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NEW DISPUTE RESOLUTION PROGRAMS

IN THE FEDERAL GOVERNMENT

2014 Update

I. Introduction

Under the Administrative Dispute Resolution Act, first enacted in 1990 and renewed on a 

permanent basis in 1996, Congress formally recognized the value of Alternative Dispute 

Resolution (ADR) and authorized its use by federal agencies. In 1998, President Clinton 

established a formal network for agencies to share information about experiences using ADR and 

assigned a federal interagency leadership role to the Attorney General. 

Periodically, the Interagency ADR Working Group (Working Group) is required to report on its 

efforts to the President through the Office of Management and Budget (OMB). At a 2012 ADR 

Symposium co-sponsored by the Department of Justice and the Administrative Conference of the 

United States, Attorney General Eric Holder emphasized the importance of interagency 

partnership in improving the Government’s “collective ability to resolve disputes effectively, 

equitably, and efficiently.” 

This report highlights key developments, innovations, and recent trends in federal use of ADR. 

Further detail about individual agency programs is available at www.adr.gov. 

The objectives of this report are to:

• Highlight certain agencies’ use of new and innovative ADR techniques;

• Provide evidence that ADR strategies can be effective across a wide range of applications;

• Identify trends in ADR over the last five-to-seven years, including:

o Increased institutionalization of the use of ADR in the normal course of federal 

government business; 

o Tailoring of ADR techniques to the specific needs of agency programs;

o Provision of immediate assistance with disputes through telephonic mediation;

o Application of ADR techniques earlier in a dispute process as a mechanism to resolve 

conflicts; and

o Increased use of online communication as a mechanism to provide ADR; and

• Fulfill the requirement of periodic reporting of ADR activities.

This report addresses five areas of ADR application, corresponding to four designated sections of 

the Working Group: Civil Enforcement and Regulatory Efforts; Contracts and Procurement; 

Litigation and other Justice Programs; and Workplace Conflict Management. It also has an 

additional section that describes other important developments in ADR.
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II. Civil Enforcement and Regulatory Efforts

ADR is being used earlier, more widely, and more systematically in federal civil enforcement 

actions and regulatory negotiations, as well as in conflicts involving a cross-section of industryand private-party stakeholders. Four regulatory and enforcement agencies provide examples of 

the federal Government using innovative ADR techniques to prevent and resolve disputes. Each 

is tailoring ADR processes and techniques to meet the needs of disputants and consumers in 

order to address their complaints and disputes promptly, satisfactorily, and at lower cost. 

The Surface Transportation Board (STB) (which regulates domestic rail, truck, and water 

transportation) and the Federal Maritime Commission (FMC) (which regulates international 

ocean shipping) have both enhanced their mediation and arbitration programs to provide “real 

time” ADR. Each now provides telephonic dispute resolution services to parties. This means 

that entities that encounter a rail related transportation dispute can contact the STB’s Rail 

Customer & Public Assistance Program to obtain telephonic facilitation of their disputes. FMC

similarly offers telephonic ombuds services to assist disputants within the international ocean 

shipping supply chain and has enhanced its ombuds services to include the use of Rapid 

Response Teams. That program enables ocean common carriers to designate a senior contact 

who works with FMC staff to facilitate resolution of disputes that arise between ocean common 

carriers and their customers. 

In 2010, the International Trade Commission (ITC) implemented a new, permanent mediation 

program based on the success of an earlier pilot program aimed at reducing the number of issues, 

claims, and/or parties involved in disputes. The ITC conducts investigations into certain unfair 

practices in import trade involving allegations of patent or other intellectual property 

infringement made by private parties. The ITC’s Mediation Program provides litigants a rapid 

and confidential mechanism for case evaluation and an opportunity for early settlement. 

Mediation may also result in a larger settlement, covering not only the investigation before the 

ITC but also related litigation in other courts and countries. The program plays an important part 

in ensuring ITC’s continued success in accomplishing its mission of administering U.S. trade 

remedy laws within its mandate in a fair and objective manner. 

