QF>ffice llf t~e ,!tt(lrnel? ~eneral 

llas~ingtcn.m.QT. 20,530 

January 9, 2017 

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 reports on these efforts in 

2000 and 2007. 

With this letter, I am transmitting an updated Report entitled, "2016 Report on 

Significant Developments in Federal Alternative Dispute Resolution." The Report is the product 

of a collaborative effort of Executive Branch agencies and, in particular, ofthe Federal 

Interagency Alternative Dispute Working Group Sections. The Report outlines the significant 

growth that has occurred in federal use of alternative dispute resolution since 2007. It also 

describes the positive results of federal use of alternative dispute resolution, including cost 

savings, increased workforce productivity, and the promotion ofthe efficient delivery of 

services. 

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

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

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

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

agencies are finding that, in appropriate cases, alternative dispute resolution is a cost-effective 

and time-efficient option which can give parties control over the outcome and involve 

stakeholders in decisions that affect them. 

Respectfully, 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 


 


 


 

2016 REPORT ON SIGNIFICANT DEVELOPMENTS
 

IN FEDERAL ALTERNATIVE DISPUTE RESOLUTION
 

EXECUTIVE SUMMARY
 

Congress has promoted the use of Alternative Dispute Resolution (ADR) across the federal 

government through the Administrative Dispute Resolution Act of 19961 (ADRA) after 

concluding that ADR can offer prompt, creative, efficient, and sensible resolutions to claims by 

and against the government. In the ADRA, Congress encouraged federal agencies to use ADR – 

an umbrella term encompassing a myriad of processes – to resolve disputes and required them to 

adopt ADR policies. The Act also encouraged agencies to develop and refine ADR techniques 

including more traditional processes such as mediation and arbitration as well as a host of new 

dispute resolution processes involving a collaborative and consensual approach to problem 

solving. Over the past twenty years, ADR programs have matured; this report describes four 

significant trends in federal ADR over the past decade. 

First, agencies are using ADR earlier. During the initial years following the passage of the 

ADRA, federal agencies used ADR (generally mediation) most frequently as an alternative to 

formal adjudicative processes once parties are already in litigation or administrative proceedings. 

More recently, federal use of ADR has matured to address disputes before formal adjudicative 

processes are initiated. Earlier use of ADR allows agencies to prevent disagreements from 

escalating into intractable disputes that distract from agency missions and also helps agencies to 

address the root causes of any systemic problems. 

Second, agencies have expanded the ADR palette to include new and tailored dispute resolution 

processes. While mediation is still a frequent choice as an ADR technique, agencies have learned 

that a single ADR method does not fit all situations. Through offering a broader spectrum of 

ADR resources, federal agencies provide parties an opportunity to determine and select the best 

process to address unique issues, challenges, and parties. 

Third, agency ombuds offices have grown significantly both in number and type. Ombuds 

programs provide a range of benefits to agencies, including an independent, impartial, and 

confidential resource for resolving concerns – whether individual or widespread. Ombuds also 

provide a path to resolve systemic issues before they evolve into formal complaints by 

facilitating crucial discussions with stakeholders and recommending solutions directly to agency 

leadership. 

Fourth, agencies have expanded the use of technology in ADR services. With agency offices 

spread across the United States and around the world, modern technology has significantly 

expanded access to ADR programs – both services and training. Rapid electronic responses in 

disputes in regulated industries – such as shipping, where time is of the essence – can prevent 

quickly mounting damages and preserve the effective flow of commerce. 

These trends exemplify how ADR has become a vital tool in providing the public with a 

government that is both more accessible and effective. 

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INTRODUCTION
 

In 1998, a Presidential Memorandum directed the Attorney General to convene and lead an 

Interagency Alternative Dispute Resolution Working Group (Working Group) to promote and 

facilitate the use of ADR in the Executive Branch and to report periodically on that work.2 The 

Attorney General and the Working Group have since submitted two reports: an initial report in 

2000 when federal ADR was still in its infancy and a second report in 2007, which described the 

growth of federal ADR and analyzed the results, benefits and future of ADR. 

The Working Group meets bi-monthly to share expertise and best practices in dispute resolution 

throughout the Executive Branch. The group also facilitates ADR training and program 

development for agencies seeking to initiate or expand existing programs. 

This report details the evolution of federal ADR since 2007. The Working Group and the 

Department of Justice (DOJ) surveyed federal agencies during the spring of 2016 about their 

ADR programs. This report synthesizes submissions from 47 agencies3 and is divided into two 

parts. The first part outlines ADR trends and benefits across the government. The second part 

contains specific examples of these trends in programs across five subject-matter areas: 

• Workplace; 

• Federal Procurement; 

• Administrative and Regulatory Actions; 

• Litigation; and 

• Environmental Disputes. 

Following the report, Appendix II includes more detailed descriptions of agencies’ ADR 

programs. 

I. ADR TRENDS AND BENEFITS 

A. Earlier use of ADR prevents disputes. 

ADR has matured into a prevention as well as a dispute resolution process. In the past, agencies 

used ADR primarily in reaction to ongoing conflict. There has been a significant shift in favor of 

using ADR earlier to prevent disputes.4 Many agencies have expanded programs and policies to 

promote the earlier use of ADR in all subject-matter areas and, in some cases, through pro-active 

conflict management. For example, the recently updated Department of Defense (DoD) ADR 

policy specifically promotes the use of ADR to resolve disputes “at the earliest possible stage of 

the conflict and at the lowest possible organizational level,” regardless of the subject matter.5 

Early dispute resolution enables agencies to resolve disagreements before they escalate into 

contests that drain agency resources and impede agency work. Earlier intervention also provides 

a valuable opportunity to discover systemic problems and pro-actively respond to underlying 

causes. Conflict impairs agency functioning, so early recognition of problems can provide a 

crucial opportunity to address needed changes. 

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B. Customized ADR processes are more successful. 

Over the past ten years, federal ADR programs have dramatically increased their use of a broader 

range of ADR processes and collaborative tools. With more customized responses, agencies are 

better equipped to address and resolve a broader range of issues and problems – both individual 

and systemic – at all stages of conflict. 

Mediation – in which a third party neutral directly assists the parties in the conflict – is still the 

ADR process of choice in many contexts, particularly in cases ripe for adjudication either in 

federal court or before administrative tribunals.6 However, agencies are increasingly expanding 

their use of ADR processes by tailoring the process to fit the particular dispute, such as: by 

adjusting the timing and purpose of an ADR intervention; by including other participants beyond 

the parties in conflict; or by offering the parties a choice of ADR processes. 

In addition to expanding the types of ADR processes used, agencies have expanded the 

application of ADR to cover broader ground. Agencies have expanded their use of ADR beyond 

specific disputes involving individually impacted parties and are incorporating ADR methods as 

tools for achieving their mission. Agencies are using a variety of consensual and collaborative 

processes to engage multiple and varied constituents in open dialog about policy and regulation 

using techniques such as focus groups, surveys and consensus building through stakeholder 

discussions. 

