Appendix I. Departments and Agencies that contributed to the report. 

Cabinet-Level Departments (15) 

Department of Agriculture USDA 

Department of Commerce DOC 

Department of Defense DoD 

Department of Education ED 

Department of Energy DOE 

Department of Health and Human Services HHS 

Department of Homeland Security DHS 

Department of Housing and Urban Development HUD 

Department of Interior DOI 

Department of Justice DOJ 

Department of Labor DOL 

Department of State DOS 

Department of Transportation DOT 

Department of Treasury DOTR 

Department of Veteran’s Affairs VA 

Independent Agencies, Boards, And Commissions (32) 

Administrative Conference of the United States ACUS 

Board of Governors of the Federal Reserve FRB 

Broadcasting Board of Governors BBG 

Commodities Futures Trading Commission CFTC 

Consumer Financial Protection Bureau CFPB 

Consumer Product Safety Commission CPSC 

Equal Employment Opportunity Commission EEOC 

Environmental Protection Agency EPA 

Federal Communications Commission FCC 

Federal Deposit Insurance Corporation FDIC 

Federal Election Commission FEC 

Federal Energy Regulatory Commission FERC 

Federal Executive Boards LA, Kansas City and Houston FEB 

Federal Housing and Finance Agency FHFA 

Federal Labor Relations Authority FLRA 

Federal Maritime Commission FMC 

Federal Mediation and Conciliation Service FMCS 

Federal Trade Commission FTC 

National Aeronautics and Space Administration NASA 

National Archives and Records Administration NARA 

National Labor Relations Board NLRB 

National Mediation Board NMB 

National Transportation Safety Board NTSB 

Nuclear Regulatory Commission NRC 

Office of the Director of National Intelligence ODNI 

Office of Personnel Management OPM 

Office of Special Counsel OSC 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix I. Departments and Agencies that contributed to the report. 

Securities and Exchange Commission SEC 

Small Business Administration SBA 

U.S. Agency for International Development USAID 

Udall Foundation Udall 

U.S. International Trade Commission USITC 

Additional Agency and Sub-Agency References Within The Report: 

Armed Services Board of Contract Appeals ASBCA 

Army Corps of Engineers Corps 

Civilian Board of Contract Appeals CBCA 

Defense Intelligence Agency DIA 

Defense Logistics Agency DLA 

Federal Aviation Administration FAA 

Federal Emergency Management Agency FEMA 

National Oceanic and Atmospheric Administration NOAA 

Office of Management and Budget OMB 

Surface Transportation Board STB 

U.S. Patent and Trademark Office USPTO 
 

 

Appendix II. Department and Agency Reports 

Cabinet-level Departments 

Department of Commerce 

Department of Defense 

Department of Education 

Department of Health and Human Services 

Department of Homeland Security 

Department of Justice 

Department of Labor 

Department of Treasury 

Department of Veterans Affairs 

Independent Agencies 

Consumer Financial Protection Bureau 

Environmental Protection Agency 

Federal Deposit Insurance Corporation 

Federal Executive Boards 

Federal Energy Regulatory Commission 

Federal Labor Relations Authority 

Federal Maritime Commission 

Federal Mediation and Conciliation Service 

Federal Reserve Board 

National Aeronautics and Space Administration 

Nuclear Regulatory Commission 

Office of Special Counsel 

Office of Personnel Management 

Small Business Administration 
 

 

 

 

 

 

 

 

 

 

 

 

 


 

2016 REPORT ON ADR IN THE FEDERAL GOVERNMENT 

U.S. Department of Commerce (DOC) 

ADR Dispute Resolution Contact Information 

Name: Brian D. DiGiacomo 

Title(s): Chief, Employment and Labor Law Division, Office of the General 

Counsel 

Department/Agency: U.S. Department of Commerce 

Email Address: bdigiaco@doc.gov 

Phone number: 202-482-5393 

Mailing Address: Room 5717, U.S. Department of Commerce 

1401 Constitution Ave., NW 

Washington, DC 20230 

ADR Policy 

Does your Department or Agency have a formal written ADR policy? Yes. 