As a final example, the Federal Energy Regulatory Commission (FERC) issued Order No. 734 in 

2010, which expanded the role of FERC’s Dispute Resolution Division to handle “real time” 

landowner disputes pertaining to the construction and operation of jurisdictional infrastructure 

projects associated with non-federally sponsored natural gas pipeline facilities and hydroelectric 

projects. Via a dedicated toll-free helpline and email, FERC staff has timely and successfully 

addressed more than 630 inquiries to date. Of those inquiries, FERC guided landowners, energy 

companies, and other interested persons to resolve 93% (or 195 of 210) of the infrastructure 

disputes using voluntary ADR, including conciliation (86%), mediation (12%) and facilitative 

mediation/early-neutral evaluation (2%). Eighty two percent of these energy and environmental 

infrastructure matters were successfully concluded, which reflects ADR’s potential efficiency in 

leading to positive outcomes.
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III. Contracts and Procurement

ADR is well established in the field of federal government contracting, but refining its use is a 

continuing effort. Recent refinements include incorporating ADR procedures into rules, 

enhancing how agencies handle protests, and using ADR in the audit process.

New Rules at the ASBCA. The Armed Services Board of Contract Appeals (ASBCA) has 

jurisdiction over contract appeals involving defense agencies. After many years of successfully 

using ADR under a supplementary statement to its rules called the “Notice Regarding 

Alternative Dispute Methods of Resolution,” the ASBCA revised its rules July 21, 2014. See 48 

C.F.R. § 2 App. A pt. 2. The new rule directly incorporates ADR procedures into the Board’s 

rules of procedure.1

Extended Debriefing. The Department of the Air Force has launched a new Extended 

Debriefing Program. In the typical process of awarding a complex federal procurement contract, 

offerors who do not receive a contract may ask for a debriefing.

 

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 At the debriefing, agency 

officials explain the basis for the selection decision so that unsuccessful offerors can better

compete in the future.3

Extended debriefings are designed to change this dynamic by providing a legal mechanism to 

increase the level of information exchange. The mechanism used for several years by the 

Department of Transportation’s Federal Aviation Administration (FAA) is a protective order

 While general information may be conveyed during a debriefing, 

agencies usually may not provide competition-sensitive information about the awardee or the 

evaluation process. When agencies cite these legal restrictions and refuse to provide such 

details, disappointed offerors often feel compelled to file formal protests to get answers to their 

questions. 

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issued by the Office of Dispute Resolution for Acquisition.

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Cooperative Audit Resolution for Grants. In December 2013, the Office of Management and 

Budget (OMB) issued uniform guidance for federal grants that defines, and requires the use of, 

“cooperative audit resolution...to improve Federal program outcomes...”

 Agencies like the Air Force do not 

have authority to issue protective orders, so its new program uses non-disclosure agreements 

between the awardee, the unsuccessful offeror, and the agency. This new program emphasizes 

greater transparency at the debriefing to avoid the need for formal protests. The Air Force 

officially launched the Debriefing Program on October 1, 2013, and will continue to track its 

success. 

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 1 79 Fed. Reg. 11,374 (February 28, 2014). 

 Cooperative audit 

resolution involves auditors and agency staff working together to review problem areas and 

2 See, e.g., 48 C.F.R. §§ 15.505 and 15.506 (2013) (hereinafter “Federal Acquisition Regulation” or “FAR”). 3 See e.g., Matter of Next Tier Concepts, B-406620.3, 406620.4 (November 13, 2012). 4 14 C.F.R. § 17.9 (2013). 5 The ODRA exercises unique statutory authority to hear protests of FAA contract awards. 49 U.S.C. 40110 (2006). 6 Uniform Administrative Requirements, Cost Principles, and Audit Requirement for Federal Awards, 78 Fed. Reg. 78608 (Dec. 

26, 2013) (to be codified at 2 C.F.R. pt. 200).
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collaborating on developing solutions. Inclusion of this requirement was sparked by work of the 

Department of Education, through its Cooperative Audit Resolution Oversight Initiative 

(CAROI), to use cooperative audit resolution to resolve audit findings short of litigation and 

administrative appeals.