C. Federal ombudsmen effectively address individual and systemic issues. 

Another trend over the past decade has been the significant expansion in the type and number of 

federal ombuds offices.7 Federal ombuds programs are varied across the government depending 

upon how each office is structured. In some instances, Congress has dictated the function and 

authority of an ombuds office8 and, in other cases, agency leadership has defined the 

parameters.9 Some ombuds offices are external facing (addressing concerns from constituents 

outside of the agency) and others are internal facing (addressing concerns of employees and 

constituents inside the agency). 

Despite the variety in implementation, most ombuds programs share key elements: direct access 

to agency leadership; independence; impartiality/neutrality; and confidentiality. Access to 

leadership simplifies effecting solutions and alerts management to recurring or systemic issues 

within the agency; and independence and confidentiality protections encourage forthright 

reporting without danger of retaliation. These trends and attributes of federal ombuds office are 

discussed at length in a recent comprehensive study undertaken by the Administrative 

Conference of the United States (ACUS).

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D. Agencies use technology to provide and support ADR. 

Technology has exponentially expanded access to federal ADR programs. Not only has it 

broadened the services which can be offered to geographically distant stakeholders – such as 

telephonic mediation for parties or availability of online training – but it allows for a faster 

agency response when time is of the essence, for example in resolving a transportation or 

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shipping dispute where any delay would generate significant expenses. Electronic data reporting 

has also enabled agencies to analyze trends or problems in their practices and address needed 

changes. Because ADR processes are largely rooted in consensual and collaborative problem 

solving, agencies have embraced online platforms to share resources such as training materials or 

tasks such as collective document drafting. 

II. EXAMPLES OF PROGRAMS 

A. Workplace 

Effective workplace conflict management programs can reduce the number of formal grievances, 

complaints, or legal actions filed by employees, which drain time and agency resources. The 

breadth of disputes covered within the workplace has significantly increased to include not only 

Equal Employment Opportunity (EEO) claims,11 but also whistleblower claims, labormanagement disputes, harassment claims, and a myriad of other workplace issues, such as 

employee satisfaction, performance evaluation, and everyday communication challenges. The 

groups covered under workplace programs have also expanded significantly to cover (in addition 

to current employees) contractors, former employees, and applicants for positions with the 

agency. Today, there is tremendous variation in federal workplace ADR programs depending on 

location within the agency organizational structure; types of workplace issues addressed; types of 

dispute resolution processes offered; and the source of ADR professionals used in the program. 

Workplace ADR programs have expanded the tools available to both address individual concerns 

of agency employees and more broadly preserve a primary focus on institutional mission. 

Early Use of ADR. Current workplace ADR programs show that addressing problems and 

disputes early significantly decreases the time required later to untangle multiple layers of 

misunderstanding and conflict and that a conflict-competent workforce is better able to resolve 

conflict without the need for formal ADR processes. Resolving these issues early also decreases 

the number of formal complaints lodged and pursued. 

Many agencies have found that while conflict may be an inevitable part of any workplace, it can 

provide an opportunity for both individual and organizational growth. Training in dispute 

resolution helps managers and employees manage conflict proactively, resulting in reduced 

turnover and absenteeism; better sharing of institutional knowledge; and more acknowledgement 

of diverse perspectives and greater innovation. Development of familiarity and comfort with 

dispute resolution processes yield other benefits: a conflict competent workforce increases the 

likelihood that decision makers will receive more candid feedback from key employees early 

enough to take timely appropriate corrective action. 

Agencies have instituted conflict management training programs for employees and management 

to learn to handle conflict competently and positively. For example, the National Aeronautics 

and Space Administration (NASA) provides training in recognizing the source of conflict, 

developing constructive responses to conflict, and communicating effectively and positively in a 

climate of strong emotions. Some of these conflict management courses address issues such as 

preparing for effective employee feedback; bullying in the workplace; and implicit bias. Training 

is also provided in individual sessions in which employees and managers are coached in 

appropriate conflict management techniques. Some agencies have expanded even further to 

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apply dispute management on a broader and systemic scale in addition to managing individual 

employee conflicts. Agencies have created policies and procedures to promote the frank and 

robust discussion of diverse views about important agency decisions, thereby providing an 

opportunity to consider divergent viewpoints and cultivate innovation. These processes have 

improved an agency’s ability to carry out its mission by fostering employee engagement and 

supporting effective decision making. 

The Nuclear Regulatory Commission (NRC) uses a multi-tiered system to manage different 

views about furthering the agency’s mission. The system provides increasing levels of formality 

to air differences of opinion. They have established an open door policy which enables an 

employee to initiate a confidential meeting with any manager to discuss any work-related matter 

of concern, with strong protection from possible retaliation. Another process permits agency 

employees to proffer and document diverse views while reviewing agency policies or practices. 

A third program encourages professionals to share their judgments even where they differ from 

the prevailing staff view, to disagree with a management decision or policy position, or to take 

issue with a proposed or established agency practice involving technical, legal, or policy issues. 

NRC leadership believes that these processes benefit the agency by providing multiple, voluntary 

channels for expressing different views and supporting a culture of transparency by making 

agency records of differing views available to the staff and the public. 

Similarly, the Defense Intelligence Agency (DIA) developed an integrated conflict management 

system that supports a culture in which employees are accountable as problem solvers and 

conflict is considered an opportunity to learn about and value different viewpoints. The DIA 

program provides a wide array of assistance from a staff of trained neutrals who offer services 

including mediation; facilitated conversations; climate assessments and organizational 

facilitation; education and training workshops; and conflict coaching to promote and support this 

framework. In organizational facilitation, for example, neutrals solicit confidential views from 

team members and later provide requesting managers with a report and recommendations about 

how to address the team members’ concerns. These integrated systems support a culture in which 

employees are accountable as problem solvers to ensure efficient and effective agency business. 

Customized ADR Processes. Agencies have developed tailored ADR processes which more 

effectively address the varied types of disputes they encounter. Some agencies have pooled 

resources to maximize dispute resolution options and others have expanded the traditional ADR 

processes to include flexibility where needed. 

Agencies have collaborated in developing programs to more effectively manage active disputes 

by developing shared rosters of trained volunteer neutrals in order to provide early intervention 

by a skilled mediator who is independent from the agency of the complainant. They have shared 

trained neutrals from a variety of agencies so that each agency can provide their own employees 

a choice of neutral. The Department of Health and Human Services (HHS) manages the 

administration of the largest of the shared neutral programs in terms of the number of agencies 

served; there are similar programs run by the Federal Executive Boards (FEB) which are located 

across the country. The Federal Mediation and Conciliation Service (FMCS) also provides 

neutrals to other agencies under a cost-sharing agreement among participating agencies. Several 

agencies, including DOJ12, the Department of Treasury (Treasury)13, the Environmental 

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Protection Agency (EPA), the Department of Agriculture (USDA)14, the Department of Interior 

(DOI), the Department of Homeland Security (DHS)

15, DoD16, and the Federal Election 

Commission (FEC) have created their own cadres of internal, collateral-duty neutrals.17 

The Office of Special Counsel (OSC) offers traditional mediation to resolve cases in which 

federal employees file complaints alleging prohibited personnel practices, such as whistleblower 

retaliation or violations of protections for military personnel.18 When necessary, however, 

mediators can involve a neutral and independent subject-matter expert to help parties evaluate 

the strength of their claim and explore realistic options in resolving disputes. 

