency, Department of Homeland Security 

• Editorial assistance: Pamela Pontillo, Manager, Headquarters Mediation 

Program, Office of Dispute Resolution, Department of Energy 

• Administrative assistance: Sylvia Covington, ADR Office Manager, Federal 

Emergency Management Agency, Department of Homeland Security; Currie 

Gunn, Confidential Assistant to the Associate Attorney General; Aloma Shaw, 

Staff Assistant, Office of the Associate Attorney General, Department of Justice; 

Krista van der Horst, Dispute Resolution Support Specialist, Office of Dispute 

Resolution, Department of Justice 

x 
EXECUTIVE SUMMARY 

I. Introduction 

Alternative dispute resolution (“ADR”) is an umbrella term for processes that provide an 

alternative to traditional litigation. ADR processes give the parties an opportunity to play 

a more active role in crafting a resolution to their dispute. Appendix A describes the 

various types of ADR processes, the best known of which is mediation. The types of 

ADR processes used by the agencies in the Executive Branch of the federal government 

are charted in Appendix B. 

In 1998, a Presidential Memorandum directed the Attorney General to coordinate 

interagency efforts to promote and facilitate the use of ADR in the Executive Branch and 

to report periodically on that work. The Attorney General submitted an initial report in 

2000 when federal ADR was in its infancy. The Report which we now submit: 

 describes the growth in the breadth, scope and depth of federal ADR since 

the 2000 Report was submitted; 

 documents the results and benefits of federal ADR, including substantial 

cost savings, increased workforce productivity and accountability, timely 

achievement of agency goals, and delivery of reliable and efficient 

service; and 

 discusses the future of federal ADR, including the challenges it faces and 

opportunities to develop its full potential. 

A. A Brief History of Federal Alternative Dispute Resolution 

The first uses of ADR processes began experimentally in the 1970s as a potential remedy 

for disabling court backlogs, and as resolution techniques for environmental and natural 

resource disputes. In 1985, the Attorney General issued an order recognizing the need for 

ADR to reduce the time and expense of civil litigation. A few years later the Department 

of Justice again recognized the benefits of ADR in the Congressional testimony of its 

Assistant Attorney General, Office of Legal Counsel, who supported the first ADR 

legislation enacted by Congress in 1990. 

In the 1990s, Congress passed three statutes (the Administrative Dispute Resolution Acts 

of 1990 and 1996, and the Alternative Dispute Resolution Act of 1998) which, 

collectively, required each agency to adopt a policy encouraging use of ADR in a broad 

range of decision making, and required the federal trial courts to make ADR programs 

available to litigants. 

In 1996, the President issued Executive Order 12988 on Civil Justice Reform, directing 

federal litigation counsel to consult with the referring agency and suggest ADR where 

benefits might be derived from its use. On May 1, 1998, the President issued a 

Memorandum directing the Attorney General to lead an Interagency Alternative Dispute 

Resolution Working Group (“Working Group”) to promote and facilitate federal ADR. 

- 1 ­
The Working Group established four Sections to represent the major substantive areas of 

ADR application in civil enforcement, claims against the government, contracts and 

procurement, and workplace conflict. A Working Group Steering Committee was 

established to represent nearly 60 federal agencies. The past and current leadership of the 

Working Group Sections and Steering Committee is given in Appendix C, and the current 

membership of the Steering Committee is given in Appendix D. 

The Attorney General’s first report to the President, submitted in May 2000, described 

the first full year of interagency efforts. (The 2000 Report is reprinted in the Addendum 

to this Report.) Since that time, the use of ADR has become well-accepted and part of 

standard practice throughout the Executive Branch. This Report describes hundreds of 

ADR programs representing the gamut of federal executive responsibilities, from defense 

to education, from energy regulation to veterans’ affairs. It shows how ADR has 

expanded to cover use in a broad range of contexts, including policy development, 

adjudications, rulemaking, administrative and civil judicial enforcement actions, permit 

issuance, and public involvement. 

B. Overview of the Interagency Working Group Sections

and Working Group Steering Committee

Since 1998, the work of the four Interagency Working Group Sections and Working 

Group Steering Committee has reflected the expansion of ADR programs and 

applications throughout the Executive Branch, and has promoted that growth. 

The Working Group’s Civil Enforcement and Regulatory Section was formed initially to 

educate and assist member agencies in using ADR as an alternative to traditional 

litigation and settlement methods in civil enforcement cases. The Section’s coverage 

subsequently was expanded to include regulatory conflicts -- in such areas as 

environmental, business, and transactional disputes -- in recognition of the potential of 

ADR to make business and resource planning more cost-efficient and productive. The 

Section publishes a periodic Newsletter for agencies and the public to provide 

information on the application of ADR to enforcement and regulatory missions. 

The Working Group’s Claims Against the Government Section focuses on the 

achievement of proper balance between litigating a case where necessary and appropriate, 

and otherwise resolving cases through some form of ADR where practicable and in the 

best interests of the client. ADR is being used to resolve a wide range of civil actions 

brought against the United States, such as aviation and admiralty cases, medical 

malpractice cases, and class action workplace discrimination cases. 

The Working Group’s Contracts and Procurement Section addresses the need for a viable 

alternative to traditional litigation processes for resolving the contractual and 

procurement disputes of agencies and private sector companies. The Section sponsors an 

ongoing series of free educational programs, open to all government and private sector 

public contracts professionals, on a variety of ADR topics such as the legal and ethical 

- 2 ­
issues of confidentiality in public procurement ADR, and the development of guidance 

for federal agencies’ use of binding arbitration. 

The Working Group’s Workplace Section assists federal agencies with workplace ADR 

programs covering all types of employment-related disputes. The Section sponsors a 

monthly Lecture Series to provide current, useful, and thought-provoking information 

about workplace ADR which can be implemented and utilized by ADR specialists at their 

respective agencies. 

The Working Group Steering Committee has recently published four new guides which 

serve as advisory best practices in federal ADR. The guides cover: application of 

statutory provisions governing confidentiality in mediation of federal workplace disputes; 

practical ethical guidance for federal employee mediators; factors for ensuring the 

independence and impartiality of a federal ombuds office; and finding appropriate 

neutrals for agency workplace disputes. The Steering Committee meets monthly to share 

knowledge and experience on the facilitation of ADR in the Executive Branch. 

C. Survey of Federal Alternative Dispute Resolution Programs 

The Working Group Steering Committee in mid-2005 began surveying every agency in 

the Executive Branch about their ADR operations. Responsive data was submitted by 

over 100 agencies and agency components, which are listed in Appendix E. The data 

have been used to prepare this Report, and the information is also helpful in identifying 

areas where the Working Group Sections and Steering Committee may be able to provide 

assistance in maximizing the success of agencies in using ADR. 

II. Alternative Dispute Resolution Programs: Enhancing Agency Missions 

The ADR programs and policies of the 15 Cabinet agencies and 31 independent agencies 

are summarized, and the nexus between programs and the agency missions is shown, in 

this section of the Report. The Report demonstrates that, increasingly, agencies such as 

the Federal Energy Regulatory Commission are expanding their ADR options to provide 

a menu of resolution choices that are better able to enhance the missions of government 

and agencies, and serve the needs of citizens. 

At both Cabinet and independent agencies, ADR processes are being used to meet agency 

– and government – goals of security, safety, and responsiveness, to name just a few. 

The agencies are using a spectrum of dispute resolution tools which are flexibly applied 

to meet the wide range of their needs. Here are a few examples of the types of success 

stories that are seen in Cabinet agencies: 

 The Department of Commerce/National Oceanic and Atmospheric 

Administration used consensus building and public participation 

throughout the development of the natural resource damage assessment 

regulations promulgated pursuant to the Oil Pollution Act of 1990. 

- 3 ­
 The Department of Education/Office of Federal Student Aid Ombudsman 

works with federal student aid recipient loan holders, guarantee agencies, 

and schools to prevent loan foreclosures. 

 The Department of Health and Human Services/Departmental Appeals 

Board uses ADR to provide less contentious and quicker resolution of 

disputes involving Medicare and Medicaid program exclusions, imposition 

of civil sanctions against health care providers and nursing homes, and 

disputes with grantees (including States and universities) concerning 

disallowances of funds. 

 The Department of Homeland Security/Federal Emergency Management 

Agency provided arbitration for more than 130 Los Alamos fire claim 

victims who wanted an alternative to court proceedings. 

 The Department of Justice/Civil Rights Division’s Americans With 

Disabilities Act Mediation Program uses ADR to resolve, quickly and 

voluntarily, discrimination complaints about architectural, communication, 

and attitudinal barriers for people with disabilities throughout the country. 

 The Department of Transportation/Federal Aviation Administration has 

integrated a Neutral Evaluation program into the negotiated grievance 

process for all labor disputes between the Air Traffic Controllers 

Association and the Federal Aviation Administration. The program 

promotes collaboration and resolution early in the process by presenting 

disputes to an independent neutral, with expertise in the particular subject 

matter at issue, to provide a non-binding advisory decision. 

 The Department of the Treasury/Office of the Comptroller of the 

Currency’s Office of the Ombudsman, through the Customer Assistance 

Group, addresses disputes between consumers and national banks or their 

subsidiaries, and provides a user-friendly Web site of resources, answers, 

and formal complaint forms for consumers. 

The independent agencies shared a similarly impressive track record of success stories, 

some of which are these illustrative examples: 

 The Consumer Product Safety Commission utilized mediation to resolve a 

major dispute involving a risk to the public of carbon monoxide poisoning. 

 The Environmental Protection Agency/Office of Administrative Law 

Judges uses a mediation program to facilitate settlement of administrative 

civil penalty enforcement cases under a set of federal environmental laws. 

The agency’s Office of the Small Business Ombudsman resolves disputes 

with the small business community in the development and enforcement 

of environmental regulations. 

 The Federal Energy Regulatory Commission provides a menu of ADR 

options such as facilitation of collaborative pre-license processes, 

mediation, settlement judges, and the use of early neutral evaluation. 

 The Federal Maritime Commission facilitates the flow of U.S. ocean 

commerce by using ADR to quickly resolve disputes involving ocean 

shipping transactions, violations of shipping statutes, and freight charges. 

- 4 ­
 The Nuclear Regulatory Commission employed collaborative, facilitated 

ADR processes to involve the public in decision making about revision of 

agency rules and guidance on emergency planning in the wake of 9/11. 

The Report also shows that ADR is being routinely employed – with great success – to 

resolve workplace conflict and result in higher morale and greater productivity in the 

federal workforce. 

III. Advantages of Alternative Dispute Resolution 

ADR has been instrumental in promoting a citizen-centered government, managing the 

costs of government, and supporting the strategic management of government resources. 

A. Promoting a Citizen-Centered Government 

A citizen-centered government is one that is: 

 accessible to the citizens it serves; 

 responsive to the needs of the citizens it serves; and 

 inclusive of the interests impacted by government initiatives. 

The inherent design of ADR promotes a citizen-centered government because ADR 

processes facilitate early and direct communication and interaction among disputants. 

Federal agencies are capitalizing on technology to enhance the contributions of ADR to 

citizen-centered government. The National Mediation Board is a forerunner in the use of 

on-line dispute resolution tools, such as document-sharing software, to bring parties 

together electronically in their efforts to forge agreement. The Federal Energy 

Regulatory Commission operates an Enforcement Hotline which gives citizens access to 

an early neutral evaluation for a range of disputes before complaints are formally filed 

with the agency. The Department of Justice Civil Rights Division has a comprehensive, 

interactive, and user-friendly Web site for persons with disabilities and business owners 

who have questions about their rights and obligations under the Americans with 

Disabilities Act. The Department of Defense/Department of the Air Force utilizes the 

Internet as a primary means of dispensing ADR information. 

Numerous agencies, such as the United States Agency for International Development, are 

employing ombuds to provide employees and citizens an opportunity to speak directly 

with an agency representative about issues of concerns. The ombuds provides timely 

feedback to the potential disputant and, as importantly, ongoing feedback to the 

respective agency regarding the impact and effectiveness of its programs. 

Countless agencies also are encouraging the use of consensus-building processes to let 

citizens participate in agency decision making. The Nuclear Regulatory Commission, for 

example, has convened collaborative processes for developing guidelines regarding the 

recycling of radioactive materials. The Department of Energy Office of Legacy 

- 5 ­
Management has developed a Public Participation process to target populations – small 

towns, rural areas, minority and low-income communities – that are limited in their 

ability to participate in environmental decisions because they lack access to information, 

technology, expertise, and decision-makers. Such processes serve to identify and 

dismantle roadblocks to agency initiatives and foster collaborative relationships between 

agencies and their respective stakeholders, something that can have a long-lasting impact 

on agency decision making and approval processes. 

B. Managing Costs 

ADR contributes to the effective conservation of limited federal resources in several 

interrelated ways: 

 controlling the costs of conflict; 

 producing quicker and more durable results; and 

 preserving resources for the mission of the agency. 

Controlling the costs of conflict. Use of ADR controls the financial impact of conflicts 

by saving on the skyrocketing costs associated with litigation. Many agencies have 

documented significant costs savings in legal expenses, expert witnesses and travel costs. 

ADR also saves the cost of productive labor that otherwise would be dedicated to, or lost 

as a result of, the conflict. 

Producing quicker and more durable results. Litigation is extremely time-consuming 

and results in a winner and a loser. In contrast, because ADR is inherently flexible, it 

gives the parties a unique opportunity to craft the process and solution which are tailored 

to their own needs. They can decide when to meet and they can decide on the terms of a 

mutually-beneficial outcome that best serves their respective interests. The resolution 

they reach is likely to last much longer than a hierarchical decision imposed by an outside 

forum. 

Preserving resources for the mission of the agency. The use of ADR preserves resources 

for agencies. Rather than funneling resources to manage ongoing disputes, agencies 

employing ADR are able to apply resources to achieving the mission of the agency. 

C. Managing Strategically 

ADR contributes to the strategic management of government resources, both monetary 

and human, by: 

 maximizing resources; 

 promoting innovation; and 

 fostering continuous improvement and expansion. 

Maximizing resources. Use of ADR maximizes resources. The issues at stake in some 

cases demand litigation or a more formal administrative process. Maximizing agency 

- 6 ­
resources requires the assessment and identification of those cases which are appropriate 

for ADR and those which require a more formal disposition. As the Federal Election 

Commission reported, early disposition of cases to ADR liberates resources for those 

cases that necessitate a more formal process. 

Promoting innovation. Use of ADR promotes innovation by giving the parties a chance 

to craft a resolution that captures their needs and interests in a way that may not be 

possible through a more formal process. As the Federal Maritime Commission explains, 

ADR processes provide flexibility to the parties involved in shipping transaction disputes 

so they can draft innovative solutions that reflect their own needs as well as the state of 

the market. 

Fostering continuous improvement and expansion. Use of ADR promotes continuous 

improvement and expansion by encouraging agencies to identify opportunities for more 

and better ADR successes. The growth of ADR programs throughout the federal 

government, in a wide range of areas, reflects the need for this improvement and 

expansion as agencies strive to develop programs that better serve party needs. 

IV. Areas of Alternative Dispute Resolution Programs and Use 

This section of the Report discusses the specific contributions of ADR to good 

government, as viewed through the lens of the four major substantive areas of federal 

ADR applications: civil enforcement and regulatory; claims against the government; 

contracts and procurement; and workplace. 

A. Civil Enforcement and Regulatory 

Promoting a Citizen-Centered Government. In civil enforcement and regulatory disputes, 

unassisted negotiations and litigation have focused traditionally on which party has the 

stronger position. Today, many agencies fulfill their statutory mandates with the use of 

ADR, which is used as a supplemental tool to avoid protracted litigation when unassisted 

negotiations fail. The public interest is often better served when citizens, nongovernmental organizations, corporations, state and federal agencies, tribal nations, and 

other entities participate directly in an ADR process that includes them in the 

development of a result that meets the interests of all concerned. Stakeholders who work 

toward a shared, positive outcome often achieve better results than they would have 

received in court and can create long-term productive working relationships. 

A few examples show how ADR is supportive of citizen-centered government by 

promoting accessibility, responsiveness, and inclusiveness: 

 The Environmental Protection Agency Brownfields Mine-Scarred Lands 

Initiative is a multi-level effort to engage a broad range of federal partners 

and local community members in addressing mine-scarred lands across the 

country. 

- 7 ­
 The Department of Energy Office of Environmental Management is using 

ADR to involve stakeholders early and often in decision making regarding 

the nuclear weapons complex cleanup program. 

 The Small Business Administration National Ombudsman acts as a 

“trouble shooter” between small businesses and federal agencies on 

problems perceived as unfair and excessive regulatory enforcement. 

 The Department of the Interior Office of Environmental Policy and 

Compliance is advancing greater use of consensus-based decision making 

in the implementation of the National Environmental Policy Act to engage 

local communities throughout the analysis process including developing 

the preferred alternative. 

Managing Costs. ADR programs enable better control over resources expended, as well 

as better outcomes, as these examples reflect: 

 The Department of Homeland Security/Federal Emergency Management 

Agency notes that for every lawsuit avoided, the agency can save 

thousands of dollars, thus leaving it better able to manage its resources. 

 The Federal Energy Regulatory Commission reports faster processing and 

savings in hydroelectric proceedings where settlement agreements are 

reached during the pre-filing period. 

 The Securities and Exchange Commission, while unable to agree to 

settlements during the mediation session (because of the need for review 

and authorization by the Commissioners), emphasizes the benefits that can 

flow from the process of mediation. For example, the Commission reports 

that mediation routinely helps to streamline discovery and focus the 

parties on key issues so that they are able to reach settlement shortly after 

the mediation concludes. 

Managing Strategically. Agencies are building internal capacity to maximize the benefits 

of ADR, as shown by these practices: 

 The Department of the Treasury/Internal Revenue Service Appeals office 

has an incentive-based training program which enhances the 

competitiveness of Appeals Officers trained for collateral duty mediation, 

and 400 of them have been trained as mediators. 

 The U.S. Institute for Environmental Conflict Resolution has a national 

roster of pre-qualified neutrals, searchable on-line, that is used by federal 

agencies to locate environmental conflict resolution practitioners. 

B. Claims Against the Government 

Cases involving claims against the government are cases in which the United States is a 

defendant in a civil action. Since the federal district courts are required to offer some 

form of ADR, its use is fairly common in many of the cases. Additionally, many 

agencies make an initial determination as to whether to settle a civilian claim before a 

- 8 ­
lawsuit is actually filed. Agencies use mediation to some degree at these initial stages; 

however, without the rights to discovery which accrue with the formal filing of the 

lawsuit, the parties may not yet have enough factual information to support a 

knowledgeable settlement at this stage. 

The goal of ADR in these cases is consistent: offering expedient alternatives to citizens 

while at the same time pursuing the best interests of the government. As a Department of 

Justice attorney said in describing the obligations of representing the United States: “Our 

mission is to zealously represent the United States in suits brought against it or in suits 

brought on its behalf....However, we also owe a responsibility to our citizens to act fairly 

to those litigating with the United States.” ADR can further both the mission and the 

responsibility of the government, while yielding these benefits: 

 savings in costs associated with trials, such as fees and travel expenses for 

experts and other witnesses; 

 savings in time of attorneys, staff and parties who are federal employees; 

 quicker resolutions than a trial would offer and therefore fewer days that 

the parties have spent under the cloud of a pending lawsuit; 

 creative resolutions acceptable to the parties, but which a court could not 

impose; 

 lower monetary judgments than a jury or judge might impose; and 

 a durable and voluntary agreement without any appeals. 

The use of ADR in appropriate claims against the government also allows the agencies 

more control over agency resources. Savings in money, time, and labor resources are 

significant when discovery and litigation costs are reduced or eliminated through the use 

of ADR to settle claims, but the impact can be realized even when the claim is not 

resolved through ADR. As the Department of Justice/Civil Division reports, even when a 

case does not settle, the use of ADR often results in a narrowing of contested issues and 

the scope of discovery. 

Finally, the use of ADR in appropriate claims against the government enables agencies to 

maximize the limited government resources that are available to defend a case. As the 

Department of Justice pointed out: “By resolving cases that can be resolved through 

ADR, attorneys are able to focus their resources and work efforts on the cases that need 

to be fully litigated...and on the core missions of their agency rather than on timeconsuming litigation.” 

C. Contracts and Procurement 

The application of ADR to contracts and procurement disputes has increased in recent 

years, as more agencies – and more contracting companies – realize the value of ADR in 

achieving prompt and fair resolution of contract and procurement-related disputes. 

Promoting a Citizen-Centered Government. Agencies across the board are utilizing 

technology to promote ADR, and as these examples show, that approach is allowing 

- 9 ­
individuals and private sector entities to do business with a government that is accessible, 

responsive, and inclusive: 

 The Department of Defense (the Department of the Air Force, the 

Department of the Navy, and the Defense Logistics Agency) has 

developed user-friendly Web sites that provide information on ADR 

processes, sample forms, and training in how to engage in interest-based 

collaborative problem solving. 

 The Department of Transportation/Federal Aviation Administration has 

developed a similar citizen-centered Web site. 

Managing Costs. The use of ADR in contracts and procurement disputes has resulted in 

savings of both time and money: 

 The Department of Defense/Department of the Air Force reports that its 

“ADR First” policy in contract disputes has enabled it to avoid an average 

of $57.6 million in liability in each of the most recent five years (FY 2002 

through FY 2006). 

 The Department of Transportation/Federal Aviation Administration 

reports that the use of ADR has resulted in shorter resolution timeframes 

for the agency: bid protests are resolved through ADR in an average of 24 

calendar days, while contract disputes have been resolved by ADR in an 

average of 67 calendar days. 

Perhaps most importantly, agencies report that resolutions reached through ADR are 

more durable because they reflect the needs and concerns of the parties at the table, 

including the government. The Department of Veterans Affairs says that as the result of 

its ADR program, decisions are made with “greater certainty in achieving the 

Department’s mission.” 

Managing Strategically. Use of ADR is enhancing the effective allocation of resources 

while promoting innovation in both process and outcome: 

 The Department of Defense/National Guard is maximizing its resources 

by providing contracting officers and other Guard personnel with Claims 

Avoidance workshops which have contributed to a reduction in problems 

and disputes arising from the implementation of contracts. 

 The Department of Agriculture maximizes resources through ADR 

process efficiencies such as using internal neutrals, consolidating travel 

assignments, and using telephonic and video-conferencing in place of 

travel where possible. 

 The Department of Transportation/Federal Aviation Administration 

provides ADR to parties before they file formal bid protests which enables 

them to resolve concerns before the dispute escalates, and reports that of 

79 “pre-dispute” cases where ADR was employed only three proceeded to 

formal litigation. 

- 10 ­
In 2002, upon the recommendation and with the support of the Interagency ADR 

Working Group Contracts and Procurement Section, the Office of Management and 

Budget’s Office of Federal Procurement Policy established an annual Federal 

Procurement ADR Awards Program for agencies and their private sector business 

partners who effectively employ ADR to avoid and resolve procurement-related disputes. 

The public sector award winners to date have included the Department of Defense 

(Department of the Air Force, the Armed Services Board of Contract Appeals, the Army 

Corps of Engineers, the Defense Logistics Agency, and the Department of the Navy), the 

Department of Transportation/Federal Aviation Administration, and the General Services 

Administration Board of Contract Appeals. 

D. Workplace 

Across the federal government, agencies have found that the availability of workplace 

ADR increases the ability of employees and managers to resolve internal disputes quickly 

and effectively, at the earliest possible time, and at the lowest possible level. This is 

especially important in the workplace, where festering disputes may distract an employee 

or manager from fulfilling essential work responsibilities. Use of ADR is cost-effective, 

saving money and time because resources are not spent on long investigations and 

protracted litigation, but rather on resolving disputes more quickly outside of the 

courtroom. In addition, agencies have found that involvement in the ADR process often 

forces supervisors to deal directly with the outcome of their, or their subordinate’s, 

actions. This results in important lessons being learned that have long-term positive 

effects on the organization’s efficiency. Additionally, direct supervisor interaction with 

employees often opens avenues of communication that had been closed, resulting in 

better working relationships and improved productivity. 

Background History of Workplace ADR. Early and pioneering workplace ADR programs 

at the Equal Employment Opportunity Commission and the U.S. Postal Service launched 

a number of lessons learned that still serve as linchpins for managing workplace conflict: 

 On the whole, many managers felt less threatened when they participated 

in a “problem solving” mediation to resolve a work-related dispute, rather 

than being put on the defensive in response to allegations of illegal 

discriminatory conduct. 

 The earlier the mediation occurs, the better the chances are that the parties 

will reach a voluntary settlement, and that the collateral negative impact of 

the dispute on co-workers and the organization as a whole will be 

minimized. 

 Mediation should be made available at many different stages of a dispute 

so that it is at all times a viable alternative to continuing with the formal 

dispute process. 

 Voluntary agreements reached through mediation provide a more enduring 

solution to the issues underlying the dispute than any outside adjudication 

could do. 

- 11 ­
ADR Programs Are Successful in Resolving Workplace Disputes. Agencies report ADR 

settlement rates all above 50% and some reaching 75% and above, with significant cost 

savings. By comparison, the Equal Employment Opportunity Commission reported the 

national settlement rate of EEO cases through ADR was 49%. 

ADR Programs are Cost-Effective. ADR programs conserve human capital by creating 

loyalty and longevity in the agency’s work environment, and increase productivity. 

ADR Saves Agency Funds. Federal agencies report considerable savings of monetary 

resources through workplace ADR programs: 

 The Social Security Administration calculated that the average costs of 

processing an EEO complaint through a traditional process was 

approximately $40,000, while the costs of mediating an EEO complaint 

ran from $50 (if a shared neutral is used) to $1500 (if an outside vendor is 

used). 

 The General Services Administration noted that for every EEO case 

resolved through mediation, the agency saved $3500 - $4500 in 

investigation fees alone. 

 The Department of Justice/Federal Bureau of Investigation calculated that 

it cost the agency over $2,600 for each EEO investigation and over 

$250,000 for a Final Agency Decision, but only $1,800 on average for 

each case resolved through mediation. 

ADR Saves Agency Time. Agencies report a substantial time savings through the 

application of ADR to workplace disputes: 

 The Department of Defense/Department of the Air Force reports, for 

example, that workplace disputes resolved through mediation take an 

average of 27–40 days, as opposed to an average of 390 days for EEO 

cases which proceed to the administrative phase. 

 The Department of Defense/Washington Headquarters Service reported 

that ADR processes took an average of 39 days, as opposed to EEO formal 

complaints (federal-wide) which took an average of 469 days in Fiscal 

Year 2004. 

 The Department of Housing and Urban Development reports that 

processing time is reduced from 802 days in formal EEO cases to 53 days 

in ADR. 

ADR Programs Are Essential to Strategic Management of the Workplace. The 

availability of ADR options gives both internal and external benefits to the agencies by: 

 demonstrating an agency’s concrete commitment to fostering a positive 

long-term working environment for all employees; 

 improving relationships between federal managers and employees; 

- 12 ­
 increasing employee productivity; 

 reducing costs with interagency sharing of in-house neutrals; and 

 increasing efficiency with interagency sharing of expertise. 

Workplace ADR Programs Create Collateral Benefits for the Agency. The benefits to 

ADR extend beyond the immediate dispute: 

 Effective communication, a key ingredient of ADR, enables management 

to get key input from the employees working with issues that can 

potentially pose problems for the agency as a whole. 

 Addressing causes of employee dissatisfaction can increase productivity. 

 ADR processes identify and address recurring issues that lead to systemic 

problems, making it more likely that similar disputes can be avoided in the 

future. 

E-Government Makes Workplace ADR Accessible to All. Workplace dispute resolution 

programs are utilizing electronic tools to multiply the use and application of ADR 

through: 

 information dissemination to educate agency employees and increase the 

use of ADR services; 

 use of electronic tools for training in ADR techniques and use of the ADR 

process itself; and 

 use of ADR processes to elicit staff input in converting to e-government. 

V. The Future of Alternative Dispute Resolution 

A. Capitalizing on the Potential of ADR 

Alternative dispute resolution has become well-accepted in federal agencies as an 

effective and efficient method for resolving disputes and has been readily adopted as part 

of a sound business model. All of the agencies responding to the survey convey the 

fundamental belief that conflict is reduced wherever and whenever communication is 

improved and acknowledge the positive impact of ADR on both reducing conflict and 

enhancing communication. 

However, the agencies in the Executive Branch are still a long way from employing ADR 

to its full potential. Alternative dispute resolution is still being used to “fix problems” as 

they occur, and needs to grow into a system of pro-active conflict management. The key 

to reducing conflict is early intervention and anticipatory dispute resolution which 

prevent the escalation of disagreement. A number of agencies have developed programs 

to focus on early intervention, including: the Federal Aviation Administration Early 

Dispute Resolution Center; the Federal Energy Regulatory Commission Dispute 

Resolution Service and Enforcement Hotline; the Department of the Interior CORE 

PLUS Program for managing any workplace conflict; the Department of Justice 

Mediation Program for disability rights; the Department of Transportation Center for 

- 13 ­
Alternative Dispute Resolution; and the U.S. Institute for Environmental Conflict 

Resolution work with the other federal agencies on engaging stakeholders early in the 

process of resource planning or environmental review. 

All agencies can learn from these trailblazers to recognize the positive power of conflict. 

Successful conflict resolution programs value the diversity of viewpoints, and are based 

on a belief that more creative and responsive resolutions can emerge when more minds 

tackle a problem. Conflict is thus transformed from a negative interaction into a 

cooperative activity which can infuse value, flexibility, and adaptability into business 

decisions. 

B. Challenges and Opportunities 

The Report offers a roadmap of challenges and opportunities that could assist in fulfilling 

the promise of ADR in the coming years: 

Leadership. Expressions of leadership commitment would be valuable in maximizing the 

beneficial impact and results of ADR through the Executive Branch. Possibilities 

include: 

 proclamation by the President of a National Conflict Resolution Day 

recognizing the societal value of conflict management (Appendix G); 

 letter of greetings and commendation from the President to federal 

employees responsible for alternative dispute resolution (Appendix H); 

 establishment of a Federal Council and annual conference for agency 

Dispute Resolution Specialists; and 

 government-wide biennial ADR achievement awards program. 

Performance Management. The uses and successful outcomes of ADR are more likely to 

be maximized if the agency performance management structure includes conflict 

management elements, for example: 

 conflict management as a selection and performance appraisal criterion for 

executive and management positions; 

 conflict management as a key element in recruitment, training, and 

planning; and 

 programmatic reviews and evaluations to show measures of improvement 

and progress in implementing ADR programs. 

External Promotion and Facilitation. Agencies should educate the entities subject to 

their jurisdiction about how ADR works and the benefits it can produce, and promote and 

facilitate their use of ADR in appropriate cases. 

Training. At a minimum, agencies should provide communication skills training for all 

new employees, and communications skills and conflict management training for all new 

- 14 ­
managers and supervisors. Agencies should explore means of saving training expenses 

by using and sharing federal trainers and training resources. 

Interagency Sharing of Federal Resources. With leadership and coordination, agencies 

should consider sharing in many interagency projects, including ADR tracking and 

evaluation tools. 

Management Support. Agencies should institutionalize their ADR programs by 

providing leadership commitment and continuity of staff and funding. Regardless of 

whether their ADR programs and operations are centralized or decentralized, agencies 

should ensure that ADR is integrated into the way people do business in all areas of the 

agency’s responsibilities where use of ADR is appropriate. 

VI. Conclusion 

Alternative dispute resolution is a tool for appropriate cases, not a panacea for all cases. 

The interests of the United States often are unique. Federal officials can resolve cases 

only in ways that will not undermine important legal issues, jurisdictional defenses, or 

policy interests. In appropriate cases, ADR has become a common sense option for the 

federal agencies. It is cost-effective, time-efficient, it gives the parties control over the 

outcome, and it involves stakeholders in decisions that affect them. 

- 15 ­
I. Introduction 

Although it is human nature to avoid conflict where possible, conflict is not all bad. 

Conflict can be constructive and a catalyst for growth. It also is inevitable, so the real 

question is how best to manage conflict. In our world, litigation too often has been the 

primary game plan for dealing with conflict. But the need for an alternative to litigation 

was evident at least 150 years ago, when Abraham Lincoln said: “Discourage litigation 

because the nominal winner often is a loser, in both time and money.” It took a long time 

after President Lincoln’s admonition before a new framework was constructed that 

recognizes litigation is not, and should not be, inevitable. That framework is alternative 

dispute resolution (“ADR”). 

Less than ten years ago, in May 1998, a Presidential Memorandum directed the Attorney 

General to coordinate interagency efforts to promote and facilitate the use of ADR in the 

Executive Branch of the federal government and requested a periodic report on that work. 

The Attorney General submitted an initial report in 2000 when federal ADR was in its 

infancy. The Report which we now submit: 

 describes the growth in the breadth, scope and depth of federal ADR since 

the 2000 Report was submitted; 

 documents the results and benefits of federal ADR, including substantial 

cost savings, increased workforce productivity and accountability, timely 

achievement of agency goals, and delivery of reliable and efficient 

service; and 

 discusses the future of federal ADR, including the challenges it faces and 

opportunities to develop its full potential. 

Successful managers in every federal agency are embracing and institutionalizing 

alternative dispute resolution – and the results are dramatic. Throughout the federal 

government, the use of ADR is delivering concrete and measurable results to the 

American people who rely on the resources of the federal government, including: 

9 substantial cost savings; 

9 increased workforce productivity; 

9 increased workforce accountability; 

9 timely achievement of specific agency goals; and 

9 delivery of reliable, efficient, and high quality service. 

ADR is an umbrella term encompassing a range of processes that provide alternatives to 

traditional litigation. ADR processes, in general, give parties the opportunity to play a 

more active role in collaborating to create mutually agreeable decisions or crafting a 

- 16 ­
resolution to their disputes. Mediation, a commonly used ADR process, highlights the 

benefits of this opportunity. Through mediation, those individuals who best know the 

facts, the issues, and the vested interests involved in an issue or dispute are the very 

people balancing priorities and crafting a resolution that reflects their interests. The 

result is a durable resolution, created and endorsed by those who will implement it. 

Oftentimes, the result also includes improved relations between the parties to a dispute, 

particularly important for parties who have ongoing business relationships. 

The range of ADR processes employed throughout the federal government is varied, 

reflecting the needs of the respective agencies and their constituencies. However, all of 

the ADR processes give parties a greater opportunity to engage with their government in 

decisions that directly impact them. Attached in Appendix A is a list of some of the 

various processes that fall within the ADR umbrella, along with descriptions of the 

elements of each one. Attached in Appendix B is a description of the types of alternative 

dispute resolution processes employed by each federal agency. 

A. Brief History of Federal ADR 

The use of ADR processes in the federal government is not a new phenomenon. Its 

genesis was in the 1970s. In the 30-plus years since it took root, ADR has experienced 

exponential growth. Let us look back at those tentative early efforts, and the catalysts 

that have led ADR to its current status as part of the business of the federal government. 

 In the mid-1970’s, ADR use was championed as a potential remedy for overwhelming 

and disabling court backlogs. Countless cases were delayed – many for two years or 

more for lower court adjudication – leaving litigants languishing, their access to effective 

justice essentially denied. The initial federal implementation of ADR aimed to address 

this problem by offering litigants a quicker route to resolution in appropriate cases. The 

experiment offered great promise and delivered tangible results. The effective use of 

ADR also demonstrated over time that there are other distinct advantages to using these 

processes beyond merely shrinking court backlogs. Disputes addressed through ADR 

often are resolved more quickly, more effectively, and at less cost, both in terms of 

money and human resources, than disputes addressed through traditional processes, 

primarily litigation or formal administrative proceedings. Additionally, the voluntary 

agreements reached with ADR often are better received and, correspondingly, more 

durable than adjudicated outcomes. 

Also in the 1970s, use of ADR began to take hold for resolution of environmental and 

natural resource disputes. Then, in 1985, the Attorney General issued an order 

recognizing the need for ADR to reduce the time and expense of civil litigation. A few 

years later the Department of Justice again recognized the benefits of ADR in the 

Congressional testimony of its Assistant Attorney General, Office of Legal Counsel, who 

supported the first ADR legislation subsequently enacted by Congress. 

It was the initial positive experience with ADR that led to its further development and 

expanded use in the courts and throughout the federal government. In 1990, Congress 

- 17 ­
moved toward institutionalizing federal agency ADR with the passage of the 

Administrative Dispute Resolution Act, which required each agency to adopt a policy to 

encourage use of ADR in a broad range of decision making. Initially, the Act included a 

sunset provision as well as other provisions protective to the government in ADR 

processes. In 1996, however, the statute was reenacted permanently without the earlier 

restrictions. Also in 1996, the President issued Executive Order 12988 on Civil Justice 

Reform, directing federal litigation counsel to consult with the referring agency and 

suggest ADR where benefits might be derived from its use. Two years later, in 1998, 

Congress mandated that the federal trial courts develop and implement ADR programs in 

every district throughout the country. It was slowly becoming clear that dispute 

resolution no longer was just a narrow response to a particular legal problem, but a 

widely applicable tool for effective conflict resolution. 

In response to the burgeoning use of ADR throughout the federal government, the 

Interagency Alternative Dispute Resolution Working Group (“Working Group”) was 

established by Presidential Memorandum on May 1, 1998. The President directed the 

Attorney General to lead the Working Group’s mission of assisting Executive Branch 

agencies in exploring ADR as a more effective and efficient way to handle disputes 

involving the federal government. The Working Group also was tapped to monitor and 

coordinate ADR use and report periodically to the President on the current state of federal 

use of ADR. The initial organizing meeting of the Working Group established four 

Sections, described in detail below, to represent the major substantive areas of ADR 

application. A Working Group Steering Committee was established to represent nearly 

60 federal agencies. The past and current leadership of the Working Group Sections and 

Steering Committee is given in Appendix C. The current membership of the Working 

Group Steering Committee is in Appendix D. 

The Attorney General submitted a brief initial federal ADR Report to the President on 

May 8, 2000 (“the 2000 Report,” attached as the Addendum) when federal ADR was still 

in its infancy. The 2000 Report concluded the important first full year of interagency 

efforts to promote and facilitate federal ADR. At that time, the largest and most 

successful use of federal ADR was the U.S. Postal Service’s REDRESS® Program, which 

focused on Equal Employment Opportunity (“EEO”) complaints. The statistics presented 

in the 2000 Report detailed the obvious advantages of ADR and the agency’s 

extraordinary accomplishments in that area. The early use of ADR in contracting also had 

begun to show promise. Today, the use of ADR is well accepted and part of standard 

practice in those areas. Since the submission of the 2000 Report, there has been a major 

expansion in the use of ADR in other areas, including enforcement and regulatory, and 

claims against the government. 

The growth in breadth, scope, and depth of the ADR programs developed since 2000 is 

described at length in this Report. The use of ADR has grown to encompass a broad 

range of contests, including policy development, adjudications, rulemaking, 

administrative and civil judicial enforcement actions, permit issuance, and public 

involvement. This Report seeks to measure and evaluate that exponential growth and 

provide a harbinger of the potential for ADR to realize the goal of good government -- 

- 18 ­
government that is both results-oriented and responsive to the needs of the American 

people. 

B. Overview of the Interagency Working Group Sections and 

Working Group Steering Committee 

The 2000 Report focused on the initial challenge of promoting and assisting in the 

establishment of an ADR program in every federal agency. Since that time, the use of 

ADR has expanded across and within many federal organizations. For example, agencies 

which once concentrated their ADR efforts solely on workplace disputes have effectively 

leveraged their positive experiences to expand ADR to procurement and regulatory 

disputes. Correspondingly, the goals of the Working Group Sections and Steering 

Committee have expanded in broadening support for the continued development of ADR 

programs and application of ADR in a multitude of areas. This Report captures the 

unprecedented advances of the years following submission of the 2000 Report and 

reflects an extraordinary overall decade of federal leadership in the field of ADR. The 

compilation of innovative ADR programs thoughtfully designed in over a hundred 

federal agencies and sub-agencies in recent years - many of which are built on the 

foundations described in the 2000 Report – demonstrates ADR’s potential to deliver 

government accessibility, services, and justice to the American people. 

In mid-2005, the Working Group Steering Committee began the process of surveying 

hundreds of ADR programs throughout the federal government in order to evaluate and 

measure progress achieved in the use of ADR. Surveys were distributed to every agency 

within the Executive Branch. The data provided by those agencies (listed in Appendix E) 

offer concrete information to illustrate the past successes and future potential of ADR, 

and confirm that ADR has both delivered on its promises and offered realistic hope for 

further successes. 

Before delving into the survey results, addressed in length in the subsequent sections, we 

have described below some of the other specific areas of accomplishment of each of the 

substantive areas covered by the four Working Group Sections and Steering Committee. 

CIVIL ENFORCEMENT AND REGULATORY SECTION 

When initially formed, the goal of the Civil Enforcement Section was to educate and 

assist member agencies in the use of dispute resolution techniques in civil enforcement 

and compliance cases as an alternative to traditional litigation and settlement methods. 

This goal remains the same today but with an expanded focus, to reflect the realization 

that there are other, related areas where ADR has great potential to make business and 

resource planning more cost-efficient and productive in appropriate instances. 

Accordingly, in the autumn of 2002, the scope of the Section’s coverage was expanded to 

include regulatory conflicts, and its name was changed to the Civil Enforcement and 

Regulatory Section. Active agency representatives in this Section come from the: 

Federal Energy Regulatory Commission, Securities and Exchange Commission, Federal 

- 19 ­
Maritime Commission, Federal Election Commission, Coast Guard, Department of the 

Navy, Department of the Interior, Environmental Protection Agency, Air Force, Internal 

Revenue Service, U.S. Institute for Environmental Conflict Resolution, and the 

Department of Commerce. These members are dedicated to assisting other agencies and 

stand ready to provide consultation or training in ADR program development. Agencies 

for which this Section has provided consultation and training include the Social Security 

Administration, the Department of Transportation’s Surface Transportation Board, and 

the Department of Labor. 

Since its inception and expansion, the Civil Enforcement and Regulatory Section 

consistently has reached out to agencies and other organizations to expand the use of 

ADR. Agencies were contacted directly to explore interest in participating in Working 

Group activities. The Section also developed a Newsletter for agencies and the public, 

detailing Section activities and providing information on the applicability of ADR to 

enforcement and regulatory missions. Topics which have been covered in the Newsletter 

include: ADR success stories in the civil enforcement and regulatory arena; resources 

available to support ADR efforts, such as ADR consultation teams; related initiatives by 

other organizations; guidance on frequently asked questions, and considerations on the 

appropriateness of ADR for a particular case. Each Newsletter is posted on the Federal 

Interagency ADR Web page at www.adr.gov. 

In sum, the Civil Enforcement and Regulatory Section and its dedicated members support 

the widespread application of ADR. Lengthy, costly, and time-consuming traditional 

adjudication processes have forced business decision-makers to devote an inordinate 

amount of their time to defending their positions. Their time could be better spent 

running their businesses more efficiently. This Section recognizes that ADR provides an 

attractive alternative for dealing with environmental disputes, business disputes, and 

transactional disputes. An environment that allows for disputes to be resolved quickly, 

and at low cost, benefits everyone directly affected, as well as the general citizenry. The 

goal of the Section is to continue to foster the development and implementation of ADR 

initiatives within the enforcement and regulatory arenas of the federal government. 

The Administration recently demonstrated its commitment to the use of ADR in 

environmental disputes through the Memorandum on Environmental Conflict Resolution 

which was issued jointly on November 28, 2005 by the Office of Management and 

Budget and the Council on Environmental Quality. This policy support has enabled 

members of the Civil Enforcement and Regulatory Section to be stronger advocates for 

the effective use of environmental conflict resolution within their own agencies. 

CLAIMS AGAINST THE GOVERNMENT SECTION 

Since the 2000 Report, this Section has assisted federal offices across the country in 

integrating ADR into the preparation and management of appropriate cases involving a 

claim against the government. This has included trainings for federal attorneys 

throughout the country, to educate them on how to effectively represent their client in an 

ADR process, as well as to strategize about the most effective and appropriate use of 

- 20 ­
ADR. The focus is on reaching the proper balance between litigating a case where it is 

necessary and appropriate and otherwise resolving cases through some form of ADR 

where it is practicable and in the best interests of the client. The federal government has 

used ADR successfully in aviation and admiralty cases, medical malpractice cases, class 

action and individual workplace discrimination cases, water rights and Native American 

land disputes, and a vast array of other civil actions brought against the United States. 

CONTRACTS AND PROCUREMENT SECTION 

The goal of the Contracts and Procurement Section is to address the need of agencies and 

private sector companies to find a viable alternative to traditional litigative processes for 

resolving contract and procurement disputes. 