Has the written ADR policy been amended or modified during the past ten fiscal years (FY06­

FY15)? No, not for the Department. See, however, Attachment 2 regarding the National 

Oceanic and Atmospheric Administration (NOAA). Also, the U.S. Patent and Trademark Office 

(USPTO) expanded its ADR policies and programs in the past year, and has launched an 

Ombudsman Program for workplace issues. A report on this new program will be forwarded in 

the near future when it is completed. 

Please review http://www.adr.gov/fai.html to assess whether a “Policy” link is present for your 

Department or Agency. If a link is either incorrect or not present on the site, provide us with a 

link to any electronic copies of your agency’s current ADR policy. If the policy is not available 

via a link on the internet, please send an electronic copy of the policy with your responses. 

We do not have a link on the adr.gov website. A link to our EEO Mediation Guide is here: 

http://www.osec.doc.gov/ocr/publications/mediationguide.pdf. See also the links provided in the 

Attachments to this report. 

ADR Programs 

The Department of Commerce uses ADR in two general areas: workplace/employment disputes 

(including EEO matters), and government contract disputes. 

The Department of Commerce uses mediation as a technique to resolve all types of employment 

disputes. See the Attachments 1 and 2 for a more thorough description of the EEO ADR 

program implemented by the Department's Headquarters Office of Civil Rights and the NOAA’s 

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Office of Civil Rights. Each bureau within the Department 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. If the matter is resolved through 

ADR, or the parties withdraw the initial complaint, the case is considered an ADR success. 

The Department uses ADR in government contract disputes on an “as needed” 

basis. Contracting officers use ADR procedures at any time that the contracting officer has 

authority to resolve an issue in controversy, as authorized by FAR Part 32.214. In contract and 

general litigation matters, the Department often uses ADR in proceedings at the Government 

Accountability Office, the Civilian Board of Contract Appeals, and the U.S. Court of Federal 

Claims. 

Department or Agency ADR use beyond the ADR Programs discussed above 

Does your Department or Agency apply ADR processes or techniques to facilitate resolutions of 

conflicts or disputes independent of the ADR programs discussed above? Not as a matter of 

routine. Other Department bureaus and programs have not seen the need to use ADR on 

anything more than an ad hoc basis. USPTO has made significant changes, however, and we 

will be providing a separate report on that bureau. 

ADR Training 

Does your Department or Agency offer ADR awareness/promotion trainings or ADR skills 

(techniques) training to agency employees, federal employees, or to the public? No, other than 

making employees aware of ADR when they are involved in workplace disputes. See the 

Attachments for more information. 

Interagency ADR Working Group 

How has your involvement with the Interagency ADR Working Group benefitted your ADR 

programs? The Department values the information, analysis, and perspectives that we are 

exposed to in our regular interactions with the ADR Working Group. We appreciate the ADR 

Working Group providing access to webinars that help in keeping up with both skills and current 

information involving tools and techniques. On several occasions, our contacts with members of 

the ADR Working Group have been used to obtain valuable advice on how to resolve an issue, 

and we have been able to leverage our contacts to obtain mediation services to resolve nontraditional, organizational conflicts. In particular, our Civil Rights Office professionals request 

the following guidance: (1) possible development of procedures to permit agencies to obtain the 

service of neutrals on an expedited basis, which may be a helpful option to agencies; and (2) 

information on whether there are any tools that could be developed for recordkeeping, which 

would be helpful at the staff level. With very limited staffs, it is difficult to devote the time 

needed to create a plan to ascertain the true benefits of ADR. Any advice would be appreciated. 

Submitted by: Brian D. DiGiacomo (BDD), June 24, 2016. 