Agencies have also customized their use of traditional ADR processes by utilizing, in addition to 

mediation, facilitated discussions and climate assessments to address conflict prevention and 

resolution, recognizing that the resolution of some conflict requires working with a larger 

segment of the workplace population. The National Archives and Records Administration’s 

(NARA) workplace ADR program utilizes office-wide facilitations to help entire offices in 

having critical, difficult conversations in individual, small-group and large-group settings. 

Through the facilitation process, staff can improve communication skills and learn how to better 

resolve difficult issues. Employees and managers who engage in facilitation report that the ADR 

process helped to resolve long-standing conflicts and improved the workplace environment. 

The Federal Labor Relations Authority (FLRA) provides labor-management groups with a 

professional facilitator to provide guidance in developing a structure and ground rules before 

launching important discussions or formal mediation of grievances. This sort of assisted 

preparation helps parties remain focused on relevant issues and promotes a more effective dialog 

and dispute resolution process. 

The DoD’s Washington Headquarters has increased its use of 

“sensing sessions.” Sensing sessions are voluntary meetings in 

ADR Processes 

The DHS Federal Emergency 

which a trained neutral facilitator helps parties – generally Management Agency (FEMA) 

employees – to voice their concerns. Issues commonly ADR office increasingly offers 

discussed in these sessions include employee morale, 

leadership cohesion, job satisfaction, and the overall EEO 

health of the organization. One facilitator guides the 

more systemic and organizational 

ADR processes, in the form of 

team-building, management 

workshops, climate assessments, 

discussion and ensures that the participants have a respectful facilitation of working groups, 

and productive exchange of ideas, while a second co- appreciative inquiry dialogue 

facilitator, transcribes unattributed information to 

management. The goal of the session is to provide employees 

with a safe platform to communicate freely and to provide 

facilitation, public engagement, 

and dispute management systems 

design. 

management with honest feedback in a manner that protects the anonymity of the employees. 

Agencies have also expanded traditional ADR processes to meet particular needs in specific 

situations. For example, through a joint working group, the National Air Traffic Controllers 

Association and the Federal Aviation Administration (FAA) developed a neutral evaluation 

program tailored to a negotiated grievance process. Through the program, a neutral with subject 

matter expertise provides parties with a non-binding evaluation which educates the parties about 

the strengths and weaknesses of their respective cases and better equips them to engage in 

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productive negotiations. The program promotes collaboration and focuses the parties on problem 

solving rather than simply the dispute. 

Ombuds Offices. There has been significant growth in the number of federal ombuds offices and 

programs devoted to workplace issues. Over the past ten years, new workplace ombuds programs 

have been created or expanded at the Federal Deposit Insurance Corporation (FDIC), the U.S. 

Patent and Trade Office (USPTO), DoD19, DOI, DOJ, the Department of Energy (DOE)20, and 

the Department of State (DOS).

21 

Ombuds 

In 2016, USPTO created an ombudsman Federal workplace ombudsman programs typically office for resolving workplace issues. The complement the formal dispute resolution programs office, like many other internal facing (EEO, whistleblower or grievance) available within ombuds offices, provides education about 

agencies. Visits to the ombuds office do not rule out	 all ADR processes; advocates for using a 

use of the formal options. Although each office is	 dispute resolution process; identifies 

systemic problems and proposes strategies different, the hallmarks of internal ombuds offices are to improve them; assists in developing pro- neutrality, independence, confidentiality, and active practices to improve morale and informality or flexibility, in addition to the ability to productivity; and provides leadership 

address systemic issues by reporting those issues coaching services. 

directly to agency leadership. 

Technology. More agencies are using technology to provide ADR and support workplace ADR 

programs. Many agencies now conduct ADR sessions over the phone or through a video 

teleconference.22 These technologies allow agencies to provide ADR more quickly and at a 

lower cost than if neutrals traveled to every ADR 

session – especially when the parties are in remote ADR Technology 

Over the past ten years, NMB has locations. HHS and the National Mediation Board developed several important web-based (NMB) each provide examples. Parties have reported a resources, including: the Knowledge Store 

high level of satisfaction with video teleconferencing (an outward-facing online information 

mediations at HHS. NMB uses an online web-video resource that contains an archive of 

platform to conduct arbitration hearings and grievance arbitration awards, representation 

determinations, representation decisions mediations synchronously and uses a text-based and other related information); and Online platform to conduct arbitrations and grievance Dispute Resolution (parties use web-based 

mediations asynchronously. conferencing software to hold bargaining 

sessions from distant locations or online 

Agencies are also using software and other secure brainstorming software during face to face 

sessions to manage information and make database programs to centralize the reporting of ADR the meetings more efficient). usage, providing agencies up-to-date data, which can 

allow agency leadership to pro-actively address systemic workplace issues. The NMB, DoD, 

USDA, and the Department of Veteran’s Affairs (VA) have each made substantial investments in 

this resource. NMB, for example, is one of the first federal agencies to have all of its integrating 

information and communication technology based in the cloud. Furthermore, the Army, Air 

Force, USDA and VA have each developed electronic case management and reporting systems 

to better track use of and results of ADR. 

Finally, agencies have invested in technologies to train wider audiences – some of which are 

dispersed worldwide. Examples include: Air Force (monthly ADR webinar program); USDA 

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(webinar); DOS (E-Gov-e-training provider); FMCS (online webinars); the Navy (video 

teleconferencing training sessions, web-based trainings, and DVD’s); HHS (online training); and 

the National Labor Relations Board (NLRB) (online training module). 

B. Federal Procurement 

ADR is an integral part of the federal procurement process from the initial bidding through 

performance and completion of the contract, sometimes extending over many years. Annually, 

the executive branch spends a trillion dollars in some four million contracts for goods, services, 

and construction projects to support vital agency missions; disputes are inevitable.

23 Maintaining 

productive business relationships between agencies and their contracting partners at every stage 

of the procurement process to achieve mutually beneficial goals is critically important – 

especially in ongoing construction and other infrastructure projects. Today, the government 

successfully resolves most federal contract and procurement disputes through some form of 

ADR.

24 These tools preserve projects and relationships in millions of contracts, provide 

enormous cost savings, and minimize disruptions to agency missions. Additionally, ADR allows 

the parties to develop creative options for resolving issues which couldn’t be imposed in an 

adjudication and resolve global issues beyond the claims involved in a particular case. 