This Section has actively promoted the use of ADR through an ongoing regular series of 

free educational programs on a variety of ADR topics. The Section has co-sponsored, 

along with the American Bar Association, twenty educational programs from 1999 to the 

present. The programs are open to all government and private sector public contracts 

professionals, giving them an opportunity to pro-actively identify potential problems of 

future contract interpretations and develop programs to explore areas subject to future 

disagreements. The programs have been exceptionally well-received with attendance 

often exceeding one hundred participants, with an equal or greater number participating 

by teleconference. A few of the topics include: “Unique Aspects of Mediating 

Government Construction Contract Disputes”; “Developing Guidance for Federal 

Agency Binding Arbitration”; and “Confidentiality in Public Procurement ADR – Legal 

and Ethical Issues.” The series is continuing and will include program topics suggested 

by the membership as topical and pertinent to contracting issues. 

In 2002, the Section worked with the Office of Federal Procurement Policy and the 

Procurement Executives Council to develop and implement an award program 

recognizing federal agencies and private sector companies that have used ADR 

effectively to resolve government contracts disputes. The award winners are selected by 

an independent panel of public and private sector ADR experts. Government award 

winners to date have included: the Air Force; the Army Corps of Engineers; the Federal 

Aviation Administration; the Defense Logistics Agency; the Armed Services Board of 

Contract Appeals; the General Services Administration Board of Contract Appeals; and 

the Department of the Navy. A special award was presented in 2003 to the American Bar 

Association Public Contract Law Section. The award program recognizes agencies and 

contractors who have distinguished themselves in their effective use of ADR in federal 

procurement disputes and serves to encourage other agencies and companies to utilize 

ADR in resolving public contracting disputes. 

The Section also has facilitated mentoring among federal agencies on the appropriate use 

of ADR to resolve procurement disputes. In this area, the Section has been actively 

working with individual agencies to develop or improve their ADR processes and 

procedures. Section members have worked directly with and conducted ADR seminars 

- 21 ­
and training sessions for twenty different agencies and have worked with many more on 

an informal basis to optimize their ADR programs and usage. 

WORKPLACE SECTION 

The purpose of the Workplace Section is to assist federal agencies in the development 

and implementation of workplace ADR programs which provide faster, more costeffective and more satisfying opportunities for employers and employees to address and 

to resolve all types of employment-related disputes. In addition, many agency workplace 

programs cover more than simply current employees; some programs cover contractors, 

former employees and even applicants for positions with the agency. 

The Workplace Section has focused its efforts on educating all federal agencies about 

ADR and advancing the use of ADR in the federal workplace. The Workplace Section 

facilitates, encourages, and coordinates the use of ADR to resolve workplace conflict and 

disputes. To support this effort, the Workplace Section has convened a panel of dispute 

resolution mentors to assist and motivate agencies with creating and improving 

workplace ADR programs. 

A critical component of the Section’s education process is information dissemination. 

The Workplace Section has organized a Lecture Series (generally held on a monthly 

basis) on federal workplace ADR to provide the most current, useful, and thoughtprovoking information affecting the workplace. The popularity of these presentations has 

steadily expanded since the first session in 1999, with growing participation and interest 

in the series. Each month, the ADR speakers at these sessions share their knowledge, 

experience, theories, and techniques. This medium for educating the federal ADR 

community has proven to be quite successful. It is expected that much of the information 

presented can be implemented and utilized by ADR specialists at their respective 

agencies. 

STEERING COMMITTEE 

In July 2006, the Steering Committee posted on the interagency Web site an updated 

governance document which outlines the mission of the Interagency Working Group 

Sections and Steering Committee, and describes their authority, structure, 

interrelationship, and decision making process. The governance document is available on 

the interagency ADR Web site at www.adr.gov (click on left “Working Group” 

navigation button, click on “Governance”). 

In 2006, the Steering Committee published three new guides to serve as advisory best 

practices in federal ADR. Two of the guides cover confidentiality and federal employee 

mediation ethics. The third guide, on ombuds programs, is a joint publication by the 

Steering Committee and the Coalition of Federal Ombudsman. The three guides are 

intended to bridge the gap between the Administrative Dispute Resolution Act’s 

legislative intent to promote ADR and the difficult, practical questions facing federal 

government administrators in developing workable dispute resolution programs. Prior to 

- 22 ­
finalization, public comment on each of the three draft guides was solicited in the Federal 

Register. 

In 2005, the Steering Committee published a new Handbook on finding appropriate 

neutrals for agency workplace disputes. 

The three guides and the Handbook, described briefly here, are posted in their entirety on 

the interagency ADR web site at www.adr.gov. 

“Protecting the Confidentiality of Dispute Resolution Proceedings: 

A Guide for Federal Workplace ADR Program Administrators” 

(April 2006) 

This comprehensive guide offers practical guidance for federal ADR program managers on 

the application of statutory provisions governing confidentiality in mediation of federal 

workplace disputes. The guide covers all requirements applicable before, during, and after 

dispute resolution sessions. It includes discussion on specific areas of confidentiality, 

including confidentiality agreements, record-keeping, program evaluation, access to 

reports, and non-party participants. The guide focuses ADR program managers on the 

appropriate balance between governmental reporting requirements and the importance of 

protecting parties’ confidentiality. It describes how to maintain appropriate agency goals 

pertaining to confidentiality and, at the same time, leave an agency sufficient flexibility to 

tailor a particular program to meet specific agency circumstances and needs. The guide is 

available on the interagency ADR Web site at www.adr.gov (click on left “Guidance” 

navigation button.) 

“A Guide for Federal Employee Mediators: 

A Supplement to and Annotation of the Model Standards of Conduct for Mediators 

Issued by the American Arbitration Association, the American Bar Association, and the 

Association for Conflict Resolution”

(May 2006)

This guide offers practical ethical guidance for federal employee mediators, tailored to a 

mediation practice within the federal government. Federal employees who are serving as 

mediators for a federal agency must balance their obligations and responsibilities as 

mediators and as federal employees. The guide sets forth the ethical responsibilities for 

mediators in the 2005 Model Standards of Conduct for Mediators with further explication 

under Federal Guidance Notes following each ethical provision. The Notes are intended 

to make federal employees aware of their additional employee responsibilities under a 

variety of statutory and regulatory requirements. The guide is available on the 

interagency ADR Web site at www.adr.gov (click on left “Guidance” navigation button.) 

- 23 ­
“A Guide for Federal Employee Ombuds: 

A Supplement to and Annotation of the Standards for the

Establishment and Operations of Ombuds Offices 

Issued by the American Bar Association”

(May 2006)

The Steering Committee’s Guide for Federal Employee Ombuds is intended to be read in 

conjunction with the American Bar Association’s “Standards for the Establishment and 

Operation of Ombuds Offices,” and describes more fully the underlying factors intended 

to ensure the independence and impartiality of a federal ombuds office. The guide 

focuses on the importance of determining whether a conflict of interest may exist 

between the ombuds’ responsibility of independence on the one hand and the employee’s 

duties to the agency/employer on the other hand. The guide is available on the 

interagency ADR Web site at www.adr.gov (click on left “Guidance” navigation button.) 

“Finding Neutrals Handbook” 

(May 2005) 

The Steering Committee’s Finding Neutrals Handbook assists agencies in obtaining the 

services of neutrals and assessing the type of neutral needed for a particular workplace 

dispute. This guide provides basic and comprehensive information about: the various 

types of neutrals available for use by federal agencies, including both government 

employees and privately employed neutrals; the various settings in which government 

neutrals operate; the advantages and disadvantages of each type of neutral for particular 

cases; the primary vehicles for procuring private neutrals; and an overview of some of the 

related issues of concern under federal procurement law. The Handbook also serves as a 

guide for balancing a government neutral’s professional obligations against the Executive 

Branch’s responsibilities to operate in the public interest and with fairness. The 

Handbook is available on the interagency ADR Web site at www.adr.gov (click on left 

“Guidance” navigation button.) 

C. Survey of Federal Alternative Dispute Resolution Programs 

As noted above, the Steering Committee in mid-2005 initiated a detailed survey of ADR 

programs in the Executive Branch of the federal government. The goal of the Steering 

Committee’s survey was to gather information about programs and plans. The survey 

elicited valuable feedback and statistics, submitted by over 100 agencies and subagencies, which quantify and evaluate existing federal ADR programs and which form 

the basis of this Report. 

This Report details the current state of ADR within the federal agencies and their efforts 

to measure results and determine the effectiveness of ADR. However, because each 

- 24 ­
agency has a unique mission, the use of ADR is extremely variable. Additionally, 

standardization is difficult because each agency is in a continuous process of 

implementing new programs and adjusting old programs to better fit its changing needs. 

If there is a single guiding principle in ADR, it is that the process requires flexibility. It 

is clear that in ADR “one size does not fit all.” The agencies not only have been 

expanding the substantive areas in which they use ADR, but they also have been 

developing creative new applications of the various ADR processes, as well as new 

hybrid combinations. In fact, it is this essence of tailoring the process to meet the 

individual parties’ particular needs and goals which inspires and guarantees the parties’ 

personal accountability in the resolution itself. Thus, development of uniform standards 

for measuring success of each of varying programs, within a particular agency and among 

the many agencies, is an enormous challenge. 

This Report applies the agencies’ own measurements of success where they have 

developed agency goals and guidelines for results. As we note, agency targets and 

measures still are under development in some of the newer ADR programs, as well as in 

some existing ADR processes where specialists face challenges in maximizing their 

potential. Part of the focus of this Report is to identify areas where the Steering 

Committee may be able to provide assistance to agencies in their efforts to develop goals 

and measurements of success for their programs, and to maximize that success. 

- 25 ­
II. ADR Programs: Enhancing Agency Missions 

Managers across the board have described how the effective and appropriate use of ADR 

permits an agency to focus more time and resources on its mission. In this section of the 

Report, we describe agency ADR policies as well as specific areas in which agencies use 

ADR and measure resultant benefits. Many of the agency ADR programs merit more 

space than we have available in this Report, but further information can be obtained from 

the Web sites where agencies describe their ADR programs in greater detail. 

Cabinet Level Agencies 

DEPARTMENT OF AGRICULTURE 

The Department of Agriculture is responsible for developing farm income and foreign 

markets for agricultural products, as well as for protecting and conserving the 

environment through agricultural research and conservation projects. Most Agriculture 

sub-agencies have established independent ADR programs, primarily for workplace 

disputes, with a few addressing disputes involving external clients and customers. 

Approximately half of all of the programs in place have set up separate ADR programs 

for early intervention in workplace disputes and EEO disputes. In 2006, the Department 

issued a revised and strengthened ADR regulation that made an offer of ADR mandatory 

at the informal complaint stage, unless a very narrow exception is made because of the 

existence of workplace violence, sexual assault/battery, or other criminal activity that is 

related to the complaint. Significant provisions provide that: management is expected to 

participate in ADR if requested, barring a compelling reason; agencies within the 

Department must establish permanent ADR awareness programs; mediators for the 

Department programs must maintain training and experience credentials; and decisions 

not to offer ADR at the formal complaint stage must be documented. 

DEPARTMENT OF COMMERCE 

The mission of the Department of Commerce is to create the conditions for economic 

growth and opportunity by promoting innovation, entrepreneurship, competitiveness, and 

stewardship. The Department uses ADR in three general areas: workplace/employment 

disputes (including EEO matters); environmental compliance issues regulated by the 

National Oceanic and Atmospheric Administration; and government contract disputes. 

The Department of Commerce uses mediation as a technique to resolve all types of 

employment disputes. The Department's Headquarters Office of Civil Rights, through 

the ADR Program Manager, develops program policy and operational guidance 

overseeing each bureau's EEO ADR initiative. Each bureau makes mediation available at 

the EEO informal or pre-complaint stage for cases where mediation is appropriate; the 

Headquarters office makes mediation available at the formal complaint stage. Currently, 

the focus of EEO ADR efforts is on the election of ADR by employees and agency 

officials. Each fiscal year, performance targets are established to measure the increase in 

- 26 ­
election rates above the previous year’s levels. A target measure is 20% above the 

previous year’s rate. In addition, the resolution rates are tracked. If the matter is 

resolved through ADR, or the parties withdraw the initial complaint, the case is 

considered an ADR success. 

The National Oceanic and Atmospheric Administration does not have a formal ADR 

program in the environmental conflict resolution arena, but uses several ADR techniques 

to resolve particular cases as the situation warrants. 

The National Oceanic and Atmospheric Administration utilizes a broad variety of ADR 

processes in other contexts, however, including use of consensus building and public 

participation in all of their cases. Consensus building is important to move cases toward 

settlement among the various trustee agencies and frequently with the responsible parties. 

Public participation, to some degree, is required by law in most natural resources cases 

and is used to keep the public informed and engaged in the agencies' assessment of 

damages and to get the public's input into choosing the appropriate restoration of natural 

resources. Consensus building and public participation were used extensively throughout 

the development of the natural resource damage assessment regulations promulgated 

pursuant to the Oil Pollution Act of 1990. Furthermore, all settlement negotiations for 

hydro re-licensing are based on the basic premise of reaching consensus, and typically 

include federal, state, local, and tribal governments, as well as industry, environmental 

groups, recreational interests, and local business interests as well as ratepayers. 

The National Oceanic and Atmospheric Administration also uses facilitation in public 

stakeholder meetings, in rulemaking public meetings, in a Superfund site to coordinate 

government issues, and in internal meetings among its staff and across its programmatic 

line offices to help air and address differences, problems, or issues of concern. On 

occasion, the sub-agency has used settlement judges in a few of its public claims for 

environmental damage to resolve liability. 

Lastly, the Department uses ADR in certain government contract disputes, generally 

using an Administrative Judge from the Board of Contract Appeals as a neutral. 

DEPARTMENT OF DEFENSE 

Throughout the Department of Defense, agencies are employing ADR tools in workplace 

disputes and contract and procurement disputes, as well as areas of land use and 

accessibility. The Department reports tangible, timely benefits from ADR use, including 

time and monetary savings and, perhaps most importantly, a profound impact on the 

workforce, permitting parties to focus on accomplishing agency mission rather than on 

disagreements. 

Department of the Air Force 

The Air Force mission is to deliver sovereign options for the defense of the United States 

and its global interests—to fly and fight in the Air, Space and Cyberspace. ADR 

- 27 ­
supports this mission by giving commanders, managers, and employees options for 

effectively and efficiently resolving disputes that otherwise could jeopardize morale and 

unit cohesion. 

Air Force Workplace ADR Program. 

The Air Force’s emphasis on voluntary, collaborative problem solving promotes a sense 

of teamwork, camaraderie, and a shared commitment to make outcomes work. The 

collaborative aspects of ADR have actively promoted stronger working relationships 

between management and employees. By exhorting parties to fashion their own solutions 

to their disputes, ADR produces outcomes better suited to promoting positive working 

relationships, maintaining worker morale, and promoting a sense of responsibility and 

accountability throughout the workforce. More than one-half of the Air Force’s civilian 

workplace disputes are referred to an ADR or other collaborative early resolution process 

utilizing interest-based problem solving techniques, with an average resolution rate of 

75% or better. As a result, the Air Force consistently diverts about 40% of its civilian 

personnel dispute workload from time- and resource-intensive formal dispute resolution 

processes. Use of ADR and other non-traditional early resolution techniques for those 

workplace disputes resolves most complaints in one-eighth the time and at one-eighth the 

cost of traditional processes. By reducing cycle times to process disputes from inception 

to resolution, ADR and other early interest-based techniques free personnel from disputerelated tasks faster and get them back to their primary mission tasks. 

Empowering people to take control of resolving their own disputes places a premium on 

the ability of supervisors and managers, and their employees, to engage in interest-based 

interactions to solve workplace problems, and the Air Force is currently engaged in a 

large-scale, intensive effort to deliver those skills to its management workforce, military 

and civilian, through its Integrated Conflict Management System, discussed below. 

Air Force Contract Disputes ADR Program. 

The collaborative aspects of ADR also have had a positive effect on and promoted 

stronger working relationships between the Air Force and its contractors. In contract 

disputes, ADR is the Air Force default position, and is offered in over 80 percent of 

cases, with acceptances at twice the rate of rejections. ADR has reduced cycle times 

dramatically in these disputes, from 38 months (for a trial) to seven months after the 

parties agree to use ADR. Cost savings from the use of ADR flow primarily from 

reduced cycle time, and include years of lawyer and staff effort, direct expenses of 

litigation such as witness fees, travel, and document production, and Contract Disputes 

Act interest on contractor claims. 

In recent years, the Air Force has emphasized early resolution of contract disputes, prior 

to the issuance of a contracting officer’s final decision, and preferably prior to the 

submission of a formal claim under the Contract Disputes Act. The Air Force Federal 

Acquisition Regulation Supplement instructs contracting officers to submit proposed 

final decisions to the Directorate of Contract Dispute Resolution at Wright Patterson Air 

- 28 ­
Force Base for review prior to issuance. Final decisions in excess of $500,000 also are to 

be submitted to the Deputy General Counsel for Dispute Resolution for review. A 

primary purpose of the review in both instances is to ascertain whether ADR should be 

used to resolve the dispute before it enters the formal disputes process. Air Force policy 

is to use ADR techniques once unassisted negotiations have reached an impasse. Early 

resolution is desirable for both parties. It means that creative solutions can be reached at 

minimal cost and with minimum program disruption, and – perhaps most important – the 

contracting parties retain maximum control of the outcome. 

Integrated Conflict Management System and the Air Force Negotiation Center of 

Excellence. 

The Air Force Integrated Conflict Management System has two primary elements. The 

first is a robust ADR system to resolve disputes as efficiently as possible. The second is 

a conflict management system that works to prevent disputes from arising in the first 

place. Key to making such a conflict management system work is training in negotiation 

and communication skills. The Air Force ADR program office for the last two years has 

conducted large scale negotiation training for supervisors of civilian personnel. The 

supervisory skills training has received very high marks from participants, who realize 

that interest-based, collaborative problem solving skills will help them perform all 

aspects of their jobs more effectively. 

This large scale training led to establishment in 2005 of the Air Force Negotiation Center 

of Excellence, a partnership of the Air Force General Counsel’s office and Air 

University, the leading provider of Air Force professional military and civilian education. 

The purpose of the Center is to incorporate negotiation education and skills training into 

professional development across all functional areas, from personnel management to 

acquisition to war fighting. Education and training in negotiating, fostering teamwork, 

and collaboration have been integrated into the curriculum at the Air War College 

because senior Air Force leaders recognize that mission success these days may rest more 

on the ability to collaborate with others in contingency and reconstruction operations than 

on the ability to give and follow orders. To reflect today’s realities, the Center’s course 

offerings include cultural awareness and cross-cultural negotiations. 

Department of the Army 

The Army’s mission is: training and maintaining active duty and reserve forces in 

defense of the national security; preserving and improving the natural environment; and 

providing military assistance to federal, state, and local governments. Within the Army, 

the ADR program development and implementation resides at the major command level, 

which permits them to serve as a development laboratory, promoting and sharing best 

practices throughout the organization. While the avoidance of litigation costs aids 

commanders with already limited resources, the greatest benefit is the improved 

employee productivity. The Army’s ADR policy is to resolve disputes at the earliest 

stage feasible, by the fastest and least expensive method, and at the lowest possible 

- 29 ­
organizational level. ADR is used in workplace disputes, contracts and procurements, 

civil enforcement, and claims against the government. 

The greatest support to the Army’s mission results from resolving employee disputes 

early and quickly. The Army mission heavily relies on its employees and the reduced 

productivity of an employee engaged in protracted litigation is a mission detractor. The 

employee often is distracted and disgruntled, and that hurts overall workplace morale. 

Direct supervisor interaction with the employee often opens avenues of communication 

that had been closed, resulting in improved working relationships and improved 

productivity. Therefore, the early mutual resolution of disputes is critical to the Army 

mission. 

At the headquarters level, attorneys within the Office of The Judge Advocate General 

administer ADR programs to resolve the acquisition and environmental disputes not 

within the purview of the major command. Although the Army does not have a citizencentric mission, it does provide limited services to military dependents and the public-atlarge. For example, the Army uses ADR techniques to resolve disputes regarding the 

accessibility of Army activities and facilities to military dependents and the public atlarge who have disabilities. 

Army Corps of Engineers 

The Army Corps of Engineers is the Army’s real property manager, overseeing 

engineering, construction, and realty for Army and Air Force civil works. They have 

found that protracted litigation distracts the agency from its mission, and costs incurred as 

part of litigation detract from the advancement of that mission. The agency uses ADR as 

part of its duty to the public to contain costs. The savings, in transactional costs and the 

costs of delay, translate into additional funding that can be available for mission 

execution and services on other projects in support of the Army. The agency works with 

each contractor to fashion a dispute resolution process which is specifically tailored to the 

matter in dispute. Over the past ten years, the Corps has processed 131 cases involving 

contract disputes through ADR and successfully resolved 90% of them. 

Additionally, the expedited resolution achieved through ADR has a significant positive 

effect on the workplace environment because it inhibits the development of negative 

attitudes attendant to protracted litigation. 

Department of the Navy 

The Department of the Navy is responsible for maintaining freedom of the seas to protect 

our national interests. It uses ADR to resolve issues in controversy at the earliest possible 

stage, by the fastest and least expensive method possible, and at the lowest possible 

organizational level prior to litigation. Recognizing that every dollar used for litigation is 

a dollar that cannot support the fleet or Marine forces, the Department of the Navy has 

established, within the Office of the General Counsel, an ADR Program Office which is 

led by the Assistant General Counsel. 

- 30 ­
The Department of the Navy has found that ADR processes contribute to civilian 

workplace productivity by improving working relationships and reducing the time 

devoted to dispute resolution so that the workforce can focus on the agency mission. 

Similarly, the Department of the Navy uses ADR techniques (particularly facilitated 

partnering) for procurement and environmental issues. 

While not a regulatory agency, the Department of the Navy interacts with the public, 

either as employees or as contractors, at all of its facilities. All of the ADR processes are 

used where appropriate. The ADR Program Office effectively markets these services 

through public outreach, including an active Web site and by offering on-line ADR 

training. 

Defense Commissary Agency 

The Defense Commissary Agency operates hundreds of retail grocery stores throughout 

the world, providing an economical food supply for thousands of military families. The 

agency’s policy is to utilize ADR unless some specific and identifiable reason precludes 

it. ADR is used primarily in workplace disputes, as well as in some procurement matters. 

The Office of the General Counsel sets forth the agency’s policy and each program head 

develops a specific “ADR Plan” which is tailored to meet the needs of an individual 

program. Every employee is required to cooperate in the ADR process. 

ADR processes have served to reduce greatly the administrative litigation involving all 

types of workplace disputes. Moreover, supervisors and managers who have used ADR 

find that they are better able to resolve subsequent disputes, thereby decreasing the total 

number of complaints across the board. 

Defense Contract Audit Agency 

The Defense Contract Audit Agency performs audit functions and provides accounting 

and financial advisory services to all Department of Defense components. ADR is 

utilized primarily in EEO and workplace disputes. The agency reports that ADR has 

saved the agency time and resources in processing, investigating, and litigating those 

cases and thus promotes greater efficiency in accomplishing the agency’s primary 

mission. 

Defense Contract Management Agency 

The Defense Contract Management Agency is the Defense Department’s contract 

manager, responsible for ensuring that federal acquisition programs (systems, supplies, 

and services) are delivered on time, within projected cost or price, and meet performance 

requirements. The agency’s dispute resolution policy covers all disputes which may arise 

within the agency, and is applied primarily in workplace, contract, and procurement 

disputes. As the agency transforms from performance-based management to earned­

- 31 ­
value management, the agency has been monitoring the number of new workplace 

disputes, in order to assess the value of early ADR intervention in the workplace arena. 

The agency’s Contract Law Group, which includes many attorneys who are trained 

mediators and dispute resolution specialists, is structured to engage in early dispute 

resolution and committed to partnering with the military services as well as the private 

sector to effectively resolve controversial contract issues at the earliest opportunity. The 

appropriateness of using ADR is evaluated for every contract dispute which arises. The 

agency is committed to working with its defense contractors to assure its war fighters get 

the best equipment in the most expeditious manner. The more effectively the agency can 

manage and resolve disputes with those contractors, the faster it can return to its mission 

of supporting the needs of the military. 

The Ombuds Program provides another avenue for employees or contractors to raise 

issues of integrity, fraud, or other conflict while remaining focused on the mission of 

supporting the war fighter. 

Defense Finance and Accounting Service 

The Defense Finance and Accounting Service provides financial and accounting services 

to the Department of Defense. The agency’s dispute resolution policy authorizes the use 

of ADR in any workplace dispute (subject to a limited number of narrow exceptions) and 

has been used successfully in EEO, labor, and personnel disputes. 

Defense Information Systems Agency 

The Defense Information Systems Agency provides and services the vast network of 

information systems which permit communications among the Department of Defense 

components. Their workplace dispute resolution policy extends to all military and 

civilian personnel and is administered by a specialist who monitors and tracks ADR 

usage. Component ADR specialists provide the dispute resolution services wherever 

needed and report statistics to a program manager and ADR steering committee. 

Through the use of ADR, the agency has realized greater efficiency and economy, as well 

as creative solutions, in a broad spectrum of workplace disputes. 

Defense Logistics Agency 

The Defense Logistics Agency serves as the logistical support for all of the Department 

of Defense components as well as other federal agencies, and provides materials, 

assistance, and supplies worldwide. The agency reports that it has a broad-based dispute 

resolution program encouraging earliest possible use of ADR in any and all matters of 

dispute. The agency has a central ADR Program Manager, Headquarters Advocates, and 

ADR Specialists throughout the field. ADR is used in workplace disputes and contracts 

disputes. 

- 32 ­
In the workplace, the policy is that ADR is always considered at the earliest possible 

stage and any management decision not to use ADR must be documented in writing at 

least one level above the deciding official. In the contracts area, ADR provides quick 

avenues for contractors to have their disputes heard and resolved, typically through 

facilitation, mediation, or early advisory opinions. The various dispute resolution 

processes have: reduced the amount of time spent on disputes, allowing the agency to 

accomplish its designated functions; reduced the negative feelings generated by disputes, 

allowing parties to work better together in furtherance of the agency mission; and 

reduced the money spent on disputes, preserving necessary resources for agency work. 

Department of Defense Education Activity 

This agency provides education, from kindergarten through twelfth grade, to the minor 

dependents of overseas military and civilian personnel. The agency uses ADR in 

workplace disputes. Through the use of mediation, managers in this program save money, 

make more efficient use of limited resources, preserve the integrity of ongoing work 

relations, and develop more creative resolutions than would be possible through the usual 

litigation channels. 

National Geospatial-Intelligence Agency 

The National Geospatial-Intelligence Agency provides geospatial intelligence for national 

security purposes. The agency has an expansive approach to ADR and uses it in 

resolving all types of workplace disputes, as well as some procurement disputes. The 

agency uses a broad array of ADR processes, including mediation, facilitation, and 

partnering, reporting that successful ADR in the workplace promotes teamwork, trust, 

and partnership. 

National Guard Bureau 

The National Guard Bureau develops and provides direction and guidance for the 

National Guards of the 54 states and territories. The agency policy requires that the 

National Guards of the various states and territories attempt to resolve conflicts at the 

earliest possible time and lowest possible level through the effective use of ADR. The 

National Guard Bureau has established the position of an ADR Advocate who is 

responsible for promoting and effectuating a broad use of ADR. The ADR framework of 

the National Guard Bureau is applied across the board in all categories. A yearly report 

is compiled in order to review and evaluate each state or territory’s program. 

Various types of facilitation have been used by the National Guard in considering 

changes in land use. For example, the proposal to “withdraw” certain parts of Limestone 

Hills, MT, for increased military training caused grave concern among special interest 

groups which currently use Limestone Hills (cattle ranchers, mining interests, private 

property holders). Facilitative dispute resolution processes were used early in the 

Environmental Impact Statement process to successfully address many of the concerns of 

these groups. The National Guard arranged for meetings and open discussions among the 

- 33 ­
various stakeholders over several months in order to identify, discuss and share 

alternatives. These meetings impacted the perspectives of the public participants and of 

the National Guard and resulted in a recommendation to Congress which meets most of 

the concerns of the varied stakeholders as well as the needs of the government. These 

consensus building public meetings proved to be crucial in: increasing participants’ 

knowledge and understanding of the proposed action; convincing the participants of the 

National Guard’s desire to be open and straightforward in the discussions; and reaching 

consensus on the best plan to go forward. 

The National Guard Bureau also has used an ADR process of partnering, primarily with 

labor unions when new regulations are generated. This sort of open discussion and 

exchange promotes far greater acceptance by the union, as evidenced by fewer 

complaints of unfair labor practices under the newly-enacted regulations. 

The National Guard Bureau also reports that various ADR processes have been 

successful in resolving tensions between military officers and subordinates in the 

workplace without sacrificing the military authority of superior officers. 

National Security Agency 

The National Security Agency protects communications in the United States and 

produces foreign intelligence overseas. The agency has created a Center for Conflict 

Resolution with twenty agency-trained mediators for use in workplace disputes. The 

Center also provides management training to recognize conflict early and respond more 

efficiently. By increasing the ability of employees and managers to respond to each other 

directly through ADR processes, managers and employees are able to maximize their 

productivity. 

Uniformed Services University of the Health Sciences 

The Uniformed Services University of the Health Sciences is the nation’s federal health 

sciences university. ADR applies to: disputes involving contracts or grievances to which 

the University is a party; appeals from withholding of documents requested under the 

Freedom of Information Act; complaints of discrimination; and administrative grievances 

or other disputes or controversies deemed appropriate for ADR by the University’s 

General Counsel and President. Because the organization is a small one with few 

controversies, the ADR process used most often has been mediation in the context of 

EEO proceedings. 

Washington Headquarters Service 

The mission of the Washington Headquarters Service is to provide administrative and 

operational services in support of the Office of the Secretary of Defense and the 

Department of Defense agencies. Their Collaborative Resolution Program offers a broad 

array of ADR services, including mediation, facilitation, and peer resolution panels, as 

well as training for employees and managers in communication and dispute resolution 

- 34 ­
skills. These services are offered to a workforce of almost 6,000 civilian and military 

personnel. 

After tracking the results over some time, Washington Headquarters Service concluded 

that ADR is an efficient, expedient, and cost-effective means for resolving all types of 

workplace issues. Sixty percent of all its mediated cases were settled with an average 

processing time of 39 days, as compared to its nationwide average of 469 days in 2004. 

There are multiple advantages to a speedy resolution of a dispute which otherwise could 

grow into a festering conflict: positions have not hardened over time; others in the 

workplace have not been drawn into the dispute and are thus less impacted by the 

dispute; and any collateral damages are limited and minimized. 

DEPARTMENT OF EDUCATION 

The mission of the Department of Education is to ensure equal access to education and to 

promote educational excellence throughout the nation. The Department utilizes ADR in 

a wide range of areas: 

 The Informal Dispute Resolution Center, staffed with full-time trained mediators, 

is in a central location to help employees and managers resolve informally any 

type of dispute or complaint concerning a work-related matter. 

 The Office of Federal Student Aid assists all eligible individuals with federallyfunded or federally-guaranteed financial assistance beyond high school. The 

office’s Ombudsman works with federal student aid recipients, loan holders, 

guarantee agencies, and schools to resolve loan problems informally. 

 The Office for Civil Rights is responsible for ensuring that recipients of 

Department funds do not engage in discriminatory conduct based on race, color, 

national origin, sex, disability, or age. It is authorized to initiate formal 

enforcement proceedings against recipients of federal funds who allegedly are 

engaging in discriminatory practices. However, in the great majority of cases, the 

agency is able to enter into voluntary corrective action agreements to resolve 

compliance concerns. 

 The Cooperative Audit Resolution and Oversight Initiative aims to improve 

education programs and student performance at state and local levels through 

better use of audits, monitoring, and technical assistance. Many audits result in 

lengthy legal battles that produce insignificant monetary recoveries, develop 

significant ill will, and fail to provide permanent corrective action. This initiative 

was designed to avoid costly litigation, lengthy adversarial discussions, and nonproductive impasses, and instead to rely on creativity in resolving audit issues. 

By creating permanent solutions to audit issues, states and local educational 

agencies can increase the availability of time, money, and resources for teaching, 

learning, and classroom improvement, and focus on their core mission of the 

education of students and other learners. 

- 35 ­
 The Office of Special Education Programs is dedicated to improving results for 

infants, toddlers, children, and youth with disabilities by providing leadership and 

financial support to assist states and local districts. The Office of Special 

Education Programs supports the National Center on Dispute Resolution, which 

encourages the use of mediation and other collaborative strategies to resolve 

disagreements about special education and early intervention programs. 

 The Department of Education also has engaged in negotiated rulemaking in the 

development of regulations under the Higher Education Act and Title I of the 

Elementary and Secondary Education Act. 

DEPARTMENT OF ENERGY 

The Department of Energy, like many other cabinet agencies, is employing ADR in a 

wide range of areas, with a strong focus on public involvement. The Department’s 

overarching mission is to: advance the national, economic, and energy security of the 

United States; promote scientific and technological innovation in support of that mission; 

and ensure the environmental cleanup of the national nuclear weapons complex. Because 

the scope of its mission is broad, the agency is separated into program areas which often 

operate independently. Additionally, most agency facilities are managed and operated by 

contractors and have developed their own unique ADR processes. 

The Office of Dispute Resolution located within Headquarters oversees the Headquarters 

Mediation Program as well as the Technology Transfer Ombuds Program located within 

the agency’s national laboratories. The Technology Transfer Commercialization Act of 

2000 was enacted to improve the ability of federal agencies to license federally-owned 

inventions. Each national laboratory and research facility has appointed a technology 

partnership ombuds. The role of the ombuds is to prevent and resolve  at the earliest 

possible level  disputes between the laboratories and inventors or private companies, 

over technology transfer issues such as infringement, intellectual property rights, 

royalties, and licensing. 

The Dispute Resolution Specialist in the Office of Dispute Resolution advises on 

inclusion of ADR provisions in agency contracts and on locating an appropriate neutral 

when needed for a specific dispute. In addition, the agency’s Board of Contract Appeals 

(now included with the United States Civilian Board of Contract Appeals) is available to 

mediate disputes between the agency and its contactors and, in some cases, between a 

contractor and a subcontractor or between subcontractors. 

In the workplace arena, the Headquarters Mediation Program provides mediation for all 

types of workplace disputes in Headquarters, using professional mediators under agency 

contract or mediators from other federal agencies through the Sharing Neutrals Program. 

While most referrals come from the Office of Civil Rights, managers and employees are 

encouraged to use the program before an EEO complaint or grievance is formally filed. 

- 36 ­
The Office of Employee Concerns addresses all good faith complaints by an employee 

that a policy or practice by the agency or one of its site contractors should be improved, 

modified or terminated because it is unsafe, unlawful, fraudulent, or wasteful. Concerns 

can address such issues as health, safety, the environment, personnel, or management 

practices, or whistleblowing reprisals. 

The National Nuclear Security Administration Ombuds Program services all of its 

employees and contractors, providing a confidential, impartial, independent, and informal 

resource facilitating fair and equitable resolutions to all types of workplace concerns. 

DEPARTMENT OF HEALTH AND HUMAN SERVICES 

The Department of Health and Human Services is responsible for the health and welfare 

policies and programs of the federal government. Like other cabinet agencies, the agency 

reports that the availability and success of ADR, used in the programs described below, is 

improving communication, encouraging problem solving, and increasing workplace 

productivity. 

Agency for Healthcare Research and Quality 

The mission of the Agency for Healthcare Research and Quality is to translate research 

findings into clinical practice. The agency has an ADR program which is used primarily 

in the EEO process, but also can be utilized to resolve other types of employee and 

management disputes. 

Centers for Disease Control and Prevention 

The Centers for Disease Control and Prevention is at the forefront of public health efforts 

to prevent and control infectious and chronic diseases, injuries, workplace hazards, 

disabilities, and environmental health threats. It monitors and prevents disease outbreaks 

(including bioterrorism), implements disease prevention strategies, and guards against 

international disease transmission. The agency provides ADR services and training to 

employees, managers and supervisors, Commissioned Officers, and visiting fellows. 

Centers for Medicare & Medicaid Services 

The mission of the Centers for Medicare and Medicaid Services is to ensure effective, upto-date health care coverage for eligible citizens and to promote quality care for their 

beneficiaries. The agency provides programmatic oversight of federal medical care 

quality and develops and implements policies for recipients of such services. The agency 

uses ADR in several areas of its work. 

ADR, primarily mediation, is used in a broad array of workplace conflicts including EEO 

complaints, formal employee grievances, and general workplace disputes. The agency 

has determined that mediation has significantly reduced the number of formal complaints 

lodged and improved communication and the general quality of life in the workplace. In 

- 37 ­
addition to the specific disputes, the ADR program also is used to improve 

communication, identify corrective actions, and reduce the incidence of future disputes. 

States may provide drug benefits to their Medicaid population by allowing drug 

manufacturers to sell their drugs to Medicaid beneficiaries. The states then must invoice 

and collect rebate dollars from the drug manufacturers for the drugs provided. 

Manufacturers can dispute invoice data they believe is incorrect. The agency uses ADR 

to facilitate and resolve rebate invoice disputes between the states and drug 

manufacturers in order to keep the rebate dollars flowing back in the Medicaid program. 

In addition to settling the specific disputes, the ADR program also is used to improve 

communication, identify corrective actions, and reduce the incidence of future disputes. 

The agency’s Office of Hearings hears formal appeals for provider reimbursement for 

services provided by a component of the Department of Health and Human Services. Its 

mediation program has a 90% success rate for resolution of appeals. Final settlement of 

appealed cases generally occurs within 180 days, as opposed to several years for federal 

court appeals, and costs approximately $750 as opposed to the $11,500 cost of a formal 

one-day administrative hearing. 

Departmental Appeals Board 

The Departmental Appeals Board provides prompt and impartial dispute resolution for all 

of the components in the Department of Health and Human Services which involve 

medical care. The agency’s jurisdiction includes: resolving disputes arising under the 

large public assistance grants (such as Medicaid and Aid to Families with Dependent 

Children) and discretionary grant programs; imposing civil monetary penalties and 

exclusions under fraud and abuse authorities; hearing appeals in enforcement cases 

brought by the Centers for Medicare & Medicaid Services; and hearing appeals in 

Medicare coverage as well as payment and entitlement cases. The agency issues the final 

decisions for the Department of Health and Human Services in all disputes with outside 

parties such as state agencies, Head Start grantees, universities, nursing homes, doctors, 

and Medicare beneficiaries. 

The agency uses ADR to provide less contentious and quicker options than formal 

processes such as administrative adjudication in a wide range of its mission-related 

responsibilities, including: 

• disputes with grantees, including states and universities, concerning disallowances 

of funds, indirect cost rates, and cost allocation plans; 

• Medicare and Medicaid program exclusions; and 

• imposition of civil sanctions against health care providers and nursing homes. 

The agency uses ADR in a number of non-program areas, including: 

• mediation of employment cases, including EEO, grievances, and interpersonal 

disputes; 

- 38 ­
• administration of the Federal Sharing Neutrals Program, a collaboration of over 

40 federal agencies, which provides mediators on a collateral duty basis for EEO 

complaints throughout the federal sector; 

• training in conciliation and facilitation services, and basic and advanced 

mediation skills for the Department; and 

• the conduct, in collaboration with the Department of Transportation, of conflict 

management and mediation training. 

Food and Drug Administration 

The Food and Drug Administration protects the health of the nation against impure and 

unsafe food, drugs, and cosmetic products. The agency uses ADR for all workplace and 

interpersonal disputes within the work environment. The agency reports finding that the 

use of ADR enhances communication, facilitates effective problem solving, and increases 

productivity and employee morale throughout the workforce. 

Health Resources & Services Administration 

Health Resources & Services Administration, with approximately 1,500 employees, is the 

primary agency charged with improving access to healthcare for those who are uninsured, 

isolated or medically vulnerable. Additionally, the agency oversees all organ and tissue 

donation programs. The agency actively promotes the use of ADR to resolve claims of 

discrimination and other workplace disputes involving bargaining unit employees. The 

agency reports that use of mediation encourages cooperation and communication between 

management and employees and leads to improved performance by the organization. 

National Institutes of Health 

The mission of the National Institutes of Health, which is the steward of medical and 

behavioral research throughout the nation, is the pursuit of fundamental knowledge about 

the nature and behavior of living systems and the application of that knowledge to extend 

healthy life and reduce the burdens of illness and disability. The Office of the 

Ombudsman has developed a special expertise in addressing and settling scientific 

disputes relating to peer reviews of grant-funded scientific research. The office 

additionally uses ADR processes to resolve disputes involving intellectual property rights 

and authorship of scientific papers. The agency determined that people in conflict are 

distracted from their responsibilities. Resolution of conflict allows them to concentrate 

on their work, thereby facilitating accomplishment of the agency’s mission and 

underscoring the credibility and diligence behind the agency’s research projects. 

Office of Equal Opportunity and Civil Rights 

The Office of Equal Opportunity and Civil Rights provides agency-wide leadership and 

advice on issues of diversity, civil rights, and promotion of a supportive work 

environment for agency employees. The agency uses ADR to resolve informal 

discrimination complaints and improve communication. 

- 39 ­
Office of Hearings 

The Office of Hearings mediation program is an alternative to the Medicare/Medicaid 

formal provider reimbursement appeal process, and gives the provider and fiscal 

intermediaries an opportunity to resolve cases without going to hearing. The mediation 

program has a 90% success rate. It is cost-effective, with a cost of approximately $750 

for a mediation session as opposed to the cost of $11,500 for a one-day formal 

administrative hearing. The program is also an effective time-saver, with final settlement 

generally occurring within 180 days after successful mediation, as opposed to several 

years for the formal appeal process (which then may be followed by a further appeal in 

federal court). 

DEPARTMENT OF HOMELAND SECURITY 

The mission of the Department of Homeland Security is: leading the unified national 

effort to secure America, preventing and deterring terrorist attacks, and protecting against 

and responding to threats and hazards to the nation thereby ensuring safe and secure 

borders; welcoming lawful immigrants and visitors; and promoting the free flow of 

commerce. The agency is committed to ADR, and to developing a robust and proactive 

ADR program which serves approximately 160,000 employees. The Department of 

Homeland Security currently employs ADR in a wide range of areas, from disaster 

response to enforcement of regulations under the Immigration and Nationality Act. 

Civil Rights and Civil Liberties 

The Office of Civil Rights and Civil Liberties ADR program improves the morale and 

productivity of the workforce. Its Alternative Resolution to Conflict Program has a 70% 

resolution rate for workplace disputes. 

Citizenship and Immigration Services 

The Office of Special Counsel for Immigration Related Unfair Employment Practices 

(Customs and Border Patrol) offers conciliation services to manage disputes between 

employers and workers involving possible violations of the anti-discrimination provision 

of the Immigration and Nationality Act. Resolution saves the jobs of workers and workauthorized immigrants, and can encourage employers to change personnel policies and 

address potential systemic problems and patterns or practices of discrimination. 

Federal Emergency Management Agency 

The Federal Emergency Management Agency’s mission is to protect life and property 

through the coordination of disaster response and recovery. This mission is best fulfilled 

through teamwork and partnership. The agency’s use of ADR facilitates quick and 

professional problem solving. 

- 40 ­
The Federal Emergency Management Agency’s ADR processes have enabled 

participants to reach mutually satisfying alternatives to litigation, including: 

• The agency created an arbitration program offered to more than 20,000 Los 

Alamos fire victims who could pursue an alternative to court proceedings. 

• The agency uses arbitration to resolve disputes between itself and its insurance 

carriers under the National Flood Insurance Program. If these insurance 

companies use mediation to resolve state claims, they may use mediation in 

resolving their federal National Flood Insurance Program claims. The agency has 

helped to educate mediators and parties within some state-run mediation programs 

to resolve the homeowner claims. 

• The agency created an appeal process for the 9/11 Heroes Stamp semi-postal fund 

for families of emergency relief personnel killed or permanently disabled while 

serving in the line of duty for that event. The ADR Office administers this 

program. 

• The agency assists low-income disaster victims in securing appropriate legal 

services. People are helped to resolve their disaster-related problems quickly and 

without cost. They can seek counsel on estates, lost documents, consumer 

protection and fraud, landlord/tenant issues, insurance claims, home 

repair/contracting issues, and mortgage concerns. 

• The agency administers a vital workplace ADR program which is available to all 

managers and staff. This program serves both its permanent employees and its 

non-permanent staff such as the Disaster Assistance Employees. 