IV. Litigation Section and Other Justice Programs

The Department of Justice has used ADR extensively since Attorney General Janet Reno’s early 

recognition of the benefits of party-driven dispute resolution in 1995. In the almost two decades 

since, the Department has developed a number of robust and diverse programs which rely on 

ADR to advance the Department’s mission and goals. ADR programs across the Department 

also have been successful in promoting citizen access and participation in the justice system.

Office of Dispute Resolution (ODR). ODR, which is housed within the Department’s Office of 

Legal Policy, serves as the Department’s central resource in ADR use in litigation, developing 

policy, providing legal opinions, and training attorneys in effective ADR practices. Civil 

litigators–as well as courts–across the country have come to rely on ADR to help manage 

growing caseloads. Case resolution through party agreement has become the rule rather than an 

“alternative” practice in civil litigation, saving millions of dollars in litigation costs and freeing 

up months of work which can be devoted to more exceptional cases that are not appropriate for 

settlement. Cases resolved through ADR–primarily mediation–include a broad range of 

litigation, from fraud to environmental, bankruptcy, and tort cases.

Civil Rights Division-Disability Rights Section. The Department’s Americans with Disabilities 

Act (ADA) mediation program resolves ADA complaints efficiently, equitably, and voluntarily 

using alternative dispute resolution. The Department’s application of mediation to rights-based 

disputes is a significant shift away from the traditional adversarial, government-directed, winnertakes-all method of problem resolution. The ADA mediation program, carried out through a 

federal-private partnership, has achieved remarkable results, eliminating architectural, 

communication, and attitudinal barriers for thousands of people with disabilities throughout the 

country. This allows the Department to achieve meaningful compliance with the law without 

having to allocate scarce resources to investigate or litigate the disputes. Because the program 

quickly achieves measurable results, many people with disabilities, as well as advocacy 

organizations, continue to request mediation to resolve ADA complaints, indicating their trust 

and confidence in the program. The program has successfully resolved 78% of the more than 

4,000 complaints mediated.

Community Relations Service (CRS). CRS, created by the Civil Rights Act of 1964, is the Justice 

Department’s “peace maker” for community conflicts and tensions arising from differences of 

race, color, and national origin. With the passage of the 2009 Matthew Shepard and James Byrd, 

Jr. Hate Crimes Prevention Act, CRS now works with communities to employ strategies to 

prevent and respond to alleged violent hate crimes. CRS Conciliators, located in fourteen offices 
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throughout the country, facilitate dialogue and provide mediation, training, consultation, and 

other conciliation services.

V. Workplace Conflict Management

Most federal agencies have long had ADR programs that address employee satisfaction and fair 

process. This discussion is thus limited to emerging ADR practices in these workplaces. Chief 

among those, more ADR offices are now utilizing upstream tools to prevent and reduce conflict 

before it becomes problematic. In particular, individual coaching requests to ADR offices are 

increasing, while mediation requests have been decreasing. Agency departments (e.g., human 

resources, organizational development, and training departments) are reaching out to their ADR 

offices to provide leadership and performance coaching, as well as conflict coaching. Workplace 

coaching is being utilized in many innovative ways. Coaching can accelerate learning, support 

change in workplace culture, assist with transitions, and facilitate new initiatives. Agencies are 

implementing coaching to enhance communication, teamwork, strategic planning, and customer 

service.

The Office of Personnel Management (OPM) is spearheading the development of an interagency 

workgroup of coaches called the Federal Coaching Network. While coaching has traditionally 

been offered at the senior level, this network seeks to offer coaching to emerging and future 

leaders, as well. This new coaching program will ultimately be available to federal employees at 

all levels. This network will help develop the talents and careers of federal employees. 

Coaching invokes ADR skills such as active listening, posing powerful questions, creative 

problem solving, and generating options. ADR coaches build on their experience in helping 

people handle difficult people and sensitive conversations. One advantage of the OPM initiative 

is that it creates a partnership with ADR offices, which results in significant cost savings for the 

agency while leveraging existing internal talent. ADR offices are well-positioned to be part of 

this development in coaching programs. 