Early Use of ADR. The best protection against disputes that erode critical business relationships 

is an agreement – as early as possible – to work cooperatively and effectively to resolve issues as 

they arise. The Federal Acquisition Regulation (FAR) which governs all federal contracting and 

procurement was amended in 2011 to advise agencies to use ADR early and address protests at 

the lowest possible agency level.25 

Early in the contracting process, bidders who have not been awarded a contract – “disappointed 

bidders” – sometimes claim that the request for proposals or review process for the award of the 

contract was flawed. These unsuccessful bidders sometimes initiate lawsuits or administrative 

complaints which can delay the contracting process. Some agencies26 have developed programs 

to address these types of disputes early and effectively by offering a timely and frank exchange 

between the losing bidder and the agency about the weaknesses of the unsuccessful bid. 

Previously, agencies offered disappointed bidders only a superficial debriefing that provided 

little explanation for the agency’s decision27 and disappointed bidders were forced to bring 

formal lawsuits in order to discover the particulars about the agency’s decision in awarding the 

bid elsewhere. Today, through improved and detailed debriefings in appropriate cases, agencies 

can provide disappointed bidders with an evaluation of their proposals, suggestions for 

improving the proposals, and the basis for the selection decision and contract awards. The 

improved debriefings programs decrease formal and lengthy protest proceedings and increase 

improved subsequent bids. 

The Army Corps of Engineers pioneered a program of establishing an early commitment to a 

strong partnership between the governmental institutions and their contracting businesses in 

construction contracts. This process is now an established early ADR technique routinely used by 

federal agencies. Such partnering agreements – generally initiated immediately after awarding a 

contract – provide parties with a neutral facilitator who helps stakeholders lay the groundwork 

for a team-based approach: identifying those responsible for resolving each potential issue and 

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setting conditions for attempting resolution before the issue can be elevated for a formal 

resolution process or adjudication. Partnering Programs 

The Navy used partnering to repair a The Navy and its contractor partner received several seawall and construct a massive 

prestigious construction awards for successfully using a maintenance facility for nuclearpartnering process in a contract to remodel a pediatric powered aircraft carriers. Through the 

procedures developed by the Navy and intensive care unit at the Naval Medical Center in San its contracting partner, the partnership Diego, California. In addition to completing the project in completed the project without any half the time required for similar projects, the partnership formal claims, ahead of schedule, and 

achieved its project goals by following the resolution under budget. 

procedures set out in its partnering charter. The Bureau of 

Prisons (BOP) successfully used partnering in a construction project to expand the size of the 

Coleman Prison. Before beginning construction, representatives from BOP, the architecture firm, 

general contractor, and major subcontractors attended a meeting in which they discussed each 

stakeholder’s needs and goals, practiced problem solving 

as a group, and agreed to common goals. The partnering Partnering Programs 

process, which included frequent meetings of the project BOP developed a partnering program 

as a part of a larger effort to improve team, enabled the parties to complete the fast-track 

the quality of its construction projects, construction project on time with very few issues elevated streamline the design and construction to top management. schedules, and alleviate unwanted 

adversarial relationships with 

Contracting disputes are best resolved by avoiding them contractors. 

altogether by refocusing the parties on the agency’s 

mission, the need for business certainty and the opportunities for mutual gain by planning in 

advance how to address disputes which may arise during the contract execution phase. 

Customized ADR Processes. Agencies are also expanding other ADR processes and tailoring 

dispute resolution to fit specific and often unique circumstances. For example, agencies are now 

required by the Office of Management and Budget (OMB) to use a new, more cooperative, and 

less adversarial process for resolving audits of government grants to private entities called 

“cooperative audit resolution.”28 This dispute resolution technique was originally developed at 

the Department of Education (ED) for monitoring financial management in federal grants to 

educational institutions. This process promotes a cooperative, problem solving approach to the 

audit function and provides a corrective – rather than punitive – experience in instances where 

lack of training or experience and weak internal controls – rather than fraud – is the cause of the 

audit finding. 

Dispute resolution can be more effective when parties agree – in advance – to use ADR as soon 

as issues arise. Some agencies will agree in an initial contract to setting up a dispute review 

board in which both sides agree in advance to a decision rendered immediately upon a conflict 

surfacing by a board of experts designated in advance. Some pre-dispute agreements also 

stipulate a panel of experts for particular systems in a construction project – such as HVAC, 

plumbing or electrical work – so that when technical issues arise, experts are ready to review and 

adjudicate disputes. Through partnering, stakeholders are better equipped to work together 

collaboratively to solve problems that will inevitably arise during contract performance. 

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Often, agencies and contractors agree to a multi-tiered ADR process through which the parties 

work through a series of graduated resolution processes ultimately to adjudication if they cannot 

come to a mutually agreed resolution. For example, one Defense Logistics Agency (DLA) 

standard contract requires parties to agree to first try resolving disputes with unassisted 

negotiations, but to use ADR processes if the negotiations are unsuccessful and adjudication as a 

last resort.29 Other agencies utilize tiered discussion clauses which provide for an initial lower 

level of review among peer employees who have the most personal knowledge of the facts 

involved. If the issue remains unresolved after a specified period of time, a second layer of 

review is required before ultimately elevating the dispute, if necessary, to agency leadership to 

address. The theory behind such clauses is that employees have incentive and means to resolve 

differences among themselves rather than involving management in the dispute. Both the 

National Institutes of Health (NIH) and Army utilize tiered discussion clauses in their 

Cooperative Research and Development Agreements. 

Many agencies are relying heavily on mediation but have customized services according to the 

needs of the parties or the issues in the case. The FAA Office of Dispute Resolution for 

Acquisition (ODRA), the Armed Services Board of Contract Appeals (ASBCA) and the Civilian 

Board of Contract Appeals (CBCA) provide ADR and adjudication for contract disputes, small 

business challenges, and public-private competitions. Parties consensually resolve a high number 

of contracting disputes each year through ADR 

processes provided by these adjudicative bodies. These 

administrative law judges are trained and highly skilled 

neutrals who afford the parties sophisticated, often 

hybrid forms of ADR, such as evaluative mediation, 

non-binding arbitration, and facilitated partnering, for 

resolution of disputes before adjudication. Parties 

negotiate and agree to the timing and specific 

characteristics of a mediation or other ADR process, 

before the process begins. 

Because relationships are so fundamental to successful 

execution of the myriad contracts the federal 

government uses, ADR also serves as an essential 

communication tool in addition to a dispute resolution 

process. ADR is often helpful even where the parties do not reach a global or final settlement of 

the dispute, including, for example: narrowing the issues in dispute, repairing relationships 

through effective communication strategies; and/or creating innovative solutions that may not 

have been available through litigation. 

Ombuds Offices. Some agencies have recognized the value in having an independent and 

impartial ombuds to serve as liaison between the agency and the public to address fairness in the 

acquisition and grant making process. The National Oceanic and Atmospheric Administration 

(NOAA) recently created an acquisition ombudsman with a charter that upholds the crucial 

elements of ombuds practices.30 NOAA’s Ombudsman, with both internal and external 

functions, facilitates communication with client programs, industry, academia, and the public. 

Ombudsman engagements may take place during different phases of the acquisition and grants 

ADR in Contract Litigation 

At Army’s request, ASBCA neutrals 

helped parties settle a case with claims 

totaling more than $2.0 billion dollars 

relating to a contract to overhaul dated 

technology systems. The parties 

ultimately consolidated multiple claims 

and counterclaims into one ADR 

proceeding. The ADR process included 

two co-neutrals, joint sessions, 

presentations, and evaluative caucuses. 