The Federal Emergency Management Agency is taking a broad approach and applying 

ADR to a vast array of its activities. This enhances productivity, morale, and customer 

service. 

Secret Service 

The U.S. Secret Service is responsible for the physical protection of the President, Vice 

President, their families and a number of other dignitaries both in this country and 

abroad, and for enforcement of specific criminal laws. Their ADR program relates 

almost entirely to EEO or other workplace disputes, which are addressed by the 

Ombudsman Program serving the agency’s 2,300 employees. Timely resolution of 

workplace conflict enhances the productivity of the agency by encouraging an early 

intervention which permits all employees to return to work on the important mission of 

the Secret Service. 

- 41 ­
Transportation Security Administration 

The Transportation Security Administration’s mission is to protect the nation’s systems 

of transportation in order to ensure the safe passage of people and commerce. The 

agency has developed an integrated and proactive approach to managing conflict, both 

internally and externally. 

Internally, the agency has an Integrated Conflict Management System for workplace 

conflict, supported by its Model Workplace Office, the Office of the Ombudsman and the 

Office of Civil Rights, to create optimal communication and cooperation for issues, 

concerns, and decisions. The Office of the Ombudsman, established in January 2003, 

serves as a resource to employees with any concern relating to their workplace, and 

tracks patterns of complaints in order to identify needed changes within the organization. 

All EEO complaints are handled through the Alternative Resolutions to Conflict Program 

which is committed to addressing the root causes of any problem, in addition to resolving 

any alleged wrongdoing or conflict, using mediation as their primary ADR tool. 

Externally, the Transportation Security Administration offers informal conferences to 

alleged violators of the Transportation Security Regulations for possible settlement of 

proposed civil penalty actions. Through its Contact Center, the agency’s Office of the 

Ombudsman is the central point of contact for all public complaints, including passenger 

screening issues, and also is available as necessary to provide informal and neutral 

problem resolution services to the traveling public. The office provides a voice and an 

outlet to the public, and is in a unique position to hear from a wide variety of people in 

real time. It also collects and analyzes information for use in improving agency 

performance. 

The Agency’s Office of Chief Counsel uses ADR to efficiently and effectively resolve 

procurement disputes and protests before entering into a formal adjudicative process. 

Only about three of every ten matters proceed to formal adjudication. 

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 

The Department of Housing and Urban Development is responsible for a number of 

programs which foster the availability of housing and community development, including 

funding and insuring mortgages, developing and supervising financial support relating to 

housing, and enforcing fair housing laws throughout the country. The agency primarily 

uses ADR in resolving workplace disputes. The agency’s Early Resolution Program 

provides managers with the means to effectively and efficiently address many types of 

workplace disputes, thereby decreasing the time needed for conflict resolution and 

increasing the time dedicated to accomplishing the agency’s goals. 

DEPARTMENT OF THE INTERIOR 

The agency’s mission is to: protect and manage the nation’s natural resources and 

cultural heritage; provide scientific and other information about those resources; and 

- 42 ­
honor its trust responsibilities or special commitments to American Indians, Alaska 

Natives, and affiliated Island Communities. The Department’s ADR initiatives directly 

support these missions. 

The Department is comprised of the Office of the Secretary, the Office of the Solicitor 

and eight Bureaus: Bureau of Indian Affairs, Bureau of Land Management, Bureau of 

Reclamation, Fish and Wildlife Service, Minerals Management Service, National Park 

Service, Office of Surface Mining, and the U.S. Geological Survey. The agency issued a 

broad ADR policy in 1996 covering all Offices and Bureaus and encouraging the 

broadest possible use of early collaboration, ADR, and negotiated rulemaking. 

In 2001, the Secretary created the Office of Collaborative Action and Dispute Resolution 

to coordinate and oversee implementation of its policy on the use of ADR, negotiated 

rulemaking and collaborative problem solving to prevent, manage, and resolve conflicts 

arising in all areas of the agency’s work including program areas, workplace and 

employment, procurement, and policy/regulatory. To advance implementation of the 

policy, that Office works closely with the Office of the Solicitor to provide coordinated 

policy and legal guidance, and support for the broadest possible use of ADR and 

negotiated rulemaking processes, and provides leadership for the Interior Dispute 

Resolution Council comprised of designated Bureau Dispute Resolution Specialists from 

each of the Department’s Bureaus and Offices. 

The agency is expanding its workplace ADR program and used a collaborative process 

involving all of its stakeholders to participate in the design of an integrated conflict 

management system called CORE PLUS. This system is being implemented by all 

Offices and Bureaus to ensure that any type of internal employment conflict is 

recognized, addressed and resolved at the earliest opportunity and the lowest possible 

level. The use of ADR processes is one component of this conflict management strategy. 

The agency also has successfully used a variety of ADR, collaborative decision making 

processes, and negotiated rulemaking to address a wide range of natural resource and 

other external conflicts and disputes. Each Bureau and Office in the agency is committed 

to increasing and expanding the use of ADR processes to prevent, manage, and resolve 

internal and external sources of conflicts and disputes. 

The Bureau of Land Management, for example, uses ADR/conflict prevention strategies 

and principles in working with all natural resources stakeholders  tribal and state 

governments; communities; local, regional, and national interests and interest groups; and 

the general public  to provide opportunities for early public involvement in agency 

decision making, to encourage early conflict prevention, and to ensure conflict 

management and resolution. The community and stakeholder participation processes 

have been effective in preventing or mitigating the impact of litigation, appeals, and 

protests in a range of areas: energy and mineral development; resource conservation; 

land health and safety; grazing; timber; environmental protection versus development and 

land/resource uses; and recreation. 

- 43 ­
The National Park Service has successfully used negotiated rulemaking processes to 

develop driving regulations for several national seashores. In each situation, a diverse 

group of stakeholders including federal, state and local government entities, local 

residents, seasonal visitors, environmental groups, and local businesses were included in 

the negotiation process and reached consensus on regulations that addressed their 

competing needs and interests in the resource protection, resource use, and recreation on 

the national seashore. 

The Bureau of Indian Affairs has led a pilot project to engage tribes and other interested 

stakeholders in one region in the collaborative design of a system for resolving internal 

tribal government conflicts and other disputes that otherwise would be resolved through 

administrative adjudication and litigation or by senior agency leadership. The conflict 

resolution process has been developed and all stakeholders are committed to using it. 

This is a model that can be exported to other regions of the country. 

The Office of Environmental Policy and Compliance is committed to increasing the use 

of collaborative decision making and ADR processes in the implementation of the 

National Environmental Policy Act, and the U.S. Geological Survey is actively 

advocating the use of joint fact-finding and other ADR processes to ensure that reliable, 

credible, technical, and scientific information is available to stakeholders engaged in 

environmental conflict resolution processes and collaborative resource management 

efforts. 

In the Office of Hearings and Appeals, the Board of Land Appeals implemented an ADR 

program and is currently reviewing the data gathered from the first year of operation to 

make any necessary adjustments to increase the use of ADR to resolve matters on appeal. 

The Board of Indian Appeals refers appropriate cases for ADR assessment. 

DEPARTMENT OF JUSTICE 

The Department of Justice serves as the nation’s litigator in federal courts throughout the 

country and handles a broad array of cases, both defensive and affirmative. The Justice 

Management Division uses ADR solely in EEO matters handled by the Equal 

Employment Opportunity Staff. Other components use a broad array of processes in 

litigation in their various areas of specialty. 

Civil Division 

The Civil Division is involved in both affirmative litigation enforcing the nation’s laws, 

and defensive litigation to uphold the interests of the United States. 

In affirmative litigation, the use of ADR has advanced that mission in a variety of 

appropriate cases, including civil health care fraud and civil consumer fraud, in the 

following ways: 

- 44 ­
• crafting creative and broad remedial relief not available through court 

adjudication; 

• developing a global settlement to resolve related disputes; 

• formulating resolution in one dispute that can set parameters for the resolution of 

similar future disputes; and 

• achieving significant savings in the costs and delay of litigation and discovery, 

thereby allowing use of saved resources to handle matters that cannot or should 

not settle. 

In defensive litigation, the use of ADR has supported the mission of the Civil Division 

with these beneficial results in a broad range of cases such as aviation and admiralty, 

medical malpractice and wrongful death actions under the Federal Tort Claims Act, class 

actions alleging discrimination, and actions under the Freedom of Information Act: 

• significant savings in the costs relating to litigation and discovery which permits 

greater resources towards cases which cannot or should not settle; 

• significant savings in the dollar amounts of settlements; 

• creative solutions which can substitute for the payment of money or reduce 

potential monetary exposure; and 

• savings of both personnel and court time by resolving disputes more quickly than 

litigation. 

Civil Rights Division 

The agency’s mission is to enforce the laws and defend the interests of the United States, 

and to ensure fair and impartial administration of justice for all Americans. In 

enforcement litigation, ADR has supported that work in appropriate cases, as follows: 

• The Disability Rights Section offers an administrative mediation program for the 

Americans with Disabilities Act which allows the agency to achieve meaningful 

compliance with the law without having to allocate scarce resources to investigate 

or litigate these disputes. The ADA (Americans With Disabilities Act) Mediation 

Program enables the agency to more quickly respond to and resolve these 

discrimination complaints effectively, efficiently, and voluntarily, resulting in the 

elimination of architectural, communication, and attitudinal barriers for people 

with disabilities throughout the country. The agency’s application of mediation to 

rights-based disputes is a significant shift away from the traditional adversarial, 

government-directed, “winner take all” method of resolution. The nature of 

mediation itself requires the parties to work together to resolve disputes. This 

cooperative, non-litigious approach preserves, rather than severs, the relationship 

between the parties, especially important for individuals with disabilities in rural 

areas who have few options for carrying out business, leisure, and government 

activities. The use of mediation in this area expands the reach of the statute at a 

minimal expense to the government. 

• The Housing and Civil Enforcement Section, in the Attorney General’s words, 

“...open[s] doors for people as they search for housing.....[and] will not allow 

- 45 ­
discrimination to serve as a deadbolt on the dream of safe accommodations for 

their family.” The Section successfully utilized third party assistance to reach 

resolution in over 60% of the consent decrees it obtained in FY 2005. 

Community Relations Service 

This agency is the Department of Justice’s “peacemaker” for community conflicts and 

tensions arising from differences of race, color, and national origin. It deploys highly 

skilled professional conciliators to assist state and local units of government, private and 

public organizations, and community groups in preventing and resolving racial and ethnic 

tensions and civil disorders, and in restoring racial stability and harmony. The agency, 

through mediation and conciliation, provides an effective and efficient dispute resolution 

mechanism for communities and is an alternative to costly and often protracted litigation. 

As part of its results-oriented dispute resolution strategy, the agency works with 

communities to build local capacity for dealing with racial tensions and conflicts. Its 

work with communities includes training on the formation of Human Relations 

Commissions to address local conflicts, and training for law enforcement officers in basic 

mediation skills. 

The Ombuds Program facilitates problem solving between staff and management at an 

early stage for non-EEO complaints and grievances. When employees are distracted by 

workplace concerns, their performance may be affected adversely. Having processes in 

place to address those concerns helps the agency add value to its work product by 

assuring a consistent quality of service to all of its customers. 

Environment and Natural Resources Division 

This component represents the United States in litigation involving public lands and 

natural resources, environmental quality, Indian lands and claims, and wildlife resources. 

The agency has made great use of ADR to advance various facets of its mission in 

appropriate cases, as the following examples illustrate: 

• In furtherance of its responsibility to reduce water pollution, the agency used 

ADR to reach an innovative settlement in a highly technical case involving the 

Clean Water Act. The resolution included a record $34 million penalty and 

injunctive relief which addressed 5,500 miles of pipeline and protected the 

environment from the devastating impacts of oil spills. 

• In furtherance of its responsibility to reduce air pollution, the agency used ADR to 

reach a mediated Clean Air Act agreement with a wood products company and its 

plants which translated into cleaner air for the communities located near the 

company’s facilities. 

• In furtherance of its responsibility to enforce fish and wildlife conservation laws, 

the agency used mediation in combination with bilateral negotiations over the 

course of eight years to reach agreement in a lawsuit involving over 180,000 

highly contentious claims involving water rights and endangered species. The 

agreement established a 30-year framework for balancing interests in water use 

- 46 ­
and non-federal timber management compliance under the Endangered Species 

Act, and can serve as a model for other ADR processes involving complex, multiparty claims. 

• In advancement of its responsibility to defend the United States against challenges 

to its cleanup and compliance actions, the agency successfully concluded prelitigation mediation in a case seeking contribution to cleanup costs for 

contamination at chemical facilities. The mediation enabled the parties to 

exchange 100,000 pages of relevant documents without the necessity for formal 

discovery or the deposition of expert witnesses. Use of ADR efficiently resolved 

all of the company’s putative claims against the government at an early stage. 

Executive Office for United States Attorneys 

The Executive Office provides general executive assistance, policy review, and 

administrative oversight to the offices of the 93 United States Attorneys. The Equal 

Employment Opportunity staff of the Executive Office handles EEO complaints from 

within all of the U.S. Attorneys’ Offices throughout the country as well as within the 

Executive Office. Select employees from U.S. Attorneys’ offices, as well as from the 

Executive Office, are trained to serve as collateral duty mediators. Mediation is 

employed at both the informal and formal stages of the EEO process. Successful 

mediation enables agency personnel to return to productive work more quickly without 

the distraction of unnecessary litigation. 

United States Attorneys’ Offices 

The U.S. Attorneys’ Offices throughout the country defend civil cases in which the 

United States is a party and institute affirmative litigation to enforce the laws. These 

offices, which use ADR in both defensive and affirmative litigation, comprise the largest 

“user” of ADR in the Department of Justice. A statistical analysis of FY 2000 through 

FY 2003 showed that over 8,000 cases were referred to mediation. 

In defensive litigation, ADR has: resulted in numerous settlements of smaller amounts of 

money than the amounts originally sought in some defensive lawsuits; facilitated more 

focused discovery; and resulted in more efficient and expeditious case resolution in 

appropriate cases, including tort and workplace discrimination. Illustrative examples of 

benefits realized are: 

• avoidance of the expense of extensive discovery in employment discrimination 

cases; 

• avoidance of a substantial judgment in a false advertising case when the case 

settled for payment of no money from the government; 

• resolution of tort claims where continued litigation could have resulted in 

significant expert expenses and the possibility of increased loss of revenues 

through a judgment. 

- 47 ­
In affirmative litigation, the various offices prosecute civil cases in which the United 

States is a party, and collect debts which are owed to the federal government, but are 

administratively uncollectible. The offices’ successful use of ADR in appropriate cases 

has advanced that mission, as described in the following examples: 

• resolution of a civil forfeiture case saved significant sums that would otherwise 

have been spent on expert witness fees; 

• resolution of a suit for false reporting on material used to build a road resulted in 

road repairs that increased safety and benefited the affected rural communities; 

• recovery of damages under a property insurance policy was accomplished many 

years sooner than would have been possible if the case had gone to trial; and 

• resolution of a health care fraud case involving a nationwide fraud scheme saved 

enormous amounts of staff and court time and attorney hours in trial preparation 

and trial time. 

Federal Bureau of Investigation 

The Bureau is the principal investigative arm of the Department of Justice, investigating 

violations of federal law through gathering evidence and interviewing potential 

witnesses. ADR is used throughout the agency in appropriate cases involving workplace 

disputes in a workforce of over 30,000 employees. By providing a venue to address 

workplace disputes, especially those that are non-EEO, employees are able to address 

issues earlier, in a non-adversarial environment, thus preserving working relationships 

and enabling them to return to their investigative duties. 

Federal Bureau of Prisons 

The Federal Bureau of Prisons is responsible for the safety, care and housing of some 

185,000 federal prisoners in 113 institutions and 28 community corrections offices, and 

employs approximately 35,000 people. The agency uses ADR for EEO and other 

workplace disputes, concentrating on swift and early, front-end resolution of disputes 

whenever possible, before the dispute undermines effective and safe performance of 

important duties. The EEO officer also serves as a full-time ADR coordinator. The 

agency uses primarily mediation and has developed an interagency agreement with the 

Federal Bureau of Investigation to use FBI mediators at no cost. The agency has a 

dispute resolution program at 43 different prisons where a collateral duty employee, 

jointly selected by the warden and the union president, will mediate other workplace 

concerns. Additionally, the agency offers its dispute resolution program to management 

staff in two of its six regions. 

The agency has had a number of employees trained to present a course for managers on 

appropriate workplace conduct and communication skills. The focus on early recognition 

and resolution of disputes is very important to the mission of the agency and decreases or 

eliminates the possibility of disgruntled or distracted employees who are responsible for 

the safety of co-workers and prisoners. 

- 48 ­
The agency also uses various ADR processes in the resolution of procurement disputes, 

including partnering, mini-trial, early neutral facilitation and mediation. 

Justice Management Division, Equal Employment Opportunity Staff 

The Justice Management Division serves as the management arm of the Department of 

Justice. ADR is available during both the informal and formal stages of the EEO process. 

Tax Division 

The Tax Division uses a number of ADR processes, primarily mediation and some 

arbitration, in a broad array of civil litigation, including individual, business and 

corporate taxation issues, in both federal district and bankruptcy courts. 

DEPARTMENT OF LABOR 

The Department of Labor enforces almost 200 different federal statutes relating to a 

broad variety of working conditions. The agency’s Office of Civil Rights uses mediation 

to resolve EEO and labor relations personnel issues. 

For a period of several years in the early 1990’s, the agency established a program for 

independent neutrals to mediate cases involving a broad range of statutes including 

Family and Medical Leave Act, Wage and Hour Act, and whistleblower statutes. The 

program has since shifted those functions to the Administrative Law Judges. The current 

Settlement Judge Program uses sitting Administrative Law Judges for all mediations 

conducted during pre-hearing conferences. 

DEPARTMENT OF STATE 

The State Department uses formal ADR exclusively in the workplace. The agency 

reports that the ADR process gives employees and management an opportunity to address 

and resolve issues quickly and effectively, thereby allowing parties to return their focus 

to accomplishing the agency’s mission of advising the President on all foreign policy. 

The agency uses mediation in EEO proceedings and uses an ombuds process for nonEEO civil service issues. With expanded video conferencing capabilities, the agency can 

reach the broad geographic scope of its employees. 

DEPARTMENT OF TRANSPORTATION 

The agency’s mission is to serve the United States by ensuring a fast, safe, efficient, 

accessible, and convenient transportation system which meets the vital national interests 

and enhances the quality of life of the American people, today and into the future. In 

2002, the agency issued a Department-wide policy endorsing the use of ADR and 

collaborative problem solving in advancing national transportation goals by preventing, 

minimizing and resolving disputes among its employees and with external parties, in a 

mutually acceptable and cost-effective manner. Areas in which the use of various forms 

- 49 ­
of ADR are encouraged include: workplace issues; issuance of regulations; enforcement 

and compliance in issuing and revoking licenses and permits; contract and grant awards 

and administration; litigation and formal or informal adjudication; and interactions with 

the public and regulated communities. 

The Department of Transportation has established the Center for Alternative Dispute 

Resolution which works with organizations and individuals Department-wide to increase 

the knowledge, quality, and use of ADR. The Center provides ADR services and is an 

information resource to both agency ADR providers and users. The Center, partnering 

with the Department of Health and Human Services, offers awareness and skill-based 

training. By working together, both organizations offer a variety of courses, instructors, 

and coaches to employees and provide them with opportunities to learn in a diverse 

environment and to recognize the issues they face in a variety of organizational settings. 

The Center develops and monitors ADR policy and implementation throughout the 

Department’s operating administrations. 

The Center for Alternative Dispute Resolution also coordinates ADR policy relating to 

negotiated rulemaking. The Department of Transportation was the first federal agency to 

use negotiated rulemaking in the early 1980’s. Negotiated rulemaking continues to be 

used Department-wide to enhance public participation in regulation development. 

The One DOT Sharing Neutrals Program, sponsored by the Departmental Office of Civil 

Rights, is a Department-wide program that uses mediation to resolve EEO complaints. 

The program maintains a cadre of collateral duty mediators and contract mediators. The 

program also uses mediators from the Federal Shared Neutrals Program and other ADR 

programs for use in locations outside the agency’s metropolitan area. 

Several of the agency’s operating administrations have established specific ADR policies 

to advance their mission. Their actions are highlighted below. 

Federal Aviation Administration 

The agency’s ADR initiatives extend from contracts and procurement to labor disputes 

between the agency and the National Air Traffic Controllers Association. The Office of 

Dispute Resolution for Acquisition is responsible for resolving all protests and contract 

disputes arising out of procurements and contracts entered into under the agency’s 

Acquisition Management System. It is also responsible for resolving contests involving 

competitive sourcing of “commercial activities,” i.e., activities deemed not inherently 

governmental under the Federal Activities Inventory Reform Act. 

The agency also has instituted a new and rapidly expanding pilot program, the Center for 

Early Dispute Resolution Pilot Program, which will help employees and managers 

address workplace disputes at their earliest stages, with the goal of reducing or 

eliminating the financial impact of conflict on the agency. The Center is freestanding 

from the EEO office, which also uses ADR. The Center sought to encourage early 

contacts from management and employees relating to any and all brewing disagreements. 

- 50 ­
The program is specifically designed to address conflict before it turns into an EEO or 

other formal complaint. 

Additionally, the Federal Aviation Administration has instituted a Neutral Evaluation 

program which is integrated into the negotiated grievance process for all labor disputes 

between the National Air Traffic Controllers Association and the agency. This program 

routes a dispute to an independent neutral third party with expertise in the particular 

subject matter at issue. The neutral gives a non-binding decision reflecting how a dispute 

would be determined by a judge or arbitrator. The program provides a powerful 

inducement to resolution, promotes collaboration, and reduces the negative impacts of 

conflict because it takes the focus off the people and places it on the issues. 

Federal Highway Administration 

The Federal Highway Administration regulates Department of Transportation programs 

with a broad view towards safety, environment, and operations. The agency has 

experience in using ADR in negotiated rulemaking and regulatory compliance. For 

example, the agency conducted regulatory negotiation on incorporation of physical 

fitness determinations into the commercial driver’s license process for state enforcement 

of medical certification. 

The agency also reviews and resolves environmental projects under the National 

Environmental Protection Act process. For example, in partnership with the Institute for 

Environmental Conflict Resolution, the agency sponsored eleven regional workshops for 

collaborative problem solving in areas of tribal and citizen concern. 

Federal Motor Carrier Safety Administration 

The agency’s primary mission is to reduce crashes, injuries, and fatalities involving large 

trucks and buses. The agency uses ADR for disputes involving civil sanctions against 

motor carriers. Its binding arbitration program was developed to expand the options 

available to motor carriers, brokers, shippers, freight forwarders, and other individuals 

and entities engaged in the use of commercial motor vehicles in interstate transportation. 

Through this voluntary program, carriers may elect to submit cases that involve only the 

amount of a civil penalty to an arbitrator rather than to the agency’s Chief Safety Officer. 

Federal Transit Administration 

The Federal Transit Administration seeks to improve mass transportation operations, 

facilities, and equipment through public/private cooperation and assistance for local and 

state government financing. The agency’s workplace ADR program is available for all 

matters of concern or dissatisfaction. The program goals are to “enhance communication, 

increase morale and help employees work as a more cohesive team to accomplish the 

Federal Transit Administration’s mission.” The agency reported that use of ADR saves 

time and money and has decreased the number of formal complaints. 

- 51 ­
Office of the Inspector General 

The Office of Inspector General performs all audit and investigative functions in 

evaluating the effectiveness and efficiency of the Department of Transportation’s 

programs and operations. In 2005, the Office of the Inspector General implemented a 

two-year pilot program to increase effective and efficient communication within the 

organization. The program offers voluntary ADR for all types of workplace-related 

disputes or matters of concern, such as job assignments or employee/supervisor 

relationships, to agency employees throughout the country. 

DEPARTMENT OF THE TREASURY 

The Alcohol and Tobacco Tax and Trade Bureau 

The agency’s mission is to enforce and administer laws covering the production, use, and 

distribution of, and to collect excise taxes for, alcohol, tobacco, firearms, and 

ammunition. The agency’s Voluntary Disclosure Program provides cooperative problem 

solving for civil enforcement. Voluntary disclosure is the intentional disclosure to 

authorized agency officials of material facts by industry members regarding their noncompliance with the laws and regulations that the agency administers. The Program is 

intended to encourage compliance with agency laws and regulations and benefit industry 

members who voluntarily identify and come forward with instances of non-compliance. 

It allows the agency to expedite the decision-making process and to better manage audit 

and investigative resources in its field operations. Voluntary disclosures also provide 

benefits to industry members, e.g.: 

• reduction of cost (time and money) inherent in investigations to uncover 

violations; 

• mitigation of actions the agency takes in response to violations by reducing 

penalties or giving other special considerations when/if the agency proposes 

administrative action; 

• provision of an incentive for detecting and correcting errors early; 

• provision of an opportunity to obtain special guidance on future compliance; and 

• demonstration of credibility, good faith, trust, and confidence that fosters 

goodwill and a positive working relationship with the agency. 

The Early Complaint Resolution Program encourages the use of ADR techniques to 

expedite the informal resolution of employment disputes raised in the pre-complaint EEO 

process. Because the Program helps to resolve complaints quickly and at the lowest 

possible level, it enables managers and employees to focus on their work. Additionally, 

overall employee morale can be improved when agency management is viewed as being 

open-minded and cooperative in seeking to resolve EEO disputes through ADR. In 

resolving conflicts, ADR helps to create a positive working environment where 

employees can thrive, resulting in the advancement of the agency, its work, and its 

people. 

- 52 ­
Bureau of Engraving and Printing 

The agency is responsible for the design and printing of various Federal Reserve notes, 

postage stamps, and other Treasury securities or certificates. The Bureau Resolution 

Center is a centralized organization designed to address any type of workplace dispute, 

using a wide range of ADR techniques including coaching, mediation, and organizational 

development and team building. The Center’s approach is based on the perspective that 

“a reduction in life stressors is directly correlated to an increase in workplace 

productivity.” 

Bureau of Public Debt 

The agency administers the public debt through borrowing money backed by marketable 

U.S. Treasury securities. The agency uses mediation to facilitate dispute resolution in the 

EEO context and “get our employees back to work quickly.” 

Departmental Offices/Departmental Oversight Office 

Within the various bureaus throughout the Department of Treasury, the Human 

Resources divisions routinely and effectively use ADR in EEO cases. The Secretary of 

the Treasury issued a departmental policy memorandum in 2003 which explicitly urged 

management, wherever possible, to use ADR in the EEO complaint process, finding that 

a workplace which encourages open communication and conflict resolution fosters a 

more productive workforce. 

Financial Crimes Enforcement Network 

The agency fosters and supports investigative cooperation and intelligence sharing among 

global law enforcement agencies enforcing an array of laws protecting against financial 

crimes, including money-laundering laws. The agency’s Alternative Solutions 

Assistance Program is available to address all non-EEO personnel matters in the 

workplace. Overall employee morale is improved by the early resolution of employment 

and employee concerns which enhances the overall working environment and reduces 

stress and tension. The use of ADR processes results in reduction of costs associated 

with processing workplace disputes through formal channels. 

Financial Management Service 

With a staff of slightly over 2,000 employees, the agency: disburses billions of dollars 

for almost a million federal payments including Social Security, veterans’ benefits, and 

income tax returns; collects billions of dollars in federal revenues; and manages a daily 

cash flow of around $50 billion. The agency’s Alternative Dispute Resolution Program 

addresses and offers early resolution for workplace disputes. The Program decreases the 

time, cost, and other resources expended in resolving workplace conflict. 

- 53 ­
Internal Revenue Service 

The Internal Revenue Service administers and enforces the country’s revenue laws and 

related statutes through the routine collection of a proper assessment of taxes from the 

public by working efficiently, effectively, and fairly. The agency has a Taxpayer 

Advocate Service division which utilizes dispute resolution processes while acting as a 

liaison between a taxpayer and the agency to resolve taxpayer issues. The agency hosts 

an extensive and user-friendly Web site and provides personal advisors for a taxpayer’s 

individual issues. Additionally, the Taxpayer Advocate Service collects data and 

taxpayer comments and input to determine areas requiring systemic revisions. 

In the workplace arena, the agency supports early resolution of discrimination complaints 

in order to increase employee satisfaction and workplace productivity. Employees who 

feel that their issues are not only heard, but also resolved quickly and fairly, have a 

tendency to extend this practice to customers (i.e., the taxpayers) and work harmoniously 

with them to resolve their issues. 

Internal Revenue Service Appeals 

The mission of this agency is to resolve tax controversies, without litigation, on a basis 

that is fair and impartial to both the government and the taxpayer, and in a manner that 

will enhance voluntary compliance and public confidence in the integrity and efficiency 

of the Internal Revenue Service. As the dispute resolution forum for the Internal 

Revenue Service, the agency used a form of negotiated rulemaking to develop an ADR 

program that provides dispute resolution to customers, whether involving traditional case 

resolution authority or ADR techniques. The ADR options facilitate communication, 

enhance the agency’s services to taxpayers and tax practitioners, and offer prompt and 

less expensive methods for taxpayers to resolve their disputes after traditional 

negotiations have failed. When agreement between the taxpayer and the Internal 

Revenue Service is reached, the burdens and costs to both of them are reduced. 

The agency also uses ADR for the resolution of EEO complaints. 

Office of the Comptroller of the Currency 

The Comptroller of the Currency serves as the administrator and regulator of all national 

banks. The agency has developed an ADR program covering workplace disputes and has 

initiated, as well, an innovative program to address consumer complaints involving the 

banks that the agency regulates and supervises. 

The agency has a range of ADR policies for resolution of workplace disputes: mediation 

for the informal stage of the EEO complaint process; the Fair Alternatives and Innovative 

Resolutions process for workplace disputes that are not EEO-related; mediation in the 

pre-grievance process to resolve workplace disputes for collective bargaining unit 

members; and arbitration for the grievance process for collective bargaining unit 

members. The resolution of workplace disputes, at the earliest opportunity and lowest 

- 54 ­
level possible, eliminates distractions, promotes increased productivity, and ensures the 

mission of the agency is accomplished in the most effective and efficient manner. 

The agency’s Office of the Ombudsman, through its Customer Assistance Group, 

addresses disputes between consumers and national banks or their subsidiaries. It hosts a 

user-friendly Web site which includes answers to most consumer questions, as well as 

forms to submit for formal complaints and Web site addresses for other federal agencies 

which cover different areas relating to banking and credit. About 70,000 contacts 

seeking customer assistance are received each year. 

Treasury Inspector General for Tax Administration 

The agency provides audit and investigative services ensuring the honest and reliable 

administration of the tax laws of the country. It uses ADR in workplace and EEO 

disputes, and finds that the use of ADR techniques increases the chances that workplace 

complaints and concerns are addressed early in the dispute process. This enables the 

agency to focus its resources on accomplishing its mission. 

United States Mint 

The Mint produces sufficient circulation coinage for current commerce needs and 

safeguards the U.S. gold and silver reserves. ADR is used for disputes in EEO, labor 

relations (including grievances), Merit System Protection Board appeals, and Federal 

Labor Relations Authority actions. The ADR processes improve communication in the 

workplace, ensure accountability in resolving workplace issues, achieve mutually 

satisfactory resolution of conflicts, and decrease the time, costs, and other resources 

expended in resolving conflicts. 

DEPARTMENT OF VETERANS AFFAIRS 

The mission of the Department of Veterans Affairs is to serve the nation’s veterans and 

their families to ensure that they receive medical care, compensation and pension, burial 

services, and other benefits provided by Congress in recognition of the veterans’ service 

to America. The agency is committed to preventing, minimizing, and timely resolving 

disputes among its employees and with third parties, and uses ADR to address workplace, 

procurement, and other disputes. 

The agency primarily uses mediation and facilitation to address workplace disputes 

occurring within the workforce of over 235,000 employees. The emphasis on early 

resolution of workplace disputes has resulted in a decrease in the number of EEO 

contacts and complaints, thereby saving resources and promoting greater efficiency in 

accomplishing the agency’s mission. 

The agency also dedicates resources to training its employees, managers, and union 

officials on ADR and manages a roster of agency employees who are certified to mediate 

workplace disputes voluntarily as a collateral duty. 

- 55 ­
Finally, to improve the work environment and prevent workplace disputes, the agency 

designed the Organizational Climate Assessment Program. This program is a tool used to 

examine employee perceptions of the workplace and assists management officials in 

understanding what drives employee satisfaction or dissatisfaction. The program’s focus 

on early resolution of employee concerns has helped to improve productivity and 

employee satisfaction. 

The agency’s Procurement ADR Program uses ADR to resolve bid protests, contract 

claims, or other procurement issues in controversy before a third party files a related 

appeal with the United States Civilian Board of Contract Appeals, established in January 

2007, or the United States Court of Federal Claims. 

INDEPENDENT AGENCIES 

Commodity Futures Trading Commission 

The agency is responsible for regulation and enforcement of integrity and fairness in 

futures trading, and uses ADR in workplace disputes. The agency promotes early and 

informal resolution of all disputes insuring minimal “down time” and enabling workforce 

personnel to return their focus to mission accomplishment. The agency reports that 

improved communication has resulted from dispute resolution efforts. 

Consumer Product Safety Commission 

The agency’s mission is to protect the public from unreasonable risks of serious injury or 

death from consumer products under its jurisdiction. The agency utilizes ADR for EEO 

complaint activity. The primary method of dispute resolution is mediation, using a 

neutral mediator from the Shared Neutrals Program at no cost. The agency reports that 

its use of ADR provides for a quicker resolution, which results in better employment 

relationships, and enables all parties to return their focus to productive work. 

Additionally, the agency’s compliance recalls and corrective action process utilize a 

broad array of ADR techniques to achieve voluntary compliance with agencyadministered statutes and regulations. The voluntary compliance activities result in better 

corporate compliance with product safety issues, thereby saving lives. An example is the 

agency’s use of mediation to resolve a major dispute involving the risk of carbon 

monoxide poisoning. After an extensive investigation, the agency’s staff had concluded 

that carbon monoxide could seep from high-temperature plastic vent pipes attached to 

certain furnaces and boilers, and threaten the lives of residents in up to 250,000 American 

homes where they were installed. The Conflict Prevention and Resolution Institute for 

Dispute Resolution gave the Consumer Product Safety Commission its award for 

Significant Practical Achievement in recognition of its use of mediation to achieve the 

product safety recall in this case. 

- 56 ­
The agency’s Small Business Ombudsman serves as an effective conduit to facilitate 

communication between the small business community and the agency. The 

Ombudsman advises businesses on compliance with applicable statutes and regulations, 

provides technical assistance to businesses trying to resolve Compliance and Hazard 

Identification/Reduction issues, and maintains a “one stop shopping hotline” for 

assistance and information on the agency’s programs and regulations. 

Corporation for National and Community Service 

The agency provides a multitude of opportunities fostering civic engagement for citizens 

of all ages in projects relating to education, the environment, public safety, and other 

citizen needs. The workplace ADR program is used to resolve or minimize the effect of 

disputes and enhance productivity on the projects undertaken by their employees. The 

agency’s ADR policy covers all types of workplace issues, including co-worker conflict 

as well as employee/supervisor disputes, and offers a range of processes from facilitation 

to mediation and group intervention. The agency provides important follow-up training 

to ensure that agreed-upon modifications are sustained. The agency reports that the use 

of ADR processes helps in resolving workplace disputes early and that, in particular, the 

use of group interventions helps to identify barriers to effective group work performance. 

Environmental Protection Agency 

The mission of the agency is to protect human health and the environment and foster a 

cleaner and healthier environment for the American people. ADR is used extensively 

throughout the agency, as described below. 

• Since the 1970s, the agency has been a pioneer in using ADR to prevent or reduce 

environmental conflicts and promote constructive collaborative problem solving 

in a wide range of activities and programs. During the past 30 years, the agency 

has sponsored or participated in environmental ADR cases addressing issues 

related to all aspects of its mission. The agency encourages the use of various 

ADR processes in environmental decision making contexts, including 

adjudications, rulemaking, policy development, administrative and judicial civil 

enforcement actions, permit issuance, hazardous waste and other site-related 

determinations, and the administration of contracts and grants. The agency’s 

Conflict Prevention and Resolution Center in the Office of General Counsel 

provides environmental ADR services to the entire agency, administering agencywide environmental ADR activities, assisting other agencies’ offices in resolving 

environmental disputes, and coordinating with a network of ADR staff in the 

agency’s ten Regional Offices on environmental dispute prevention and resolution 

initiatives. Since 1988, the agency has maintained a dedicated contract vehicle to 

provide access to private sector neutral third parties for environmental ADR. The 

Conflict Prevention and Resolution Services contract, managed by the Conflict 

Prevention and Resolution Center, is available to all agency headquarters and 

regional offices and provides many of the agency’s environmental conflict 

resolution services. 

- 57 ­
• The ADR program in the agency’s Office of Administrative Law Judges is used 

to facilitate settlements of administrative civil penalty enforcement cases under a 

set of federal environmental laws. Parties are offered an opportunity to 

participate in an ADR proceeding with an Administrative Law Judge serving as a 

neutral. 

• The Office of the Small Business Ombudsman reviews and resolves disputes 

between the agency and the small business community in the development and 

enforcement of environmental regulations. 

• The Regional Public Liaison Manager (formerly National Ombudsman) assists 

the public and regulated community in resolving problems concerning 

requirements under the agency’s hazardous waste programs. 

• The agency uses mediation for cases which otherwise would be heard by the 

United States Civilian Board of Contract Appeals. One of the Board judges 

points out strengths, weaknesses and common ground for each party’s case, which 

normally results in the negotiation of a mutually satisfactory resolution of the 

case. An “outcome prediction” form of ADR is also used for contract protest 

cases, where the Government Accountability Office attorney who would 

participate in the agency decision informs the parties of the expected outcome 

(sustain or deny). If the prediction is that the case would not be sustained, both 

the agency and the protesting contractor can save money by not proceeding. 

• The agency’s Workplace Solutions Staff is a “first stop” option to encourage 

resolution of workplace problems at the very earliest stage possible. Employees 

and managers have the opportunity to address concerns prior to utilizing any 

formal systems of redress. They are given information about avenues of redress 

as well as agency programs that could support their needs. The workplace 

initiatives have been very cost-effective, saving the agency resources that 

otherwise would have been used to process complaints, contributing to increased 

productivity, and preserving and encouraging effective working relationships. 

Equal Employment Opportunity Commission 

The agency’s mission is to promote equality of opportunity in the workplace and enforce 

federal laws prohibiting employment discrimination. Promoting and expanding the use 

of mediation and other types of ADR is the centerpiece of its framework for 

accomplishing the agency’s mission. 

ADR is an important part of the agency’s private sector enforcement activities: 

• Negotiated settlement and conciliation are key components of its enforcement 

strategy for the private sector charge process. Negotiated settlement attempts 

often result in resolution of charges of discrimination before a determination is 

- 58 ­
made on the merits of a charge. Conciliation efforts to resolve a charge after a 

finding of discrimination are undertaken as required by the statutes which the 

agency enforces. 

• Through its National Mediation Program, the Commission proactively promotes 

the use of mediation at any stage of the administrative process to resolve private 

sector charges of discrimination which may have merit. The Commission’s 

program uses a combination of internal mediators as well as some external 

contract mediators. Many of the mediations result in creative non-monetary 

resolutions designed to meet the parties’ needs and interests. 

ADR also is an important part of the agency’s EEO complaint processing in the federal 

sector, where it uses various techniques to resolve complaints at both the hearing and 

appellate stages of the complaint process: 

• Equal Employment Opportunity Commission Administrative Law Judges achieve 

resolution through a variety of ADR techniques such as settlement, mediation, 

referral to an agency’s mediation program, early neutral evaluation, and referral to 

an Administrative Law Judge acting as a “settlement judge.” Thirty percent of 

complaints settle during the hearings stage of the process. 

• The agency’s Federal Appellate Settlement Team program offers ADR techniques 

to resolve appeals from Final Agency Decisions on the merits. 

The agency seeks to provide leadership and serve as a model for other employers. The 

agency’s model workplace initiative is intended to ensure that the very principles and 

standards which it promotes to private business and other federal agencies are readily 

apparent in its own operations. The RESOLVE Program, which is a key component of 

the model workplace initiative, is a comprehensive one-stop ADR program to resolve all 

types of workplace disputes informally. The agency promotes the use of ADR to provide 

faster, less expensive and contentious, and more productive results in eliminating 

workplace discrimination. 

Export-Import Bank of the United States 

The Export-Import Bank facilitates and aids in financing exports of U.S. goods and 

services. The mission of the Bank is to help American exporters meet governmentsupported competition from other countries and to correct market imperfections so that 

commercial export financing can be accomplished. The Bank employs ADR in the EEO 

process, and is in the process of revising its Administrative Grievance System from a 

grievance model under collective bargaining agreements to a mediation model. 

Federal Communications Commission 

The mission of the agency is to regulate interstate and international communications by 

radio, television, wire, satellite, and cable. The agency’s use of ADR has resulted in, 

- 59 ­
avoided, or reduced litigation before the agency and appeals to the courts, thereby 

conserving its own staff as well as private resources. Its regulations permit the use of 

ADR in many of its jurisdictional areas: 

• damage complaint cases involving common carriers 

• wireless licensing disputes 

• collection of debts owed the government 

• cost-sharing plan for relocation of licensees 

• establishment and publication of standard or industry-wide generic requirements 

for telecommunications or customer premises equipment 

• complaints involving multi-channel video and cable services 

• price disputes for sale of existing wiring by multi-video program distributor in 

multi-dwelling unit 

• disputes concerning commercial leased access 

• amount of damages in program access disputes 

• interconnection disputes 

• cable home wiring disputes 

Additionally, the agency uses mediation to resolve workplace EEO disputes. 

Federal Deposit Insurance Corporation 

The Federal Deposit Insurance Corporation preserves and promotes public confidence in 

the U.S. financial system by: insuring deposits in financial institutions; managing risks to 

the deposit insurance fund; and limiting the effect on the economy from depository 

institution failures. The agency uses a broad range of ADR processes in a variety of 

substantive areas and is one of the few agencies that also uses voluntary arbitration. The 

agency established an ADR Steering Committee which is responsible for ADR activities 

agency-wide and the coordination of ADR policies and programs to ensure a consistent 

organizational approach. 

The agency has an EEO Mediation Program in which mediation is available at both the 

informal and formal stages of the EEO complaint process. There also is a Workplace 

Disputes Program which is designed to address disputes arising between employees at all 

levels. The program is intended to provide a mechanism for employees to resolve 

conflicts through early intervention and without the need to file a formal complaint. 

The agency also has an Office of the Ombudsman that provides ADR services and 

outreach largely to the public and regulated entities. 

Federal Election Commission 

The mission of the agency is to administer and enforce the Federal Election Campaign 

Act which governs the financing of federal elections. Agency responsibilities include 

enforcement of the statutory provisions on limits and prohibitions on contributions. The 

primary ADR process used by the agency is a variation on settlement negotiations – a 

- 60 ­
bilateral process in which respondents engage in a dialogue with a representative of the 

ADR office who explains the nature and cause of the statutory violation. That dialogue 

provides respondents with an opportunity to explain their committee’s or organization’s 

actions and their perspective on the nature of the violation. The resulting negotiations 

between the parties results in a settlement that both sides find acceptable and achieves the 

agency’s goal of promoting compliance with the statute. The ADR program also frees up 

agency resources so they may be devoted to more compelling and complex violations of 

the statute. 

The agency also offers mediation in EEO and other workplace disputes. 

Federal Energy Regulatory Commission 

The Federal Energy Regulatory Commission, an independent agency within the 

Department of Energy, regulates the interstate transmission of electricity, natural gas, and 

oil. The agency  and its predecessor, the Federal Power Commission  have long 

endorsed and supported negotiated settlements. In 1994, the agency reaffirmed its policy 

“to conclude its administrative proceedings as fairly, effectively, and expeditiously as 

possible.” The agency also has embraced the opportunity inherent in the Administrative 

Dispute Resolution Act to further develop its policies to “achieve less costly, less 

contentious, and timelier decisions in its proceedings.” 

The agency’s dispute resolution initiatives include: 

• The Dispute Resolution Service. This service is a neutral unit within the agency 

which was established in 1999 to provide and promote ADR services for parties 

engaged in agency-related disputes. The Dispute Resolution Service has 

mediated and facilitated two-party and multi-party disputes in a range of areas 

including: hydropower relicensing; gas certificates; electric, gas, and oil tariffs 

and rates; and business concerns in all arenas. 

• The Settlement Judge Process. Under this process: 

- The agency strongly encourages ADR in most cases set for hearing, and 

typically refers over 85% of all cases set for hearing to an Administrative 

Law Judge other than the presiding judge for settlement purposes. 