Several other trends of note include the addition of ombuds offices in many agencies to augment 

the agency’s tools for situational awareness, problem solving, and conflict resolution at early 

stages. Additionally, some agencies, seeking to reduce costs and travel time, are developing 

virtual ADR Programs and promoting virtual platforms to carry out their programs. ADR 

conferences and trainings are also being offered nation-wide through virtual technology in order 

to reach the widest possible audience at the lowest possible cost. 

Finally, many ADR offices are conducting climate assessments to prevent and address 

organizational and group discord. These assessments involve administering surveys, facilitating 

focus groups, and conducting one-on-one, structured interviews. The principles of neutrality and 

confidentiality offered by ADR offices enable group members to participate candidly. At the 

conclusion of an assessment, a report identifying organizational/work unit strengths and 

challenges is generated and shared with key stakeholders. The agency ADR office compiles 
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employee recommendations for improvement of the organization’s health and then may be asked 

to monitor and support progress in implementing the recommendations. The office may also 

later administer a post-assessment evaluation to measure organizational improvement.

VI. Other ADR Developments

There have been a handful of other important developments in the use of ADR that are worth 

noting, including in the administration of environmental programs, in negotiations involving

Native American tribes, and in Freedom of Information Act (FOIA) efforts.

Environmental. There have been several steps taken to improve the use of environmental 

conflict resolution (ECR). First, OMB and the Council on Environmental Quality (CEQ) have

issued policy direction to all agencies that require the use of ECR to prevent and resolve 

environmental conflicts. In 2012, OMB and CEQ created a revised version of the original 2006 

OMB-CEQ ECR Policy Memo which added the word “collaboration” to the definition of 

environmental conflict resolution. Agencies continue to report annually to OMB and CEQ on 

their use of ECR under this memo.

Second, the Environmental Protection Agency (EPA), an early adopter of ADR, introduced new 

technology that allows EPA to provide a full suite of online collaborative ADR services, thereby

significantly reducing the need for delays associated with the expenses of travel. Video 

conferencing equipment installed throughout EPA supports online collaboration, staff access to 

online meeting and collaboration tools, and technological guidance for staff. The collaborative 

technology infrastructure enables EPA to conduct effective and inclusive mediations, 

facilitations, and public engagement sessions and is a valuable evolution in agency ADR and 

collaborative practice.

Tribal Matters. The increased use of regulatory negotiation for situations involving tribes has 

been another new development. The U.S. Institute for Environmental Conflict Resolution has 

recently provided neutral resolution support for successful regulatory negotiations in the 

development of rules for Indian oil valuation and for two regulatory negotiations addressing 

tribal implementation of the “No Child Left Behind” law. One reason for this trend is that tribes 

are requesting that Congress require such regulatory negotiation in legislation that affects tribes

as a way of protecting self-government.

Freedom of Information Act. The National Archives and Records Administration’s Office of 

Government Information Services (OGIS), which opened in 2009, was created by Congress to 

apply ADR to the process of requesting records under FOIA. Since opening in 2009, OGIS has 

offered mediation services to FOIA requesters and 100 Executive Branch agencies, assisting 

thousands of requesters and dozens of agencies in resolving disputes, some of which otherwise 

would have led to costly litigation. OGIS helps FOIA professionals throughout the government 

use ADR techniques to make the FOIA process work better for both agencies and requesters. 
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Also, OGIS collaborates with other agencies in the development and delivery of ADR-related 

training for FOIA professionals across the federal government. 

VII. Conclusion

Federal agencies continue to expand, refine, and improve their ADR processes. The examples 

described above demonstrate the ongoing efforts of agencies to develop creative, efficient, and 

cost-effective ADR solutions. The examples also demonstrate that ADR use is widespread and 

the methods have become an integral part of resolving disputes across a wide range of federal 

government activities. ADR use in the federal government is here to stay and will continue to be 

an important tool to help agencies fulfill their missions.