The settlement included a payment to the 

contractor and a five-year contract 

extension, in exchange for rights to the 

contractor’s intellectual property, which 

was developed to support the contract. 

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cycles – both pre- and post- award. The Ombudsman addresses issues that arise during the 

acquisition and grants process by gathering information about the scope and context of a 

concern, determining the reasonableness of a particular process or decision, and making 

recommendations for improvements in policies and processes. The Ombudsman conducts 

outreach to educate stakeholders and serves as an advisor to agency leadership. When ombuds 

offices – in charter and in practice – have a mandate of impartiality, confidentiality and 

independence, they are in the best position to gain the trust of all stakeholders. 

C. Administrative and Regulatory Actions 

ADR programs in administrative and regulatory matters – such as permitting issues or 

enforcement of agency regulations – address a different set of challenges. The constituency in 

these matters is oftentimes broader and more diverse than in other areas and the disputes often 

cover a longer period of time. Resolution of disputes in this arena is less likely to be binary and 

must address multiple viewpoints from diverse stakeholders. 

ADRA included encouragement for agencies to use the process of negotiated rulemaking which 

provides stakeholders and the agency an opportunity to engage in dialogue about a proposed set 

of regulations, such as: balancing competing stakeholders’ interests; setting conditions for 

phasing in a new regulation; gauging feasibility of enforcement of a proposed regulation; and 

determining potential penalties involved in enforcement. Agencies have found that when 

stakeholders are engaged in the development of policies and processes directly impacting them, 

the regulations adopted tended to be better crafted rules as well as more smoothly implemented. 

Agencies continue to use negotiated rulemaking to engage stakeholders in the process of 

developing the best possible agency regulations and of reducing potential legal challenges to 

those regulations. ED and the Department of Transportation (DOT) have each recently used this 

important ADR tool. ED is actively engaged in a negotiated rulemaking to develop regulations 

regarding State assessment systems to implement amendments to the Elementary and Secondary 

Education Act. DOT is currently negotiating the terms of a proposed rule on a variety of 

provisions that would enhance air transportation for persons with disabilities, including airlines’ 

web and kiosk accessibility. Agencies have found that rules developed by stakeholder consensus 

are easier to implement and reduce the likelihood of litigation challenging an agency’s action. 

Additionally, negotiated rulemaking proceedings, transparent and open to the public, require a 

balanced representation of stakeholders who are willing to negotiate in good faith and to support 

creativity and collaboration among diverse interest groups. 

Early Use of ADR. The resolution of many cases prior to launching a formal investigation 

enables agencies to resolve disputes more quickly and economically and to preserve resources 

for cases which require enforcement litigation. NRC offers ADR at several different junctures: 

initially, before it initiates an investigation and again if the investigation leads to an enforcement 

action. Likewise, the Federal Energy Regulatory Commission (FERC) has increased its use of 

early ADR, both before complaints have been filed, and, if complaints have already been filed, 

before cases are set for a hearing. Parties with issues before FERC may work with a staff 

mediator, an administrative law judge, or a technical subject matter expert to provide a nonbinding early evaluation of the merits by a neutral third party. 

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Customized ADR Processes. There are a number of ways in which agencies are expanding the 

application of traditional and cutting-edge ADR processes to address more varied administrative 

and regulatory disputes. The HHS Centers for Medicare & Medicaid Services (CMS) offers 

several levels of administrative review when CMS denies payments for services or supplies. A 

new ADR program brings providers or suppliers together with CMS to discuss options for 

settling appealed Medicare claims. Settlement agreements typically include some revised 

payment for billed claims and a withdrawal of the appealed claims – enabling health care 

providers to focus their attention on health care rather than pursuing a lengthy administrative 

process for appeals. FEC promotes compliance with federal election law by encouraging 

settlements outside of the traditional enforcement and litigation processes through a combination 

of negotiation and mediation. NARA simplifies – and often accelerates – the process of 

requesting records under the Freedom of Information Act (FOIA) by serving as a liaison between 

agencies and FOIA requesters, and, using hybrid ADR techniques, helps requesters to narrow 

their focus and agencies to determine realistic time frames for compliance.31 

Agencies are better equipped to address multi-party, multi-issue challenges when they engage 

early with broad stakeholder groups. Agencies such as EPA, NRC and the DOT have increased 

their use of large group facilitation tools in leadership summits or open citizen forums. The EPA 

held a Climate Leaders’ Summit in 2013 to both educate and lay groundwork for future climate 

change initiatives and collaboration across agencies. Additionally, DHS frequently uses 

consensus-building facilitation tools to help states, tribes, and other stakeholders to rebuild 

properties destroyed during major disasters. 

FMC provides ombuds, rapid response mediation, facilitation, and arbitration to resolve shipping 

disputes or challenges. FMC resolves widespread issues by implementing targeted education and 

outreach initiatives after proactively collecting and analyzing data regarding dispute trends. For 

example, the agency noted a growing trend of disputes involving yacht transportation services 

provided by various ocean transportation intermediaries and responded by issuing an alert with 

recommendations to yacht owners and brokers in order to educate them about how to avoid 

problems when shipping yachts. The agency also published an article with general information 

and tips about how to avoid challenges and disputes in a trade association publication. 

Ombuds Offices. Ombuds programs are designed to assist agencies’ administrative and 

enforcement activities by monitoring the effectiveness of agency review processes. The ombuds 

programs engage with both internal and external constituents: they use outreach to understand 

the concerns and interests of consumers, industry, and other external stakeholder groups and can 

internally provide an early warning mechanism for the agency by highlighting issues for 

leadership which may require immediate action. 

Independent ombuds offices with access to management are particularly well suited to 

preventing widespread systemic problems by engaging in outreach with the regulated community 

and providing recommendations to senior agency leadership. These ombuds programs are 

designed with inherent flexibility in order to ensure that the agency’s constituents are well and 

fairly represented. In fiscal year 2015, the Consumer Financial Protection Bureau (CFPB) 

Ombudsman’s Office held its first Ombudsman Forum, inviting trade groups with which the 

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office had engaged in outreach for a four hour, confidential session to discuss process issues 

previously shared with the ombuds office over time. The ombuds office facilitated the 

conversations to further inform the work of its office. After the event, the office provided 

unattributed feedback to the agency and summarized the feedback and participants’ 

recommendations in the office’s public annual report. The Forum illustrated the flexibility 

inherent in the ombudsman role and in the creative tools available to the ombudsman 

practitioner. The forum underscored the value of the ombudsman as a place to share concerns 

and consider solutions as an independent, impartial, and confidential resource. 

Ombuds offices also effectively resolve issues raised by individual constituents. ED’s ombuds 

for student aid uses informal dispute resolution processes to address complaints about Title VI 

financial aid programs. The ombuds employs a collaborative approach in working with 

institutions of higher education, lenders, guaranty agencies, loan services and other participants. 