Approximately 75% of these cases are settled. 

- The use of settlement judges results in substantial savings of time and 

resources that would have been expended in costly litigation. Use of 

settlement judges also allows citizens to receive the refunds due much 

earlier than if the case had proceeded through litigation. 

• The Enforcement Hotline. The agency’s use of early neutral evaluation through 

its Enforcement Hotline is an effective tool in addressing disputes prior to formal 

dispute filing with the agency. 

- 61 ­
Federal Maritime Commission

 The agency’s mission is to develop and administer policies and regulations that foster a 

fair, efficient, and secure maritime transportation system. It is the agency’s policy to use 

alternative means of dispute resolution to the fullest extent compatible with the law and 

its own mission and resources. The agency considers using ADR in all areas, including 

workplace issues, formal and informal adjudication, issuance of regulations, enforcement 

and compliance, issuance and revocation of licenses and permits, contract award and 

administration, litigation brought by or against the agency, and any other interactions 

with the public and the regulated community. Parties are encouraged to pursue the use of 

alternative means through the agency’s Office of Consumer Affairs and Dispute 

Resolution Services in lieu of or prior to initiating an agency proceeding. The Office of 

Consumer Affairs and Dispute Resolution Services is responsible for developing and 

implementing the agency’s ADR program. 

ADR helps resolve disputes with a minimum of government interference in the 

marketplace, ultimately resulting in a fairer and more efficient ocean transportation 

system. The agency’s Office of Consumer Affairs and Dispute Resolution Services is 

using ADR in a number of areas to avoid the expense and delays inherent in litigation, 

and to facilitate the flow of U.S. ocean commerce, including: 

• resolution of shipping disputes, e.g., attempts by carriers to increase rates after 

execution of a service contract; 

• provision of ombuds services to participants in ocean shipping transactions (e.g., 

transportation or handling of cargo, and complaints against cruise operators); 

• adjudication of small claims (up to $50,000) for violations of shipping statutes 

(e.g., freight overcharges, extensive delivery delays, demand for excessive 

payments prior to delivery); 

• adjudication of applications for permission to apply other than tariff rates; 

• adjudication of applications to waive or refund freight charges arising from errors 

in tariff publications, inadvertent failure to publish an intended rate, or a 

misquotation of a rate. 

Federal Mediation & Conciliation Service 

The agency’s core mission is to promote sound and stable labor-management relations by 

providing mediation assistance in contract negotiation disputes between employers and 

their unionized employees. Their use of ADR promotes the adoption of collective 

bargaining agreements upon the expiration and renewal of contracts and promotes better 

employee/management relations. 

As a result of the 1990 and 1996 Administrative Dispute Resolution Acts, the agency’s 

role was expanded beyond labor relations. The agency has become a primary provider of 

mediation, facilitation, training, and other assistance within the federal government. The 

agency has: convened and facilitated over fifty complex, multi-party negotiations; 

mediated thousands of federal sector workplace disputes; trained federal employees in 

- 62 ­
conflict prevention and resolution; and assisted with the design and implementation of 

conflict management systems for over eighty agencies. The agency also has spread the 

use of ADR overseas by providing training, consultation, and other technical assistance in 

dozens of countries around the world. 

Federal Reserve Board 

The Board supervises the Federal Reserve System which is responsible for developing 

banking policy and regulating the banking industry. The Board’s ADR policy extends to 

general workplace disputes, as well as EEO matters. Additionally, the agency’s 

Ombudsman provides mediation and other ADR processes in supervisory matters, 

permitting affected stakeholders to contact a Board official to address issues of concern. 

Federal Trade Commission 

The Federal Trade Commission promotes healthy commercial competition through the 

prevention of general trade restraints and safeguards the public from fraudulent trade 

schemes. 

The agency is committed to integrating ADR strategies in its mission-related 

responsibilities to enforce several federal antitrust and consumer protection laws. It uses 

mediation in civil enforcement cases on an ad hoc basis. In furtherance of its consumer 

protection mission, the agency is a strong advocate of ADR to help resolve many 

different kinds of consumer disputes. The agency works to educate consumers about 

ADR options available to them and works in conjunction with a number of consumeroriented organizations to ensure that the public is aware of opportunities and rights to 

mediate and arbitrate disputes concerning purchases of products and services. 

The agency also uses ADR to help resolve workplace problems that can interfere with its 

ability to perform its responsibilities, including relationship problems between employees 

and managers, performance and conduct-related issues, and labor management matters. 

General Services Administration 

An important mission of the agency is to hear and decide contract disputes between 

government contractors and executive agencies of the United States. Through the United 

States Civilian Board of Contract Appeals, the agency offers ADR services as an integral 

part of the contract appeals process, and uses ADR for the prompt, expert, and 

inexpensive resolution of contract disputes and contract-related matters. 

The agency also uses ADR to identify and remedy concerns in the workplace, thereby 

fostering increased employee productivity. 

- 63 ­
National Archives and Records Administration 

The agency’s mission is to: serve American democracy by safeguarding and preserving 

the records of our government, ensuring that the people can discover, use, and learn from 

this documentary heritage; ensure continuing access to the essential documentation of the 

rights of American citizens and the actions of their government; promote civic education; 

and facilitate historical understanding of our national experience. 

The agency uses mediation and facilitation in employment and workplace disputes within 

its organizations throughout the nation so that problems can be addressed and resolved, 

and the employees can get back to the work at hand. Because the agency is highly 

citizen-centered, with much of its mission focused on facilitating public access to 

materials and exhibits, its workforce must be able to interact effectively with the public. 

By learning through use of ADR how best to work with one another, the staff can best 

improve its interaction with the visitors. 

National Labor Relations Board 

The agency administers the nation’s principal labor laws, preventing unfair labor 

practices and safeguarding employees’ rights to organize into labor unions. Its core 

function employs all of the ADR processes. The agency also uses ADR in its own 

workplace disputes, allowing parties to resolve their disputes more quickly and easily and 

saving both time and money for them and the agency. The agency reports that ADR 

permits parties to reach settlements which are better tailored to the parties’ particular 

circumstances, ensuring that the parties’ disputes are more fully resolved and less likely 

to recur. 

National Mediation Board 

The agency’s mission is to mediate labor-management disputes in the airline and railroad 

industries, and to minimize work stoppages by facilitating harmonious labor-management 

relations for airlines and railroads engaged in interstate commerce or travel. Its 

professional mediators use ADR techniques to resolve the disputes. Since 1997, it has 

mediated over 600 cases with only four work stoppages (including one that lasted for less 

than 90 minutes). 

National Science Foundation 

The National Science Foundation promotes advancement in scientific research and 

education. The agency uses ADR primarily in the workplace arena and reports that use 

of ADR enhances communication, which fosters a more productive workforce. 

Nuclear Regulatory Commission 

The mission of the agency is to protect the public health and safety and the environment 

from the effects of radiation from nuclear reactors, materials, and waste facilities. The 

- 64 ­
agency also regulates these nuclear materials and facilities to promote the common 

defense and security. One of the agency’s principles of good regulation is that nuclear 

regulation is the public’s business and it must be transacted publicly and candidly, with 

the public being informed about and having the opportunity to participate in the 

regulatory processes. The agency’s use of collaborative, facilitated ADR processes 

allows it to work faster and better, and to establish stronger relationships with the public, 

in a range of areas, e.g.: 

• identification of criteria for the recycling of radioactive materials; 

• revision of agency rules and guidance on emergency planning in light of the 

security issues raised by the 9/11 attack; and 

• adoption of rules and guidance governing the use of radioactive material in 

therapeutic and diagnostic medicine. 

Additionally, the agency: 

• uses facilitation in public meetings on site-specific licensing issues conducted as 

part of a public outreach program; and 

• uses facilitation for a series of ongoing interagency management meetings to 

develop a strategy for agency cooperation in the cleanup of a 

decontamination/decommissioning site. 

The agency also is using ADR in enforcement disputes: 

• between a licensee and the agency as the agency discharges its responsibility for 

licensing or certifying applicants to use nuclear materials or operate nuclear 

facilities; and 

• between a licensee and its employee (when the employee has alleged to the 

agency that the licensee has taken retaliatory action against the employee for 

raising a safety concern) as the agency discharges its responsibility to investigate 

violations of agency requirements and other wrongdoing. 

Finally, the agency uses ADR as an effective management tool to resolve employment 

discrimination claims at the earliest stage possible in an expeditious and cost-effective 

manner. 

Office of Personnel Management 

The agency is responsible for the hiring and management of federal workplace personnel 

throughout the country and uses ADR primarily in the workplace arena. The agency 

promotes the resolution of EEO complaints and other allegations of discrimination at the 

earliest possible stage and reports that ADR enhances communication between 

employees and managers. 

The agency hosts a user-friendly Web site, and has included an on-line and updated 

version of its 2002 report, “Alternative Dispute Resolution - A Resource Guide”, on that 

- 65 ­
Web site (www.opm.gov/er/adrguide_2002/index.asp). The Guide provides a wealth of 

valuable information on ADR usage within the federal government, along with 

comprehensive descriptions of a broad range of ADR processes. The Web site describes 

in detail many federal agencies’ ADR programs and lists points of contact in the federal 

agencies covered as well as specific agency Web site addresses. 

Peace Corps 

The agency, established in 1961, promotes world peace and understanding through a 

global outreach to the poorest countries throughout the world, placing volunteers who 

assist local communities with technical skills and education. The agency’s ADR policy 

covers all employees, Peace Corps volunteers and applicants, both current and former, 

and addresses EEO complaints as well as general workplace issues. The ADR policy 

requires all management and supervisory staff to participate in EEO cases. The agency’s 

Office of American Diversity Programs provides more than 30 training opportunities 

each year for employees, supervisors, and managers to learn to use ADR techniques, such 

as facilitation, in addressing workplace issues proactively, before they grow into disputes. 

Pension Benefit Guaranty Corporation 

The agency monitors, guarantees and administers private sector defined benefit pension 

plans throughout the country. The agency uses ADR for workplace disputes, and finds 

that ADR increases workforce productivity by allowing quicker resolution of disputes, 

improving continuing relationships with staff, and developing staff talents. 

Additionally, the agency uses ADR in areas of agency action, including civil claims by 

and against the agency, as well as contract and procurement matters. 

Securities and Exchange Commission 

The agency’s mission is to: protect investors; maintain fair, orderly, and efficient 

markets; and facilitate capital formation. The agency uses various ADR processes in 

different areas, including enforcement and workplace. 

The agency has reported success and savings in using ADR early in the litigation of 

enforcement disputes while accomplishing the agency’s regulatory functions more 

efficiently. 

In traditional formal workplace dispute processes, there was a significant lag time 

between conflict initiation and conflict resolution which provided a fertile ground for 

disputes to fester in an ever-widening circle of conflict and poor morale. By using a 

variety of ADR techniques, especially anticipatory dispute resolution processes, disputes 

and resulting problems with productivity and workplace morale are addressed much more 

quickly and effectively. Early resolution of those disputes saves staff time, improves 

morale, and increases productivity. 

- 66 ­
Small Business Administration 

The agency’s mission is to maintain and strengthen the nation’s economy by aiding, 

counseling, assisting, and protecting the interests of small businesses and by helping 

families and businesses recover from natural disasters. The agency encourages case-bycase mediation with its participating lenders for regulatory issues such as denial of 

liability under the agency’s loan guaranty agreement with lenders. Use of ADR 

minimizes conflict and ill-will in regulatory disputes, thereby retaining lenders as 

participants in the program. 

The agency’s National Ombudsman assists small businesses with unfair and excessive 

federal regulatory enforcement, such as repetitive audits or investigations, excessive fines 

or penalties, retaliation, or other unfair regulatory enforcement action by a federal 

agency. The National Ombudsman receives complaints and comments from small 

business concerns and acts as a “trouble shooter” between them and federal agencies. 

Small business comments are forwarded to federal agencies for a high-level review to 

consider the fairness of their action. 

ADR processes encourage early intervention and resolution of disputes to promote 

workplace cohesiveness, thereby decreasing potential litigation and other costly means of 

resolution. Unresolved conflict hinders quality service and diminishes the effectiveness 

of any organization. ADR is used to improve communication and to achieve fast, 

efficient resolution of conflict, thereby allowing employees and managers to provide the 

highest quality of service to the American people. 

Social Security Administration 

This agency administers the nation’s vast network of social insurance programs and uses 

ADR processes to provide a more efficient and cost-effective means of resolving 

workplace disputes. When ADR is used successfully early in the dispute process, it 

significantly decreases the negative impact of those disputes on employee morale and 

improves employee satisfaction, thereby enabling the agency to devote more of its 

resources to tasks directly related to its mission. 

Tennessee Valley Authority 

The agency’s mission is threefold: provide affordable and reliable power; promote 

sustainable economic development; and act as steward of the Valley’s natural resources. 

It utilizes consensus building and public participation as an integral and inherent part of 

numerous areas of its decision making, for example, in environmental policy matters. It 

utilizes ADR procedures to conclude disputes expeditiously, economically, fairly, and 

sensibly. 

- 67 ­
U.S. Agency for International Development 

The agency’s economic and humanitarian assistance in more than 100 countries provides 

a better future for those with greatest needs. About one-half of the agency’s contracts 

and grant awards are negotiated, issued, and administered by its headquarters office in 

Washington, D.C., and the remainder is handled by staff located at its missions 

worldwide. The acquisition and assistance programs can be huge in scope and impact. 

For example, since March 2003, the agency has been allocated over $5 billion for relief 

and reconstruction in Iraq. Its awards to different entities are the vehicles for bringing 

food, security, health, infrastructure, and economic development to Iraq. In sub-Saharan 

Africa, the agency’s program for Sudan totaled more than $850 million for FY 2005, and 

its contract awards are supporting reconstruction, humanitarian aid, and food assistance 

in Southern Sudan. In Afghanistan, the agency is helping build the sort of safe and stable 

society that eliminates the breeding ground for terrorism. 

The agency administers workplace ADR, primarily using mediation, in its Office of 

Equal Opportunity Programs, sometimes using trained mediators on collateral duty from 

the Federal Mediation & Conciliation Service. 

The Office of the Acquisition and Assistance Ombudsman ensures equitable treatment of 

all parties participating in the agency’s acquisition and assistance programs. It facilitates 

the resolution of specific complaints, and handles cross-cutting issues such as 

procurement integrity, consistency in the application of acquisition policies, customer 

service issues, customer-access outreach, business process improvement initiatives, and 

acquisition reform. 

The Office of the Acquisition and Assistance Ombudsman also facilitates and responds to 

external complaints about ineffective or unfair contracting. Through its interactions with 

both external and internal stakeholders, the office can identify vulnerabilities and 

inconsistencies in the procurement system and become an agent for change. 

U.S. Institute for Environmental Conflict Resolution of the Morris K. Udall Foundation 

ADR, in the context of environmental disputes, is the agency’s primary mission. The 

agency was established to assist the federal government and other parties in resolving 

environmental, natural resource, and public lands conflicts. All of its institutional 

practices and policies are designed to promote the appropriate and effective use of ADR. 

The agency’s mission and ADR services pertain to a broad spectrum of applications from 

public policy dialogues and planning settings to site-specific permitting and broad 

development of regulations, to civil enforcement and administrative appeals, as well as 

the litigation context. Across these areas, the agency works to assist federal agencies and 

other parties in reaching agreement and solving problems in a collaborative, nonadversarial manner, sometimes with the assistance of contracted facilitators or mediators. 

- 68 ­
The agency uses a range of methods or processes, from preliminary consultations to 

convening and conflict assessment, process design and guidance, large group facilitation, 

assisted negotiation and mediation, and dispute system design and evaluation. These 

methods or processes are used to advance the work of the agency to prevent and resolve 

environmental, natural resource, and public lands conflicts. The process of mediation, for 

instance, provides stakeholders with an opportunity to work out their differences and 

arrive at joint solutions with the help of an impartial mediator. Consensus-based 

processes, such as negotiated rule-making, community-based collaboration, and policy 

dialogues engage representatives from all groups affected by proposed federal policies or 

actions in participating in their formulation, revision, or implementation. 

U.S. Office of Government Ethics 

The agency was established by the Ethics in Government Act of 1978 and was originally 

part of the Office of Personnel Management. The agency exercises leadership throughout 

the Executive Branch for prevention of conflicts of interest on the part of government 

employees. In partnership with Executive Branch agencies and departments, the agency 

fosters and promotes high ethical standards and strengthens the public's confidence in the 

integrity of the federal government and its workforce. The agency promotes the effective 

use of ADR, primarily mediation and facilitation, in EEO proceedings. Additionally, the 

agency solicits public review and comments in some core areas of ethics regulations such 

as application of the criminal conflict-of-interest laws and financial disclosure laws. 

U.S. Postal Service 

The Postal Service processes and delivers millions of pieces of mail to people and 

businesses throughout America. The agency’s foresight resulted in development of one 

of the earliest and most successful dispute resolution programs for workplace disputes 

called “REDRESS”® (Resolve Employment Disputes Reach Equitable Solutions 

Swiftly). The innovative program uses transformative mediation to resolve an enormous 

variety of workplace disputes. The Postal Service reports that when disputes are resolved 

quickly and fairly, employees tend to feel positive about their work environment, and this 

positive feeling translates into higher morale and greater productivity. 

- 69 ­
III. Advantages of ADR 

Use of ADR in the Executive Branch has been instrumental in producing these 

advantageous results for the agencies: 

• promotion of a citizen-centered government; 

• management of the costs of government; and 

• support of the strategic management of government resources. 

This section of the Report (“Advantages of ADR”) is an overview of ADR’s beneficial 

impact on federal agencies, coupled with a few specific examples from individual agency 

programs which illustrate the direct correlation between use of ADR and achievement of 

particular results. The agency responses are reported more fully in the following section 

of the Report (“Areas of ADR Programs and Use”) where they are examined in the 

context of the major substantive areas where ADR is most used: civil enforcement and 

regulatory; claims against the government; contracts and procurement; and workplace. 

A. Promoting a Citizen-Centered Government 

A good government is citizen-centered. It is available to, and effective in meeting the 

needs of, the citizens it serves, and it provides opportunity for stakeholder involvement in 

its decision making. In short, a government which is citizen-centered is: 

• accessible to the citizens it serves; 

• responsive to the needs of the citizens it serves; and 

• inclusive of the interests impacted by government initiatives. 

The information submitted by the agencies shows that ADR programs are designed 

specifically to be citizen-centered. The programs give considerable attention to 

electronic tools, which are employed to improve the ease, expense, time, and 

comprehensibility of citizen interactions with the federal government. 

Accessible 

The first component of good government is access: a government must be accessible to 

the citizens it serves. The Executive Branch spans an enormous range of functions. 

While some of its agencies necessarily have more direct interaction with the public than 

others, agencies across the board are promoting initiatives to enhance their accessibility. 

Almost every agency has developed a public Web page, which provides a single point of 

access for the public to learn about agency programs and accomplishments. 

Public access points have proven to be valuable agency assets for informing a broad 

public about agency initiatives as well as an opportunity for more substantive 

involvement in agency processes. For example, the Department of Justice/Civil Rights 

Division has developed an interactive, comprehensive, and easily navigated Web site for 

- 70 ­
persons with disabilities and business owners who have questions about their rights and 

obligations under Americans with Disabilities Act, and about the agency’s mediation 

program for disability rights. 

Inextricably linked with access is the ease of an interaction with a government agency. A 

citizen-centered government must ensure that the entry points provided for citizen 

involvement are quick, easy, and effective. A prime example of this is the telephone 

hotline, instituted by many agencies to facilitate public input and involvement. 

The Federal Energy Regulatory Commission Enforcement Hotline effectively serves 

citizens through providing early neutral evaluation to address disputes early, before 

complaints are formally filed with the Commission. The Enforcement Hotline is 

accessed by a widely-published and easy to use toll-free number. Callers to the hotline 

are immediately connected with a trained staff member who attempts to resolve the 

caller’s concerns quickly and completely. The Enforcement Hotline has proven to be an 

efficient method for resolving commercial disputes, as well as a valuable resource for 

individual landowners involved in a dispute with natural gas pipeline companies. The 

Enforcement Hotline signals to the public that the agency is committed to responding to 

the needs of its citizens, and that in turn has a direct impact on the public’s confidence in 

the ability of the government to resolve disputes. Similarly, the National Mediation 

Board staffs a Public Affairs Line to enable the public to submit inquiries and have their 

questions or concerns addressed in a timely manner. Those who return the calls are 

trained to educate the general public about the agency’s jurisdiction and provide 

information on resources for callers whose questions or concerns fall outside of the scope 

of the Railway Labor Act. 

In addition to the telephone, agencies are facilitating e-mail interaction with the 

American public. The Federal Maritime Commission ADR Program utilizes e-mail 

correspondence to assist the public in learning about the services available and to 

facilitate quicker global communication to resolve problems. The Federal Energy 

Regulatory Commission conducts many of its ADR activities via e-mail, eliminating 

inconvenience and expense for respondents located throughout the United States who 

otherwise would have to come to Washington D.C. 

The development of resources on the Internet has greatly increased the accessibility of 

the agencies to citizens with a computer and a need for information. Numerous agencies 

join the National Mediation Board in utilizing the Internet to disseminate general 

information about ADR. For example, the Environmental Protection Agency Web site 

provides information to the public about the use of ADR at the agency, how to access its 

ADR services, and relevant law and policy. The agency’s Small Business Ombudsman 

provides Web access for assistance, contacts, useful publications, and additional 

information on the office. The Federal Energy Regulatory Commission Web site 

provides information about ADR and how to contact its Enforcement Hotline or the 

Dispute Resolution Service staff if an early neutral evaluator or mediator is needed. The 

Federal Trade Commission relies on the Internet to provide consumers with ADR 

information, including how to use ADR when in dispute with companies over the 

- 71 ­
purchase of goods and services. The Department of Homeland Security/Federal 

Emergency Management Agency ADR office provides detailed information on its Web 

site about all of the ADR services offered to the public. The public can contact the ADR 

Director via e-mail with questions about dispute resolution. The Department of the 

Interior Office of Collaborative Action and Dispute Resolution and several Bureaus, 

including the U.S. Geological Survey and the Bureau of Land Management, provide 

ADR information on their Web sites to give staff and citizens an understanding of the 

ADR processes available. The U.S Institute for Environmental Conflict Resolution 

maintains an on-line searchable database of more than 250 pre-qualified environmental 

mediators and facilitators, available to agencies and the public who are looking for 

neutrals to handle their environmental conflict. It also hosts a national conference on 

environmental conflict resolution every three years for stakeholders, agencies, and 

environmental conflict resolution professionals. The Federal Mediation & Conciliation 

Service Web site offers access to a variety of tools for obtaining agency dispute 

resolution services and training, including look-up tools for locating and contacting the 

nearest agency office. The agency’s Web users can: find information on mediation and 

other ADR services; register for agency meetings, training sessions and conferences; 

print brochures on agency services and programs; and electronically query the agency. 

Some agencies are also utilizing e-tools to disseminate ADR process-related information. 

For example, the Consumer Product Safety Commission provides Web-based ADR 

services including notifications, evaluations, and decision making communications. The 

Nuclear Regulatory Commission provides, as part of the collaborative process in the 

area of regulatory policy development and for public meetings on site-specific issues, 

electronic access to relevant background on the agency Web page and, for large 

documents, on a compact disc. The agency also has provided for the electronic 

submission of comments on proposed agency actions. The Federal Emergency 

Management Agency created a Web site for the public (particularly the claimants) to 

understand the Cerro Grande arbitration process, access information about all of the 

arbitrators, make their arbitrator selections, and fill out their forms on-line. Userfriendly, plain English guidelines were posted on the Web site to help users understand 

the arbitration program in a clear, step-by-step manner. The Web site provided personal 

contact information to the public, and the ADR Director was available to answer all 

manner of questions regarding the arbitration program. 

Agencies recognize that  as the Department of Defense/Department of the Air Force 

has expressed  “ADR is still one activity that requires direct human involvement at a 

fundamental level.” The approach to implementing electronic government must be 

dynamic, with agencies continually assessing the Internet-based tools and tweaking them 

to more effectively serve employees and citizenry. The Department of Homeland 

Security/Transportation Security Administration Office of the Ombudsman, for 

example, is currently tracking the types of calls it receives from the traveling public and 

using that information to include more customer-focused information on its Web site. 

The Federal Mediation & Conciliation Service pioneered the use of on-line technology 

in collective bargaining through the creation of partnerships and labor management 

- 72 ­
committees. The agency’s powerful network of mobile computers and customized 

software: helps groups brainstorm, gather and organize information, and prioritize, 

evaluate and build consensus faster than in traditional group meetings; increases the 

efficiency of group decision making by reducing the number of days required for face-toface meetings in dispute resolution processes; and enables skilled mediators to solve 

problems more effectively. The innovative work of the National Mediation Board in 

the area of on-line dispute resolution showcases the dynamic use of technology to 

improve access between and among the government and disputants. The Board uses 

videoconferencing and document sharing software that enables parties to meet on-line 

when they are unable to meet in person. This allows parties to draft tentative agreements, 

approve language, and resolve arbitration disputes without spending time or money to 

travel to a different location. The Board also works with other federal agencies to 

introduce the use of technology into mediation. To date, the Board has delivered over a 

dozen presentations to other agencies about how to integrate technology into ADR and 

has worked with mediators from the Sharing Neutrals program, described in detail later, 

to allow for mediations to take place without travel. 

Additionally, there is growing interest abroad in the use of ADR by federal agencies 

throughout the United States, and many agencies are responding with educational and 

training programs for foreign government officials. The Federal Mediation & 

Conciliation Service has an entire section, International and Dispute Resolution 

Services, devoted to such training and has offered training in the prevention and 

resolution of collective and individual labor disputes in 12 countries in the past three 

years. The Department of Justice Office of Dispute Resolution regularly meets with 

foreign government officials who have expressed interest in learning more about the use 

of ADR within the United States government and court system. Similarly, the Federal 

Energy Regulatory Commission meets with foreign government officials to discuss the 

use of ADR within nascent civil enforcement and regulatory systems. In this regard, the 

Federal Energy Regulatory Commission Dispute Resolution Service has conducted 

workshops in the use of ADR for the Dominican Republic’s Superintendencia de 

Electricidad, the South Asia Regional Regulators, China’s State Electricity Regulatory 

Commission, the National Energy Regulator of South Africa, and other organizations. 

Responsive 

The second component of good government is responsiveness: a government must be 

responsive to the needs of the citizens it serves. Agencies are achieving this through 

instituting programs and processes that increase direct interaction between the agency 

and the public. 

A prime example of this kind of service  adopted by a number of agencies  is the 

ombuds program. An ombuds office provides an opportunity for citizens to talk directly 

with an agency contact  the ombuds  to raise issues of concern and to solicit assistance 

in resolving their concern with the agency. The ombuds inhabits a special place outside 

of the routine bureaucratic channels and has authority to approach high levels of 

leadership directly for immediate action or decision making. One byproduct of the 

- 73 ­
ombuds’ efforts is that they gain valuable information from citizens on the impact of the 

agencies’ programs and outreach efforts. The ombuds, in turn, are able to provide 

ongoing feedback to their respective agencies on ideas for enhancing or modifying 

programs and initiatives to better serve their citizens. They are particularly wellpositioned to disseminate information while at the same time serving as a central 

clearinghouse to gather information on trends or weaknesses in an agency’s relationship 

with the public. Ombuds serve an equally important function as monitors of overall 

agency effectiveness as well as agents of change where necessary. One illustration is the 

U.S. Agency for International Development Office of the Acquisition and Assistance 

Ombudsman which serves as a liaison between the private sector and agency personnel. 

That office fosters good relationships with external business partners by providing a 

channel through which their voices can be heard in a neutral and confidential 

environment. The corrective actions instituted by the office contribute to the credibility 

of the agency’s business processes and epitomize the agency’s commitment to the 

principle of accountability for, and transparency in, its operations. 

Another good example is the use of ADR techniques to respond to the issue of youth 

violence. In response to a Congressional mandate, the expertise of the Federal 

Mediation & Conciliation Service is being used to address youth violence prevention 

and develop conflict resolution programs in the nation’s schools. The agency has 

partnered with communities and organizations nationwide in programs to teach children 

and young adults the skills they need for the peaceful resolution of conflict. In 

furtherance of these goals, the agency is a sponsor of “Creating Harmony in the 

Classroom,” a special classroom guide which is designed to help students learn how to 

manage successfully the conflict in their lives and which is offered without charge to 

educators on the agency’s Web site. In a related project, the agency is developing a 

“Cool School” computer game which is designed to teach conflict resolution skills to 

elementary school students and which will be offered to classrooms nationwide for 

instructional play. 

Inclusive 

The third component of good government is inclusiveness: a government must be 

inclusive of all stakeholder interests which are impacted by government initiatives. 

Agencies are soliciting input and collaborating with citizens and other stakeholders in the 

process of generating agency policy. The challenges of managing these multi-party 

processes, however, are far outweighed by the benefits of inclusiveness: innovative and 

durable processes and outcomes that are reflective of agency – and citizen – needs. 

A number of agencies have involved stakeholders in collaborative processes to discuss 

and/or develop policy on various agency issues. For example, the Nuclear Regulatory 

Commission has convened collaborative processes – involving a broad spectrum of 

external interests – to develop regulatory policy on generic issues such as regulations, 

guidelines, and policy statements. The range of issues addressed includes the recycling 

of radioactive materials, the revision of agency rules and guidance on emergency 

planning, and the rules and guidance governing the use of radioactive material. The 

- 74 ­
processes, facilitated in a roundtable format to encourage dialogue among affected 

interests, assist the agency in identifying the views of the affected interests, potential 

problems with implementing particular approaches, the extent of agreement or 

disagreement on a particular approach, and the development of creative approaches to the 

issues that might meet the interests of all participants. 

The Department of Commerce/National Oceanic and Atmospheric Administration 

uses consensus building and public participation in all of its environmental compliance 

issues. A case in point is the agency’s Cooperative Assessment Process which uses 

participation between industry and government, in concert with the public, to facilitate 

the restoration of natural resources and associated services that were injured or lost by 

hazardous substance releases and oil spills. The agency convened industry 

representatives, environmental groups, and federal, state, and tribal trustees to develop 

the process, which is expected to strengthen partnerships with industry and other 

stakeholders, and provide meaningful opportunities for public involvement. 

The Department of the Interior is committed to increasing and expanding its use of 

public participation processes as a means to avoid conflicts and potential litigation by 

seeking early input from local communities. The National Park Service has used these 

processes in developing its resource management plans. 

The Department of Energy created public participation projects to avoid conflicts and 

potential litigation. Part of the agency’s mission is to ensure the environmental cleanup 

of the national nuclear weapons complex, and its Office of Environmental Management 

developed a public participation process for stakeholders directly affected by those 

cleanup activities  local governments, tribal nations, environmental and civic groups, 

labor organizations, universities, industry, and other interested parties. Future 

misunderstandings are minimized, and chances of costly legal actions decreased, through 

discussion and resolution of key issues in an efficient and cooperative manner. The 

Office of Legacy Management developed a public participation process to target 

populations  small towns, rural areas, minority and low-income communities  that are 

limited in their ability to participate in environmental decisions because they lack access 

to information, technology, expertise, and decision-makers. 

B. Managing Costs 

Use of ADR has promoted responsible allocation of limited federal resources. The initial 

applications of ADR to backlogged court systems demonstrated distinct cost savings 

advantages over litigation. As ADR has expanded beyond the court system, however, it 

has become apparent that monetary savings are just one component of ADR’s impact. 

In addition to monetary savings, ADR has demonstrated its effectiveness in controlling 

other costs of conflict. Because parties are the architects of their own resolutions, the 

results achieved through ADR are generally longer lasting than those imposed through 

more traditional mechanisms, and “repeat conflict” can be avoided. The likelihood of 

conflict re-emerging is further lessened because, since the process of ADR focuses on 

- 75 ­
communication, parties engaged in ADR generally avoid the relationship pitfalls inherent 

to a win or lose “fight to the finish.” ADR also has been demonstrated to save time. 

Savings in money and time translate into more responsible allocation of limited 

resources: agencies are able to redirect resources from conflict management to 

promotion of the agency mission. As the Department of Defense/Army Corps of 

Engineers noted: “In an era of tightening budgets, the transactional costs that are avoided 

through ADR translate into additional funding that can be available for mission 

execution... [fostering] an environment where costs are more manageable and 

predictable.” 

In short, ADR contributes to the effective conservation of limited federal resources in 

several interrelated ways: 

• controlling the costs of conflict; 

• producing quicker and more durable results; and 

• preserving resources for the mission of the agency. 

Controlling the Costs of Conflict 

When ADR is employed, conflict costs are controlled, as evidenced by a number of 

indicators. The first is money saved, and the reasons for this are clear. The costs 

associated with litigation have skyrocketed in the past several decades as the complexity 

of cases, and correspondingly, discovery and motions practice, has increased. The fees 

and travel costs for expert witnesses  critical to litigating a complex case  have 

compounded already exorbitant legal expenses. The Department of 

Defense/Department of the Army recognizes ADR’s impact on such expenses: 

“Litigation expenses are directly factored into the billing rates set by our working capital 

fund activities, such as our depots and Army Corps of Engineers civil works projects. 

Early resolution of all disputes reduces these expenses.” 

There are many examples of ways in which ADR options result in more cost-effective 

resolution of disputes. The Department of Justice/Federal Bureau of Investigation 

has found the cost of mediation in workplace disputes to be less expensive than an 

investigation or a Final Agency Decision. At the Federal Energy Regulatory 

Commission, regulated utilities and their customers who were participants in dispute 

resolution service processes reported substantial savings through use of ADR. For 

example, in two cases, four out of ten parties reported that participation in the dispute 

resolution process resulted in a cost savings of approximately $400,000. The agency also 

reports significant savings in avoided personnel costs and time spent preparing for, and 

participating in, litigation. 

In addition to monetary savings, however, ADR results in savings of productive labor 

that is dedicated to, or lost, as a result of conflict within the workplace. ADR programs 

provide parties a unique opportunity to address the human emotions that are intertwined 

with conflict, which is essential to future relationships. All too often, what is filed in the 

- 76 ­
administrative forum does not reflect the true issue between the parties. ADR is designed 

to reach those underlying issues that are a drain on the agency’s resources and can linger 

for a significant period of time irrespective of any EEO complaint or workplace lawsuit 

that might be filed and/or withdrawn. The result is better agreements that reach the real 

issues in relationships, something that is demonstrated through experience. The 

Department of Defense/Department of the Navy statistics show that 70% of employees 

participating in mediation agreed that mediation improved the relationships in the 

workplace. One manager in an ADR process at the Federal Emergency Management 

Agency said that the process helped the employee and manager repair their relationship 

and helped the employee see that the manager was “not out to get him.” 

Producing Quicker and More Durable Results 

The use of ADR results in quicker and more durable resolutions. Integral to this is the 

flexibility inherent to ADR. ADR provides parties a unique opportunity to craft a process 

and a solution which are tailored to their own needs. 

In litigation, the length of time between the onset of a dispute and the final adjudication 

by an appellate court is measured in years, due to court scheduling constraints. In ADR, 

on the other hand, mediation or other ADR processes are convened at the will of the 

parties. The impact of this timing factor is substantial. In FY 2004, 8,086 charges were 

resolved through the Equal Employment Opportunity Commission National Mediation 

Program. Sixty-nine percent of the over 11,700 mediations conducted resulted in a 

settlement with an average closure of 82 days. In FY 2004, at the Department of 

Justice/Federal Bureau of Investigation mediations were held within an average of 47 

days from the request for mediation, which is considerably faster than the traditional 

process, which took an average of 180 days. The timeliness of ADR is also critical to 

managing the relations of those involved in a dispute. The Securities and Exchange 

Commission noted that in its experience, the significant lag time between conflict 

initiation and conflict resolution exacerbated the conflict. 

ADR also provides parties an opportunity to craft a resolution that addresses their 

interests, thus enhancing the durability of the resolution. For example, the Department 

of Energy Office of Dispute Resolution worked with legal counsel and contracting 

officers to include ADR provisions in the closure contract for Rocky Flats Environmental 

Technology Site, a former nuclear weapons site in Colorado slated for cleanup and 

closure. The contract provisions included a partnering agreement which focused on 

problem solving. The agreement stipulated that the parties use a standing neutral and 

work to resolve disputes early and, if necessary, engage in ADR before proceeding on 

any formal complaints. All potential problems were addressed quickly and the closure 

mission was accomplished in advance of the targeted deadline. As the Department of 

Defense/Defense Contract Audit Agency reports: “The use of ADR, which puts more 

outcome control in the hands of the parties in dispute, almost always leads to improved 

financial performance.” 

- 77 ­
Preserving Resources for the Mission of the Agency 

The use of ADR preserves resources for agencies. Rather than funneling resources to 

manage ongoing disputes, agencies employing ADR are able to apply resources to 

achieving the mission of the agency. This finding is reflected throughout the information 

submitted by agencies for this Report. 

One managerial participant in the ADR process of the Department of Homeland 

Security/Federal Emergency Management Agency reported that the efforts of the 

agency’s Dispute Resolution Specialist in resolving conflict provided “a major boost to 

our mission effectiveness....” The Department of the Treasury/Financial 

Management Service emphasized that employees who feel heard and valued are 

employees who remain dedicated to the agency for which they work. 

The impact of effective conflict resolution in conserving resources is widespread. The 

Securities and Exchange Commission reports a significant agency cost even if an 

employee decides not to pursue his/her complaint via an administrative route, 

acknowledging that what an agency saves in dollars, it will lose in human capital for that 

unresolved workplace conflict. A distracted worker, one whose morale is low, typically 

also is one whose productivity is reduced. The Department of Homeland Security/ 

Transportation Security Administration points out that conflict reaches even beyond 

employees to “bystanders”  co-workers, other layers of management, and confidantes of 

the people involved. Conflict can impact even the view of the agency by outside parties. 

Thus, by resolving workplace disputes early and effectively, the ADR process impacts 

more than the individuals in conflict – it can have a systemic impact on workforce morale 

as a whole. 

C. Managing Strategically 

Strategic management of government resources  both monetary and human 

encompasses efforts to maximize agency resources in a manner that promotes innovation, 

improvement, and effectiveness. 

A prime example of strategic management is the development of the “Shared Neutrals 

Program” to help resolve workplace disputes. In order to reduce the cost of using ADR 

to resolve workplace disputes, federal agencies in different regions “share” a pool of 

federal employees who have been trained as, and are experienced, neutrals. For example, 

an employee of one agency may act as a mediator for a dispute in a second agency and 

the second agency, in turn, would provide a similarly-qualified employee to mediate a 

dispute in the first agency. Shared neutral programs are coordinated through local 

Federal Executive Boards in a number of regions of the country, for example, Chicago, 

Dallas-Ft. Worth, Greater Los Angeles, Oregon, Washington State, and Washington, 

D.C/Baltimore. In the Washington, D.C./Baltimore region (where the program is known 

as “Sharing Neutrals”), it is the Department of Health and Human Services which 

oversees the administration of the program for sharing of low-cost, high-quality neutrals 

among over 40 different federal agencies. Agency costs for workplace mediations would 

- 78 ­
be significant if they had to pay for outside private neutrals charging market rates. 

Because the mediators are federal employees performing collateral duty, they are 

available to participating agencies at no cost except reimbursement of travel expenses. 

ADR contributes to the strategic management of government resources, both monetary 

and human, by: 

• maximizing resources; 

• promoting innovation; and 

• fostering continuous improvement and expansion. 

Maximizing Resources 

Efforts to maximize agency resources reflect the understanding that not all cases are 

appropriate for ADR. The issues at stake in some cases demand litigation or a more 

formal administrative process. In order to maximize agency resources, agencies must 

assess and identify cases which are appropriate for ADR and those cases which require a 

more formal disposition, thus ensuring strategic expenditure of effort. The Federal 

Election Commission noted the benefits of early identification: when matters are 

successfully resolved through ADR, resources are conserved and can be redirected to 

other, more complex and compelling violations of the Federal Election Campaign Act. 

Efforts to maximize agency resources also reflect the understanding that the most 

valuable resource within the federal government is its human capital. Maximizing 

agency resources thus encompasses actions to increase the productivity of the federal 

workforce through the development of, education in, and management over, ADR 

initiatives. For despite this expansion of ADR use and services, lack of understanding of 

how ADR can – and should – be used has been a persistent roadblock to the continued 

advancement of ADR. The Dispute Resolution Service at the Federal Energy 

Regulatory Commission is tackling this roadblock through delivering educational 

presentations and workshops to internal and external entities, advertising ADR 

achievements through presentations and an ADR Newsletter, and promoting the use of 

neutrals in ADR processes such as mediation and arbitration. The Dispute Resolution 

Service also is working with other national, state, and international regulatory agencies to 

advance the use of ADR, as shown by the following examples. The Director of the 

Dispute Resolution Service participated in the training of mediation and early neutral 

evaluation which was presented to the administrative law judges at the California Public 

Utilities Commission. The Dispute Resolution Service assisted the Regulatory 

Commission of Alaska in developing an ADR program for its regulatory activities, 

including the provision of training in facilitation to the staff of Surface Transportation 

and the provision of an annual ADR workshop to state and federal regulators at the 

Institute of Public Utilities Annual Regulatory Program. The Dispute Resolution Service 

also worked with Canada’s National Energy Board on joint projects to advance the use of 

ADR. In addition, the office’s representatives train employees in the development of 

skills to recognize ADR opportunities and to more effectively work with others – 

internally and externally – to achieve resolution. Finally, the office provides the 

- 79 ­
employees with the procedural tools to look beyond their positions in order to achieve 

and encourage creative solutions to their disputes. 

Promoting Innovation 

The institutionalization of ADR is, in many ways, an innovative approach to maximizing 

the resources of the federal government. The nature of ADR capitalizes on this 

innovation by providing the opportunity for parties to a dispute to control the terms of 

their resolution. The resulting resolutions are varied, reflecting the needs and priorities of 

the parties to the dispute. The results are also surprisingly creative, reflecting options and 

ideas that may never have been explored through a more formal process. The Federal 

Maritime Commission reports, for example, that its ADR processes provide parties to 

shipping transaction disputes the flexibility to draft innovative solutions that reflect their 

assessment of the market as well as their respective responsibilities, while avoiding an 

agency-mandated outcome. 

Several agencies have programs that train employees to avoid and resolve disputes as 

well as provide mediation and facilitation services. For example, the Early Dispute 

Resolution Center in the Department of Transportation/Federal Aviation 

Administration serves as a resource within the agency to train others in resolving a 

broad range of disputes. The Center focuses on getting involved early in any dispute, 

before “collateral” damage is inflicted on others in the workplace. The Center, 

freestanding from the agency’s EEO office, facilitates conversations and conducts 

mediations in both horizontal (peer-to-peer) conflict and vertical (worker-to-supervisor) 

conflict. On occasion, the Center has been called in to work with an entire section of 

employees, paralyzed by a rift which began as a simple dispute between coworkers. The 

Center has focused on ways to measure success and gather data in order to study the best 

practices the office is developing. 

Promoting Continuous Improvement and Expansion 

To enhance the benefits of ADR in preserving resources to realize an agency’s mission 

rather than manage conflict  efforts are underway to improve responsiveness and 

effectiveness of ADR programs through systematic analysis and evaluation. For 

example, the Department of the Interior/Bureau of Land Management measures the 

cost-effectiveness of its ADR-based stakeholder collaboratives and makes strategic 

determinations of “where to spend funds so that they are most efficiently utilized.” They 

report that the ADR/Conflict Prevention Program in the West is resulting in improved 

financial performance through reduced or eliminated litigation, appeals, and protests. 

The result is a more responsive decision making process and, correspondingly, better 

decisions. 

Agencies throughout the federal government strategically manage through identifying 

opportunities to continuously improve and expand upon ADR opportunities and 

successes. For example, at the Environmental Protection Agency, ADR clients can 

choose from a variety of sources for ADR services that will meet the needs of the 

- 80 ­
particular case, including the agency’s own Conflict Prevention and Resolution Center. 

The U.S. Institute for Environmental Conflict Resolution, through interagency 

agreements with 12 federal departments and agencies, also provides environmental 

dispute resolution and collaborative problem solving services to those engaged in 

environmental and natural resources conflicts. 

The U.S. Institute for Environmental Conflict Resolution interagency agreement also 

makes it easy for other federal agencies and non-federal parties to contribute to shared 

ADR projects. The availability of multiple options reassures parties that there is a 

process to suit the needs of their particular case, and ultimately translates into increased 

and more effective ADR use. The agency evaluates each of its environmental conflict 

resolution cases and provides the results to its program managers, mediators, and parties. 