2
 
 

 

 

 

 

 

 

 

 

 


 


 


 

ATTACHMENT 1 

DOC Headquarters
 

Office of Civil Rights
 

ADR Dispute Resolution Specialist Contact Information: 

Name: Bernadette Worthy 

Title(s): Director, Client Service & Resolution Division 

Department/Agency: U.S. Department of Commerce, Office of Civil Rights 

Email Address: bworthy@doc.gov 

Phone number: (202) 482-8121 

Mailing Address: 14th & Constitution Avenue, NW 

Washington, D.C. 20230 

ADR Programs 

List each distinct ADR program at your Department or Agency and for each ADR program: 

The Secretary of Commerce encourages the use of ADR to address workplace discrimination 

concerns and recently reiterated it in her May 4th EEO policy statement. 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. Neutrals to facilitate mediations are primarily obtained from the Sharing 

Neutrals Program, department of Health and Human Services. Consistent with Equal 

Employment Opportunity Commission (EEOC) emphasis, the current focus on EEO ADR

efforts is on the offer rate. This recognizes that to improve the ADR election rates, 

employees and agency officials must be made aware of this alternative throughout the EEO 

process. The goal is that 100% of all cases appropriate for ADR in the pre-complaint 

process and all cases in the formal complaint process are offered ADR as an alternative. 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. 

Does the program maintain a website that is accessible by the public? If yes, provide the URL 

for the site. Yes, please visit, http://www.osec.doc.gov/ocr/AlternativeDisputeResolution.html 

for information on the EEO ADR Program. 

To the extent possible, please describe any trends that you (or your colleagues) have observed in 

the program over the past ten fiscal years (FY06-FY15): 

3
 
 

 

 

 

 

 


 

One of the most significant trends that we have observed since FY 2006, is the satisfaction rate 

with the ADR process. We solicit feedback from mediation participants (including employees, 

agency officials and legal representatives, where used) via surveys. Satisfaction with the process 

consistently averages between 80 and 90%. However, it is interesting to note that the 

satisfaction rate (as well as the willingness to recommend ADR/mediation to others which is also 

measured) is not dependent on the outcome of the mediation session, i.e., resolution did not have 

to be achieved for the parties to be satisfied with the process. Participants have consistently 

commented in the surveys that the mediation process gave them a framework for constructive 

dialogue and set parameters for effective conflict resolution/management in future interactions. 

The importance of this trend is that prior participants in ADR in effect become invaluable 

marketing tool for colleagues, leading to a greater willingness to consider and utilize ADR as a 

viable alternative to the traditional EEO process. 

Describe steps your Department or Agency has taken to build program capacity in this ADR 

program during the past ten fiscal years (FY06-FY15). Please discuss whether the steps have 

been successful, and if not, please discuss the barriers to success. 

The most significant initiative to our EEO ADR Program is to ensure that ADR/mediation as 

discussed with every client (Counselees and Agency officials) in the pre-complaint process. The 

EEO Officer, ADR Manager and EEO Specialists actively engage clients in discussing the 

benefits of early resolution. In addition, 100% of cases accepted for formal EEO investigation 

are given the option to elect ADR. The added emphasis on increasing the offer rate has 

correspondingly improved upon our election rates. 

Are there any plans to expand this program in the future? 

We are constantly evaluating our ADR efforts to determine any initiatives that can be undertaken 

to improve any identified challenges. 

Which of the following sections of the Interagency ADR Working Group most closely relates to 

the work of this ADR program (you may check multiple sections): 

_X_ Workplace 

__ Contracts and Procurement 

__ Administrative Enforcement and Regulatory Process 

_X_ Litigation 

__ Environmental 

4
 
 

 

 

 

 

 

 

 


 


 

ATTACHMENT 2 

National Oceanic and Atmospheric Administration
 

Office of Civil Rights 

ADR Dispute Resolution Specialist Contact Information: 

Name: Delores. E. Beltz 

Title(s): ADR Program Manager 

Department/Agency: U.S. Department of Commerce, National Oceanic & Atmospheric 

Administration (NOAA) 

Email Address: Delores.e.Beltz@noaa.gov 

Phone number: 816-426-7819 

Mailing Address: 601 E. 12th Street 

Room # 1713 

Kansas City, MO 64106 

ADR Policy 

Does your Department or Agency have a formal written ADR policy? Yes, NOAA 

Administrative Order 202-715, NOAA Alternate Dispute Resolution Program 

Has the written ADR policy been amended or modified during the past ten fiscal years (FY06­

FY15)? If so, please describe how. 