The program staff conduct fact-finding and reviews student loan data and records to facilitate 

communication and promote resolution of disputes. 

Ombuds offices devoted to enforcement and regulatory matters handle a variety of tasks: 

•	 resolve process issues impacting large stakeholder groups early and before they evolve 

into resource intensive complex litigation matters; 

•	 serve as an early warning mechanism so regulatory issues – can be addressed before 

regulated entities incur major financial repercussions; 

•	 facilitate discussion internally across the agency to assess systemic problems; 

•	 educate constituents who contact the agency to better understand their options; and 

•	 engage all stakeholders in the process of developing solutions, so the solutions are more 

likely to meet needs of a broader spectrum of those affected. 

Technology. New applications of technology enable stakeholders to lodge complaints more 

efficiently and allows agencies to resolve those complaints more effectively. Over the past ten 

years, FERC, FMC, and Surface Transportation Board (STB) have expanded their dispute 

resolution services to include the real-time, telephonic resolution of regulatory disputes. FERC 

has also provided dedicated toll-free helplines and email boxes to optimize citizen or business 

access to the complaint process. 

Agencies have harnessed technology to provide early and innovative ADR applications to help 

the regulated business community function more effectively. Three agencies – STB, FMC and 

FERC – have each developed rapid response ADR services using telephonic dispute resolution. 

These cutting-edge ADR processes allow agencies to rapidly address and resolve regulatory 

issues early on and before they become costly and entrenched disputes. The new services create 

immediate tangible results as parties are able to obtain immediate satisfaction of their needs (e.g., 

ensuring that continuous flow of cargo and/or obtaining delivery of cargo) rather than waiting to 

litigate the matter for monetary damages. 

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D. Litigation 

Since Congress mandated in 1998 that all federal district courts develop an ADR program 

available to civil litigants, the number of cases in which DOJ litigators use ADR each year 

continues to grow.32 In a 12-month period ending June 30, 2011, 49 federal district courts 

referred 28,267 cases to ADR. Each of the ninety-four federal district courts and the majority of 

courts of appeals have their own ADR programs and related rules that govern the use of ADR. 

The federal courts mirror the trend of customization – 36 percent of the district courts offer 

multiple forms of ADR processes. Federal court ADR services may be provided by judicial 

officers, staff from the court’s ADR unit, panel neutrals, or private neutrals.33 ADR may be 

mandatory, encouraged, or optional.34 Judicial mediation or settlement conferences have been – 

and continue to be – the most commonly used settlement processes in litigated cases.35 

The broad of spectrum of benefits reported from settling cases short of adjudication include: 

• achieving better and more customized relief than what an adjudication can provide; 

• saving time and money for litigants; 

• reducing time cases spend on court dockets; Case Settlement • avoiding the impact of an adverse precedent; In 2014, the Attorney General awarded a 

• improving communication between parties and team of attorneys from the Environment 

increasing understanding of issues;	 and Natural Resources Division an award 

for their work on claims over highway • narrowing issues for trial; rights-of-way. The team of attorneys • making progress toward policy objectives; and negotiated a creative three-sided 

•	 narrowing discovery issues.36 resolution of the first of dozens of 

lawsuits and it served as a model of 

One notable development over the past few years cooperation among government entities 

and environmental interests, and involves a variety of new initiatives in federal courts to established a foundation on which to build improve pro se litigants’ access to justice by helping further agreements. 

them to better understand and benefit from mediation 

and settlement conferences. 37 Some courts, such as the U.S. District Court for the District of 

Rhode Island, have requested volunteers from its panel of pro bono attorneys to provide limitedappointment-representation for a mediation or settlement conference.38 The U.S. District Court 

for the Northern District of California developed Pro Se Prisoner Early Settlement Program, 

which involves the temporary appointment of volunteer counsel for mediation before a 

Magistrate Judge.39 Having counsel available at these informal resolution processes has 

improved understanding of the process, strengths and weaknesses of the case, and realistic 

evaluation of the value of the case.40 

Adopting a more tailored application of ADR processes has been recognized as a valuable 

improvement by the United States Court of Federal Claims through a recent change in their ADR 

procedures.41 In 2016, the court ended its practice of ADR automatic referral and replaced it with 

a more flexible procedure in which the parties and the assigned judge in each case will work 

together to determine whether a case should be referred to ADR, and, if so, who should serve as 

the neutral. The court has recognized that the parties are intimately familiar with their case and 

are in the best position to determine how and what will help in resolving the issues. 

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E. Environmental Disputes 

Environmental collaboration and conflict resolution (ECCR) has continued to grow since a 2005 

policy – later strengthened in 2012 – promoted the use of ADR and established annual reporting 

requirements.

42 The Udall Foundation’s U.S. Institute for Environmental Conflict Resolution 

(Udall Foundation) assists federal agencies and other stakeholders in addressing environmental 

disputes through ADR processes such as assessments of current conditions and facilitated 

collaboration among constituents. The Udall Foundation supports ECCR efforts by convening 

quarterly forums and coordinating the annual reports.43 

Agencies and stakeholders have become more focused on addressing environmental disputes as 

early as possible to minimize continuing pollution or degradation of natural resources. 

ECCR processes have become increasingly tailored to the needs of the parties and the issues in a 

particular dispute, currently focusing less on traditional mediation, and more on assessing 

conflicts and designing collaborative processes for 

interested parties to address and resolve those ECCR 

The Army Corps of Engineers (Corps) conflicts. DoD components, including the Air regularly uses early ECCR. Collaborative tools Force and Navy, use a number of ADR techniques are used to ensure that the interests of multiple including partnering and collaborative groups to public stakeholders are addressed in Corps 

address environmental disputes. Partnering teams	 decision-making and that ADR tools are used 

typically include representatives from federal	 to proactively prevent and minimize conflicts 

as early as possible – as soon as conflict agencies, state governments, local officials, and emerges. The Corps engaged in an ECCR other interested groups who work with a facilitator process with the U.S. Fish and Wildlife Service to craft creative and cost effective restoration and a multi-party stakeholder committee to 

processes that address as many interests as	 study the social and economic impact of efforts 

possible. The Navy and the Marine Corps partner	 to recover endangered species in and around 

the Missouri River. A private neutral and a with states and EPA to manage cleanup programs facilitation team from the Udall Foundation when military installations – or parts of helped the stakeholders use a structured installations, such as landfills or former rifle ranges decision making process to reach a consensus 

– are closed. The Navy used partnering to on the objectives and metrics for the study. 

remediate a landfill at the Naval Surface Warfare 

Center in Dahlgren, Virginia. Partnering enabled 

the team to effectively resolve particularly challenging tasks (i.e., screening for unexploded 

materials and consolidated waste) and construction surprises to complete the project on schedule 

and within the original budget. The Navy currently participates in 41 facilitated partnering teams 

that oversee restoration efforts at 1,155 environmental restoration sites. Through partnering, the 

Marine Corps accomplished the cleanup of a former rifle range at the Quantico Base. There, the 

project involved a diverse group of stakeholders because the former range site was adjacent to a 

religious institution and the main administration building. 