Through this evaluation program, the agency is able to give direct feedback on 

environmental conflict resolution performance and practice that can lead to future project 

and program improvements. 

Another excellent example of an expanding ADR program is the Civil Rights Disability 

Mediation Program in the Department of Justice Civil Rights Division. The program 

began with a strong impetus in the relevant statute, the Americans with Disabilities Act, 

enacted in 1990. The law specifically encouraged the use of ADR in place of formal 

adjudication. In 1993, under a federal grant, professional mediators were trained in both 

the legal requirements of the statute and in mediating disability rights-based disputes. 

Since that time, thousands of mediations have garnered voluntary agreements between 

business owners (such as hotels or restaurants), state and local governments, and 

individuals with disabilities who seek access to those businesses or services. The 

extraordinarily high resolution rate of these cases, averaging around 78% since the 

inception of the program, is bolstered by education provided to the parties before the 

mediation even begins and the tailored training the mediators bring to the process. The 

information relating to the rights and obligations of the parties is initially accessed 

through a comprehensive and extremely popular Web site, which recorded a high for FY 

2006 of almost fifty million hits. The mediations are conducted throughout the United 

States and, in several instances which involved hearing-impaired complainants, were 

conducted entirely on-line. The resulting agreements are tailored to suit the parties’ 

needs. Oftentimes, the newly-educated business owner, for example, will address a 

business organization about the rights of individuals with disabilities, or the individual 

will speak out regarding the organization’s responsive correction to inadequate access for 

those with disabilities. No court in the land could compel these sorts of successful 

remedies in response to a lawsuit and resulting judgment. 

- 81 ­
IV. Areas of ADR Programs and Use 

This section of the Report describes the specific contributions that ADR has made to the 

goals of good government. The discussion uses as a framework the four major 

substantive areas of federal ADR applications: 

• civil enforcement and regulatory; 

• claims against the government; 

• contracts and procurement; and 

• workplace. 

For the first three substantive areas where ADR is in common use – civil enforcement 

and regulatory, claims against the government, and contracts and procurement – the 

discussion demonstrates, with specific agency examples, how ADR programs contribute 

to: 

• promotion of a citizen-centered government by facilitating accessibility, 

responsiveness, and inclusiveness; 

• management of costs by giving better control over resources expended and 

achieving better outcomes; and 

• strategic management of the government’s fiscal and human capital. 

For the fourth substantive area where ADR is in common use – workplace – the 

discussion demonstrates, again with specific agency examples, how the use of ADR: 

• has a successful track record in resolving workplace disputes; 

• is cost-effective; 

• saves agency funds; 

• saves agency time; 

• is essential to strategic management of the workplace; 

• creates collateral benefits for the agency; and 

• makes workplace dispute resolution techniques available to all through egovernment. 

A. Civil Enforcement and Regulatory 

Promoting a Citizen-Centered Government 

In civil enforcement and regulatory disputes, unassisted negotiations and litigation have 

focused traditionally on which party has the stronger position. This is due, in part, to 

agency statutory and regulatory obligations. Today, many agencies have accepted the 

notion that their statutory obligations can be met through the use of ADR. Leaders of 

these agencies have accepted the use of ADR as a supplemental tool that enables them to 

avoid protracted litigation when unassisted negotiations fail. Indeed, the public interest is 

- 82 ­
often better achieved when citizens, non-governmental organizations, corporations, state 

and federal agencies, tribal nations, and other entities participate directly in an ADR 

process that affords them the opportunity to develop a result that meets the interests of all 

concerned. Stakeholders (citizens and their government) who work toward a shared, 

positive outcome often achieve better results than they would have received in court and 

can create long-term productive working relationships. 

Below are summaries of agency ADR programs and success stories in the civil 

enforcement and regulatory community that demonstrate how ADR promotes a citizencentered government. 

A number of agencies join the Nuclear Regulatory Commission, discussed above, in 

convening stakeholder working groups to assist the agencies in understanding different 

perspectives and/or developing policy on specific issues. The Department of the 

Interior Bureaus, such as the Bureau of Land Management, the National Park 

Service, and the Bureau of Reclamation, strongly support and foster the use of ADR in 

field locations throughout the West and encourage the involvement of a broad array of 

stakeholder interests in decisions involving natural resource issues. Issues addressed 

include: development of resource management plans; energy and mineral development; 

water management; resource conservation; environmental protection; and many other 

issues that often cross organizational and jurisdictional boundaries and require a 

cooperative approach to address conflicts and resolve disputes over competing interests. 

Stakeholders commonly include representatives of: federal, tribal, state, and local 

governments; local communities; local, regional, and national interest groups; and the 

general public. 

The Environmental Protection Agency has convened the Brownfields Mine-Scarred 

Lands Initiative, designed to be a multi-level effort to engage a broad range of federal 

partners and local community members, to address mine-scarred lands across the country. 

For example, a neutral third party was engaged to assess the needs of six local 

demonstration projects, including the provision of assistance from federal partners. Each 

community requested further ADR services to facilitate and focus re-use visions and to 

address more complicated land transfer or liability issues through mediation. 

The Federal Energy Regulatory Commission encourages negotiated settlement and 

assists parties in achieving settlement in pre-filing collaborative processes. The 

collaborative processes, often involving stakeholder representatives of licensees, Indian 

tribes, environmental organizations, local citizens, commercial enterprises, and state and 

federal agencies, allow license applicants and parties to take part in fashioning terms and 

conditions for a license and, in the process, foster a foundation of trust among the parties. 

Similarly, the Department of Energy Office of Environmental Management has found 

that ADR is a valuable way to involve stakeholders early and often in decision making 

regarding the nuclear weapons complex cleanup program. Agencies report an important 

by-product of increased citizen participation through ADR processes: durable 

agreements that are endorsed by impacted parties. 

- 83 ­
The Commerce Department/National Oceanic and Atmospheric Administration, 

acting as a trustee on behalf of the public, works cooperatively with responsible parties at 

oil spills and hazardous waste sites to restore coastal and marine resources. The agency 

also regularly convenes industry, government, nongovernmental organizations, and other 

stakeholder groups to identify methods for improving assessments and cleanups, reducing 

costs, and restoring resources faster and more effectively. It has found that the use of 

these innovative partnerships is instrumental in reversing the effects of coastal 

contamination and ensuring that the environment is protected and restored. 

A number of agencies have established ombuds offices to improve relationships between 

the government and its stakeholders. For example, the Environmental Protection 

Agency Regional Public Liaison Manager (formerly Ombudsman) elicits feedback and 

concerns from citizen complainants through participation in public hearings representing 

the agency or meetings with complainants in their homes (considered a less intimidating 

setting for complainants). Established in 1998 by statute, the Office of Federal Student 

Aid Ombudsman within the Department of Education helps to resolve disputes between 

student loan borrowers and their private lender, loan guaranty agency or servicing 

agency, or firm collecting on their loan. The Ombudsman also provides senior leadership 

at the Department with informal feedback about federal student aid programs, enabling 

the Department to improve the programs and processes for their stakeholders. The Small 

Business Administration National Ombudsman assists small businesses with unfair and 

excessive federal regulatory enforcement, such as repetitive audits or investigations, 

excessive fines or penalties, retaliation, or other unfair regulatory enforcement action by a 

federal agency. The Ombudsman receives complaints and comments from small business 

concerns and acts as a “trouble shooter” between them and federal agencies. Small 

business comments are forwarded to federal agencies for a high level review and federal 

agencies are requested to consider the fairness of their action. 

Many agencies are employing a range of citizen-centered settlement options. For 

example, both the Environmental Protection Agency and the Federal Energy 

Regulatory Commission make use of their Administrative Law Judges. At the 

Environmental Protection Agency, ADR in the Office of Administrative Law Judges 

provides an opportunity for respondents (persons, businesses, and others alleged to have 

violated environmental laws) to informally and confidentially speak to and present their 

arguments and defenses to an Administrative Law Judge. Through this process, the 

judge/mediator can work with respondents who are not represented by counsel, helping 

them to understand the strengths and weaknesses of their positions and arguments. 

At the Federal Energy Regulatory Commission, the use of settlement judges fosters 

settlements among parties in complex litigation, resulting in amicable resolution of cases 

and preserving long-term business relationships between business counterparts. Because 

the Chief Administrative Law Judge allows parties to recommend the settlement judge of 

their choice, the parties feel that they have a role in the process and a say in who will 

assist them in resolving their differences. The agency also provides a range of mediation 

and other dispute resolution options to its stakeholders through its Dispute Resolution 

Service which enables businesses to work with its customers to craft business solutions to 

- 84 ­
their problems. The dispute resolution staff also assists licensees, Indian tribes, 

environmental organizations, local citizens, commercial enterprises, and state and federal 

agencies in resolving environmental disputes. To complement these efforts, the office 

has become increasingly involved in outreach activities, including: presentations about 

ADR; workshops and training involving the use of ADR techniques; coaching for entities 

who want to resolve disputes without the use of a third party neutral; collaborations with 

federal and state entities to promote greater use of ADR; consultations with other entities 

about ADR use; facilitations; and publications involving ADR at the agency or generally. 

Similarly, the Federal Maritime Commission Office of Consumer Affairs and Dispute 

Resolution Services provides services to assist parties in resolving disputes and shipping 

problems related to United States ocean shipping commerce and international ocean 

cargo shipments. These services are designed to be flexible and responsive to the needs 

of its citizens. Neutrals are provided to assist parties in resolving a dispute without the 

expense and delays inherent in litigation. The efforts help to facilitate the flow of United 

States ocean commerce. 

The Department of the Treasury/Internal Revenue Service Appeals has a 

comprehensive menu of dispute resolution options to assist citizens in resolving tax 

controversies, without litigation, on a basis that is fair and impartial to both the 

government and the taxpayer, and in a manner that will enhance voluntary compliance 

and public confidence in the integrity and efficiency of the service. 

• Under early referral, taxpayers with returns under examination may request early 

referral of one or more developed, disputed issues from Compliance or Collection 

to Appeals, while the other issues continue to be developed in Compliance. 

• Under fast track mediation, Small Business/Self Employed taxpayers pursue 

resolution of disputes resulting from examinations (audits), offers in compromise, 

trust fund recovery penalties, and other collection actions. An Appeals or 

settlement officer who has been trained in mediation helps the taxpayer and IRS 

discuss the issues involved in the disagreement, and possible ways to resolve it 

with a goal of reaching a jointly agreeable solution, consistent with relevant law, 

within forty days. 

• Under fast track settlement, Large and Midsize Business taxpayers expeditiously 

resolve disputes during an examination while their case is still in the compliance 

stage. Fast track settlement is also available for Small Business/Self Employed 

and other Internal Revenue Service Operating Division taxpayers on a case-bycase basis. 

• Under post-appeals mediation, an extension of the Appeals process, a mediator 

from Appeals  or a non-IRS mediator  assists parties in resolving a tax dispute 

after good faith negotiations in Appeals have been unsuccessful. Finally, there is 

arbitration  upon request by taxpayers  on factual issues that are already in the 

Appeals administrative process. The arbitration procedure excludes Collection 

- 85 ­
cases and Compliance and Appeals Coordinated Issues. If settlement negotiations 

are unsuccessful, the taxpayer and Appeals may jointly request binding 

arbitration. 

The Federal Election Commission is employing a variation on settlement negotiations – 

a bilateral process in which respondents engage in a dialogue with a representative of the 

ADR office who explains the nature and cause of the Federal Election Campaign Act 

violation. That dialogue provides respondents an opportunity to directly explain their 

committee’s or organization’s actions and their perspective on the nature of the violation. 

The ensuing negotiations between the parties result in a settlement that is mutually 

acceptable to the parties and achieves the agency’s goal of promoting compliance with 

the relevant statutes. 

The Federal Deposit Insurance Corporation also provides dispute resolution options. 

For example, recently, the agency’s Community Affairs staff facilitated discussions 

between community leaders and bank owners regarding the community’s protest against 

a bank acquisition. The facilitated meetings helped to defuse the tension and anxiety in 

the community. Bank and community leaders continue to meet quarterly to discuss 

community reinvestment concerns, including gentrification and foreclosure rates related 

to predatory lending. 

The Small Business Administration encourages mediation with participating lenders 

when it has regulatory issues with the lenders, such as denial of liability under the 

agency’s loan guaranty agreement with the lender. For example, the Small Business 

Administration resolved a major dispute with an Arkansas lender over a guaranteed loan 

which that agency made. 

Managing Costs 

In the civil enforcement and regulatory arena, ADR programs also are enabling better 

control over resources expended, as well as better outcomes. 

In an affirmative case handled by the Department of Justice under the Food and Drug 

Act involving blood supply, a combination of mediation and negotiation resulted in a 

revised consent decree saving three years of litigation time. In an affirmative consumer 

litigation case involving hazardous substances, ADR resulted in a savings of four months 

of litigation time and $400,000 in litigation expenses. 

ADR processes allow for more effective management and allocation of monetary 

resources. The Department of Education reports that the Cooperative Audit Resolution 

and Oversight Initiative provides for a more efficient and cost-effective use of 

Department resources, because it saves litigation time and other costs associated with 

audit resolution. The Department of Homeland Security/Federal Emergency 

Management Agency emphasizes that for every lawsuit avoided, every grievance not 

filed, and every complaint withdrawn because of the services of the ADR office, the 

agency saves untold thousands of dollars. ADR thus allows the agency to better manage 

- 86 ­
its resources, as opposed to leaving the resolution of disputes to a judge, jury, or other 

entity outside the agency. The Department of the Treasury/Internal Revenue Service 

Appeals office notes that its ADR programs allow Appeals officers to resolve disputes 

early in the administrative process rather than waiting for the case to come to Appeals. 

This optimizes their resources, as the amount of time to resolve the dispute with the 

agency is dramatically reduced. Similarly, the use of settlement judges results in the 

conservation of resources at the Federal Energy Regulatory Commission. With 87% 

of all cases set for hearing referred to settlement judges at the outset, the number of cases 

left for litigation is drastically reduced. During FY 2003 and FY 2004, the Office of 

Administrative Law Judges certified 168 settlements, while issuing only 45 initial 

decisions on appeals. This translates directly into cost savings. Because the resources 

required for conducting settlement negotiations are not nearly as great as those required 

for litigation, much more work can be accomplished with significantly fewer resources. 

The Federal Energy Regulatory Commission also reports faster processing and savings 

on hydroelectric proceedings where settlement agreements are reached during the prefiling period. The Nuclear Regulatory Commission reports that the enforcement and 

investigative resources saved by a 2004 pilot ADR program in enforcement freed those 

resources for use in other areas. 

The timing of ADR responses is instrumental in controlling costs and securing a quick 

result. Civil enforcement and regulatory agencies aim for early, frequent, and informal 

dispute resolution at the lowest possible management level and through informal means. 

For example, the Idaho National Engineering and Environmental Laboratory Federal 

Facility Agreement and Consent Order includes a dispute resolution process to facilitate 

early and rapid resolution of disagreements between the state of Idaho, the 

Environmental Protection Agency, and the Department of Energy regarding cleanup 

activities pursuant to the Comprehensive Environmental Response, Compensation, and 

Liability Act. The dispute resolution process has been used successfully in a conflict 

over a draft waste management plan, providing parties a cost-efficient and effective 

resolution in a timely manner. The Department of Transportation, Pension Benefit 

Guaranty Corporation, and the Federal Maritime Commission likewise report that 

cases that are successfully mediated generally cost less and resolve faster than those in 

more formal government forums, resulting in better, more effective use of resources. 

Even though pursuant to statute, the Securities and Exchange Commission is unable to 

agree to a settlement at the mediation table because its Commissioners must review and 

authorize settlement of all enforcement matters, the agency has realized these types of 

positive outcomes as the result of mediation in enforcement matters: 

• Mediation resulted in an agreement to recommend settlement that was later 

accepted by the Commission. 

• Mediation focused the parties and issues so they were able to reach settlement 

shortly after the mediation concluded. 

• Mediation streamlined the discovery process. 

• Mediation enabled the agency’s attorneys to assess the defendant’s demeanor and 

how the defendant would appear at trial. 

- 87 ­
• The mediator alerted the agency to a weakness in its case that had not been 

sufficiently considered. 

Additionally, because of the nature of ADR in focusing on improved communication and 

party control over outcome, resolutions emerging from ADR processes generally are 

more durable and informative. For example, the Department of Education noted that 

the use of dispute resolution services has helped to resolve long-standing audits in a way 

that both promotes collaboration among participants in the audit resolution process and 

encourages a resolution of audit issues that is responsive and effective, thus preventing 

recurrence of the audit finding. This approach improves the administration of federal 

education funding by state and local educational agencies. 

The U.S. Institute for Environmental Conflict Resolution leadership is developing and 

implementing a multi-agency performance evaluation system on environmental conflict 

resolution which will directly contribute to assuring long-term improvements in 

performance within the federal government. The environmental conflict resolution 

processes themselves are designed to improve environmental decision making by 

engaging interested and affected parties in deliberating constructively with shared, 

comprehensive information about potential impacts and relative benefits of a given 

governmental decision (see the table below). The agency’s performance evaluation 

initiative will build upon and enhance these processes. 

Capturing the Value of Environmental Conflict Resolution 

Savings Realized and Benefits Accrued 

Tangible --------------------------------------------- Less Tangible 

Longer-term-------------------------------Short-term 

Saved on direct process 

costs (e.g., the process 

costs to mediate were less 

than litigation) 

Avoided inflaming 

relations and escalating the 

conflict with litigation or 

unattended conflict 

Avoided or reduced negative 

on-the-ground impacts (e.g., 

environmental, social, 

economic) 

Likely reduced or avoided 

the direct cost of appeals 

(e.g., the solution is less 

likely to be contested) 

Better outcomes were crafted 

(e.g., less costly settlements, 

timely project progression, 

innovative solutions, reduced 

monitoring) 

Improved stakeholder 

commitment to the 

agreement and its 

implementation 

Created efficiencies that 

reduce future indirect process 

costs (e.g., field staff time 

dealing with conflict) 

Case used as a 

prototype for resolving 

other similar problems 

or conflicts 

Created the potential for 

stakeholders to work 

together productively on 

related issues in the future 

- 88 ­
At the Environmental Protection Agency, the Conflict Prevention and Resolution 

Center is developing a process to measure the environmental, economic, and social 

impacts of collaborative problem-solving and ADR and compare those to traditional 

processes. The agency plans to use this process to assess the types of environmental 

decision making contexts that are most amenable to the use of ADR, thus enabling the 

agency and its stakeholders to invest resources in appropriate decision making processes. 

Similarly, the Department of the Interior is forming a team to analyze the costs of 

litigation and alternatives to litigation. This team also will look at the possibility of 

measuring the results of ADR processes and linking these results to agency mission and 

performance goals under the Government Performance and Results Act of 1993. The 

Department of the Interior/Bureau of Land Management has introduced performance 

standards into the roles of the State ADR Advisor, through the Bureau’s budget process, 

in order to effectively accomplish budget and performance integration to ensure 

appropriate results for the resources expended. These efforts will provide the hard 

numbers to support ADR expansion and assist in better allocation of ADR resources into 

areas where they will be most beneficial. 

Managing Strategically 

In the civil enforcement and regulatory arena, agencies are also building internal capacity 

to maximize the benefits of ADR. For example, the Federal Energy Regulatory 

Commission has developed training on ADR procedures and negotiation, which it offers 

to its parties and staff. While the overarching goal of the training is to enhance general 

understanding of ADR by all employees, the more targeted goal is to assist staff in taking 

a more proactive role in working with parties in the collaborative pre-filing process. The 

agency has found that pre-filing processes contribute to achieving settlements before any 

significant amount of time is spent in developing the formal application documents. The 

Conflict Resolution Training Program enhances the potential for agreement through this 

process – and others – by equipping staff with the tools to better understand the conflict, 

barriers to resolution, and appropriate resolution techniques. More importantly, the 

Program equips staff to further resolution efforts through the application of an interestbased approach to the dispute. 

The efforts of the Department of the Treasury/Internal Revenue Service Appeals to 

institutionalize ADR include an incentive-based training program for mediators. To date, 

400 Appeals officers have been trained as mediators. Mediation is a collateral duty for 

Grade 14/13/12 Appeals officers and it enhances their competitiveness for promotions. 

The Nuclear Regulatory Commission efforts to institutionalize ADR include the 

establishment of a 2004 pilot program on the use of ADR in the enforcement arena. The 

program addresses disputes in two areas: between a licensee and the agency; and 

between a licensee and its employee when the employee has alleged to the agency that 

the licensee has taken retaliatory action against the employee for raising a safety concern. 

To ensure a source of skilled, unbiased neutrals, the agency has engaged the Institute of 

Conflict Resolution at Cornell University to select and oversee a roster of experienced 

mediators and to administer the early ADR program. 

- 89 ­
Similarly, the Federal Deposit Insurance Corporation has developed capacity through 

its Office of the Ombudsman, which provides a range of dispute resolution services to 

staff and external parties. Recently, the agency’s Division of Supervision and Consumer 

Protection became involved in a difficult situation with bank representatives as a result of 

a bank examination dispute. The bank had written two letters to its state senator, and was 

not satisfied with the agency’s response to those letters. The Division offered to meet 

with bank representatives at the bank site to discuss the dispute and requested that the 

agency’s Office of the Ombudsman facilitate this meeting. Through the facilitated 

meeting, the Division of Supervision and Consumer Protection and the bank were able to 

resolve the issues at hand and identify a way to potentially eliminate future roadblocks 

and improve the examination process. The manner in which the dispute was handled 

resulted in a better relationship between the bank and the agency as a whole. Both sides 

stated that they thought the meeting was productive, and applauded each other for their 

efforts in reaching a mutually agreeable solution. Resolving the dispute in this manner 

resulted in time and cost savings for both the agency and the bank. Moreover, using the 

internal expertise of the Office of the Ombudsman to facilitate the resolution was a costeffective and efficient use of government resources. 

The Department of Transportation Center for Alternative Dispute Resolution offers 

ADR-related informational and skills-based workshops. The agency offers a variety of 

courses, instructors and coaches to employees and provides them with opportunities to 

learn in a diverse environment and to recognize the issues that they face in a variety of 

organizational settings. 

Efforts to exchange resources and experiences have also been widely supported in the 

civil enforcement and regulatory arena. For example, the Departments of Agriculture, 

Commerce, Defense, and Interior and the Environmental Protection Agency are 

working in concert to implement the President’s Executive Order 13352, dated August 

30, 2004, on advancing Cooperative Conservation and the related guidance memorandum 

from the President’s Council on Environmental Quality/Office of Personnel 

Management, dated November 28, 2005, to promote the hiring, training, and rewarding 

of federal employees who implement the principles of Cooperative Conservation. 

Through their Chief Human Capital Officers, all five agencies have agreed to support a 

competency-based approach to building collaboration and partnering skills to accomplish 

conservation objectives consistent with their agency missions and statutes. As one 

example of this, the Department of the Interior Collaborative Action and Dispute 

Resolution Office is participating in the development of competencies and performance 

measures required for effective collaboration and conflict management in the context of 

natural resources management. 

Civil enforcement and regulatory agencies are also working to increase the capacity and 

understanding of external entities. The Federal Energy Regulatory Commission, for 

example, has worked with the U.S. Institute for Environmental Conflict Resolution, 

the American Bar Association, the Energy Bar Association, and energy-related trade 

associations, to raise awareness about ADR and share the Commission’s experience with 

- 90 ­
ADR as a process that provides for effective public participation in government decision 

making, encourages respect for affected parties, and averts future complaints. 

Federal agencies are working to enhance the resources available for civil enforcement 

and regulatory ADR processes. Due in large part to the successes achieved through the 

use of ADR by both the private and public sectors, and efforts by government 

representatives to work with outside entities in the development of rosters, there has been 

an increase in the use of private, third party neutrals. The Department of Agriculture 

reports that some of its sub-agencies are “using contract resources to provide costeffective, cutting edge resources.” As the use of private third party neutrals in 

enforcement and regulatory settings continues, federal agencies are working to identify 

those ADR professionals with enforcement and regulatory experience and expertise. 

For example, the Federal Energy Regulatory Commission Dispute Resolution Service 

specialists are working with regulated utilities and conflict resolution entities to help 

develop rosters of energy specialists to serve as third party neutrals. Information 

submitted by agencies for this Report have mentioned these sources which provide 

choices in the environmental and natural resources arena: 

• The National Roster for Environmental Conflict Resolution Practitioners, 

maintained by the U.S. Institute for Environmental Conflict Resolution (and 

co-funded by Department of the Interior, Environmental Protection Agency, 

and the Department of Transportation/Federal Highway Administration), is a 

public on-line searchable database of over 250 pre-qualified neutrals that is used 

internally by the Institute, by other federal agencies, and by other public and 

private sector parties. 

• The Environmental Protection Agency has a competitively-awarded prime 

contract for accessing and sub-contracting with pre-qualified professional 

neutrals. 

These sources (working with the project managers and consistent with the central ADR 

principle of party self-determination) enhance the quality, responsiveness, and 

effectiveness of ADR services, and increase the government’s efficiency in selecting 

practitioners with the right skills for a given conflict. 

The by-product of all of these efforts is considerable. As the Federal Maritime 

Commission notes, by “encouraging involvement of commercial parties in finding 

solutions, many more matters can be resolved with fewer resources.” The Department 

of the Interior/Bureau of Land Management reports that ADR-based stakeholder 

collaborations are resulting in unique and innovative interest-based solutions to complex, 

multi-party issues involving major resources and land uses, thus allowing greater 

efficiency and gains for citizens in the communities. The Nuclear Regulatory 

Commission reports that through its collaborative processes, stakeholders and agency 

representatives are identifying approaches that are better, and more acceptable, than what 

the agency might develop without the benefit of the external input. The use of best 

practices by the agency’s licensees will give the agency more confidence that the 

- 91 ­
community participation performance requirement in the decommissioning regulations 

has been met. This will result in cost-savings for both the licensee and the agency. 

The ADR process also equips agencies with information to continuously improve and 

expand ADR options so they are responsive to the evolving needs of their users. For 

example, the Office of the Acquisition and Assistance Ombudsman at the U.S. Agency 

for International Development reports that its efforts enable it to serve as a check and 

balance for the agency by identifying types and trends of business practice uses. The 

Federal Election Commission reports that the ADR program itself is an innovative 

approach to addressing campaign law violations, bringing the efficiency of dispute 

resolution processes to the agency’s task of enforcing federal election laws. The Federal 

Deposit Insurance Corporation Division of Supervision and Consumer Protection 

reports on the results of a series of informal meetings with bankers who had experienced 

the new consumer compliance examination approach launched in 2003. The meetings, 

which took place in each of the agency’s six regions, were designed to supplement 

feedback gathered through anonymous post-examination surveys. The Division knew 

from the surveys that bankers found certain aspects of the examination process to be 

particularly burdensome. Through facilitated discussions at the meetings, the Division 

was able to gain insight into how to refine the examination process to minimize the 

burden on banks while still ensuring a thorough, high-quality examination. Building on 

this effort, the Federal Deposit Insurance Corporation Office of the Ombudsman has 

established an outreach program in which it will visit or call all 5,279 federallysupervised institutions over a five-year period. The program offers bankers a way to 

provide confidential feedback without fear of retaliation. The Office of the Ombudsman 

also publishes a semi-annual report, the “Ombudsman Report to the Industry,” to notify 

the industry of common issues and concerns gleaned from outreach exchanges, and to 

provide contact information for those wishing to use ombuds services. 

B. Claims Against the Government 

Cases involving claims against the government are cases in which the United States is a 

defendant in a civil action, and the Department of Justice defends the interests of the 

United States. The use of ADR is a fairly common practice in these cases, particularly 

since all of the federal district courts now are required to offer some form of ADR 

(typically mediation). 

The district courts take different approaches in making ADR available. Some courts 

require mediation in all civil cases through their own ADR programs. Other courts select 

individual cases for referral to mediation. Some courts use magistrate judges or retired 

judges as mediators, while other courts have established a panel of attorney mediators 

who in many cases work on a voluntary, pro bono basis. In any event, private mediation 

always is an option at any stage of litigation in any case in which the parties agree it is 

appropriate. 

Additionally, many agencies make an initial determination as to whether to settle a 

civilian claim before a lawsuit is actually filed, and they use mediation to some degree at 

- 92 ­
these early stages. For example, the Pension Benefit Guaranty Corporation, in one 

settlement of a class action pension complaint, agreed to the creation of a bi-lateral 

appeals board to expeditiously hear complaints by individuals disputing their pension 

amounts, rather than insisting on a case-by-case litigation of claims asserted by often 

elderly pension recipients. However, without the rights to discovery which accrue with 

the formal filing of the lawsuit, the parties in many cases may not yet have enough 

factual information to support a knowledgeable settlement at the pre-filing stage. 

One of the goals of the Claims Against the Government Section is to promote more and 

earlier use of ADR in appropriate cases. The advantages of resolution through ADR are 

clear: 

• savings in costs associated with trials, such as fees and travel expenses for experts 

and other witnesses; 

• savings in time of attorneys, staff, and parties who are federal employees; 

• quicker resolution than a trial would offer and thus fewer days that the parties 

have spent under the cloud of pending litigation; 

• creative resolutions acceptable to the parties, but which a court could not impose; 

• lower monetary judgments than a jury or judge might impose; and 

• a durable and voluntary agreement without any appeals. 

Moreover, even in the cases which did not result in resolution, attorneys representing the 

government consistently have reported other distinct advantages to the ADR process, 

including: 

• laying the groundwork for a subsequent settlement; 

• increasing clarification of the issues for trial; 

• addressing and evaluating the plaintiff, as well as the strength of the case from 

plaintiff’s vantage point; 

• improving or preserving a relationship between the government and one of its 

citizens; 

• promoting a fair and responsive government; and 

• inspiring public confidence and trust in the government through a transparent 

process. 

- 93 ­
The goal of ADR in these cases is consistent: offering expedient alternatives to citizens 

while at the same time pursuing the best interests of the government. One Department 

of Justice attorney described the obligations of an attorney representing the United 

States: “Our mission is to zealously represent the United States in suits brought against it 

or in suits brought on its behalf. However, we also owe a responsibility to our citizens to 

act fairly to those litigating with the United States.” 

Through an ADR process, citizens with claims against the government have the 

opportunity to directly access government officials and receive a more immediate 

response to their dispute than if the case proceeded to litigation. Another Department of 

Justice attorney wrote that because ADR speeds up the process “justice is served more 

effectively because justice that is delayed can sometimes become justice denied.” While 

ADR is not appropriate for every dispute, even those agencies that do not have citizencentric missions – such as the Army – are realizing ADR’s potential in providing relief 

for their stakeholders. The Department of Defense/Department of the Army reports, 

for example, that ADR techniques have been used “to resolve disputes arising over the 

accessibility of Army activities and facilities to the disabled” (e.g., accessibility of 

waterways managed by the Department of Defense/Army Corps of Engineers). 

ADR can serve the best interests of the government and can enhance its relationship with 

its citizens. In cases alleging injury caused by government negligence, a mediator can 

help educate a plaintiff about the appropriate economic evaluation of his/her case, which 

can streamline the issues and diminish unrealistic expectations about the potential 

outcome of the case. As one Department of Justice attorney wrote, “Usually, if a case 

that should settle fails to settle at mediation, it is because the plaintiff has unrealistic 

expectations. Most people just want what is fair. If you are able to meet their needs in 

mediation, [parties] view the government in a positive light and often view the agency as 

being responsive to their concerns that resulted in their filing the lawsuit in the first 

place.” Another attorney from the Department of Justice noted in the settlement of a 

case: “If a citizen is satisfied with the outcome of a matter without the expense of trial, 

and the disruption to business and personal lives, then I consider that a success story that 

reflects well on that citizen’s government.” 

The use of ADR in appropriate cases affords the government more control over its 

limited resources while producing satisfactory results for all parties. While it is difficult 

to quantify the difference between a mediated agreement and a judgment because of so 

many trial variables, it is relatively easy to compare the costs of each process. Litigation 

costs are fairly predictable and include: attorney and paralegal or staff hours throughout 

discovery, pretrial motions, and trial; costs of expert witnesses, both for time spent at an 

evaluation as well as time spent for preparation and trial; and discovery costs including 

depositions. The costs of mediation are much more limited. A single hour in mediation 

costs approximately what a single hour of just one deposition costs. Given the other costs 

of litigation and considering the advantages of mediation, it is clear that use of mediation 

in appropriate claims against the government contributes to better control over limited 

agency resources. 

- 94 ­
Attorneys throughout the federal government are lauding the use of ADR in appropriate 

cases to effect resolutions that meet the needs of the parties – and the government. The 

Department of Justice Civil Division reports: significant savings in discovery and 

litigation costs; advantageous settlements resulting in substantial savings in defensive 

litigation; and large monetary recoveries in affirmative litigation. For FY 2005, in a 

major civil fraud accounting case, the government recovered $62 million through the use 

of mediation and saved four months of trial preparation. In another civil fraud case, use 

of ADR saved 2,000 hours of discovery time, resolved the case two years sooner than 

litigation would have done, and prevented other future similar disputes. In FY 2004, the 

use of mediation in a class action employment discrimination case saved 1,500 hours of 

discovery time and two years of litigation time. In earlier years, in an admiralty case, the 

Civil Division reports that the government avoided five days of trial and trial preparation 

time through a one-day mediation that settled the case for $500,000 notwithstanding the 

plaintiff’s earlier settlement demands of several million dollars. Mediation in an aviation 

case resulted in a settlement of $825,000 which was well below the amount sought by 

plaintiff. 

Engaging in ADR processes saves resources for other agency work through streamlining 

or eliminating issues in dispute. The Department of Justice Civil Division emphasizes 

that even if a case does not settle, involvement in an ADR process routinely results in a 

narrowing of contested issues and the scope of discovery. An example was its use of 

neutrals to negotiate case management and discovery plans in a massive multi-party case, 

which served to expedite the litigation process to a large degree and thereby saved trial 

expenses. A related benefit is the impact of a third party intervention in cases with pro se 

plaintiffs who have unrealistic expectations about the value or strength of the case. A 

neutral mediator can provide a “reality check” for plaintiffs and assist them in 

understanding their alternatives. 

A number of attorneys report that ADR can be particularly useful in certain types of 

cases. A Department of Justice attorney noted: “In employment discrimination, even if 

[the] plaintiff doesn’t get a large award at trial, the attorney’s fees which can be awarded 

after trial can be a significant expense for the government. Mediation greatly reduces 

that exposure.” Resources that are saved  through a faster resolution process or avoided 

payments  can be used to handle other matters that cannot or should not settle. 

The availability of ADR in appropriate cases provides opportunities to achieve a 

resolution while maximizing the limited government resources that are available to 

defend cases. As several divisions within the Department of Justice emphasized, “By 

resolving cases that can be resolved through ADR, attorneys are able to focus their 

resources and work efforts on the cases that need to be fully litigated. ADR thus 

strategically allocates ... attorneys’ workload. In addition, resolving cases on behalf of 

the Department’s federal agency clients frees our clients to expend their workload and 

resources on the core missions of their agency rather than on time-consuming litigation.” 

To enhance the benefits of ADR, some federal district courts utilize the services of a 

Magistrate Judge or other non-case assigned judges to serve as mediators, fostering both 

efficiency and cost savings in resources. 

- 95 ­
The benefits of ADR are realized in the results. A Department of Justice attorney 

reports that ADR has been “helpful especially in higher dollar medical malpractice 

cases.” ADR’s focus on interests enables parties to move away from their positions – 

often expressed solely in dollar figures – to their interests, which often reflect more 

varied considerations such as a timely resolution. An attorney representing the 

government reflects: “In all ... we can say without hesitation that the cases we have 

settled using ADR have resulted in a significant savings to the government over what 

could be reasonably expected to have resulted at trial, and often at a savings of millions 

of dollars.” More than that, application of an ADR process may result in more creative 

resolutions that are tailored to meet the parties’ needs and which may go beyond the 

jurisdiction of a court to order. ADR fosters solutions that may substitute for the 

payment of money or reduce potential monetary exposure. Even where a case does not 

settle, ADR can be valuable in narrowing the issues, or helping parties move closer to 

settlement (or facilitate a later settlement) by demonstrating good faith, improving their 

relations, or making progress in the negotiations. ADR also may be beneficial in 

resolving several related disputes in one global settlement, or in settling one dispute that 

can set parameters for the resolution of similar future disputes. Additionally, ADR can 

contribute to effective case management by resolving discovery disputes or facilitating 

the informal exchange of critical information. 

An additional benefit of using ADR for claims against the government is that the parties 

can agree to a wide range of remedies which simply are not available pursuant to a 

judicial adjudication. Mediated settlements can include reversionary trusts or structured 

settlements which can provide a better, more tailored settlement than a judge could 

provide. 

Department of Justice attorneys have used ADR in appropriate cases in a wide range of 

litigation including the following areas: admiralty/maritime, medical malpractice, 

wrongful death, class action discrimination, and natural resources. The results shown in 

these illustrative examples demonstrate the significant resources that ADR can conserve, 

as well as its role in achieving a better resolution than would have been likely in 

traditional litigation: 

• In an environmental defense case, mediation saved $150,000 in 

litigation/discovery expenses, saved 2,500 hours of attorney/staff time and at least 

six months of litigation/discovery time, produced a better settlement than would 

have been likely without ADR, and avoided adverse precedent. 

• In an environmental natural resources case, mediation saved $200,000 in 

litigation/discovery expenses, saved “hundreds of hours” of attorney/staff time 

and 18 months of litigation/discovery time, improved the relationship between the 

parties, and resulted in a better settlement than would have been likely without 

ADR. 

• A case involving federal water rights claims and Endangered Species Act issues 

was staggering in its scope, complexity, and impact. It involved 180,000 claims to 

- 96 ­
water rights and three sovereigns (state, tribal, and federal), including numerous 

different federal agencies. The case was pending for 17 years, and direct 

negotiations had been ongoing for three years when a mediator was appointed. 

The mediator worked with the parties for five years. An agreement was reached 

which has a 30-year term and should provide a model for future settlements of 

water rights and endangered species issues in the western United States. (A 

Department of Justice attorney in the Environment and Natural Resources 

Division received the Attorney General’s John Marshall Award for ADR in 2004 

for his representation of the Department in the negotiations and his work in 

ensuring that all federal interests were addressed in the mediation.) 

• In two complex aviation wrongful death cases, mediation saved $3 million in 

litigation/discovery expenses, saved 2,800 hours of attorney/staff time, and 10 

months of litigation/discovery time, avoided adverse precedent, and resulted in a 

better settlement than would have been likely without ADR. 

• In a maritime personal injury case, mediation saved $150,000 in 

litigation/discovery expenses, and resulted in a better settlement than would have 

been likely without ADR. 

• In nine tort cases, mediation achieved a better settlement than was likely without 

ADR, saved $1,540,000 in litigation/discovery expenses, saved 2,240 hours of 

attorney/staff time, and 31 months of litigation/discovery time. 

• Mediation in a Federal Tort Claims Act case avoided a potential loss of over $6 

million and saved 480 hours of attorney and staff time. 

• In a discrimination/sexual harassment case, mediation saved 780 hours of attorney 

time and six months of litigation/discovery time, and resulted in a better 

settlement than would have been likely without ADR. 

• In an employment discrimination case, the mediator’s objective assessment of the 

plaintiff’s claims prevented the government from having to engage in full 

discovery and summary judgment briefing in a non-meritorious case. 

• In another employment discrimination case, mediation saved $350,000 in 

litigation and discovery expenses, and nine months of litigation and discovery 

time, and avoided adverse precedent. 

• Mediation in a Fair Labor Standards Act collection action saved over $100,000 in 

expert witness and deposition costs, “hundreds” of hours of attorney/staff time, 

and one year of litigation/discovery time. 

• In adversary proceedings in a bankruptcy court case, mediation avoided a 

potential loss of $22 million in litigation against the United States, saved years of 

litigation, and avoided bad precedent. 

- 97 ­
• The use of ADR in litigation facilitated a settlement which ensures the 

preservation of the world’s oldest stand of old-growth redwood trees for timber 

holdings, and led to settlement of a 50-year old tribal dispute claim related to the 

decline of the tribe’s timber resources. (An attorney in the Department of Justice’s 

Environment and Natural Resources Division received the Attorney General’s 

John Marshall Award for ADR in 2001 for his work on this litigation.) 

Reports submitted by Department of Justice attorneys in the two most recent fiscal 

years estimated that mediation saved almost $18 million in litigation/discovery expenses, 

almost 67,000 hours of attorney/staff time, and over 1,350 months of litigation/discovery 

time. 

C. Contracts and Procurement 

This Administration has given special recognition to federal agencies and their private 

sector federal acquisition partners for their outstanding efforts in fostering the use of 

ADR to resolve both procurement bid protests and disputes under existing government 

contracts, through an annual Federal Procurement ADR Awards Program sponsored by 

the Office of Management and Budget’s Office of Federal Procurement Policy. The 

Awards Program was initiated in 2002 at the suggestion of the Interagency ADR 

Working Group Contracts and Procurement Section and has been maintained and 

expanded with the assistance of the Section’s leadership. The public sector award 

winners to date have included: the Department of the Air Force; the Armed Services 

Board of Contract Appeals; the Army Corps of Engineers; the Defense Logistics Agency; 

the Federal Aviation Administration; the General Services Administration Board of 

Contract Appeals; and the Department of the Navy. Detailed descriptions of the specific 

accomplishments of the Awards Program winners are set forth in Appendix F. 

Promoting a Citizen-Centered Government 

The agencies have made federal procurement-related ADR a transparent process and one 

which is much more accessible to the American citizenry, particularly to individuals and 

business entities who regularly do business with the government. Those business entities, 

when confronted with a contract and/or procurement dispute, seek prompt and fair 

resolution, something that is in the interest of the government as well. Agencies have 

designed ADR programs to meet this need, allowing citizens to resolve bid protests and 

contract disputes at the lowest level and least cost. For example, the Department of 

Defense/Department of the Air Force ADR program seeks to empower its business 

partners and employees to play an active role in resolving disputes through interest-based 

collaborative problem solving processes. This increases the sense of teamwork, focuses 

on sensible outcomes, and creates a shared sense of ownership in dispute resolution 

processes. The General Services Administration “Fuss Busters,” a group of mediators 

in the agency’s Southwest Region, voluntarily mediate contract and other disputes. The 

“Fuss Busters” have shown that volunteer efforts truly serve the taxpayer and sometimes 

may be more effective than paid programs. 

- 98 ­
In addition to providing vehicles for dispute resolution, a number of agencies have 

invested in the establishment of “ADR infrastructure” to inform citizens about their ADR 

options and ensure that these options are accessible. For example, the Department of 

Defense (the Department of the Air Force, the Department of the Navy, and the 

Defense Logistics Agency), as well as the Department of Transportation/Federal 

Aviation Administration, have developed user-friendly ADR Web sites that provide 

complete descriptions of available ADR techniques, sample forms, training in how to 

engage in interest-based collaborative problem solving processes, and success stories 

illustrating how and when ADR has been used to create “win-win” solutions that have 

benefited both the agencies and their private sector partners. Many agencies include 

information about the use of ADR in contract disputes. 

Several agencies also are creatively utilizing the Internet to provide information about 

and provide access to their procurement ADR resources. The Department of 

Defense/Department of the Air Force uses the Internet “as the principal means of 

disseminating ADR information and [it] is engaged in new initiatives to promote ADR 

and negotiation skills training via Web-based e-learning tools, knowledge management 

systems, and collaborative software.” The Air Force ADR Web site consistently ranks in 

the top ten in page hits, as measured by the “Google” Web search engine using the search 

terms “ADR” and “Alternative Dispute Resolution.” The Department of 

Defense/Department of the Navy ADR Program Web site “has extensive explanations 

of ADR processes...[and] an on-line training program that allows the public, contractors, 

and employees to hear from [its] senior leadership concerning how ADR can resolve 

disputes efficiently for all parties.” Information about the Program and its services is 

clearly set forth with links and contacts to other pertinent dispute resolution programs and 

contacts within and outside the agency. Likewise, the Department of Veterans Affairs 

reports that it has expanded initiatives in electronic government to make government 

operations more comprehensible and of greater use to contractors and government 

employees alike, and to make dispute resolution easier, quicker, and cheaper for persons 

who have disputes with the agency. 

Finally, the Department of Transportation/Federal Aviation Administration Office 

of Dispute Resolution Web site contains a user-friendly guide to its dispute resolution 

process, including access to model ADR agreements and other forms, ADR success 

stories, specific filing and contact information, and thorough explanations of the ADR 

services available to public and private parties. 