Yes, revised February 2010. The policy has been revised to clarify the role of bargaining units, 

update references and organizational nomenclature, and reflect the program's status as a 

permanent program rather than a pilot. 

Does the program maintain a website that is accessible by the public? If yes, provide the URL 

for the site. Yes, please visit, 

http://www.corporateservices.noaa.gov/ames/administrative_orders/chapter_202/202-715.pdf 

ADR Program 

List each distinct ADR program at your Department or Agency and for each ADR program: 

NOAA uses several internal-facing ADR techniques to resolve both Workplace and EEO related 

disputes. NOAA offers the following types of ADR: 

1. EEO Mediation at the informal or pre-complaint stage; 

2. Workplace Mediation; and 

3. Facilitated Problem Solving (Directed and Non-Directed). 

5
 
 

 

 

 

 


 

NOAA makes mediation available at the EEO informal or pre-complaint stage for cases where 

mediation is appropriate. Workplace mediation is offered as an option to resolving workplace 

issues other than EEO related issues. Facilitated Problem Solving is offered to resolve issues 

with individuals, work groups, and project teams. Parties are asked to work on an action plan to 

improve the work environment. NOAA uses two sources to obtain certified neutrals. Federal 

Mediation and Conciliation Service (FMCS) and the Federal Executive Board (FEB) supplies 

both mediators and skilled facilitators when requested. 

NOAA has averaged thirty cases per fiscal year over the last five years. Subject matter ranges 

from workplace issues, such as communication or hostile work environment, to complex 

informal EEO issues. The ADR Program has realized a benefit in the fact that parties chose 

Facilitated Problem Solving in an effort to resolve workplace issues at the early stages of 

disputes. Resolving issues in a facilitated discussion fosters a workplace environment that 

empowers employees to recognize and carry out the mission of NOAA. 

One noticeable trend is an increase in employees and managers choosing Facilitated Problem 

Solving sessions over traditional mediation as a way of dealing with workplace issues. 

Facilitated Problem Solving sessions have proven to be helpful in resolving communication 

issues and strengthening teams. A telling example of the worth of Facilitated Problem Solving to 

NOAA occurred within the last year, when two executive-level individuals, who had come to an 

impasse on resolving several issues within their organization, contacted the ADR Program 

Manager for assistance. One of the executives felt the only way to solve the issues was to 

retire. After some lengthy consultations, a Facilitated Problem Solving Session was scheduled 

and held at an off-site location. The off-site location allowed complete confidentially and both 

parties felt secure and successfully worked out the issues. Using a skilled and certified mediator 

was another factor that contributed to the successful resolution. The ADR cost was funded by 

the line office that requested the service. Without the option of a confidential facilitation the 

parties felt they would not have been able to resolve the issues. ADR created the safe 

environment that the parties needed to openly face the obstruction in the working relationship. 

Several benefits were realized from this resolution. Most importantly, NOAA was able to retain 

the wealth of knowledge the two executives had gained over many years of service. 

The following URL is for the NOAA ADR website that is accessible by the public: 

http://www.wfm.noaa.gov/adr/ 

The ADR Program at NOAA does not have specific funding at this time. The Line or Staff 

Office requesting ADR funds the associated costs, including mediators/facilitators, and travel 

and per diem, if needed. This is no change from previous years. NOAA currently has one full 

time FTE devoted to the program. The total FTE was reduced from two to one several years ago. 