Agencies have also shifted their focus downstream, to address how the interested parties might 

work together to address current issues and future issues that might arise. This is an important 

extension of the collaborative part of ECCR. Today, attention is frequently focused as much on 

implementing an agreement jointly as it is to reaching the agreement in the first place. 

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Over the past ten years, agencies have 

increased their capacity for ECCR by 

investing in training, building ECCR 

infrastructure, establishing procurement 

mechanisms, and evaluating the success 

of ECCR.

44 For example, the FAA 

released a desk reference for its 

National Environmental Policy Act 

procedures that outlines coordination 

and consultation practices for each 

environmental category (i.e., water, air, 

biological impacts, etc.) to ensure that 

stakeholders are notified early in the 

environmental process and that their 

concerns are heard and addressed prior 

to creation of a final document. The reference specifically encourages early coordination with 

stakeholders. 

CONCLUSION 

ADR has come of age in the past decade. Agencies across the government have embraced 

change, studied results and developed innovative programs to maximize the benefits for the 

public. The impact of ADR continues to be significant: providing access to swift and fair justice 

through dispute resolution tools in disputes involving the government. In the 1990’s the 

Executive Branch and Congress displayed foresight in promoting a new concept in effective 

government which encouraged cooperation, transparency and collaborative problem solving. 

New, forward thinking legislation enabled federal agencies to respond more directly and 

efficiently in managing disputes with the government. Since then, federal agencies have 

dramatically expanded their use of ADR into a multi-faceted, flexible, and valuable tool for 

preventing and resolving a broad spectrum of conflicts and for diagnosing weaknesses in agency 

structures and culture. The result is a more pro-active, effective, collaborative, and transparent 

federal government; a more productive and satisfied federal workforce; a more efficient 

procurement process; and a problem-solving perspective to a myriad of conflicts, all of which 

improve the functioning and accessibility of government and directly benefit the public. 

Multi Stakeholder ADR Processes 

In 2015, EPA worked with Native American tribal groups, 

Oregon’s environmental regulators, and citizens to develop a 

revised water quality standard to protect fish consumers in 

the state. The group engaged a professional facilitation team 

to design, convene, coordinate, and facilitate discussions 

around water quality and health concerns over fish 

consumption. The project had three distinct phases and each 

one included an opportunity for people with diverse interests 

to come together, review information, and share perspectives 

and data about what might work to reduce toxins. At the end 

of a four-year process, the parties agreed to a new set of 

water quality standards which were designed to protect the 

most vulnerable populations, particularly tribes and 

communities relying on subsistence fishing for their primary 

source of food. 

1 Pub. L. No. 104-320 (amending Pub. L. No. 101-552 (1990) and Pub. L. No. 102-354 (1990)), 5
 

U.S.C. §§ 571-581 (2011).

2 Presidential Memorandum, Designation of Interagency Committees to Facilitate and Encourage Use of
 

Alternative Means of Dispute Resolution and Negotiated Rulemaking (May 1, 1998).
 

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3 Appendix I contains a complete listing of the federal departments and agencies that contributed to this 

report. The Working Group website can be found at https://adr.gov. 4 See 2007 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) (https://www.adr.gov/pdf/iadrsc_press_report_final.pdf) at pages 113-114 (noting that 

in 2007, only a few agencies had developed early intervention programs, including: Department of 

Transportation; Federal Energy Regulatory Commission; Department of Interior; DOJ; and U.S. Institute 

for Environmental Conflict Resolution. 5 DoD issued DoD instruction 5145.05: Alternative Dispute Resolution (ADR) and Conflict Management 

on May 27, 2016; http://www.dtic.mil/whs/directives/corres/pdf/514505p.pdf.

6 For example, mediation continues to be the ADR tool of choice for specific ADR programs within DOJ 

(for cases in active federal litigation); Office of Special Counsel (for resolving whistleblower allegations); 

National Labor Relations Board (in formal administrative cases), and Civilian Board of Contract Appeals 

(in contract and procurement cases). 

7 The Coalition of Federal Ombudsmen, formed in 1996, and comprised of federal ombudsmen, has 

grown – since its inception – from 11 to 109 members. Coalition membership grows when ombudsman 

programs are created within agencies, when ombuds offices expand by hiring additional ombudsmen, or 

when agencies add ombudsman services to sub-agencies within their structure, granting easier access for 

employees and the public to ombudsmen. See Coalition of Federal Ombudsman membership list at: 

http://federalombuds.ed.gov/federalombuds/history.html (last visited August 25, 2016). 

8 For example, Congress mandated the establishment of an agency ombudsman within the Consumer 

Financial Protection Bureau to “act as a liaison between the Bureau and any affected person with respect 

to any problem that such party may have in dealing with the Bureau, resulting from the regulatory 

activities of the Bureau; and assure that safeguards exist to encourage complainants to come forward and 

preserve confidentiality.” 12 U.S.C. § 5493(a)(5), Dodd-Frank, § 1013(a)(5). For another example, 

Congress established a Citizenship and Immigration Services Ombudsman within the Department of 

Homeland Security to assist individuals and employers in resolving problems with the agency, to identify 

problems in dealing with the agency, and to propose changes in administrative practices. 6 U.S.C. 101 et 

seq., Homeland Security Act of 2002, § 452.

9 For example, internal ombudsman offices have recently been established by agency leadership at the 

Department of Commerce, U.S. Patent and Trademark Office (launched in 2016), at the Federal Deposit 

Insurance Corporation (launched in 2009 as a pilot and permanently in 2012) and at the Department of 

Energy (launched in 2012).

10 ACUS commissioned a research project to study federal agencies’ use of ombuds and released a final 

report and proposed recommendations regarding best practices for federal ombuds on November 14, 

2016. See ACUS, Revised Project Outline: The Ombudsman in Federal Agencies, (November 25, 2015) 

(citing Ginsberg & Kaiser, 2009) at 2; and The Ombudsman in Federal Agencies –Report, (November 14, 

2016) (https://www.acus.gov/research-projects/ombudsman-federal-agencies-0 (last visited November 29, 

2016)).

11 Agencies each report their use of ADR in relation to informal and formal EEO complaint stages, using 

the Equal Employment Opportunity Commission (EEOC)’s Annual Federal Equal Employment 

Statistical Report of Discrimination Complaints (EEOC Form 462). However, over the past decade, 

agencies have increasingly offered ADR options for workplace disputes that are not being pursued as 

EEO complaints. And, as noted in the section above, many agencies have increasingly offered ADR 

techniques at the earliest stages of conflict – to avoid conflicts from becoming entrenched disputes that 

require formal ADR processes and to better understand and proactively respond to systemic issues.

12 The DOJ Mediator Corps was created in 2009. The program currently has a corps of 130 collateral duty 

mediators, who provide ADR services for informal and formal EEO disputes, as well as Federal Bureau 

of Investigation (FBI)-specific whistleblower cases.