Managing Costs 

In the contracts and procurement arena, ADR also provides tools to promote the 

management of conflict in a manner that avoids many of the transactional costs of 

traditional processes. 

Agencies in this arena have begun to demonstrate the monetary savings achieved through 

ADR, and the results are impressive. For example, the Department of Defense/Army 

Corps of Engineers reports: “In the past three fiscal years, the Corps has resolved 117 

- 99 ­
Testimony Expenses Avoided

Travel Expenses Avoided

Other Expenses Avoided

Less: ADR Unique Costs Incurred

Total Costs Avoided

Estimated Interest Avoided

Total Quantified Expenses Avoided

Quantified Costs Avoided FY01-05

claims and appeals using ADR techniques, and the cost savings have been consistent with 

the historical data. Also during that time, the Corps has resolved 156 claims and appeals 

without resort to third party neutral assisted ADR. In this venue, the Corps has realized 

savings of over $76 million, paying only $37 million, including interest, on over $113 

million in claims not including interest.” 

The Department of Defense/Department of 

the Navy ADR program estimates that ADR 

achieves significant savings over litigation. 

As shown in the accompanying table, for 41 

cases analyzed, the program estimated about 

$1.8 million in direct expenses that were 

avoided by using the ADR processes. 

Further, assuming the same outcome on the 

merits, the program estimates that the agency 

avoided about $1.1 million in potential interest because ADR was faster than the 

administrative process. 

Quantified Costs Avoided FY01-05 

Testimony Expenses Avoided 

Travel Expenses Avoided 

Other Expenses Avoided 

Less: ADR Unique Costs Incurred 

Total Costs Avoided 

$1,096,413

199,608

513,600

(24,895)

$1,784,726

Estimated Interest Avoided $1,071,468

Total Quantified Expenses Avoided $2,856,194

The Department of Defense/Defense Logistics Agency also cites financial benefits from 

ADR: “The...acquisition ADR program covers both pre and post award disputes. It has 

an impressive success rate; in FY 2005, 87% of matters taken to ADR were either 

entirely or partially resolved through ADR. Significant dollar savings have resulted, an 

estimated $1.4 million for FY 2005.” Also, the Department of Defense/Department of 

the Air Force reports that its “ADR First” policy in contract disputes has enabled it to 

avoid an average of $57.6 million in liability in each of the most recent five years (FY 

2002 through FY 2006). 

Agencies also acknowledge the time savings achieved through ADR. The Department 

of Transportation/Federal Aviation Administration Office of Dispute Resolution for 

Acquisition reports that the use of ADR techniques is resulting in short resolution 

timeframes. Bid protests are resolved through ADR in an average of 24 calendar days, 

while contract disputes have been resolved by ADR in an average of 67 calendar days. 

The use of ADR processes also is contributing to more durable resolutions that reflect the 

needs of the parties and the government agencies. For example, the Department of 

Defense/Department of the Air Force reports that: “Unlike almost all non-ADR 

dispute resolution processes, ADR keeps decision making with the parties (one of whom 

is always the Air Force), thus fostering positive business solutions, rather than ceding it 

to an outside decision-maker who can only impose win/lose outcomes.” The 

Department of Veterans Affairs states that as the result of its ADR program: “decisions 

affecting ... resources can be made more quickly and with greater certainty in achieving 

the [agency’s] mission and meeting the requirements and deliverables [necessary to] 

accomplish its mission.” 

As in other areas, agencies within the contracts and procurement arena are quantifying 

the effect of ADR. The U.S. Agency for International Development, the Department 

- 100 ­
of Defense/National Geospatial-Intelligence Agency, the General Services 

Administration, the Department of Homeland Security/Transportation Security 

Administration, and the Department of Interior/Bureau of Land Management 

currently are developing metric systems to measure the impact of ADR use in contracts 

and procurement disputes as well as issues in controversy in other areas. This will enable 

them to more effectively allocate ADR dollars to areas where they will be most 

beneficial. 

Managing Strategically 

In the contracts and procurement arena, ADR efforts are also focused on enhancing 

existing resources to encourage responsive and innovative dispute resolution processes 

and outcomes. As in other arenas, training is a significant focus, and agencies have 

implemented training programs to minimize roadblocks to the institutionalization of 

ADR. For example, the Department of Defense/National Guard Bureau Contracts 

Section delivers annually a series of three or four Claims Avoidance workshops (in 

addition to other training) to its contracting officers and other Guard personnel. The 

workshops are designed to avoid contract disputes in ongoing contracts, and routinely are 

attended by 40-50 people. The Department of Defense/National Guard Bureau 

Contracts Section strongly believes that these workshops have resulted in a decrease of 

problems and disputes arising from the implementation of contracts. 

Some agencies suggest that the ADR process itself enhances the capacity of parties – 

internal and external – to manage conflict. For example, the Department of 

Defense/Department of the Air Force reports that ADR processes encourage better 

relationships between the agency and its private sector partners. One by-product of the 

improved relations is the greater chance that the parties will successfully fashion their 

own solutions to their future disputes. Similarly, the Department of Defense/Defense 

Logistics Agency reports that its ADR program: “supports constructive problem solving 

and fosters positive relationships with its contractors. The ADR program advances these 

objectives while reducing agency costs.” The Department of Transportation/Federal 

Aviation Administration Office of Dispute Resolution for Acquisition expressly 

recognizes in its mission statement that “it is in the best interests of the agency and its 

business partners to work together to avoid and resolve acquisition-related controversies 

in a timely and fair manner.” 

The innovation of contracts and procurement ADR initiatives is evident in both program 

design and outcome. For example, the Department of Agriculture demonstrates its 

program innovations through the use of internal neutrals to minimize travel costs, the 

consolidation of travel assignments, the contracting of the ADR neutral at the most 

reasonable possible rates, and the use of telephonic and video-conferencing in place of 

travel, where possible. The Department of Veterans Affairs reports on the innovations 

in ADR outcomes, noting that it has realized substantial benefits through the use of ADR 

in contract disputes. The agency reports that it fosters efficiency and innovation by 

encouraging parties to a dispute to work in partnership to find creative, cost-effective 

resolutions that will address the needs of the government and other parties to effectively 

- 101 ­
use money, time and other resources. Such processes foster the efficient use of these 

resources  and more  by encouraging prompt resolution and avoiding undue litigation 

delays and costs. 

Another innovative program, one which has generated appreciation from the private 

sector, is that of the Department of Transportation/Federal Aviation Administration 

Office of Dispute Resolution for Acquisition to make ADR available to parties even 

before they file formal bid protests or contract disputes. This program enables parties to 

address and resolve their contract and procurement concerns before the dispute has 

escalated to the “formal” level and resources have been invested in building a case. The 

results are impressive: the office reports that of 79 “pre-dispute” cases where ADR was 

employed, only three proceeded to formal litigation. 

ADR also has been used creatively  and proactively  to promote the goal of 

competitive sourcing by expanding ADR options into that area. Illustrative are the efforts 

of the Department of Transportation/Federal Aviation Administration Office of 

Dispute Resolution for Acquisition, which is charged with the responsibility for 

adjudicating contests arising from competitions pursuant to Office of Management and 

Budget Circular A-76, and which has developed and implemented A-76 Contest Rules 

that expressly call for the voluntary use of ADR in these cases. To date, the office has 

been involved in four contests and has resolved two of them through use of ADR. The 

successful use of ADR in the two contests resolved significant disputes about the terms of 

the competition, which allowed the competitions to proceed on terms acceptable to the 

interested parties, avoided probable litigation delays, and led to completion on schedule. 

The office also creatively utilized ADR during a contest challenging the outcome of a 

competition and, while use of ADR did not resolve the contest, it did settle several issues 

and resulted in a streamlined and timely adjudication process which the parties viewed as 

fair. 

D. Workplace 

Across the federal government, agencies have found that the availability of workplace 

ADR increases the ability of employees and managers to resolve internal disputes quickly 

and effectively, at the earliest possible time, and at the lowest possible level. This is 

especially important in the workplace, where festering disputes may distract an employee 

or manager from fulfilling essential work responsibilities. ADR provides an alternative 

for employees and managers to address concerns relating to their employment and reach 

a quick resolution so that they may return to their jobs of serving the public. 

Federal agencies also have found that use of ADR for management of workplace conflict 

is cost-effective – it saves money and time because resources are not spent on long 

investigations and protracted litigation, but rather on resolving disputes more quickly 

outside of the courtroom. In addition, agencies have found that involvement in the ADR 

process often forces supervisors to deal directly with the outcome of their, or their 

subordinate’s, actions. This results in important lessons being learned that have longterm positive effects on the organization’s efficiency. Finally, direct supervisor 

- 102 ­
interaction with employees often opens avenues of communication that had been closed, 

resulting in improved working relationships and improved productivity. 

In measuring the success of its own internal workplace mediation program, the Equal 

Employment Opportunity Commission found that 94% of participants would use the 

program again if they were involved in another workplace dispute. Even where managers 

resist participating in mediation, it is not because they take issue with the concept of 

mediation as an effective tool to resolve workplace disputes. Rather, the Equal 

Employment Opportunity Commission has found, when managers decline to 

participate in mediation, it is because they perceive that the complainant’s case is 

completely lacking in merit. 

Background History of Workplace Alternative Dispute Resolution 

Mediation in workplace discrimination complaints represents an early broad use of ADR 

by the federal government. In 1991, the Equal Employment Opportunity Commission 

began a pilot mediation program that ultimately became the key component in its private 

sector enforcement strategy. Based on the success of the pilot, the agency concluded that 

mediation was a viable alternative to the traditional investigatory methods it had used to 

resolve charges of employment discrimination it received, and that an ADR program 

should be implemented. The result became the agency’s National Mediation Program 

which was fully implemented in 1999. Through the National Mediation Program, the 

agency proactively promotes the use of mediation at any stage of the administrative 

process to resolve private sector charges of discrimination which may have merit. At the 

beginning stage of the process, the agency uses ADR in negotiated settlement attempts to 

resolve charges of discrimination before a determination is made on the merits of a 

charge. Again at the ending stage of the process, in accordance with the statute it 

enforces, the agency uses ADR in conciliation efforts to resolve a charge after a finding 

of discrimination. The agency’s emphasis on use of ADR in lieu of formal adjudication 

enables the parties to reach an agreement which addresses their respective concerns. 

Since an adjudicating court is limited in the kinds of remedies it can render, parties often 

prefer to craft a resolution which is better tailored to their needs, particularly if the work 

relationship is ongoing. 

Another federal pioneer in workplace mediation is the U.S. Postal Service REDRESS® 

Program (Resolve Employment Disputes Reach Equitable Solutions Swiftly) which was 

instituted as a pilot project in 1994 in three locations in Florida. The program was 

initiated in response to a settlement agreement for a class action in which complainants 

argued that the traditional equal employment opportunity complaint process was slow 

and ineffective. The agency has found that REDRESS® provides critical assistance in 

response to the disruption and other costs associated with addressing discrimination 

complaints throughout an enormous workforce (over 700,000 in 2006). The REDRESS® 

program over time has expanded to encompass a broad range of workplace issues even if 

they do not rise to the level of illegal discrimination. The focus of the mediation program 

is to give the parties an opportunity to thoroughly address their concerns and hopefully to 

resolve them. 

- 103 ­
Together, the mediation programs of the Equal Employment Opportunity Commission 

and the U.S. Postal Service have launched a number of lessons learned: 

• On the whole, many managers felt less threatened when they participated in a 

“problem solving” mediation to resolve a work-related dispute, rather than 

being put on the defensive in response to allegations of illegal discriminatory 

conduct. 

• The earlier the mediation occurs, the better the chances are that the parties will 

reach a voluntary settlement, and that the collateral negative impact of the 

dispute on co-workers and the organization as a whole will be minimized. 

• Mediation should be made available at many different stages of a dispute so 

that it is at all times a viable alternative to continuing with the formal dispute 

process. 

• Voluntary agreements reached through mediation provide a more enduring 

 solution to the issues underlying the dispute than a court adjudication could. 

The impact of early intervention is significant because it helps to contain the conflict at 

an informal stage and prevent it from escalating and draining agency resources. The 

value of early containment is enhanced when the long-term benefits are considered. 

ADR promotes both efficiency and durability because it gives parties the opportunity to 

be actively involved – at an early and informal stage – in negotiating an outcome that 

effectively meets their interests. As they negotiate a resolution, the parties exchange 

information that ultimately leads to better decisions. As they craft their own resolution, 

they are better able to control their own resources and the outcome of their dispute. 

Additionally, a decision crafted in an ADR process has the buy-in of the parties and 

hence is likely to last much longer than a decision made by others in an administrative 

forum. That conclusion is borne out by the fact that there are fewer “return customers” to 

an ADR program than there are to an administrative forum. 

Workplace conflict resolution programs are designed to enhance fundamental agency 

values at the core of their missions, including workplace diversity, trust, personal and 

professional growth, mutual respect, and open communications. By offering ADR 

programs, an agency demonstrates to its staff that management values its human capital 

as much as its fiscal capital. The National Archives and Records Administration, for 

example, reported the comments of employees who view the agency’s dedication to the 

dispute resolution program as evidence that the agency values the employees and their 

contribution. 

Lastly, while some agency programs have integrated EEO disputes with other workplace 

disputes, other agencies have found more success in developing a freestanding workplace 

dispute resolution center which is separate from the office which addresses EEO 

complaints. One reason is that they found managers approached a freestanding dispute 

- 104 ­
resolution center more cooperatively than the EEO office. Some agencies discovered that 

managers were more reluctant to participate and more defensive about their behavior in 

an EEO proceeding where they had been accused of unlawful conduct. Other agencies 

provide mediation services for general workplace disputes even if the presenting 

complaint is narrowly labeled as an alleged “EEO” violation. Nevertheless, all agencies 

have consistently found that early intervention is the key factor. 

ADR Programs Are Successful in Resolving Workplace Disputes 

The Equal Employment Opportunity Commission reported the national settlement rate 

of EEO cases through ADR was 49%. In favorable contrast, in their information 

submitted for this Report, agencies reported ADR settlement rates all above 50% and 

some reaching 75% and above, with significant cost savings. 

The Equal Employment Opportunity Commission’s own EEO program (RESOLVE) 

reports excellent resolution rates. In FY 2004, 48 EEOC employees came to the program 

for assistance. Twenty-one of those cases were EEO cases referred to the program by the 

agency’s EEO office; 27 were non-EEO cases. The resolution rate for EEO cases was 

72% and for non-EEO cases was 60%. Moreover, 94% of the participants indicated that 

they would use the program again. 

The Department of Defense/Washington Headquarters Service reports that 60% of 

EEO cases accepted into mediation achieved resolution. The Department of 

Defense/Department of the Navy reports an average resolution rate, for all types of 

dispute resolution efforts, at 83.5%. 

At the Department of the Treasury/Internal Revenue Service, ADR is implemented 

and actively marketed to resolve EEO complaints more quickly and effectively. The 

latest figures show that approximately 50% of their EEO cases were resolved through 

ADR. 

Dispute resolution processes allow disputes to be resolved at the lowest possible level 

without escalating the problem. When agreements are reached they usually last longer 

because they meet all parties’ needs. When parties can “own” the agreement, there is 

better buy-in and increased satisfaction with the result, as well as increased accountability 

from both management and employees. 

ADR Programs Are Cost-Effective 

ADR programs aimed at resolving workplace disputes conserve human capital in a 

number of ways. Good communication promotes agency productivity in the workplace. 

Productive and satisfied employees are less likely to quit their jobs, requiring new 

expenditures for recruitment and training. A positive work environment impacts new 

workers and creates loyalty and longevity in the agency’s own work environment. 

- 105 ­
The Department of Defense/Department of the Air Force notes that ADR typically 

resolved workplace disputes in less than one-eighth the time used for formal processes, 

using one-eighth the resources. Also, settlement agreements that arise out of the use of 

ADR are likely to be more innovative than those developed through litigation because 

they can resolve matters that could not be addressed sufficiently with money. Use of 

ADR promotes higher morale, lower absenteeism, and employee productivity, and 

provides positive alternatives to filing EEO complaints. 

ADR Saves Agency Funds 

The Department of Justice/Federal Bureau of Investigation calculated that in FY 04, 

its cost was $2,648 for each EEO investigation and over $250,000 for a Final Agency 

Decision. In contrast, its average total cost is $1,800 for each mediated case. The Social 

Security Administration calculated that the average cost of processing a complaint 

through the traditional EEO process is approximately $40,000. In contrast, most of its 

mediated cases are handled by a shared neutral source and cost under $50 per case, but 

even when an outside vendor is used the average cost is only $1,500 per case. Similarly, 

the Department of Defense/Defense Logistics Agency has calculated that it saves, on 

average, $20,000 per EEO case mediated. The approximate savings to the Department 

of Defense/Washington Headquarters Service by using ADR in FY 2004 was $42,000, 

and about $210,000 since the inception of ADR in March 2001. The General Services 

Administration notes that every EEO case resolved in mediation saves the agency 

approximately $3,500 to $4,500 in investigation fees alone. 

At the Department of the Treasury/Internal Revenue Service, ADR is implemented 

and marketed to more timely resolve EEO complaints. Generally, approximately 50% of 

all mediated cases are resolved. In actual dollars, traditional case processing costs $1,000 

per case, as compared to half of that amount where mediation is used. 

The Department of Defense/Department of the Army pointed out that litigation 

expenses are factored into the billing rates of working capital fund activities within the 

Army, and early resolution of disputes reduces these expenses thereby reducing overhead 

to allow components to remain competitive with other sources. 

ADR Saves Agency Time 

Typically, not only are the formal, administrative processes more fiscally costly, but they 

are also more time-consuming. Time spent by the agency on employment-related issues 

is time taken from accomplishing agency missions. An ADR session usually can be 

scheduled and completed within a few weeks while a typical EEO case which proceeds to 

a hearing may linger for several years. 

The Department of Defense/Department of the Air Force has compiled statistics that 

demonstrate that dispute resolution processes resolve nearly one-third of all complaints 

(formal and otherwise) in an average of 27-40 days versus an Air Force average of 390 

days for EEO cases which proceed to the formal administrative phase. Thus workplace 

- 106 ­
conflict is eliminated 13 times faster than it would have been in a more traditional 

process. In total, the Air Force refers almost half of its civilian workplace disputes to an 

ADR process which averages 30 days or less, achieving full resolution in an average of 

75% of those disputes. As a result, the Air Force ADR Program disposes of about 1/3 of 

its annual total of workplace disputes using fast, inexpensive, collaborative processes in 

lieu of litigation. 

One contributor to the time savings realized by ADR processes is the flexibility to 

identify and attempt resolution of problems much earlier than would be feasible in a more 

formal administrative forum. The Department of Defense/Washington Headquarters 

Service noted that the average number of processing days for EEO formal complaints 

(federal-wide) was 469 days in FY 2004. In contrast, its own ADR processes took an 

average of 39 days. This resolution timeframe, which is twelve times faster than the 

formal EEO complaint process, fosters active problem solving, interest-based outcomes, 

and improved working relationships between the parties. In the Equal Employment 

Opportunity Commission’s “RESOLVE” program, the average processing time for all 

cases was 72 days. At the Department of Housing and Urban Development, case 

processing is reduced from 802 days in formal EEO cases to 53 days in mediation. In the 

Department of Defense/Department of the Navy, the average time between a request 

for mediation and the first session is around 40 days, which is a significant savings in 

time spent on cases that otherwise would have gone through a formal administrative 

process. 

Alternative Dispute Resolution Programs Are Essential 

to Strategic Management of the Workplace 

Agencies’ descriptions of their workplace ADR programs demonstrate the essential role 

these programs play in the strategic management of human capital. ADR provides the 

tools to efficiently and effectively manage workplace conflict at the lowest level and at 

the earliest time before a dispute can ripen or escalate. The availability and use of ADR 

programs promote a positive work environment, lower absenteeism, and promote higher 

morale and employee productivity. Agencies are using cost-effective approaches in their 

conflict management programs and soliciting feedback to identify areas where the 

programs can be even further improved. 

The intervention of ADR at an early stage of conflict, before parties have built strong 

emotional attachments to their positions, is particularly valuable. The General Services 

Administration’s Greater Southwest Region has developed a mediation training program 

for managers and other staff to serve as program coordinators to handle the initial stages 

of the process and provide a free, easily accessible opportunity for disputants to resolve 

their issues quickly and efficiently. The Department of Homeland 

Security/Transportation Security Administration has developed an Integrated Conflict 

Management System which aims to align its internal culture (behavior and practices) with 

its customer service practices. As part of this system, the agency is providing to its 

employees a four-hour “conflict management essentials” class, which focuses on 

respectful and effective communication and cooperative problem solving skills and has 

- 107 ­
been given to over 15,000 employees. Institutionalizing effective communication and 

problem solving skills is better equipping employees to prevent disputes or, at least, to 

recognize warning signs and address disputed issues early before the conflict escalates. 

The ADR options that agencies provide to employees yield internal benefits that 

reverberate throughout the agency. At the Department of Defense/Army Corp of 

Engineers and the Department of Defense/Defense Contract Management Agency, 

the availability of ADR demonstrates a concrete commitment to fostering and 

maintaining a positive long-term working environment for all employees. The 

Department of Health and Human Services/Food and Drug Administration sees less 

absenteeism and increased focus on mission-related work as two clear by-products of an 

effective ADR process. 

An added benefit of ADR use is the re-direction of agency resources from settling 

disputes to furthering the achievement of agency goals. The Department of Health and 

Human Services/National Institutes of Health Office of the Ombudsman notes that the 

provision of a forum to resolve workplace differences frees an agency to make 

programmatic decisions based on needs rather than personal antagonisms or workplace 

disputes. The Department of Defense/Defense Commissary Agency finds that, because 

its activities are evaluated based upon unit costs, every instance of quick and efficient 

resolution through ADR directly affects the financial performance of those units – and 

the agency’s productivity. 

Benefits that are unique to ADR programs extend beyond the immediate dispute. ADR 

processes are designed to identify and address recurring issues that lead to systemic 

problems. Through an ADR process, parties have the opportunity to work on the 

recurring issues, while at the same time working on their relationship and developing the 

communication and problem solving skills that, hopefully, will enable them to avoid 

similar disputes in the future. When staff feel they have a voice in resolving conflict, 

they will feel more vested in the end product and more motivated to help it succeed. 

When managers participate in dispute resolution processes or attend related training, they 

develop conflict analysis skills which ultimately will help them make more 

knowledgeable and appropriate decisions. 

The cost-effectiveness of workplace ADR programs across the federal government is 

enhanced by the use and sharing of internal government ADR expertise. For example, 

costs are reduced when agencies follow the example of the Department of 

Defense/Department of the Navy and develop an internal cadre of qualified neutrals 

who can provide ADR expertise. Other agencies, such as the Department of Justice, 

use collateral duty mediators from one agency component to provide ADR services to 

another component, thereby maximizing their beneficial use of ADR while conserving 

resources. 

Another cost-saving approach is demonstrated by the allocation of resources governmentwide in the federal Sharing Neutrals Program, which is administered in the Washington, 

D.C. region by the Department of Health and Human Services. A number of years 

- 108 ­
ago, as the demand for mediators and other talented neutrals was outpacing the supply, 

some federal agencies decided to join forces, train volunteers, and develop a roster of 

agency employees who could be used anywhere in the federal government where there 

was a need for ADR services. Today, the roster includes over 200 trained neutrals who 

serve on collateral duty to provide ADR services to other agencies as the neutral’s own 

work load permits. In FY 2006, there were almost 250 requests for the services of a 

shared neutral, and the caseload has been trending upwards recently. The program’s 

database has information about each neutral, including expertise in ADR areas (e.g., 

mediation, coaching) as well as substantive expertise (e.g., information technology, EEO 

or union law, and more general human resources issues). Employee mediators report 

satisfaction with their participation in the program. 

The community of federal agencies has developed other mechanisms to collaborate and 

share resources. An example is found with the Departments of Transportation and 

Health and Human Services which have formed a partnership to conduct management 

training that shares resources, knowledge, and experiences to promote a diverse learning 

environment. The training gives managers an opportunity to collaborate with other 

managers facing similar issues, and the result is an effective skills class that enhances the 

managers’ ability to manage at very little cost to either agency. 

A key tool for any dispute resolution program is the evaluation of the process so that 

ADR services can be improved or expanded as appropriate. The Department of 

Housing and Urban Development analyzes customer satisfaction surveys which are 

given to all ADR participants in order to identify ways to increase the efficiency and 

effectiveness of the ADR program. The Department of Education evaluates the staff of 

its Informal Dispute Resolution Center by how well they are reducing work-related 

complaints and how well they are helping employees improve their performance and 

communication skills. The Department of Homeland Security/Transportation 

Security Administration Office of the Ombudsman is staffed by a contractor. The 

contractor is “rewarded” for improved responsiveness to customers according to 

measurable standards, which encourages the contractor to identify ways of increasing 

efficiency and quality of service. 

Workplace ADR Programs Create Collateral Benefits for the Agency 

The use of ADR produces collateral benefits for the agency. ADR programs can serve to 

improve workforce relationships with customers and the public, and to further agency 

programmatic needs. 

When the bureaucracy is compressed, and disputes are resolved, information can flow 

freely between layers of government. Effective communication ensures that management 

at all levels has key input from the employees working with the issues that potentially can 

pose problems for the agency as a whole. A workforce that communicates effectively is 

more productive and provides a better product for the agency. A good example is the 

Commerce Department/National Oceanic and Atmospheric Administration which 

opens communication, by using facilitation in internal meetings among its staff and/or 

- 109 ­
across its programmatic line offices, in order to identify and address problems. In a 

related vein, the Department of Veterans Affairs uses an Organizational Climate 

Assessment Program, which it designed to examine employee perceptions of the 

workplace, to improve productivity by addressing employee dissatisfaction. 

The use of ADR brings external benefits as well. The Department of Homeland 

Security/Transportation Security Administration reports that its ADR Program, by 

improving relationships between managers and employees and increasing employee 

productivity, generates more positive external perceptions toward the agency in particular 

and the federal government in general. It also may increase the public’s confidence in the 

ability of the government to resolve disputes. Similarly, the National Archives and 

Records Administration and the Department of Defense/National Security Agency 

report that the use of ADR helps staff learn how to better work together, which in turn 

improves their ability to work with the public and respond to customer needs. 

In addition, agencies which partner with their employees to anticipate, and overcome, 

problems before they occur can in turn help their customers and clients achieve a stronger 

and more competitive position. Consider the National Mediation Board, which fulfills 

the mission of mediating labor management disputes in the airline and railroad industries. 

In the past eight years, the Board has mediated over 600 cases in both industries with 

only four work stoppages (one of which lasted for less than 90 minutes). This is 

especially important – for employees and customers alike – given the impact that a work 

stoppage would have on the country. The Board is continually striving to improve the 

quality and timeliness of its services to avoid an industry stoppage. 

Another good example of the value added by ADR is revealed by the role of the Federal 

Mediation & Conciliation Service in the collective bargaining of U.S. businesses. The 

agency commissioned a study to assess the impact of mediation on collective bargaining 

negotiations. The study was conducted by the Employment Policy Foundation, a 

nonprofit nonpartisan public policy research foundation that focuses on workplace trends. 

The results of the study underscore the benefits for both companies and employees when 

mediation is used to resolve labor disputes in a timely fashion. The study analyzed six 

years of case data from the Federal Mediation & Conciliation Service and determined 

that mediation saved $9 billion in workers’ wages and company profits between 1999 and 

2004. The savings resulted from the agency’s role in preventing or shortening work 

stoppages. The average annual savings included $80.7 million in retained company 

profits, $640.5 million in retained union members’ wages, and $781.8 million in retained 

workers’ wages among workers in ancillary industries. The study also demonstrated that 

early involvement by a Federal Mediation & Conciliation Service mediator reduces the 

duration of any work stoppage that does occur. Where mediation began before the 

contract expired, work stoppage duration was reduced by an average of 46% and this 

reduction in work stoppages resulted in an average annual benefit of $217.9 million. 

- 110 ­
E-Government Makes Workplace ADR Accessible to All 

Agencies with workplace dispute resolution programs report that they view the use of 

technology as an essential component in their distribution of information about ADR 

programs, including placing ADR model documents on-line to help educate prospective 

parties. They also are employing e-tools to conduct parts of the process and facilitate 

access to it, and to effectively manage the process. Further, they are using technology to 

ease the transition to e-government. 

The Web provides a vehicle for sharing substantive process information, as illustrated by 

the comprehensive Web site which is maintained by the Department of Energy Dispute 

Resolution Office and can be accessed by all employees. Technology also makes it 

possible for an agency to offer on-line training which increases the number of staff who 

can participate and makes attendance easier. A good example is the Department of the 

Treasury/Comptroller of the Currency which developed an on-line training course 

with an ADR component that meets the No Fear Act requirement. The course will be 

required training for all new employees and it is available through the agency’s 

automated learning system. 

The Federal Mediation & Conciliation Service uses a specially developed network of 

Internet servers, mobile computers, projectors and software in mediations in order to 

promote better decision making through broad dissemination of information and input of 

different viewpoints. Agencies also are using electronic case-tracking systems and 

electronic messaging to report all mediation activity for various statistical reports. The 

Department of Defense/Department of the Navy uses a unique docket system that 

connects the Human Resources offices worldwide. In addition to standardizing the 

convening process, this system provides metrics used in program management and 

reporting. 

Several agencies mentioned using e-tools to streamline various aspects of the process 

such as on-line intake procedures to populate basic data fields more quickly and easily, 

and on-line evaluation tools to ensure quick and easy feedback on the process. These 

tools assist agencies in managing and synthesizing aggregate data. It is particularly 

important that the evaluation form be user-friendly so that the agency can maximize the 

return of timely responses from participants and have the feedback necessary to effect 

appropriate improvements in the program. Another tool, video conferencing, is enabling 

agencies to reduce travel costs and increase effective communication with regional 

facilities. 

Numerous agencies recognize the need to ease employees’ fears and concerns about 

transitioning to an electronic government. ADR processes have helped to smooth this 

transition. For example, the National Archives and Records Administration is facing 

not only its own conversion to electronic government, but it is also considering how best 

to meet the needs of its external agency customers who are converting to an electronic 

world, and the needs of its public customers who want to dealing with the agency through 

the Web and other electronic means. The changes to an electronic world signal a new 

- 111 ­
way of doing business for a workforce accustomed to working with paper. Various ADR 

processes have been, and will continue to be, used to elicit staff’s input into appropriate 

decisions about transitioning to an electronic approach and streamlining the conversion 

process. 

- 112 ­
V. The Future of Alternative Dispute Resolution 

A. Capitalizing on the Potential of ADR 

Alternative dispute resolution has become well-accepted in federal agencies as an 

effective and efficient method for resolving disputes and has been readily adopted as part 

of a sound business model. All of the agencies responding to the survey convey the 

fundamental belief that conflict is reduced wherever and whenever communication is 

improved and acknowledge the positive impact of ADR on both reducing conflict and 

enhancing communication. 

While workplace dispute resolution – particularly in the EEO arena – still represents a 

significant portion of ADR activity in the federal government, many agencies have 

broadened their application of ADR into other areas. As more data are collected and 

analyzed in those areas, it is becoming clear that ADR has met and exceeded the 

challenge of providing parties a cost-effective and time-efficient approach to resolving 

conflict. 

However, some agencies still describe their workplaces as more conflict-focused than 

resolution-oriented. Many agencies report a pervasive culture of reacting to crisis rather 

than taking pro-active measures to prevent it. People often turn to ADR only after the 

problems have become intractable. Success can be a bit more difficult to attain at this 

point in the process. 

Thus, the Executive Branch is still a long way from employing ADR to its full potential. 

Alternative dispute resolution is still being used to “fix problems” as they occur; it has 

not been fully harnessed to address the underlying causes of disputes in order to decrease 

the actual incidence of conflict. ADR in the next decade needs to grow into a system of 

pro-active conflict management as opposed to a one-shot reaction to a presenting dispute. 

The key to reducing conflict is early intervention and anticipatory dispute resolution 

which prevent an escalation of a mere disagreement into a public dispute, draining 

agency resources and impeding agency work. Strategic business plans need to address a 

system which can manage any and all disputes involving the agency: any dispute, at any 

time, from anyone who in good faith disagrees with an agency action. A citizen or 

employee who cannot get the attention or “ear” of the agency will otherwise pursue the 

traditional approach – litigation – as the only way to force the agency to attend to the 

matter. 

There are, however, a number of agencies that have developed programs to focus on early 

intervention, including: the Department of Transportation/Federal Aviation 

Administration Early Dispute Resolution Center; the Federal Energy Regulatory 

Commission Dispute Resolution Service and Enforcement Hotline; the Department of 

the Interior Collaborative Action and Conflict Resolution Program; the Department of 

Justice ADA Mediation Program for disability rights; and the U.S. Institute for 

- 113 ­
Environmental Conflict Resolution work with the other federal agencies on engaging 

stakeholders early in the process of resource planning or environmental review. All 

agencies can learn from these trailblazers to recognize the power of conflict, using early 

recognition of a brewing dispute to diagnose potentially larger and more serious problems 

in an agency’s management. The early intervention in conflict management recognizes 

that conflict is a symptom of a system that is out of balance – and that a disputant might 

have information on the imbalances and potential remedies. Successful conflict 

resolution programs recognize this and value the diversity of viewpoints. Simply put, 

when more minds tackle a problem, more creative and responsive resolutions can emerge. 

Conflict is thus transformed, from a negative interaction into a cooperative activity which 

can infuse value, flexibility, and adaptability into business decisions. 

A goal of the Interagency Working Group Sections and Steering Committee is to take 

dispute resolution to the next level: to help agencies develop integrated systems of 

conflict management so that disagreement is no longer a drag on the efficient 

management of agency administration but an opportunity for learning about and valuing 

different viewpoints. Conflict is endemic to our pluralistic, democratic society and open 

form of government. Poorly managed disputes, however, reflect a system that is not 

working optimally. Any organization which is stuck in addressing problems individually 

rather than systematically will be challenged to stay ahead of the usual and normal 

disagreements which arise every day in the normal course of business. Instead of making 

problems “go away” one by one, a smarter organization will adapt to use the information 

gleaned early on to resolve the systemic issues underlying the presenting problem. The 

most difficult challenge in developing such an integrated conflict management system is 

that it necessitates some uncertainty because it must be flexible and responsive to 

continuous change and innovation. But the benefits are plentiful: in an integrated 

conflict management system, each employee will be accountable as a problem solver, 

working with others to ensure the efficient and effective accomplishment of agency 

business. 

B. Challenges and Opportunities 

We offer a roadmap of challenges and opportunities that could assist in fulfilling the 

promise of ADR in the coming years. 

Leadership 

Policy direction and prioritization are powerful tools. Vehicles such as executive orders, 

policy statements, proclamations, letters of recognition, and awards provide the 

leadership that can nourish ADR and encourage the results that ADR can produce. A 

good example is the Memorandum on Environmental Conflict Resolution which was 

jointly issued by the Office of Management and Budget and the Council on 

Environmental Quality on November 28, 2005. Through its executive-level call for 

increasing the effective use of environmental conflict resolution, the Memorandum has: 

raised the level of awareness about the application of ADR to environmental conflict 

issues across the federal government; fostered greater interagency learning; focused the 

- 114 ­
attention of managers on the essential principles of environmental conflict resolution; and 

guided managers in the value of demonstrating performance outcomes. 

ADR is an important business application which can benefit the performance 

management of all federal agencies. As the use of ADR is broadened in the coming 

years, similar appropriate expressions of leadership commitment would be very valuable 

in maximizing the beneficial impact and results of ADR throughout the Executive 

Branch. 

Proclamation by the President of a National Conflict Resolution Day 

Alternative dispute resolution has become the framework for management of conflict in 

both the public and private sectors. It is lessening the cost of business, government, and 

educational institutions and delivering better results to financial stakeholders and the 

taxpayer. Conflict resolution has become part of the fabric of our society. 

A Proclamation by the President for a National Conflict Resolution Day, which 

recognizes the societal value of conflict management, would inspire and motivate federal 

employees and all others who work in the field of, or use, alternative dispute resolution. 

The message may also encourage citizens and private industry to request ADR as a 

supplement to traditional forms of adjudication. 

A draft text of a Proclamation by the President is offered for consideration as Appendix 

G. 

Letter of Greetings and Commendation From the President to Federal Employees 

Responsible for Alternative Dispute Resolution 

This Report conveys many success stories that have been made possible by the dedication 

and effort of federal employees who have utilized alternative dispute resolution programs 

for the benefit of the government and the public. An imprimatur from the highest level of 

government would send an unequivocal message of support for continued and expanded 

use of ADR. A Letter of Greetings and Commendation from the President to federal 

employees responsible for ADR programs in the Executive Branch would serve as that 

imprimatur and inspire those employees to more and greater achievements. 

A draft text of a Letter of Greetings and Commendation from the President is offered for 

consideration as Appendix H. 

Establishment of a Federal Council and Annual Conference 

for Agency Dispute Resolution Specialists 

The Office of Management and Budget or the Attorney General, as the official designated 

by the President to coordinate interagency efforts to promote and facilitate the use of 

ADR, could consider constituting a Federal Council of all Dispute Resolution Specialists, 

who are the top ADR officials designated by the Executive Branch agencies pursuant to 

- 115 ­
the Administrative Dispute Resolution Act of 1996. The Council would serve as the 

forum for issuance of appropriate government-wide ADR policy and positions. The 

Interagency ADR Working Group Sections and Steering Committee would provide the 

staff support for the Council and would offer expertise, policy recommendations, and 

other assistance as needed or requested. 

An annual conference for members of the Council, and agency lead attorneys and senior 

managers, would be effective in raising the level of awareness about the application of 

ADR across the Executive Branch, and foster greater interagency learning. If the 

President issues a Proclamation for a National Conflict Resolution Day, the timing of the 

Council conference could be coordinated with the issuance of the Proclamation. 

Establishment of the Federal Council and/or the conference would send a strong message 

of support for ADR. 

Government-Wide Biennial ADR Achievement Awards Program 

Instituting a government-wide biennial ADR achievement awards program would 

encourage innovative applications of ADR and the demonstration of performance 

outcomes. The awards program could be under the auspices of the Office of 

Management and Budget, or the Attorney General who is the official designated by the 

President to coordinate interagency efforts to promote and facilitate the use of ADR, and 

staffed by the Interagency ADR Working Group Sections and Steering Committee. 

Inclusions of awards for the following areas would encompass the range of federal ADR 

programs: 

• Alternative Dispute Resolution Award in Civil Enforcement and Regulatory 

Work. This award could recognize federal organizations using ADR to resolve 

liability and related enforcement or regulatory issues, and to ensure collaborative 

stakeholder participation in regulatory decisions. The award program could be 

staffed by the Interagency ADR Working Group Civil Enforcement and 

Regulatory Section. 

• Alternative Dispute Resolution Award in Contracts and Procurement. There is 

already an annual Alternative Dispute Resolution Award in Acquisition for which 

the competition is conducted by the Office of Federal Procurement Policy in the 

Office of Management and Budget. The award, which is the only current 

government-wide ADR award, recognizes federal and private sector organizations 

that are innovatively and effectively utilizing ADR to resolve disputes relating to 

federal acquisitions and contracts. The award program is staffed by the 

Interagency ADR Working Group Contracts and Procurement Section. The 

annual program could be continued in its current form, or folded into the proposed 

biennial government-wide program. 

• Alternative Dispute Resolution Award in the Workplace. The Office of Personnel 

Management used to have a Director’s Award for Outstanding ADR Workplace 

- 116 ­
Programs. The program was discontinued after the 2002 competition and 

reinstituting it is not currently under consideration by the agency. The new 

proposed award could recognize federal organizations using ADR as part of their 

strategic management of human capital to foster a positive working environment 

for all employees and to improve workplace productivity. The award program 

could be staffed by the Interagency ADR Working Group Workplace Section. 

• Alternative Dispute Resolution Award for best new ADR program initiated by an 

agency. The award would recognize innovative or unique new applications of 

ADR either in new programs or in new ways that make existing programs more 

effective and efficient. The award program could be staffed by the Interagency 

ADR Working Group Steering Committee and Sections. 

Performance Management 

Appropriate commitment by agency leadership to the beneficial impact and results of 

ADR can be instrumental in maximizing those benefits for the agency. One clear 

manifestation of that commitment is the agency’s integration of conflict management 

principles into its performance management structure. Agency managers will focus on 

and use the performance management structure and, where it includes conflict 

management elements, the uses and good outcomes of ADR are more likely to be 

maximized. 

Conflict Management As a Selection and Performance Appraisal Criterion 

for Executive and Management Positions 

Agencies may or may not have conflict management elements in the selection criteria 

they use for recruiting and hiring and the performance appraisals of their managers. 

However, executives and managers who are themselves well-versed in conflict 

management principles will be more likely to recognize their benefits and apply them in 

their areas of responsibility. The best way to insure familiarity with conflict management 

principles is to include them in selection and performance appraisal criteria. 

Agency management starts with the Senior Executive Service. The Office of Personnel 

Management has recently led the way with its Executive Core Qualifications, which 

define the competencies needed to build teams, serve customers, and produce results. 

The second Executive Core Qualification is Leading People, and it had long included a 

generic standard of “support [for] constructive resolution of conflicts.” That 

Qualification was amended effective October 2006 and now includes a pro-active focus 

which requires these conflict management competencies: 

• encourages creative tension and differences of opinions 

• anticipates and takes steps to prevent counter-productive confrontations 

• manages and resolves conflicts and disagreements in a constructive manner 

- 117 ­
Since the Office of Personnel Management’s Executive Core Qualifications are required 

for entry into the Senior Executive Service, new waves of executive-level leadership in 

all of the federal agencies can be expected to have a conflict management orientation. In 

addition, many agencies choose to use those same Executive Core Qualifications for their 

own selection, performance management, and leadership development for both 

management and executive positions. As this trend continues and grows, so does the 

likelihood of a positive and productive workforce. 

Conflict Management As a Key Element in Recruitment, Training, and Planning 

A good example of the integration of leadership commitment into performance 

management is found in the Memorandum issued jointly on November 28, 2005, by the 

Chairman of the Council on Environmental Quality and the Director of the Office of 

Personnel Management concerning a Competency Based Approach to Collaboration and 

Partnering. The Memorandum is addressed to five agencies (Departments of the Interior, 

Agriculture, Commerce, Defense and the Environmental Protection Agency) on a specific 

topic (the principle of “cooperative conservation” which specifies that federal decision 

making will provide opportunities for local inclusion and be conducted in cooperation 

with tribal, state, and local governments). 

However, the Memorandum transcends both the specific topic and addressees, and 

instead establishes a government-wide beacon for integration of conflict management 

principles into the performance management of an agency. The Memorandum gives an 

imprimatur to an agreement of the Chief Human Capital Officers “to support a 

competency-based approach to developing within their organizations the collaboration 

and partnering skills necessary to ensure the... objectives.” The concepts behind the 

Memorandum’s illustrative examples are relevant here and can be used in whole or in 

part by agencies across the Executive Branch: 

• In recruiting and hiring: include in the selection criteria for appropriate positions 

relevant conflict management attributes such as a commitment to working 

collaboratively or experience in consensus-building; 

• In training: identify the competencies necessary for effective collaboration in the 

areas of agency responsibility and develop employee training programs to 

advance those attributes; and, 

• In strategic and management planning: incorporate the competencies for effective 

collaboration into performance measures for positions that are responsible for 

program and project planning, development, and implementation. 

Programmatic Reviews and Evaluations 

If ADR programs are to function optimally, an agency should undertake a baseline 

programmatic review and periodic evaluations that show measures of improvement and 

progress in implementing ADR programs. The agency also should be ready to adapt the 

programs in response to changing needs – of the agency and/or of its stakeholders. 

- 118 ­
Any ADR programs could benefit from efforts to better articulate program goals and, 

more importantly, measure progress toward those goals. Many agencies are striving to 

do so, but it is admittedly a difficult task. To substantiate performance, agency data 

should be collected and analyzed. While many ADR programs are subject to an ordinary 

cost-benefit analysis to show the advantages of ADR use, some are not subject to any 

easy analysis. 

There is a great need for research and development of new methods and criteria for 

evaluation of ADR success in relation to reaching specific agency goals. Public/private 

partnerships for research purposes have proven valuable in a number of instances in the 

effort to collect and analyze data. Federal agencies, because of their size, breadth, and 

centralized leadership, are in an optimal position to collect data relating to the use, 

effects, and success of their use of ADR within their programs. In several instances, a 

university has performed research with data supplied by a particular agency. Some 

examples of successful collaboration efforts are these partnerships: 

• between the Equal Employment Opportunity Commission and Cornell 

University; 

• between the National Mediation Board and the University of Massachusetts; and 

• between the Department of the Interior and the Community Based 

Collaboratives Research Consortium.

More active outreach by federal agencies to promote research and cooperation with 

universities and other private institutions could yield valuable information for the future 

of ADR. 

External Promotion and Facilitation 

One barrier that stands in the way of realizing the full potential of ADR in the 

enforcement and regulatory arena is the fact that representatives of regulated and other 

entities may not understand, fully or at all, how ADR works and the benefits it can 

produce. Agency efforts to educate the entities subject to its jurisdiction, and to promote 

and facilitate their use of ADR in appropriate cases, would go a long way toward 

fulfilling the promise of ADR. The experience of agencies using ADR, which are 

discussed in this report, demonstrates how its use in civil enforcement and regulatory 

matters can reduce the expenses of adversarial processes, increase inclusiveness and 

stakeholder participation, and resolve conflict collaboratively. Expanding the ADR 

knowledge base of the regulated constituencies, and increasing their use of conflict 

resolution tools, is likely to produce only positive consequences. 

The staffing of external promotion and facilitation efforts is likely to be dependent on the 

availability of resources to do so. With leadership and coordination, federal agencies 

with regulatory and enforcement responsibilities could conserve their resources – and 

accomplish more with less – by sharing outreach planning, promotion, and facilitation 

efforts to the benefit of all. 

- 119 ­
Training 

In providing information for this report, agencies consistently stressed that the provision 

of ADR training is a key to success in conflict management. For example, the 

Department of Transportation sees a positive correlation between training and the use 

of its ADR programs. As a result, many agencies make ADR training as easilyaccessible and widely-available as possible. The Department of Defense/Department 

of the Navy takes advantage of information technology to provide on-line ADR training. 

The Department of Homeland Security/Federal Emergency Management Agency, 

the Peace Corps, the Department of Veterans Affairs, and the Department of the 

Treasury/Bureau of Public Debt include ADR in training sessions and orientations. 

The Department of the Treasury/Office of Comptroller of the Currency provides a 

mediation DVD to help managers explain ADR benefits and procedures to all employees. 

The Department of Justice/Federal Bureau of Prisons gives training in “civil 

treatment” communication skills for managers. The Federal Energy Regulatory 

Commission provides ADR training, internally and externally, for agency staff and for 

those who participate before the Commission. 

All agencies can expect to benefit from the provision of training in ADR techniques 

including communications skills. At the very least, agencies should consider providing 

communication skills training for all new employees, and communications skills and 

conflict management training for all new managers and supervisors. Some agencies 

currently mix management and employees in the same ADR course, an approach that can 

have long-term benefits as they gain insight about the perspectives of “the other side” and 

learn how best to work together. Regardless of how they provide their training, or what 

they include in it, agencies should consider capitalizing on information technology to 

make the training available on-line and “on demand” and at minimal cost. 

Many agencies offer training through in-house providers, while other agencies utilize 

external ADR training providers. Regardless of the source of the trainers, the availability 

of funding for training is a challenge for many agencies. With leadership and some 

coordination, agencies could conserve resources by sharing in interagency training 

planning and delivery. Such sharing, perhaps modeled after the Shared Neutrals 

program, could save overall expenses by increasing the use of internal ADR professionals 

rather than more costly outside providers. Agencies could also inventory their own 

training material and create an interagency “lending library” of resources which could be 

used by any agency and shared by all. 

Interagency Sharing of Federal Resources 

Availability of resources is a challenge for all agencies. Finding ways to share resources 

and tools with other federal agencies can reduce administrative redundancies and 

improve efficiencies while meeting common needs. The Shared Neutrals program is one 

example. With leadership and coordination, agencies can consider sharing in many 

interagency projects beyond those already suggested in this report, such as: 

- 120 ­
• ADR tracking and evaluation tools; 

• Blanket Purchase Agreements to make procurement quicker and easier; 

• identification of a cadre of subject matter experts (internal or external) who have, 

or can develop, ADR expertise to handle disputes that require technical 

knowledge; 

• expansion of the Shared Neutrals program to provide services beyond mediation, 

e.g., partnering, facilitation, coaching, and mentoring; and 

• creation of entry or continuing education for the Shared Neutrals program that 

would ensure continued high standards and consistent performance for federal 

mediators. 

Management Support 

Institutionalization of the ADR Program 

As the contributions of ADR continue to grow and become an essential feature of 

effective management across a growing number of agencies, there is a corresponding 

need to ensure that the ADR programs themselves are properly and effectively managed. 

Historically, many ADR programs began as incidental, temporary assignments. In some 

agencies, this remains the case, even though the ADR portfolio has extended well beyond 

initial expectations. It is time for all agencies to integrate and institutionalize their ADR 

programs within their organizations, budgets, and strategic program planning. 

It is important for agencies to provide a viable foundation for the offices which manage 

their ADR programs. Too often, ADR offices have no dedicated, or insufficient, funding. 

Several agencies stated that they do not even have enough money to send their own 

mediators to mediations that have been requested by the parties. Other agencies noted 

the irony of their situation where, since they lack adequate in-house resources, they must 

pay the higher cost of contracting outside the agency for skilled ADR assistance. Too 

often, ADR offices have no dedicated personnel either. Instead, they are dependent on 

“borrowed” space and “detailed” employees temporarily assigned from other 

components. This ad-hoc approach is particularly difficult in the workplace arena where, 

while ADR is almost always offered, it is not always accepted. Managers often distrust 

the process, or feel that participation might be construed as an admission of wrongdoing. 

Many agencies also report a limited employee buy-in. The struggle of ADR program 

managers to change this culture is even more difficult when their own offices have no 

continuity of personnel handling the workplace ADR processes. 

Having an ADR office operate on a “catch as catch can” basis is counter-productive for 

the agency and is often short-sighted It has an adverse impact on the stability of an ADR 

program, drains its credibility, and diminishes the savings and other beneficial results the 

agency could otherwise expect. It is difficult, or impossible, to evaluate program results 

effectively, implement program improvements, and formulate strategic or long-range 

planning. 

- 121 ­
Continuity of staff and funding will go a long way toward institutionalizing and ensuring 

successful, well-developed programs. As part of the agency’s leadership commitment, an 

ADR program/office should be given dedicated funding and staffing. Dedicated funding 

ensures the stability and effective program management of the ADR office. Dedicated 

staffing ensures the independence of an ADR program, which is essential to the 

stakeholders and users who must trust the neutrality and confidentiality of the program 

operations. Institutionalization of the ADR operation would also insure that settlement 

agreements are properly and consistently vetted, and that data collection and analysis is 

ongoing, accurate, comprehensive, and used to improve program results. 

Integration or Coordination of ADR Programs 

In agencies which have established a firm foundation for ADR programs, some have 

opted for a centralized approach and others have preferred a decentralized one. There is 

no “one correct answer” but it is important for agencies to consider the advantages and 

disadvantages of different approaches in deciding what will work best for their own 

operations. On the one hand, a centralized ADR office can permit easy access for 

assistance for all types of disputes and facilitate sharing of training and other resources. 

On the other hand, a decentralized approach can help to ensure that ADR is not overemphasized in one particular application to the detriment of other areas, and can ensure 

that ADR is used differently in different settings where appropriate. A middle course can 

be a “network” approach where different ADR programs share a common leadership 

vision. One example of the network approach is the Department of the Interior’s 

establishment of the Office of Collaborative Action and Dispute Resolution in the Office 

of the Secretary to provide leadership for an agency Dispute Resolution Council. The 

Council is comprised of designated Dispute Resolution Specialists for every component 

to ensure increased leadership support and shared commitment, improved coordination, 

and reduced administrative redundancy. Another example of the network approach is the 

Department of Defense ADR Coordinating Committee which is chaired by the 

Department of Defense Dispute Resolution Specialist and composed of the Dispute 

Resolution Specialist or designee from each component. 

Regardless of approach, one overriding principle is that ADR should be integrated into 

the way people do business in all areas of the agency’s responsibilities where use of ADR 

is appropriate. A second best practice is that decentralized ADR programs should at least 

share communication. Where independent ADR programs share an agency roof, but no 

inter-program communication, their opportunity for shared expertise and resources is lost, 

to the detriment of all. 

- 122 ­
VI. Conclusion 

Alternative dispute resolution is a tool for appropriate cases, not a panacea for all cases. 

The interests of the United States often are unique. Federal officials can resolve cases 

only in ways that will not undermine important legal issues, jurisdictional defenses, or 

policy interests. In appropriate cases, ADR has become a common sense option for the 

federal agencies. It is cost-effective and time-efficient, it gives the parties control over 

the outcome, and it involves stakeholders in decisions that affect them. 

Today, ADR is an important part of our work, and tomorrow the promise of ADR will be 

an integral part of our government, business and society. 

Twenty years ago, the Internet was not part of our daily lives. Today, we cannot imagine 

business without the World Wide Web, and indeed business has accelerated to keep pace 

with the speed of the Internet. The prospect of waiting several years for a dispute to be 

resolved in a civil action has become unacceptable. Tomorrow’s business demands timeefficient dispute resolution. 

Twenty years ago, geographic boundaries were defined. Today, the Internet has made 

them porous. Tomorrow, the global community will need resolution mechanisms that 

can deal with disputes quickly and well in a multi-cultural, international environment. 

Twenty years ago, dispute resolution was not part of judicial operations. Today, ADR is 

being used every day in the courts of the United States. 

Twenty years ago, ADR was just the beginning of an idea. Today, ADR has come of 

age. It is a framework for management of conflict for both the public and private sectors. 

It is lessening the cost of business and government, and delivering better results to the 

American people. 

ADR has become so much more than just an “alternative” to litigation. Rather, it is 

accepted as an “appropriate” dispute resolution technique for an endless array of 

conflicts. It is the smart approach, it is accepted, and it has become part of our universe. 

Tomorrow will bring ever-expanding uses of appropriate dispute resolution. 

- 123 ­
APPENDIX A 

Definitions of Alternative Dispute Resolution Processes 

- 124 ­
Appendix A 

Definitions of Alternative Dispute Resolution Processes 

MEDIATION 

A process wherein a third party neutral (independent, impartial, and acceptable to all 

parties), assists the parties in reaching a mutually acceptable resolution and agreement. 

ARBITRATION – BINDING AND NON-BINDING 

An adjudicatory process that involves presenting a dispute to an impartial individual who 

then issues a decision, either binding or non-binding per prior agreement of the parties. 

FACILITATION 

A process in which a facilitator, who is substantively neutral and has no decision making 

authority, intervenes to help a group improve the way it identifies problems and makes 

decisions in order to increase the group’s effectiveness. 

SETTLEMENT CONFERENCES 

A process often used in court or administrative proceedings, court proceedings, EEOC 

hearings, and FLRA hearings, and increasingly in civil enforcement and regulatory 

disputes, and always conducted by a settlement judge. The settlement judge can employ 

any of the many alternative dispute resolution approaches in the settlement negotiation. 

Many settlement judges serve as mediators, working with the parties to find a mutually 

acceptable resolution to their dispute. Some settlement judges serve as evaluators, 

providing specific substantive and legal information regarding the strengths and/or 

weaknesses of the parties’ positions in the case should it go to a formal adjudication. 

PARTNERING 

A process which allows stakeholders with divergent views to manage conflict effectively 

and engage in a series of mutual consensus-building processes. 

CONFLICT COACHING 

In its simplest terms, a coach is a thinking partner, someone who can assist others in 

identifying and exploring options, support risk taking, and, if necessary, develop the 

skills necessary to move forward. 

- 125 ­
NEGOTIATED RULEMAKING and

CONSENSUS BUILDING/PUBLIC PARTICIPATION

ADR professionals bring together representatives of various “stakeholder” or interest 

groups and officials and managers from a federal agency in order to negotiate the text of 

a proposed rule. The ADR professional convenes a series of meetings among a wellbalanced group representing the regulated public, public interest groups, state and local 

governments, and any other stakeholders and, working with a representative of the 

agency, manages an ordered discussion of the responsibilities, rights, and interests of all 

of the represented organizations. 

OMBUDS 

Although there are several types of Ombuds, the workplace or organizational ombuds 

facilitates fair and equitable resolutions of concerns that arise within an entity. The 

essential characteristics of an ombuds are independence, impartiality in conducting 

inquiries and investigations, and confidentiality. 

OTHER PROCESSES 

• Dispute Panels: A process whereby a panel of more than one impartial 

individual (usually three members: a management official, a union official, and 

one member who is jointly selected by management and union) hears arguments, 

receives evidence, and submits a recommendation to the appropriate deciding 

official. 

• Early Neutral Evaluation: A process that provides to the parties an early, 

honest, and independent evaluation of the merits of a case (both potential outcome 

as well as reasonable settlement value) by an objective third party hired by mutual 

agreement of the parties. 

• Fact-Finding: A process wherein a neutral third party fact-finder studies issues 

in dispute and reports a finding of substantiated facts to the disputing parties. 

• Consultation: A process wherein a neutral third party explores the issues, 

positions, and interests of the parties in an effort to help diagnose the issues and 

assess the situation. It is a tool for framing and clarifying issues in dispute. 

• Team Building: Team building is a type of facilitation process in which a third 

party neutral assists a team or a group of individuals with interrelated roles and 

responsibilities. The team members operate within a set of norms and rules and 

define the goals and guidelines for a group to effectively achieve stated goals. 

- 126 ­
APPENDIX B 

Use of Alternative Dispute Resolution Processes Reported by Agencies 2005-06

- 127 ­
 Appendix B: 

Use of Alternative Dispute Resolution Processes Reported by Agencies 2

Mediation Arbitration 

(other than labor union grievances) 

Facilitation Settlement 

Judges 

Consensus Building/ Public Participation 

Partnering Conflict 

Coaching 

CABINET AGENCIES  Department of Agriculture 

x x x x x x 

 Department of  Commerce 

x x x x 

 Department of Defense:

 1. Department of the Air

 Force 

x x x x x x x 

2. Department of the Army x x x x x x 

3. Army Corps of

 Engineers 

x x x x

 4. Department of the Navy x x x x x x x 

5. Defense Commissary 

Agency 

x x x 

6. Defense Contract Audit 

Agency 

x 

7. Defense Contract 

 Management Agency 

x x x x 

8. Defense Finance and 

Accounting Service 

x x x 

9. Defense Information 

Systems Agency 

x x 

10. Defense Logistics 

Agency 

x x x x 

11. Department of Defense 

 Education Activity 

x x x 

- 128 ­
Mediation Arbitration 

(other than labor union grievances) 

Facilitation Settlement 

Judges 

Consensus Building/ Public Participation 

Partnering Conflict 

Coaching 

12. National GeospatialIntelligence Agency x 

13. National Guard Bureau x x x x x 

14. National Security 

Agency 

x x x x 

15. Uniformed Services 

University of the Health 

Sciences 

x 

16. Washington 

Headquarters Service 

x x 

 Department of Education x x x x x  Department of Energy x x x x x x  Department of Health and  Human Services 

1. Agency for Healthcare

 Research and Quality 

x x x 

2. Centers for Disease 

 Control and Prevention 

x x x x 

3. Centers for Medicare & 

 Medicaid Services 

x x x 

4. Departmental Appeals 

 Board 

x x x x 

5. Food and Drug 

Administration 

x x x x x x 

6. Health Resources & 

 Services Administration 

x 

7. National Institutes of 

Health 

x x x x x 

- 129 ­
Mediation Arbitration 

(other than labor union grievances) 

Facilitation Settlement 

Judges 

Consensus Building/ Public Participation 

Partnering Conflict 

Coaching 

8. Office of Equal 

Opportunity and Civil 

Rights 

x 

9. Office of Hearings x 

 Department of Homeland Security 

x x x x x 

1. Citizenship and 

Immigration Services 

x 

2. Civil Rights and Civil 

 Liberties 

x 

3. Federal Emergency

 Management Agency 

x x x x x 

4. Secret Service x x x 

5. Transportation Security 

 Administration 

x x x x x 

 Department of Housing  and Urban Development 

x x x x x 

 Department of the Interior 

x x x x x 

 Department of Justice

 1. Civil Division x x x 

2. Civil Rights Division x x 

3. Community Relations

 Service 

x x x x x 

- 130 ­
Mediation Arbitration 

(other than labor union grievances) 

Facilitation Settlement 

Judges 

Consensus Building/ Public Participation 

Partnering Conflict 

Coaching 

4. Environment and 

Natural Resources Division 

x x x 

 5. Executive Office for 

United States Attorneys 

x 

 6. United States Attorneys 

Offices 

x x x 

7. Federal Bureau of 

Investigation 

x x 

8. Federal Bureau of 

 Prisons 

x x x x x 

 9. Justice Management 

Division 

x 

10. Tax Division x x 

 Department of Labor x x Department of State x x  Department of Transportation 

x x x x x 

- 131 ­
Mediation Arbitration 

(other than labor union grievances) 

Facilitation Settlement 

Judges 

Consensus Building/ Public Participation 

Partnering Conflict 

Coaching 

 Department of Treasury 1. Alcohol and Tobacco, 

Tax and Trade Bureau 

x x 

2. Bureau of Engraving 

 and Printing 

x x x x x

 3. Bureau of the Public 

Debt 

x x x x

 4. Departmental Offices

 (Department Oversight 

Office) 

x x 

5. Financial Crimes 

 Enforcement Network 

x x x x x x 

 6. Financial Management

 Service 

x x x 

7. Internal Revenue 

Service 

x 

8. Internal Revenue

 Service Appeals 

x x x x x 

9. Office of the 

 Comptroller of the  Currency 

x x x 

10. Treasury Inspector 

General for Tax Administration 

x x 

11. United States Mint x x x 

- 132 ­
Mediation Arbitration 

(other than labor union grievances) 

Facilitation Settlement 

Judges 

Consensus Building/ Public Participation 

Partnering Conflict 

Coaching 

 Department of Veterans Affairs 

x x x x 

INDEPENDENT AGENCIES Commodity Futures Trading Commission 

x

 Consumer Product Safety  Commission 

x x x x x x 

Corporation for National and Community Service 

x x x 

 Environmental Protection Agency 

x x x x x 

 Equal Employment  Opportunity Commission 

x x x 

 Export-Import Bank of the United States 

x x 

Federal Communications  Commission 

x x x 

- 133 ­
Mediation Arbitration 

(other than labor union grievances) 

Facilitation Settlement 

Judges 

Consensus Building/ Public Participation 

Partnering Conflict 

Coaching 

Federal Deposit Insurance Corporation 

x x x x 

 Federal Election  Commission 

x 

Federal Energy  Regulatory Commission 

x x x x x 

 Federal Maritime Commission 

x x x x x x x 

Federal Mediation & Conciliation Service 

x x x 

Federal Reserve Board 

x 

 Federal Trade  Commission 

x x x x 

General Services Administration 

x x x x x x x 

 National Archives and  Records Administration 

x x 

- 134 ­
Mediation Arbitration 

(other than labor union grievances) 

Facilitation Settlement 

Judges 

Consensus Building/ Public Participation 

Partnering Conflict 

Coaching 

 National Labor Relations Board 

x x x x x 

National Mediation Board 

x x x 

 National Science Foundation 

x x 

Nuclear Regulatory Commission 

x x x x x x x 

Office of Personnel Management 

x x 

 Peace Corps x x Pension Benefit Guaranty Corporation 

x x x 

 Securities and Exchange  Commission 

x x x 

 Small Business  Administration 

x x 

Social Security Administration 

x x x 

- 135 ­
Mediation Arbitration 

(other than labor union grievances) 

Facilitation Settlement 

Judges 

Consensus Building/ Public Participation 

Partnering Conflict 

Coaching 

Tennessee Valley Authority 

x x x x x 

United States Agency for International  Development 

x x x x x x 

 United States Institute for  Environmental Conflict Resolution of the Morris K. Udall Foundation 

x x x x x 

United States Office of Government Ethics 

x x x 

United States Postal Service 

x x x 

- 136 ­
APPENDIX C 

Past and Current Leadership

of the

Interagency Alternative Dispute Resolution

Working Group Sections and Steering Committee

- 137 ­
Appendix C 

Current and Past Leadership of the 

Federal Interagency Alternative Dispute Resolution 

Working Group, Sections, and Steering Committee 

Background, Genesis and Authority 

Congress, by the Administrative Dispute Resolution Act (“ADRA”) of 1996, authorized the 

President to “establish an interagency committee to facilitate and encourage agency use” of 

alternative means of dispute resolution in the administrative process. 5 U.S.C. § 573(c) 

Pursuant to the statutory authority, the President (by Memorandum dated May 1, 1998, for the 

Heads of Executive Departments and Agencies) directed the United States Attorney General to 

convene an interagency “Alternative Dispute Resolution Working Group” which would serve as 

the interagency committee authorized by the ADRA. The President’s Memorandum provides 

that: 

● The Working Group consists of representatives of the heads of the Cabinet Departments 

and, as determined by the Attorney General, “other agencies with a significant interest in dispute 

resolution.” 

● The mission of the Working Group is to “facilitate, encourage, and provide coordination 

for agencies” in, among other things, the development of alternative dispute resolution (ADR) 

programs and the training of agency personnel in “when and how to use alternative means of 

dispute resolution.” 

● The Attorney General may designate a representative(s) to convene and facilitate 

meetings of “subgroups” of agencies to address “particular issues or subject areas, such as 

disputes involving personnel, procurement, and claims.” 

In accordance with the President’s directive, the Attorney General, at a meeting of senior agency 

officials held on September 14, 1998, officially convened the Interagency ADR Working Group. 

Those in attendance were advised that the Working Group would “devolve” into four subject 

matter Sections (Workplace, Contracts & Procurement, Civil Enforcement, and Claims Against 

the Government) and the Attorney General subsequently approved Chairs of the four Working 

Group Sections. 

At the Attorney General’s meeting of September 14, 1998, the attendees were advised that, in 

addition to the Sections, the Working Group would also “devolve” into a “forum” for discussing 

“best practices” in the field of ADR. The Interagency ADR Working Group Steering Committee 

has staffed the work of the Working Group and has served as the “forum” envisioned by the 

- 138 ­
Attorney General. From its creation, the Steering Committee’s membership has included the 

Chairs and leadership of the four Working Group Sections. 

Chairs of the Working Group Sections 

Civil Enforcement and Regulatory Section 

Richard L. Miles 

Director, Dispute Resolution Service and the Office of Administrative Litigation 

Federal Energy Regulatory Commission 

September 2002 – present 

 Robert Ward 

Senior Counsel for ADR and Dispute Resolution Specialist 

Environmental Protection Agency 

December 1998 – July 2002 

David C. Batson 

Senior ADR Liaison Specialist 

Environmental Protection Agency 

October – November 1998 

Claims Against the Government Section 

Office of Dispute Resolution 

U.S. Department of Justice 

October 2005 - present 

Jeffrey M. Senger 

Deputy Senior Counsel for Alternative Dispute Resolution 

Office of Dispute Resolution 

U.S. Department of Justice 

February 2002 – September 2005 

 Peter Steenland 

Senior Counsel for Alternative Dispute Resolution 

Office of Dispute Resolution 

U.S. Department of Justice 

November 1998 – January 2002 

Contracts and Procurement Section 

Anthony N. Palladino 

Associate Chief Counsel and 

Director, Office of Dispute Resolution for Acquisition 

Federal Aviation Administration 

- 139 ­
U.S. Department of Transportation 

January 2000 - present 

Brig. Gen. Frank J. Anderson, Jr. 

United States Air Force 

October 1998 – December 1999 

Workplace Section 

Cindy Mazur 

Alternative Dispute Resolution Director 

Federal Emergency Management Agency 

March 2004 - present 

 Andrew Colsky 

 ADR Attorney 

United States Postal Service 

May 2000 – February 2004 

 Martha McClellan 

Counsel 

Federal Deposit Insurance Corporation 

February 1999 – May 2000 

Mary Elcano (Co-Chair) 

 General Counsel 

United States Postal Service 

Erica Cooper (Co-Chair) 

Deputy General Counsel 

Federal Deposit Insurance Corporation 

October 1998 – February 1999 

Chairs of the Steering Committee 

Jerry W. Jones, Jr. 

Director, Alternative Dispute Resolution Program 

Office of Departmental Equal Employment Opportunity 

U.S. Department of Housing and Urban Development 

November 2006 - present 

Gregory A. Burke 

Ombuds 

Office of Resolution Management 

U.S. Department of Veterans Affairs 

May – October 2006 

- 140 ­
Anthony N. Palladino 

Associate Chief Counsel and 

Director, Office of Dispute Resolution for Acquisition 

Federal Aviation Administration 

U.S. Department of Transportation 

April 2005 - April 2006 

Richard L. Miles 

Director, Dispute Resolution Service and the Office of Administrative Litigation 

Federal Energy Regulatory Commission 

October 2004 – March 2005 

John A. Dietrich 

Alternative Dispute Resolution Counsel and 

Deputy Dispute Resolution Specialist 

U.S. Department of the Navy 

April - September 2004 

D. Leah Meltzer 

Deputy Dispute Resolution Specialist 

Securities & Exchange Commission 

October 2003 - March 2004 

Sarah Rudgers 

Director, Dispute Resolution Program 

National Archives and Records Administration 

April – September 2003 

Andrew Colsky 

ADR Attorney 

United States Postal Service 

August 2002 – March 2003 

Christine M. Kopocis 

Department of Defense ADR Liaison 

February 2002 - July 2002 

Eileen B. Hoffman 

Commissioner, International and Dispute Resolution Services 

Federal Mediation and Conciliation Service 

July 2001 – January 2002 

Hon. Richard C. Walters 

Office of Dispute Resolution for Acquisition 

Federal Aviation Administration 

U.S. Department of Transportation 

- 141 ­
January 2001 to June 2001 

(now Board Judge, United States Civilian Board of Contract Appeals) 

Jody Lee 

Dispute Resolution Specialist 

Office for Civil Rights 

U.S. Department of State 

July 2000 – December 2000 

David C. Batson 

Senior ADR Specialist 

Environmental Protection Agency 

March – June 2000 

Peter Steenland 

Senior Counsel for Alternative Dispute Resolution 

Office of Dispute Resolution 

U.S. Department of Justice 

Charter Chair 

Vice-Chairs of the Steering Committee 

(Note: The Steering Committee created the position of Vice-Chair, and incorporated it into the 

Steering Committee Governance Document, in July 2006) 

Dale Gentry 

Director, Conflict Prevention and Resolution Center 

Department of Agriculture 

November 2006 - present 

- 142 ­
APPENDIX D

Current Membership

of the

Interagency Alternative Dispute Resolution

Working Group Steering Committee

- 143 ­
Appendix D 

Federal Interagency Alternative Dispute Resolution 

Working Group Steering Committee Membership 

April 2007 

Executive Office of the President/Cabinet Representatives 

Office of Management and Budget/Executive Office of the President: 

Robert A. Burton 

Associate Administrator 

Office of Federal Procurement Policy 

Department of Agriculture: 

Dale Gentry 

Director, Conflict Prevention and Resolution Center 

Department of Commerce: 

Brian D. DiGiacomo

Chief, Employment and Labor Law Division 

Department of Defense: 

Christine M. Kopocis 

Department of Defense ADR Liaison 

Department of Defense/Department of the Air Force: 

Kenneth Lechter 

Associate General Counsel (Dispute Resolution) 

Department of Defense/Department of the Army: 

Dennis Dean Kirk 

Special Assistant to the General Counsel 

Department of Defense/Department of the Navy: 

John A. Dietrich 

Assistant General Counsel (ADR) 

Office of the General Counsel 

- 144 ­
Department of Education: 

Kathryn A. Ellis 

Senior Counsel to the Deputy General Counsel for Program Service, and 

Agency Dispute Resolution Specialist 

Office of the General Counsel 

Department of Energy: 

Kathleen M. Binder 

Director, Office of Dispute Resolution 

Office of the General Counsel 

Department of Health and Human Services: 

Neil H. Kaufman 

Chief, Alternative Dispute Resolution Division 

Departmental Appeals Board 

Department of Homeland Security/Federal Emergency Management Agency: 

Cindy Mazur 

Alternative Dispute Resolution Director 

Department of Homeland Security/Transportation Security Administration: 

Deborah A. Katz 

Model Workplace Program Executive 

Department of Housing and Urban Development: 

Jerry W. Jones, Jr. 

Director, Alternative Dispute Resolution Program

Office of Departmental Equal Employment Opportunity 

Department of the Interior: 

Elena Gonzalez 

Director, Office of Collaborative Action and Dispute Resolution 

Department of Justice: 

Linda A. Cinciotta 

Director, Office of Dispute Resolution 

Senior Counsel for Alternative Dispute Resolution 

Department of Labor: 

Annabelle T. Lockhart 

Director, Civil Rights Center 

Department of State: 

Jacqueline A. Canton 

Chief, ADR and EEO Counseling Section 

Chief, Complaints Management Division 

- 145 ­
Department of the Treasury: 

[awaiting designation of agency representative) 

Department of Transportation: 

Judith S. Kaleta 

Senior Counsel for Dispute Resolution and 

Dispute Resolution Specialist 

Department of Veterans Affairs: 

Rafael A. Torres 

Deputy Assistant Secretary for Resolution Management 

Deputy Dispute Resolution Specialist for Workplace ADR 

Independent Agency Representatives 

Environmental Protection Agency: 

David C. Batson 

Senior ADR Specialist 

Equal Employment Opportunity Commission: 

Douglas A. Gallegos 

Attorney Advisor 

Federal Deposit Insurance Corporation: 

Marianne Robb 

Counsel, Alternative Dispute Resolution Team 

FDIC Legal Division 

Federal Energy Regulatory Commission: 

Richard L. Miles 

Director, Dispute Resolution Service and the Office of Administrative Litigation 

Federal Mediation and Conciliation Service: 

Kimberly Y. Beg 

Director, FMCS Institute 

General Services Administration: 

Brenda F. Ward 

Senior Assistant General Counsel 

Office of the General Counsel 

National Archives & Records Administration: 

Gary M. Stern 

General Counsel 

- 146 ­
National Mediation Board: 

Rachel Barbour 

ADR Program Specialist 

Office of Personnel Management: 

Ana A. Mazzi 

Deputy Associate Director for Workforce Relations and Accountability Policy 

Securities and Exchange Commission: 

D. Leah Meltzer 

Deputy Dispute Resolution Specialist 

U.S. Institute for Environmental Conflict Resolution: 

Kirk Emerson 

Director 

U.S. Postal Service: 

Patricia Morgese Richter 

Manager, National EEO Compliance and Appeals Program 

Additional Representatives Currently Serving on the Steering Committe 

Who Are Initial/Grandfathered Members of the Steering Committee 

Howard Gadlin 

Ombudsman 

Department of Health and Human Services/National Institutes of Health 

(grandfathered at National Institutes of Health, Department of Health and Human Services) 

Eileen Hoffman 

Commissioner, International and Dispute Resolution Services 

Federal Mediation and Conciliation Service 

(grandfathered at Federal Mediation and Conciliation Service) 

Fern Feil Kaufman 

Counsel for Dispute Resolution 

Center for Alternative Dispute Resolution 

Department of Transportation 

(grandfathered at Federal Labor Relations Authority) 

Anthony N. Palladino 

Associate Chief Counsel and Director 

Office of Dispute Resolution for Acquisition 

Department of Transportation/Federal Aviation Administration: 

(grandfathered at Federal Aviation Administration/Department of Transportation) 

- 147 ­
Hon. Richard C. Walters 

Board Judge 

United States Civilian Board of Contract Appeals 

(administratively organized in the General Services Administration) 

(grandfathered at Department of Transportation/Federal Aviation Administration) 

Recorder/Archivist 

Terry Fenton 

Conflict Prevention and Resolution Center 

Environmental Protection Agency 

- 148 ­
APPENDIX E

Federal Agencies Which Provided the Information Used in This Report 

- 149 ­
Appendix E 

Federal Agencies Which Provided Information Used in This Report 

Cabinet Agencies 

Department of Agriculture 

Department of Commerce 

Department of Defense 

1. Department of the Air Force 

2. Department of the Army 

3. Army Corps of Engineers 

4. Department of the Navy 

5. Defense Commissary Agency 

6. Defense Contract Audit Agency 

7. Defense Contract Management Agency 

8. Defense Finance and Accounting Service 

9. Defense Information Systems Agency 

10. Defense Logistics Agency 

11. Department of Defense Education Activity 

12. National Geospatial-Intelligence Agency 

13. National Guard Bureau (Air Force and Army) 

14. National Security Agency 

15. Uniformed Services University of the Health Sciences 

16. Washington Headquarters Service 

Department of Education 

Department of Energy 

Department of Health and Human Services 

- 150 ­
1. Agency for Healthcare Research and Quality 

2. Centers for Disease Control and Prevention 

3. Centers for Medicare & Medicaid Services 

4. Departmental Appeals Board 

5. Food and Drug Administration 

6. Health Resources & Services Administration 

7. National Institutes of Health 

8. Office of Equal Opportunity and Civil Rights 

9. Office of Hearings 

Department of Homeland Security 

1. Civil Rights and Civil Liberties 

2. Citizenship and Immigration Services 

3. Federal Emergency Management Agency 

4. Transportation Security Administration 

5. Secret Service 

Department of Housing and Urban Development 

Department of the Interior 

Department of Justice

 1. Civil Division 

2. Civil Rights Division 

3. Community Relations Service 

4. Environment and Natural Resources Division 

5. Executive Office for United States Attorneys, and United States Attorneys’ 

Offices 

6. Federal Bureau of Investigation 

7. Federal Bureau of Prisons 

8. Justice Management Division, Equal Employment Opportunity Staff 

9. Tax Division 

- 151 ­
Department of Labor, Office of the Administrative Law Judges 

Department of State 

Department of Transportation 

1. Federal Aviation Administration 

2. Federal Highway Administration 

3. Federal Motor Carrier Safety Administration 

4. Federal Transit Administration 

5. Office of Inspector General 

Department of the Treasury 

1. The Alcohol & Tobacco Tax & Trade Bureau 

2. Bureau of Engraving and Printing 

3. Bureau of the Public Debt 

4. Departmental Offices (Departmental Oversight Office) 

5. Financial Crimes Enforcement Network 

6. Financial Management Service 

7. Internal Revenue Service 

8. Internal Revenue Service Appeals 

9. Office of the Comptroller of the Currency 

10. Treasury Inspector General for Tax Administration 

11. United States Mint 

Department of Veterans Affairs 

Independent Agencies 

Commodity Futures Trading Commission 

Consumer Product Safety Commission 

Corporation for National and Community Service 

Environmental Protection Agency 

Equal Employment Opportunity Commission 

Export-Import Bank of the United States 

- 152 ­
Federal Communications Commission 

Federal Deposit Insurance Corporation 

Federal Election Commission 

Federal Energy Regulatory Commission 

Federal Maritime Commission 

Federal Mediation & Conciliation Service 

Federal Reserve Board 

Federal Trade Commission 

General Services Administration 

National Archives and Records Administration 

National Labor Relations Board 

National Mediation Board 

National Science Foundation 

Nuclear Regulatory Commission 

Office of Personnel Management 

Peace Corps 

Pension Benefit Guaranty Corporation 

Securities and Exchange Commission 

Small Business Administration 

Social Security Administration 

Tennessee Valley Authority 

U.S. Agency for International Development 

U.S. Institute for Environmental Conflict Resolution 

U.S. Office of Government Ethics 

United States Postal Service 

- 153 ­
APPENDIX F

Office of Management and Budget

Office of Federal Procurement Policy

Procurement ADR Awards Program

- 154 ­
Appendix F 

Office of Management and Budget 

Office of Federal Procurement Policy 

Procurement ADR Awards Program 

In 2002, the Contracts and Procurement Section of the Interagency ADR Working Group worked 

with the Office of Federal Procurement Policy (OFPP) and the Procurement Executives Council 

to develop and implement an award program that would recognize federal agencies and private 

sector companies that have used ADR effectively to resolve government contracts disputes. The 

OFPP has been presenting awards on an annual basis every year since 2002. The awards are 

made on a competitive basis after nominations are judged by a disinterested panel of public and 

private sector ADR experts. 

The award program serves the important functions of recognizing agencies and contractors who 

have distinguished themselves in their effective use of ADR for the avoidance and resolution of 

federal procurement disputes and of encouraging other agencies and companies to utilize ADR to 

the maximum extent practicable to resolve public contracting disputes. 

The following are highlights of programs and accomplishments of the agency recipients of the 

OFPP Procurement ADR Award. 

1. Department of Defense 

a. Air Force 

The Air Force ADR Program is now heading into its thirteenth year. In 1998, the Air Force 

began executing ADR agreements with its top 25 contractors, and in 2000 it implemented the 

“ADR First” policy in place to this day. As a direct result, large disputes that took an average of 

five years to resolve through litigation are now being resolved by the use of ADR in an average 

of just over 12 months. In the past six years, the program has won six national awards for 

excellence, and has grown to encompass the highly successful use of ADR to resolve workplace 

disputes in one tenth the time and at one tenth of the cost of traditional litigation. 

The challenge is to keep the Air Force ADR Program’s core acquisition and workplace ADR 

programs strong while encouraging change and innovation in Air Force business processes that 

will reduce the potential for disputes to arise in the first place. The concept of an Integrated 

Conflict Management System (ICMS) is critical in balancing these elements. The Air Force 

ICMS is composed of, first, a robust ADR system to resolve disputes as efficiently as possible, 

and second, a conflict management system that works to prevent disputes from arising in the first 

place. Key to making such a conflict management system work is training in negotiation and 

communication skills. The Air Force ADR program office is currently conducting large scale 

negotiation training for supervisors of civilian personnel, and has spearheaded the establishment 

- 155 ­
of the Air Force Negotiation Center of Excellence, which will ensure that effective negotiations 

becomes a core competency of the Air Force across all functional areas. 

Overview of ADR in Air Force Contract Disputes 

Of the 644 appeals pending at the ASBCA in FY 2005, the Air Force contributed only 80—or 

12.4 percent. The Army Corps of Engineers had 183 appeals, or 28.4 percent, the Navy had 125 

or 19.4 percent, DLA/DCMA had 107 or 16.6 percent, and the Army had 105 or 16.3 percent. 

However, there was a slight uptick in the AF’s docketed appeals in 2005 from the 2003 and 2004 

levels. 

Prior to institution of the Air Force “ADR First” policy, less than 10 percent of Air Force 

contract disputes were resolved by ADR. Afterwards, over 28 percent of disputes, on average, 

are resolved by ADR. This number is misleadingly low, however, since it does not include 

disputes that settled after the ADR process had begun (those are included in a “negotiated 

settlement” category). From July 2005 on, disputes that settle after an ADR agreement is entered 

into will be shown as resolved through ADR. In addition, this statistic does not include ADR 

resolutions reached before an appeal is docketed. These early ADR resolutions are becoming a 

significant percentage of the total. 

One key metric for any ADR program is cycle time—that is, how long it takes to resolve 

disputes. That is because prolonged disputes are costly and disruptive to ongoing programs 

regardless of the ultimate outcome. For FYs 2000 through 2005, average cycle times for Air 

Force contract disputes from docketing to resolution were as follows: 

• Trial and decision 37 months 

• Negotiated settlement 19.8 months 

• ADR 17.9 months 

The most important statistic, though, is that from the time the parties agreed to use ADR until 

the dispute was resolved, an average of only 8.2 months elapsed. 

In recent years, the Air Force has emphasized early resolution of contract disputes. We want to 

resolve disputes prior to the issuance of a contracting officer’s final decision, and preferably 

prior to the submission of a formal Contract Disputes Act claim. Therefore, the Air Force FAR 

Supplement (AFFARS) instructs contracting officers to submit proposed final decisions to the 

Directorate of Contract Dispute Resolution at Wright Patterson Air Force Base for review prior 

to issuance. AFFARS 5333.291. Final decisions in excess of $500,000 are also to be submitted 

to the Deputy General Counsel for Dispute Resolution for review. Id. A primary purpose of the 

review in both instances is to ascertain whether ADR should be used to resolve the dispute 

before it enters the formal disputes process. Air Force policy is to use ADR techniques once 

unassisted negotiations have reached an impasse. AFFARS 5333.090. 

b. Army Corps of Engineers 

The U.S. Army Corps of Engineers has been a pioneer in the use of ADR and was the first 

federal agency to establish an ADR program in acquisition. The Corps began this initiative in 

- 156 ­
1984, six years before the enactment of the Administrative Dispute Resolution Act of 1990. This 

initiative was the result of the Corps’ recognition of the need for an alternative means to 

litigation for the resolution of contract disputes, because the Corps was experiencing a dramatic 

increase in its litigation case load and the concomitant transactional costs associated with this 

litigation. 

The Corps’ ADR program is managed by the Engineer Chief Trial Attorney and implements a 

three-prong approach designed to alter the prevailing mindset and to provide the means to use 

alternative means of dispute resolution. This program consists of the training of managers and 

attorneys, the publication of instruction manuals, and technical support in designing ADR 

processes and drafting ADR agreements. 

Engineer Trial Attorneys are encouraged to evaluate claims and appeals for resolution through 

ADR procedures constantly throughout the process from submission of a claim, through issuance 

of a final decision by the Contracting Officer, and through proceedings before the Armed 

Services Board of Contract Appeals. 

The Corps has employed the full range of the continuum of ADR methods, but the use of the 

Settlement Judge in a mediated format has been employed over 80 percent of the time. In 

addition, ADR has been employed at all phases in the claims and appeals process. The Corps 

recently has used ADR at the “pre-appeal” stage and successfully resolved claims without 

incurring the significant transactional costs associated with litigation. Similarly, use of ADR in 

the early, pre-discovery, stage of proceedings has led to successful early resolution of claims and 

appeals. 

 In the last ten fiscal years, the Corps has processed 248 claims and appeals using ADR 

procedures, and has settled 235 of those matters, for a 94.7% settlement rate. Through use of 

ADR, the Corps has realized savings of more than $260 million, paying only $198 million, 

including interest, on over $460 million in claims not including interest. 

In the past three fiscal years, the Corps has resolved 117 claims and appeals using ADR 

techniques, and the cost savings have been consistent with the historical data. Also during that 

time, the Corps has resolved 156 claims and appeals without resort to third party neutral assisted 

ADR. In this venue, the Corps has realized savings of over $76 million, paying only $37 

million, including interest, on over $113 million in claims not including interest. 

Over the past three fiscal years, the Corps has litigated 77 claims and appeals to decision before 

the ASBCA and the United States Court of Federal Claims. In those cases, the claims and 

appeals aggregated more than $81 million, and the tribunals returned findings of liability of only 

$3 million. The Corps views these results as validating the evaluations by trial attorneys as to 

the appropriate venue for resolution of claims and appeals. 

In an era of ever-tightening budgets, ADR represents an invaluable tool to the Agency in 

resolving claims and disputes in a time-efficient and economical manner. The Corps continues 

to recognize when resolution can be obtained through means other than litigation, the associated 

cost savings represent an important step in allocation of resources. 

- 157 ­
-

0

0

0 0

0

0

c. Department of the Navy 

The Department of the Navy embraces the use of alternatives to litigation in procurement 

disputes. The formal policy of the Navy is: 

Using ADR to the Maximum Extent. ADR techniques shall be used as an 

alternative to litigation or formal administrative procedures to the maximum 

extent practicable. Use of these techniques may resolve the entire issue in 

controversy or a portion of the issue in controversy. The goal is to resolve 

disputes and conflicts at the earliest stage feasible, by the fastest and least 

expensive method possible, and at the lowest possible organizational level prior 

to litigation. Every issue in controversy, regardless of the subject matter, is a 

potential candidate for ADR. 

SECNAV Instruction 5800.13A, "Alternative Dispute Resolution (ADR) Policy and Mission of 

the DON ADR Program Office," 22 December 2005, at ¶7.a. 

Protests, Claims and Appeals 

The table below summarizes procurement ADR activity for several past fiscal years for claims, 

appeals and protests. 

FY99 FY00 FY01 FY02 FY03 FY04 FY05 Totals 

Early Neutral Evaluation 

Facilitation 

Mediation 

Non-binding Arbitration 

Settlement Judge 

Summary Trial 

Other 

 Resolutions 

 Resolution Rate 

7 1 8 

2 0 2 

12 6 6 4 4 4 2 38 

2 2 0 4 

1 1 3 1 6 

10 4 5 2 7 4 32 

7 3 3 2 1 16

22 14 18 13 12 13 6 98

96% 93% 82% 87% 100% 100% 100% 92% 

(Table 1) 

While recognizing that the language of FAR Part 33 could support counting cases that settle 

without the services of a neutral, the DON generally only tracks those cases that use a neutral of 

some sort. The trend in numbers is downward, but at the same time, it should be noted that 

across the government, appeals at the Boards of Contract Appeals are down. 