13 Treasury’s Shared Neutrals Program helps agency employees to resolve workplace disputes (EEO and 

non-EEO matters) through mediation, facilitation, coaching, and training. The program retains a pool of 

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trained and certified neutrals who serve on a collateral-duty basis. Neutrals must maintain their skills by 

continuing to mediate and by meeting annual training requirements (8 hours of refresher training). 

Neutrals empower their colleagues to improve their working environment by responding appropriately to 

conflict and by resolving conflict at the earliest possible stage. In FY 2015, the program conducted 252 

mediations and resolved 133 (53%). 

14 The USDA Early Resolution and Conciliation Division created a collateral-duty “Resolving Official 

Cadre” to resolve EEO complaints. The Resolving Officials have authority to resolve EEO complaints. 

The Resolving Official Cadre is representative of USDA senior officials at the GS-15 and SES levels 

representing each agency.

15 DHS established its shared neutrals program in fiscal year 2015 to provide agency employees with 

internal ADR practitioners for EEO-related ADR programs.

16 The Service Branches and other DoD Components train internal personnel to serve as collateral-duty 

neutrals in EEO and non-EEO workplace disputes. For instance, the Air Force, and the Defense Logistics 

Agency use internal personnel as collateral-duty mediators. 

17 The FEC recently began training internal personnel to serve as collateral-duty conflict coaches. 18 Agency officials are prohibited from retaliating against employees for whistleblowing under 5 U.S.C. 

§ 2302(b)(8) and from discriminating against employees based on their current or past service in the 

military, or their intent to join the military (or retaliating against service members for attempting to 

enforce their rights under the act) under the Uniformed Services Employment and Reemployment Rights 

Act of 1994, 38 U.S.C. §§ 4301-4335 (USERRA).

19 A number of DoD agencies have established ombuds offices to address employee concerns including 

DIA which created a workplace ombuds office in 2015.

20 The DOE Office of the Ombudsman was created in March 2012. 

21 In 2010, the DOS appointed its first full-time Ombudsman. The Office of the Ombudsman now has a 

total of eight staff members, including five Associate Ombudsman and an Attorney Advisor. The office 

provides a full spectrum of ADR services including option discussions, climate assessments, conflict 

coaching, facilitated conversations, mediation, training, and more to address informal workplace conflicts. 

Ombuds offer employees an unbiased and confidential perspective on workplace issues and provide 

information about the processes, policies, and available resources

22 Agencies that reported conducting ADR processes telephonically, or via video or web-based 

conferencing technologies include: DoD, HHS, Departmental Appeals Board, ADR Division, Department 

of Veteran’s Affairs Office of Resolution Management, FMCS, FLRA, and National Mediation Board.

23 www.USASpending.gov (last visited October 16, 2016), using “Advanced Search” with filters for fiscal 

year 2016, “contracts” or “grants” and federal executive agencies (excluding the Library of Congress and 

the Judicial Branch), the Executive Branch had entered into 3,854,561 contract transactions and 967,953 

grants in fiscal year 2016, totaling $1,031,608,512,189. The same search yielded the following data for 

previous fiscal years: fiscal year 2015: 4,409,478 contract transactions and 950,448 grants totaling 

$1,055,856,036,937 fiscal year 2014: 2,624,763 contract transactions and 1,006,225 grants totaling 

$1,048,328,012,626; fiscal year 2013: 2,599,990 contract transactions and 974,293 grants totaling 

$984,146,979,179. 

24 ADR Roundtable, ABA Annual meeting, August 9, 2014, Comments by the Alternative Dispute 

Resolution Committee of the Public Contract Law Section; ADR for Contracts, Grants, and Cooperative 

Agreements, prepared for the Symposium on Federal Alternative Dispute Resolution, March 19, 2012. 

https://www.acus.gov/sites/default/files/documents/D1-Acquisition-Contracting1.pdf. 25 In addition to authorizing the use of ADR for contract disputes and appeals, the FAR was amended in 

2011 to require all parties to “use their best efforts to resolve concerns raised by an interested party at the 

contractor level through open and frank discussions.” See 48 C.F.R. §§ 33.103, 33.210 and 214 (2011). 

26 The Department of the Air Force, the DOE, and the FAA provide some examples of agencies that offer 

improved or enhanced debriefings that go beyond the traditional debriefing. More information about these 

debriefing programs can be found at https://www.adr.gov/adrguide/ch08.html. 27 See FAR 15.506. 

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28 The OMB regulations require federal agencies to use cooperative audit resolution for the auditing of 

federal grant-making programs. 2 C.F.R. § 200.513; 78 Fed. Reg. 78590 (December 26, 2013) (to be 

codified at 2 C.F.R. §§ 200, 215, 220, 225 and 230). 

29 More information about ADR clauses can be found with the second edition of the Electronic Guide to 

Federal Procurement Alternative Dispute Resolution at https://www.adr.gov/adrguide/ch05.html. 30 NOAA formally established the acquisition and grants ombudsman program in 2016 (the program was 

initially created as a pilot program in 2015). The program’s charter provides that the ombudsman will be 

neutral and independent, and that the ombudsman will not disclose confidential information unless 

required by law or court order. 

31 ACUS studied the use of ADR to resolve FOIA disputes. See 

https://www.acus.gov/recommendation/resolving-foia-disputes-through-targeted-adr-strategies. 32 The Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-315 (1998). 

33 The local federal court rules relating to ADR vary from district to district. A compendium of the local 

District Courts’ ADR rules can be found at www.justice.gov/olp/compendium-federal-district-courtslocal-adr-rules. 

34 Id. 35 U.S. Courts: Dispute Resolution in Federal Courts: New Study to Look at How It’s Working, 

http://www.uscourts.gov/news/2014/01/23/dispute-resolution-federal-courts-new-study-look-how-itsworking (published January 23, 2014).
 36 The Use and Benefits of Alternative Dispute Resolution by the Department of Justice at
 

https://www.justice.gov/olp/alternative-dispute-resolution-department-justice. 37 Jerome B. Simandle, Enhancing Access to ADR for Unrepresented Litigants: Federal Court Programs 

Provide Models for Helping Pro Se Parties – and the Justice System, Dispute Resolution Magazine, 

Summer 2016 at 7-12.
 38 Id. at 10.
 39 Id. 40 Id. 41 The new rules for the U.S. Court of Federal Claims may be viewed at 

http://www.uscfc.uscourts.gov/alternative-dispute-resolution. 42 In fiscal year 2014, federal agencies reported 444 ECCR cases in which they either directly sponsored 

or participated in a process sponsored or convened by another agency or entity. See 

https://udall.gov/documents/ECRReports/2014/FY2014ECCRReportSynthesisFINAL_15_1027.pdf. 

43 More information about the Udall Foundation’s role in supporting federal ECCR can be found at 

https://udall.gov/OurPrograms/Institute/Leadership.aspx. 44 Furthermore, between FY 2008 and FY 2014, there was a steady increase in the total of reported ECCR 

cases year-to-year, ranging from 2%-9%. See 

https://udall.gov/documents/ECRReports/2014/FY2014ECCRReportSynthesisFINAL_15_1027.pdf. 

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