The DON ADR program estimates that 

ADR achieves significant process savings. 

As shown in table 2, for 35 cases analyzed, 

the program estimated about $1.4 million in 

direct expenses that were avoided by using 

the ADR processes, and another $1.7 

million saved if the trial schedule had 

proceeded as expected. 

Quantified Costs Avoided FY01 04 

Testimony Expenses Avoided 

Travel Expenses Avoided 

Other Expenses Avoided 

Less: ADR Unique Costs Incurred 

Total Costs Avoided 

$987,138 

139,500 

327,100 

(30,131) 

$1,423,607 

Estimated Interest Avoided $1,720,366 

Total Quantified Expenses Avoided $3,143,973 

- 158 ­
 (Table 2) 

The figures in table 2 do not include costs that cannot be monetarily quantified. For example, 

writing a typical ASBCA post-hearing brief can be an expensive effort that produces hundreds of 

pages, and involves the input of clients, witnesses, experts and attorneys. But quantifying “costs 

avoided” for briefs that were never written, about trials that never occurred is not possible. 

Likewise, the costs of responding to a discovery request cannot be reliably estimated without 

knowing the scope of the request. So, the program 

simply tabulates the reported documents that the 

DON did not have to produce, and recognizes that 

each represents a significant but non-quantifiable 

cost avoided. See Table 3. 

Collaborative Methods 

The DON encourages the use of collaborative 

efforts in resolving and preventing disputes. Examples include (Table 3) its renewed 

effort in construction partnering, and recent training provided to FAR 16.505 

Task and Delivery Order Ombudsman. 

Non-Quantified Costs Avoided: 

Documents not Written 

Pleadings 

Discovery Requests 

Motions 

Other Documents 

Briefs 

Total 

6 

12 

10 

4 

26 

58 

Construction & Facilities Support Partnering 

The Naval Facilities Engineering Command (NAFVAC) issued a revised partnering policy in 

December, 2004. The policy requires the use of partnering for all construction and Facilities 

Support Contracts, and defines partnering as the result of “mindset + commitment + process.” 

The mindset element is described, in part, as: 

... working together with the other partners to remove unnecessary roadblocks 

that stifle success. To a great degree, this is accomplished through effective 

communication, proactive contract administration, mutual trust, honesty, 

integrity, cooperation, open-mindedness, and the courage to do the right thing. 

The DON is committed to ADR for all issues in controversy, including procurement matters. 

ADR clearly saves money and other resources. It promotes collaboration and the best outcome 

for both the DON and its contractors. 

d. Armed Services Board of Contract Appeals 

The Armed Services Board of Contract Appeals (ASBCA or Board) is an independent tribunal 

that for over fifty years has been responsible for resolving contract disputes across the entire 

spectrum of federal government construction, supply or service contracting activity, from the 

acquisition of major weapons systems or complex construction projects to routine items of 

supply or service. The ASBCA is currently responsible for resolving contract appeals for all 

elements of the Department of Defense and designated civilian agencies, including the National 

Aeronautics and Space Administration, Agency for International Development and Department 

of Health & Human Services. 

- 159 ­
From 1995 forward, the Board has aggressively advanced the use of ADR, and willingly 

experimented with various techniques, albeit with due regard to the voluntary nature of ADR. In 

the process, the ASBCA has quietly refocused its dispute resolution processes. Consistent with 

the mandate of the Contract Disputes Act to “provide to the fullest extent practicable, informal, 

expeditious, and inexpensive resolution of disputes," the Board has placed ADR on a par with its 

other traditional litigation-type procedures, while urging that it be the first choice of the parties 

for resolving their dispute. 

The initial focus of the ASBCA’s ADR efforts was its own docket. In recent years, the Board 

has been approached with requests to provide its ADR services in other, “off-docket,” matters. 

One category of requests involves pre-appeal disputes where the parties seek mediation. This 

category often carries a greater risk to a successful outcome because the record is typically less 

developed. Nevertheless, the ASBCA is willing to undertake the higher risk, if it can be assured 

of the parties’ good faith commitment to trying to make the process work, and has done so with 

success. 

Another source of off-docket ADR matters is a request from organizations not subject to the 

Board’s Contract Disputes Act jurisdiction. This category includes: requests under the 

Interagency Neutral-Sharing Arrangement, discussed infra; requests by the Department of 

Justice and private parties for mediation assistance in contract matters pending in the United 

States Court of Federal Claims or, in one instance, a civil fraud matter peripheral to a contract 

dispute; and a request by a state and local governmental entity for mediation services in 

connection with Boston’s “Big Dig.” 

The Board’s Notice describes three ADR techniques that are regularly used with success at the 

ASBCA: (1) summary trial with binding decision; (2) settlement judge; and (3) minitrial. The 

first is a binding procedure, while the second and third are non-binding techniques. The great 

majority of ADR matters have been resolved through either a summary trial with binding 

decision or a straightforward mediation, i.e., the settlement judge model. However, with the 

assistance of the Board, the parties have crafted a wide variety of agreements. 

Over the last few years the Board has conducted a number of “Med-Arb” proceedings. This 

method combines the elements of non-binding and binding ADR. Typically, the process begins 

with a full mediation. The parties agree that if the mediation is not successful, it will be 

followed—after a cooling-off period—by a summary trial with binding decision. A further 

variation on the “Med-Arb” method has been dubbed “Last Chance Arbitration.” This technique 

is built around a summary trial proceeding. Under another variation of a non-binding ADR that 

borrows from the “Med-Arb” approach, the parties agree that they will be bound by the neutral’s 

decision of a narrow, discrete issue that has become an obstacle to achieving a full settlement 

during the mediation. 

To date the Board has received requests for its ADR services in over 1,200 matters. The vast 

majority of the matters for which ADR was requested have been successfully resolved. The 

scope of ADR activity is indicated in the table below. 

- 160 ­
A GUIDE TO ADR ACTIVITY AT THE ASBCA 

Year Appeals Binding 

ADR 

Non-Binding 

ADR 

Success 

Rate** 

FY87-94 187 83 104 93% 

FY 95 61 13 48 92% 

FY 96 53 31 22 100% 

FY 97 

FY 98 

FY 99 

FY 00 

FY 01 

FY 02 

FY 03 

FY 04 

FY 05 

TOTALS 

68 (4)* 

116 (10) 

123 (11) 

76 (4) 

165 (7) 

136 (13) 

86 (11) 

60 (20) 

140 (55) 

1271 

18 

41 

49 

35 

45 

63 

16 

11 

20 

425 

50 

75 

74 

41 

120 

73 

70 

49 

120 

846 

100% 

99% 

99% 

98% 

97% 

95% 

97% 

94% 

99% 

97% 

______________________________________________________ * Includes off-docket matters in parentheses ** Percentage of Non-Binding ADRs 

Binding ADRs are, by their nature, always successful. They resolve the issue presented finally 

and in less time than would be the case if standard dispute resolution procedures were followed. 

Non-Binding ADR proceedings, on the other hand, leave the ultimate resolution of the matter to 

the parties. The high success rate reported in non-binding ADR proceedings underscores the 

utility of this method of dispute resolution. It also attests not only to the commitment of the 

parties, but to the skill of the neutral. 

ADR success stories abound. The Air Force has reported on two major mediations that received 

considerable publicity. The first involved $785 million in claims by the Boeing Company for the 

design, development, integration, test and production of the AC-130U Gunship aircraft pending 

at the United States Court of Federal Claims. The second involved claims of $200 million by 

Northrop Grumman in connection with the “Joint Surveillance Target Attack Radar System” (JSTARS) pending at the ASBCA. Both were successfully resolved with the assistance of a Board 

judge. 

For every high visibility ADR, there have been dozens of other factually complex, multi-issue, 

high dollar cases resolved with the assistance of ASBCA judges. Moreover, it is not just the 

high-dollar cases that count. The ADRs that have been presented to the Board cover the full 

spectrum of issues that can arise in the performance of government construction, supply and 

service settings. Examples include matters involving construction of military housing and 

hospitals, cleaning of mess halls, ship maintenance and readiness, aircraft maintenance, building 

electrical maintenance, asbestos and lead paint abatement, painting contracts, installation of 

natural gas lines, construction of a pier, maintenance dredging, ventilation system upgrades, a 

- 161 ­
cable TV franchise agreement, installation of computer systems and supply of military weapons 

and weapon systems. 

Apart from the individual success stories, the Board’s ADR program has had a salutary overall 

impact on the Board’s docket. The ADR program has led to a more timely resolution of appeals, 

with a corresponding reduction in the costs of litigation. ADR has materially contributed to the 

Board’s ability to reduce its overall docket. In response to the mandate of the Contract Disputes 

Act to provide informal, expeditious, and inexpensive resolution of disputes to the maximum 

extent practicable, the ASBCA has developed a highly successful ADR program. The Board has 

been at the forefront in promoting the ADR movement in the government contracting 

community. 

e. Defense Logistics Agency 

DLA’s ADR policy is to use ADR to resolve all acquisition disputes when unassisted 

negotiations are not successful. Litigation requires approval at a level above the contracting 

officer, and should be coordinated with the activity ADR Specialist. The DLA acquisition ADR 

program covers both pre and post award disputes. It has an impressive success rate; in FY 2005, 

87% of matters taken to ADR were either entirely or partially resolved through ADR. 

Significant dollar savings have resulted, an estimated $1.4 million for FY 2005. DLA won the 

OFPP Alternative Dispute Resolution Award for Acquisition (2004). 

ADR is integrated into the positions of all lawyers at DLA. The DLA General Counsel is the 

Dispute Resolution Specialist. The DLA Associate General Counsel, Dispute Resolution, serves 

as the overall ADR Program Manager. The DLA senior acquisition counsel is in charge of the 

acquisition component of the ADR program. Each Chief Counsel at DLA field activities is 

responsible for the ADR program at their locations, and each designates an ADR specialist in 

their office. All these individuals are rated, either directly or indirectly, on ADR and/or dispute 

resolution. ADR training is mandatory for all DLA lawyers; refresher training is mandatory for 

acquisition lawyers. 

One of the unique features of DLA’s acquisition ADR program is use of in-house neutrals to 

resolve acquisition disputes. (Many agencies use in-house neutrals to resolve personnel disputes, 

but this is rare for acquisition). These neutrals, who serve in addition to performing their 

regularly assigned duties, must have expertise in acquisition as well as ADR. They consider 

themselves truly neutral since their job is to uphold the integrity of the ADR program. 

Contractors certainly do not have to use DLA in-house neutrals, but many do. Using an in-house 

neutral can be easy and quick to set up, and can appear less threatening or complicated if a party 

is hesitant about ADR. 

DLA uses ADR frequently to resolve pre-award disputes. GAO’s Outcome Prediction ADR (or 

any alternate ADR) is specifically identified as an agency “best practice” for GAO protests. 

Getting GAO’s predicted outcome lets DLA proceed with confidence if GAO supports DLA’s 

position, or take corrective action quickly and move forward with the acquisition if not. DLA 

protests handled through ADR at GAO are resolved in half the time they would otherwise have 

been. DLA has also been successful in resolving GAO protests by using its in-house neutrals to 

- 162 ­
mediate the dispute before the agency report is filed. Telephone facilitations have been 

surprisingly effective, which is particularly helpful given the short time-frame for filing the 

agency report. 

DLA has several policies to try to integrate ADR into the contract dispute arena. A contract 

clause addressing ADR is required for all acquisitions; it can be tailored to the acquisition or the 

interests of the parties. A DLA policy stresses that ADR should be addressed in all post-award 

orientations, to set the stage for cooperative problem solving. Contracting Officer’s final 

decisions require a statement about ADR options as well as appeal rights to the Board or Court. 

DLA also encourages the use of ADR in “non-traditional” acquisition disputes arenas. DLA has 

offered ADR to SBA to resolve disputes concerning small business and bundling issues, and has 

suggested ADR in response to Congressional inquiries on contract issues. 

DLA uses an in-house database to help measure the success of the acquisition ADR program. 

Any ADR attempt is entered in the database, which captures data such as the type of ADR, the 

result, duration of the dispute, days saved, and costs saved/avoided. Acquisition ADR statistics 

are reported annually to senior officials. The statistics reported earlier come from this data base. 

The agency also gets feedback from contractors who participated in agency ADR proceedings; 

several have praised DLA for their ADR experience. 

DLA supports constructive problem solving and fostering positive relationships with its 

contractors. The ADR program advances these objectives while reducing agency costs. The 

program has been in place for many years, maturing steadily with proven results. More 

information is available on DLA’s ADR Web site, http://www.dla.mil/adr. 

2. Department of Transportation-- Federal Aviation Administration 

The FAA’s Office of Dispute Resolution for Acquisition ("ODRA") provides the Agency and its 

contractors with a streamlined dispute resolution process that places heavy emphasis on the use 

of ADR techniques. The ODRA’s Procedural Rules establish ADR as the primary dispute 

resolution method to be employed by FAA for procurement disputes. Pursuant to the Rules, 

whenever a protest or contract dispute is filed with the ODRA, an ODRA Dispute Resolution 

Officer ("DRO") is immediately designated to serve as a potential neutral in order to explore 

ADR options with the parties. The parties also may opt to use Board of Contract Appeals judges 

in lieu of DROs to serve as ADR neutrals or may employ third party compensated neutrals for 

ADR proceedings. In a related action, the FAA's Acquisition Executive executed an ADR Pledge 

to express the FAA's top-level commitment to early expeditious resolution of procurement 

controversies by ADR. 

Since its inception, the ODRA has managed more than 460 cases, including bid protests, contract 

disputes, pre-disputes and other procurement-related disputes. Of these, ADR settlements were 

reached in 65% of all contract disputes and 90% of all bid protests filed with the ODRA. The 

aggressive use of ADR techniques by the ODRA is partly responsible for the comparatively short 

resolution timeframes achieved by the ODRA. Bid protests are resolved through ADR in an 

average of 24 calendar days, while contract disputes have been resolved by ADR in an average 

of 67 calendar days. 

- 163 ­
The FAA Administrator also has delegated authority to the ODRA to provide dispute avoidance 

and early resolution services in matters that have not yet developed into formal disputes. To date, 

the ODRA has provided “pre-dispute services in a total of 79 cases. Of these, only 3 cases have 

evolved into formal litigation. Finally, through an Interagency Agreement, the ODRA also 

provides adjudicative and dispute resolution services to the Transportation Security 

Administration (“TSA”) of the Department of Homeland Security. The ODRA has provided 

dispute resolution services in a total of 24 cases. ADR resolutions have been achieved in 70 % of 

the TSA cases. The ODRA also is responsible for adjudicating contests arising from OMB 

Circular A-76 competitions. The ODRA A-76 Contest Rules also call for use of ADR. To date 

the ODRA has been involved in 4 contests and has resolved 2 through the use of ADR. 

3. General Services Administration Board of Contract Appeals 

The General Services Administration Board of Contract Appeals (the Board or GSBCA) has 

been assisting federal government agencies and their contractors in resolving disputes through 

alternative dispute resolution (ADR) for more than a decade. The Board recently was merged 

along with other boards of civilian agencies into a new Civilian Board of Contract Appeals. The 

Board's experience in deciding bid protests quickly and efficiently has made its judges attentive 

to the need for prompt, fair resolution of all disputes. The judges have found that ADR is often 

an effective means for reaching this objective. They have applied this lesson by successfully 

providing ADR services to agencies throughout the government on a wide variety of contractand procurement-related matters. 

The GSBCA provides ADR services as a means of resolving a wide variety of contract-related 

disputes. Any of the Board's seven judges will assist with ADR when requested. The purpose of 

the Board's ADR program is to offer litigants and potential litigants the opportunity to resolve 

their disputes without resorting to a formal hearing before the Board or trial before a court. The 

GSBCA was established under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. '' 601-613, 

as an independent tribunal to hear and decide contract disputes between government contractors 

and the General Services Administration (GSA) and other federal executive agencies. Offering 

ADR in these disputes enables the Board to discharge its statutory responsibility to "provide to 

the fullest extent practicable, informal, expeditious and inexpensive resolution" of contract 

appeals. 41 U.S.C. ' 607. 

In addition to offering ADR to federal agencies and contractors in contract appeals, the Board 

will also provide ADR to any federal agency in any procurement matter, either before or after it 

is the subject of a contracting officer's decision. These disputes may include bid protests as well 

as disputes between a prime contractor and a subcontractor on a government contract. Flexibility 

has been the paramount consideration in designing the Board's rules on ADR. Consequently, 

ADR is not defined by a single procedure or set of procedures, and the Board will consider the 

use of any technique proposed by the parties which is fair, reasonable, and in the best interest of 

the parties, the Board, and the resolution of contract disputes. 

The Board will provide ADR services either in the context of a contract appeal filed with the 

GSBCA or in any other contract- or procurement-related matter. When a contact appeal is filed 

with the Board, it is immediately docketed and assigned to a judge, who is the panel chairman 

- 164 ­
for the case. The judge encourages the parties to consider the feasibility of using ADR. Upon 

request, the Board will make a judge available for an ADR proceeding involving any federal 

agency procurement matter at any stage of a procurement, even if no contracting officer's 

decision is issued or is contemplated. 

In summary, Board statistics reveal that from fiscal year 1991 through fiscal year 2004, the 

Board handled 207 ADR matters; 151 disputes were successfully resolved following an ADR 

proceeding, and 16 were either settled or dismissed after ADR was elected but before an ADR 

proceeding was conducted. Forty ADR proceedings were unsuccessful. 

- 165 ­
APPENDIX G

Draft Proclamation by the President

of a

National Conflict Resolution Day

- 166 ­
Appendix G 

Draft Proclamation by the President of a National Conflict Resolution Day 

National Conflict Resolution Day, 2007 

A Proclamation By the President of the United States of America 

On National Conflict Resolution Day, citizens are urged to learn more about alternative dispute 

resolution, and how it can be utilized to manage effectively the inevitable conflict of everyday 

life. 

Most people would like to avoid conflict whenever they can. However, conflict is not all bad. It 

can be constructive and a catalyst for growth. It is also inevitable, both in business and in life. 

Too often, litigation or other adversarial processes have been the means most commonly invoked 

to deal with conflict. There is a better way, and it is called “alternative dispute resolution.” That 

is just an umbrella term for techniques that use the services of a neutral third party to assist in the 

management and resolution of a conflict. Mediation is the most commonly used technique. 

Alternative dispute resolution has become a framework for management of conflict in both the 

public and private sectors. Statutes and other directives require the availability of dispute 

resolution alternatives in the federal agencies and trial courts. Use of those alternatives has met 

with success and served as a catalyst for expansion. 

Alternative dispute resolution is being used in the courtrooms, the boardrooms, the classrooms, 

our personal lives, and on the streets. Students from an early age use peer mediation to resolve 

their disputes. Mediation is being used for nursing homes and geriatric care issues. Police 

officers use mediation skills to resolve conflicts without force. Community leaders use conflict 

resolution techniques to deal with racial and ethnic tensions. 

Alternative dispute resolution is conserving resources, preserving relationships, and enabling 

organizations to do more with less. 

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by 

virtue of the authority vested in me by the Constitution and laws of the United States, do hereby 

proclaim _____________, 2007, as National Conflict Resolution Day. I call upon government, 

industry, education, and community leaders to provide their constituencies with information 

about how dispute resolution techniques can be used to defuse conflict in a constructive manner, 

and I encourage all citizens to take an active role in using non-adversarial dispute resolution 

techniques to deal with the conflict in their lives. 

IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of _____, in the year of 

our Lord two thousand seven, of the Independence of the United States of America the two 

hundred and thirty-first. 

- 167 ­
APPENDIX H 

Draft Letter of Greetings and Commendation

From the President

To

Federal Employees Responsible for Federal Alternative Dispute Resolution

- 168 ­
Appendix H 

Draft Letter of Greetings and Commendation From the President to 

Federal Employees Responsible for Alternative Dispute Resolution 

THE WHITE HOUSE 

Washington 

Date: ______ 

I am pleased to send greetings to the federal employees whose responsibilities include the use of 

alternative dispute resolution on behalf of the Executive Branch of the federal government. 

Our Nation depends on the hundreds of thousands of federal employees who work to ensure that 

government functions effectively. These dedicated men and women deliver services that are 

important to our communities and to our way of life. 

A recent Report to the President has documented how the use of alternative dispute resolution 

has made government more efficient and cost-effective by managing conflict effectively. It has 

saved time, money, and other resources, and has enabled the government to do more with less. It 

has produced lasting results and preserved relationships. It has invited collaborative 

inclusiveness in policy formulation and decision making, and has promoted a citizen-centered 

government. 

I commend the dedicated federal employees who have worked hard to make alternative dispute 

resolution a successful framework for conflict management in the federal government. The 

results you have achieved make a difference and are an effective contribution to our service on 

behalf of the American people. Best wishes for every continuing success. 

George W. Bush 

- 169 ­
ADDENDUM 

Report from the Attorney General to the President

On

The Interagency Alternative Dispute Resolution Working Group

(May 2000) 

- 170 ­
Addendum 

REPORT TO THE PRESIDENT 

ON THE INTERAGENCY ADR WORKING GROUP 

The President 

The White House 

Washington, DC 20500 

Dear Mr. President: 

The Report of the Interagency Alternative Dispute Resolution (ADR) Working Group, which is 

hereby submitted, marks the end of the first year of this government-wide effort to promote more 

collaborative ways to handle disputes. The report, prepared pursuant to your Memorandum 

creating the Working Group, was written jointly by the Department of Justice and officials from 

more than ten agencies, including the Environmental Protection Agency, the Federal Deposit 

Insurance Corporation, the 

U.S. Postal Service, and the Department of the Air Force, whose staff served as chairs of 

individual sections of the group. As you will see from the report, there has been a great deal 

accomplished during the past year, and we plan to do much more in the months ahead. 

In the past, the government has relied heavily upon traditional, adversarial processes to resolve 

both internal matters and disputes involving the public. Experience teaches us, however, that 

there are many costs to this approach. Even when the government wins a case, it can find that 

victory has come at too high a price. Litigation can destroy the underlying relationships between 

the parties, and this can be far more harmful in the long run. In the workplace area, for example, 

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. Similarly, when contract and other disputes arise involving outside parties, 

previously healthy and productive relationships can be damaged if formal, adversarial processes 

are used. 

Our experience has shown that ADR can resolve disputes in a manner that is quicker, cheaper, 

and less adversarial. For that reason, I call it "appropriate" dispute resolution, rather than 

"alternative" dispute resolution. In ADR, parties meet with each other directly, under the 

guidance of a neutral professional who is trained and experienced in handling disputes. They talk 

- 171 ­
about the problems that led to the complaint and the resolution that will work best for them in the 

future. With the assistance of the neutral professional, they are able to retain control over their 

own dispute and work collaboratively to find creative, effective solutions that are agreeable to all 

sides. 

We believe that every well-run agency should have at least one ADR program. Over the past 

year, the Working Group has worked to make this a reality. The Group has sponsored programs 

in the following areas: workplace, contracts and procurement, claims against the government, 

and civil enforcement. There have been more than 50 training sessions, meetings, and colloquia 

on all aspects of ADR. More than 500 representatives from across the government have been 

participating. We have created a Federal ADR Web site that has received tens of thousands of 

requests for information from across the country. 

We have found many specific examples of time and money saved through the use of ADR. The 

U.S. Postal Service, for example, has one of the leading workplace mediation programs in the 

country. It has mediated more than 12,000 EEO complaints under this program. Its average 

mediation takes just 4 hours, and 81 percent of mediated cases are closed without a formal 

complaint being filed. Participants in the mediation are twice as satisfied with the amount of 

control, respect, and fairness in the ADR process compared with the traditional adversarial 

process (88 percent satisfaction rate versus 44 percent). The mediation program has also 

increased communication in the workplace, creating lasting and beneficial changes that help 

prevent future complaints. In the first year after full implementation of this ADR program, the 

number of new complaints filed by U.S. Postal Service employees dropped by 24 percent 

compared with the previous year. This translates into thousands of fewer complaints per year, 

which represents a huge cost savings, not to mention savings in morale and productivity. 

In the contracting arena, the Department of the Air Force has used ADR to resolve more than $1 

billion in recent procurement disputes. It has used mediation in more than 100 cases, and more 

than 93 percent have settled. Relations with contractors have improved, and parties on all sides 

are very pleased with the results. Due to the success of these programs, the Secretary of the 

Department of the Air Force has now committed to include ADR provisions in its contracts and 

ordered employees to use ADR "to the maximum extent practicable." 

In addition to these savings in time and money, agencies have reported other important benefits. 

By emphasizing consensual resolution of disputes, these processes allow the participants to 

retain control over the outcome of the conflict. By moving away from winning and losing, and 

focusing instead on problem solving, these programs encourage the parties to identify what they 

really need to get the controversy resolved. We often see parties jointly engaged in finding 

creative, mutually acceptable solutions to disputes that no board, judge, or court would have the 

authority or the knowledge to impose. 

Over the coming year, we will also work with individual agencies to assist them in developing 

ADR programs. While our first year was devoted to offering a broad-based introduction to ADR, 

we see our second year as requiring work with agencies on a more individually tailored basis. 

We hope to draw upon the expertise of agencies that have already been using ADR successfully 

to persuade and assist agencies that are not as well developed in this field. 

- 172 ­
As I wrote to you when I accepted the position of chair of this Working Group, I believe that 

ADR has the potential to transform significantly the way that Federal departments and agencies 

resolve disputes. We look forward to a continuing growth in the use of ADR and the 

establishment of new programs that can provide our citizens with a maximum amount of respect 

and a minimum amount of adversity. With your continued support, we look forward to a future 

where all government employees facing conflict will be able to act as peacemakers and problemsolvers. 

Respectfully, 

/s/ 

Janet Reno 

Enclosure 

REPORT TO THE PRESIDENT ON THE INTERAGENCY ADR WORKING GROUP 

I. INTRODUCTION 

Disputes are inevitable. They arise in the course of doing our jobs as public servants and are part 

of life itself. Unfortunately, existing administrative systems to handle conflict are often 

overburdened and ineffective. They are clogged with delay, which often exacerbates the 

disputes, making negative feelings fester and grow. The formalistic procedures used tend to 

divide people rather than unite them. The parties involved in the dispute are often silenced by the 

process and rarely meet with each other directly. When a court or administrative body makes the 

final decision, parties have given up control over their own dispute. Even if the government wins 

a case, the relationship involved may be destroyed, and this can be far more costly in the long 

run. 

The goal of Alternative Dispute Resolution (ADR), is to ensure that communication comes first 

and litigation comes last, if at all. Parties meet with a neutral third party who is trained and 

experienced in handling disputes, and they seek a resolution of their problem directly. 

Participants report that the opportunity to talk with each other, under the guidance of a dispute 

resolution professional, is often far more satisfying and effective than having their lawyers fight 

against each other before a tribunal. 

The Interagency Alternative Dispute Resolution Working Group was created by Presidential 

Memorandum dated May 1, 1998, to assist agencies in utilizing these more effective ways to 

handle conflict. This Report sets forth the activities and successes of the Working Group thus far. 

II. BENEFITS OF ADR 

In the Memorandum directing all Federal agencies to promote greater use of ADR, the President 

recognized that ADR can "make the Federal Government operate in a more efficient and 

- 173 ­
effective manner." Indeed, the Working Group has found numerous examples of advantages that 

ADR provides. The following chart sets forth the ten most common benefits of ADR that 

agencies reported to us: 

TEN COMMON BENEFITS OF ADR 

Complaints are processed more quickly and resolved earlier. 

Litigation and other costs are lower. 

Future complaints are avoided as parties learn to communicate better with each other. 

Parties are more satisfied with the problem solving process and with the results. 

Relations with contractors and other outside parties are improved. 

The process leads to more creative solutions. 

Internal morale is improved. 

Turnover is lower. 

Parties comply better with their settlement agreements. 

Productivity is improved. 

These benefits are demonstrated in the following specific examples from agencies that have 

participated in the Working Group. 

United States Postal Service 

The U.S. Postal Service has one of the nation's leading ADR programs in the workplace area. 

The average mediation takes just four hours, and the parties successfully resolve 61 percent of 

the cases at the mediation table. Overall, 81 percent of mediated cases are eventually closed 

without a formal complaint being filed. Satisfaction with the program is extremely high. Exit 

surveys completed anonymously by 26,000 participants show that 88 percent of employees are 

highly satisfied or satisfied with the amount of control, respect, and fairness in the ADR process. 

This figure is very significant because the satisfaction rate for the Postal Service's traditional 

adversarial workplace process is only 44 percent. Moreover, both employees and supervisors are 

equally satisfied with ADR. 

Another benefit of the Postal Service program has been that mediation seems to be changing the 

behavior of people in the workplace. With the increased communication that mediation provides, 

employees and supervisors appear to be learning to get along better. In the first year after full 

implementation of the program, the number of complaints dropped by 24 percent as compared to 

the previous year. Formal complaints have continued to drop in FY2000, by an additional 20 

percent. In an agency as large as the Postal Service, this reduction of several thousand 

complaints per year leads to huge cost savings. Processing a simple workplace case can cost the 

government $5,000 in administrative expenses alone, and a more complicated case that reaches a 

formal adjudication can cost up to $77,000. Thus the Postal Service program saves millions of 

dollars each year, in addition to improving morale and productivity. 

- 174 ­
Department of the Air Force 

The Air Force has found ADR very effective in the government contracts area, where it has used 

ADR in more than 100 cases, and more than 93 percent have settled. Of particular note is the 

agency's recent successful use of ADR to resolve a $785 million contract claim with the Boeing 

company that had been unresolved, prior to the use of ADR, for more than ten years. This is one 

of the largest contract claims ever settled through an alternative dispute resolution process. In 

another recent major case with the Northrop Grumman Corporation, the agency settled a $195 

million contract claim. Litigating either of these extremely large and complex cases through trial 

would have been enormously expensive and uncertain in outcome. Litigation could also have 

damaged relationships with some of the military's most important suppliers. The Secretary of the 

Air Force has recognized the success of these programs and codified them in formal agency 

procedures. It is now official Air Force policy to use ADR "to the maximum extent practicable." 

The Air Force has also used ADR in more than 7,000 workplace disputes in the last three years, 

with a successful resolution rate exceeding 70 percent. This ADR program has helped make the 

agency's EEO process one of the most efficient in the Federal government. While Federal 

agencies require an average of 404 days to settle an EEO complaint, Air Force settlements 

require an average of only 258 days, a 37 percent difference. 

Another measure of the impact of ADR at the Air Force is its EEO complaint flow-through rate, 

which is the rate at which employees who receive counseling (including ADR) nevertheless file 

formal complaints. In a recent typical year, this figure was only 23 percent, which is 

approximately half the Federal government average. The Air Force believes its aggressive use of 

ADR is a major component of this success. 

Department of Health and Human Services 

Before using ADR, the Provider Reimbursement Review Board at the Department of Health and 

Human Services (HHS) had a backlog of 10,000 pending cases. Although HHS had been able to 

settle 90 percent of its cases without assistance, most of these settlements occurred on the eve of 

the hearing, after three years of delay. HHS instituted an ADR program that has saved all parties 

both time and money. ADR resulted in settlements of 44 of the first 48 cases where it was used. 

Since then, use of ADR has increased. In 1999, the Office of Hearings and Appeals completed 

mediation of 81 cases and had mediation underway in an additional 53 cases. ADR has also 

reduced the time required to resolve these disputes from three years to six months. 

HHS has also used ADR successfully to resolve state government challenges involving Food 

Stamp and Medicaid claim adjustments. All of the forty-one states that elected mediation under 

the Departmental Appeals Board's mediation program have successfully negotiated settlements. 

ADR has resolved more than $500 million in disputed funds in each of the past five years, and 

HHS estimates that it has saved the Federal government $600,000 in potential adjudication costs. 

In addition, the process saved considerable time, because administrative appeals could have 

taken two years, while mediation took an average of nine months. Finally, by the parties' own 

assessment, mediation allowed for a fairer and less acrimonious settlement of differences, 

preserving ongoing relationships between state and Federal officials involved. 

- 175 ­
Department of Energy 

Ombuds staff at the Sandia National Laboratories assisted employees in more than 400 cases 

during FY 1999. Ombuds personnel counseled employees on available options for handling their 

disputes and advised them on how to proceed. Most of the work was with agency employees, but 

agency suppliers and technology transfer partners also used the ombuds services in some cases. 

Benefits of the program included improved productivity, lower turnover, and higher decision 

quality. The agency believes that a conservative estimate of the program's savings last year is 

$600,000 (50% more than the program cost). The program also generated considerable 

improvements in morale. Litigation and EEOC charges against Sandia have dropped well below 

the levels experienced prior to the creation of the program. 

Federal Emergency Management Agency 

After Hurricane Georges wreaked havoc on the Island of Puerto Rico in September 1998, a local 

community had disputes regarding a debris removal contract, including disagreements as to 

which company actually performed the work, the total amount of debris, and the amounts of 

money owed to the companies. This difficult situation was further complicated by an FBI 

criminal investigation, the incarceration of the community mayor, litigation filed against the 

community by a subcontractor, allegations of fraud and conspiracy by all parties, death threats, 

and bankruptcy petitions. Without a consensual resolution, expensive and time consuming 

litigation involving all parties to the seven relevant contracts was virtually inevitable. 

FEMA suggested mediation. The Governor, the local community, and the three contractors 

agreed. The mediation was very difficult, but the mediators were able to craft an acceptable 

agreement. The principal contractor later wrote a letter to FEMA saying the following: "I write 

this letter to praise certain individuals who have gone above and beyond the call of duty in 

representing FEMA and the people of the United States.... Through [FEMA's] initiative and good 

judgment, mediation was arranged.... Had [FEMA] not pursued the matter with uncommon 

vigor, it would probably be wrapped up in court for many years." 

Federal Labor Relations Authority 

The FLRA has instituted an ADR program that encourages agencies and unions to resolve their 

problems before an unfair labor practice charge is filed. Following implementation of this 

program, the number of charges filed has fallen sharply, from 8,764 in 1993 to 5,686 in 1999. 

Even in instances where charges are not resolved and complaints are issued, these disputes as 

well are settling through the use of ADR. For example, 12.4 percent of all complaints went to 

trial in 1993. In 1999, only 9.2 percent of complaints went to trial. Significantly, cases are 

settling more quickly as well. The number of expensive, last-minute "courthouse steps" 

settlements (settlements reached immediately prior to hearing) have declined to just 1.9 percent 

of all settlements as parties have used ADR to settle their cases earlier in the process. In earlier 

years, these costly late settlements comprised as many as 15 percent of all settled matters. 

- 176 ­
Environmental Protection Agency 

The Environmental Protection Agency (EPA) used a variety of ADR processes to facilitate 

settlement of the GE Pittsfield case, involving the cleanup of widespread contamination of the 

Housatonic River in Massachusetts. The agency used mediation to facilitate settlement 

discussions between eleven parties including EPA, GE, and other state and Federal regulatory 

agencies. The team of mediators assisted the parties in reaching agreement on a wide range of 

difficult issues including the cleanup of contaminated sediments and restoration of natural 

resources. EPA values the work to be accomplished by GE pursuant to this settlement at upwards 

of $200 million. Without the use of ADR, according to the EPA, negotiations among this large 

group of parties would have been very difficult. ADR has also permitted the parties to fashion 

their own remedy, including elements that a court would not have been able to order on its own. 

For example, in order to ensure meaningful public input, a neutral facilitator organized and is 

facilitating meetings of a Citizens Coordinating Council. The Council is composed of 

representatives of local communities affected by the cleanup. Finally, the parties established a 

neutral peer review process to resolve conflicts regarding technical aspects of the required 

remedial activities. 

The EPA has also used three different types of ADR to resolve the Helen Kramer Landfill 

Federal and state litigation, concerning contamination at a hazardous waste site in New Jersey. 

EPA provided an internal convening professional to help the parties organize settlement efforts 

and retain a mediator. The efforts of the convener enabled a large group of defendants to 

coalesce and enter into a mediation agreement. Two experienced mediators then assisted the 

parties in reaching an agreement on the allocation of costs associated with remedial activities at 

the site. Finally, the parties entered into mediated discussions with EPA to resolve their liability 

for site contamination. The complex convening and mediations involved more than 200 parties 

and third party defendants, including forty-four municipalities. The resulting settlement totaled 

more than $95 million. The agency believes that this case would have been enormously timeconsuming and expensive to litigate if ADR had not been used. 

III. ACCOMPLISHMENTS OF THE WORKING GROUP 

The Working Group expects that success stories such as those described above will continue 

across the government as more agencies use ADR in the future. Our major goal for this first year 

was to assist every agency in creating at least one new ADR program or substantially enhancing 

an existing program. We are pleased to report that every cabinet agency and most administrative 

agencies met this goal. 

The Working Group has built upon earlier government initiatives to increase the use of ADR. In 

1996, Congress permanently enacted the Administrative Dispute Resolution Act, 5 U.S.C. §§ 

571-584, which requires all executive agencies to promote the use of ADR. Specifically, this Act 

directs each agency to do the following: 

• Adopt a policy that addresses the use of alternative means of dispute resolution; 

• Designate a senior official to be the dispute resolution specialist of the agency; 

• Provide ADR training on a regular basis; and 

- 177 ­
• Review each of its standard agreements for contracts, grants, and other assistance to 

encourage the use of alternative means of dispute resolution. 

All agencies now have a senior official designated as their dispute resolution specialist. All 

cabinet agencies and most administrative agencies now have adopted ADR policy statements. 

Most agencies provide ADR training, and many have been taking advantage of the resources of 

the Working Group in this regard. With the assistance of the Contracts Section of the Working 

Group, agencies are increasing their use of ADR in the contracting arena as well. 

In preparing this report, we conducted the first government-wide tabulation of Federal ADR 

resources. We learned that some 410 employees now work full time on ADR in the Federal 

government. Agency ADR programs now receive $36 million annually in dedicated budgets. 

Moreover, many agencies staff ADR programs through the use of collateral duty employees and 

fund these operations from their general budgets. Counting these resources, the government's 

total commitment is even higher than the figures mentioned above. 

Working Group Activities 

The Working Group began on September 14, 1998, with an initial organizing meeting hosted by 

the Attorney General and the Deputy Director for Management at the Office of Management and 

Budget. More than one hundred high-level representatives from nearly sixty Federal agencies 

attended this meeting. At this meeting, the Attorney General gave all agencies the goal of 

creating at least one new ADR program or substantially increasing an existing program by the 

end of 1999. 

To assist agencies in developing specific programs to meet this goal, the Working Group created 

four Sections, organized by subject matter, to provide technical assistance and guidance on best 

practices in ADR program development. Sections have operated simultaneously to cover 

disputes in the following areas: civil enforcement, claims against the government, contracts and 

procurement, and workplace. 

The Sections have conducted more than fifty training sessions, meetings, and colloquia on all 

aspects of ADR. Representatives from across the government have been participating. Topics 

have included incentives for Federal employees to use ADR, finding quality neutrals, designing 

an ADR training program, dispute systems design, evaluation of ADR programs, obtaining 

resources for ADR programs, overcoming barriers to ADR, ethics, confidentiality, and conflict 

assessment/case selection. 

Materials Created by the Working Group 

The Working Group has produced substantial materials to assist agencies in developing ADR 

programs. Most noteworthy are two resource books covering best practices in ADR. The Federal 

ADR Program Manager's Resource Manual is more than 200 pages long, and it is a 

comprehensive guide to creating and operating an ADR program in the Federal government. It 

includes relevant laws and regulations, links to Federal and private Web sites, and an extensive 

bibliography. The Electronic Guide to Federal Procurement ADR is an exhaustive manual 

- 178 ­
covering procurement ADR programs, managing the process, training, neutrals, and resources. 

The guide includes hyperlinks to ADR-related materials, a listing of Federal ADR mentors, 

detailed profiles of existing procurement ADR programs, success stories, and sample ADR 

agreements. Both of these manuals are available on the Web site for all Federal employees and 

interested members of the public. 

The Group created a Web site at www.financenet.gov/iadrwg that has had tens of thousands of 

requests for information in the year it has been in existence. The Web site includes agendas and 

minutes from Working Group meetings. A number of key ADR-related documents are available 

on the site, including the Administrative Dispute Resolution Act, the Presidential Memorandum 

creating the Working Group, a model Policy Statement on ADR, and a statement of key elements 

of a successful ADR program. The site includes additional links to other Federal agency ADR 

programs and private sector ADR organizations. 

The Forums section of the Web site provides an opportunity for users to exchange information 

electronically (via e-mail) and to tap into the ADR-related expertise of hundreds of others around 

the country who are involved in government ADR programs. This feature of the Web site has 

facilitated productive discussions on such topics as recommendations of qualified neutrals, the 

availability and development of ADR training courses, and establishment of ADR policy. 

To capture the current state of ADR in the Federal government, the Working Group asked each 

participating agency to complete an ADR survey on its activities. These surveys include contact 

information for each agency's dispute resolution specialist and ADR staff, data on its dedicated 

ADR budget and employees, a description of its ADR programs, success stories from these 

programs, and a statement of its ADR goals for the future. All of these surveys are available on 

the Working Group Web site. 

Accomplishments of the Sections 

The Civil Enforcement Section has provided participating agencies with information, training, 

and support to enable them to develop ADR programs in enforcement and compliance activities. 

Twenty-six agencies with unique statutory and regulatory missions, requirements, and regulated 

communities have participated in Section activities. Section consultation teams provided 

personalized assistance to agencies in a wide variety of areas, from dispute system design to 

training. Robert Ward of the EPA served as chair of the Section, with the assistance of David 

Batson and Lee Scharf of the EPA. 

The Claims Against the Government Section has worked with agencies to use dispute resolution 

techniques to supplement traditional administrative adjudication of claims for money that are 

filed against the government. More than forty representatives from twenty different agencies 

have participated in the work of the Section, which was chaired by Peter Steenland of the Justice 

Department, with the assistance of Jeff Senger of the Justice Department. 

The Contracts and Procurement Section has focused on assisting agencies with developing and 

operating ADR programs in the contracting arena. More than thirty agencies participated in the 

work of the Section. In addition to holding meetings on program design, ADR process, training, 

- 179 ­
and neutrals, the Section produced the Electronic Guide to Federal Procurement ADR described 

above. The Section was chaired by Brigadier General Frank Anderson of the Air Force, with the 

assistance of Joseph McDade and Major Becky Weirick of the Air Force, as well as Tony 

Palladino and Rich Walters of the Federal Aviation Administration. 

The Workplace Section, which was the largest in the Working Group, covered a broad range of 

workplace issues, including Equal Employment Opportunity, Federal Labor Relations Act, and 

Merit Systems Protection Board cases as well as grievances. Total attendance at the twenty-six 

programs the Section sponsored totaled more than 1000 participants. Section mentoring 

programs resulted in the formation of the Small Agency Caucus, an organization devoted to 

addressing the unique ADR program and resource needs of small Federal agencies. The 

Workplace Section was chaired by Erica Cooper of the Federal Deposit Insurance Corporation 

(FDIC) and Mary Elcano of the United States Postal Service (USPS), with the assistance of 

Cathy Costantino and Martha McClellan of the FDIC, and Cindy Hallberlin and Kim Brown of 

the USPS. 

Further information about these accomplishments is provided in the Reports from the Sections to 

the Attorney General attached at the end of this report. 

Plans for the Future 

During the second year of its existence, the Working Group plans to offer additional seminars 

and discussions that are open to all government employees. We also plan to focus on mentoring 

agencies that desire to create new programs or improve existing ones. We will continue to offer 

consultation teams of experienced ADR professionals to assist agencies with their ADR efforts 

on an individualized basis. 

The Working Group will also coordinate with the newly created ADR Council, a group of senior 

executives who will develop ADR policy guidance for the executive branch. This Council will 

focus on issues that cut across ADR programs at all agencies, such as confidentiality, best 

practices, and procedures for the use of arbitration. 

IV. CONCLUSION 

Congress effectively summarized the problems with traditional administrative approaches to 

conflict and the benefits of ADR when it passed the Administrative Dispute Resolution Act of 

1990: 

[A]dministrative proceedings have become increasingly formal, costly, and lengthy resulting in 

unnecessary expenditures of time and in a decreased likelihood of achieving consensual 

resolution of disputes; alternative means of dispute resolution . . . in appropriate circumstances, 

have yielded decisions that are faster, less expensive, and less contentious; such alternative 

means can lead to more creative, efficient, and sensible outcomes. 

- 180 ­
With the continued assistance and support of the President, the Office of Management and 

Budget, and all participating agencies, we look forward to working together to use these 

processes to enhance the operation of the Government and better serve the public. 

- 181 ­