This has negatively impacted the program, resulting in lower participation rates and the inability 

to make improvements to the ADR Program. One FTE is not sufficient to conduct intake, 

determine the appropriate ADR technique for the issues presented, answer inquiries from 

6
 
 

 

 

 

 


 

employees and managers about the program on a daily basis, consult with employees and 

managers on the benefits of ADR, identify and schedule mediators/facilitators, and conduct 

training and briefings. Delays occur in scheduling mediation and/or facilitated problem solving 

due to the increased workload. Unfortunately, due to severe budgetary constraints, there are 

currently no plans to expand the ADR program. 

Despite budgetary constraints, NOAA’s ADR Program has taken several actions to build the 

program capacity. NOAA offers webinars to promote awareness. The ADR Program Manager 

conducts Program Briefings upon request. The following actions help in promoting the ADR 

Program so that all employees are aware that the program is available. 

• Brochure (printed and online) 

• ADR website 

• NOAA broadcast email messages 

• Quarterly Webinars for supervisors and employees 

• Program Briefings 

• New Employee Orientations 

The Workplace section of the Interagency ADR Working Group most closely relates to the work 

of this ADR program 

Additional Contact 

Name: Stephanie Jones 

Title: Director 

Program/Office: Workplace Resources & Enhancement Division 

Email Address: Stephanie.J.Jones@noaa.gov 

Phone number: 301-713-6378 

7
 
 

 

 


 

November 28, 2016 

Name: Karen J. Dean 

Title: Senior Ombudsman 

Department/Agency: United States Patent and Trademark Office (USPTO) 

Email Address: Karen.Dean@uspto.gov or OfficeoftheOmbudsman@uspto.gov 

Phone number: 571-272-0787 or 571-270-3140 

Mailing Address: Carlyle Place, 2051 Jamieson Ave Suite 6040, Alexandria, VA 22314 

USPTO Launching a new Office of the Ombudsman (pilot) 

On May 13, 2016, Russell Slifer, Deputy Under Secretary of Commerce for Intellectual Property 

and Deputy Director of the USPTO, sent an email to all USPTO employees announcing the 

launch of the Office of the Ombudsman (pilot). Previously, Director Michelle Lee and Deputy 

Director Russell Slifer announced the establishment of the new Office of the Ombudsman during 

a USPTO Town Hall meeting and on the USPTO Director’s blog. 

USPTO leadership determined that the Agency will be able to reap significant benefits by 

extending the alternative dispute resolution options available to the USPTO community 

including: increased understanding of existing processes for resolving disputes; advocating 

alternative dispute resolution; identifying systemic problems and proposing strategies for 

improvement; assisting in the development of pro-active practices to improve the morale and 

productivity of the USPTO workforce; and providing leadership coaching services. 

The Office of the Ombudsman has at the center of its perspective a concern with fairness in the 

administration of policies, the enactment of practices and the conduct of relationship among 

members of the organization. The new Office serves as a complementary resource to current 

USPTO resources, such as the Office of Human Resources (OHR), Office of Equal Employment 

Opportunity and Diversity (OEEOD), Employee Assistance Program (EAP), and Department of 

Commerce (DOC) Office of Inspector General (OIG). 

The purpose of the Ombudsman’s Office is to provide an independent, confidential, 

neutral/impartial, and informal resource for the USPTO that will: 

• enable employees to raise and resolve issues of concern in a safe, informal, confidential 

environment to the extent allowed by law; 

• facilitate recognition, prevention, and resolution of workplace disputes without 

resorting to formal means of dispute resolution; 

• provide anonymity, to the extent allowed by law, to eligible employees and managers 

wishing to address a workplace issue; 

1
 
 

 

 

 

	 

	 


 

• provide Agency leadership with a high-level aggregate data and trends or 

systematic concerns and issues; 

• direct employees to the appropriate resources for addressing questions or concerns; 

• facilitate review of the Agency’s processes or procedures that may adversely affect the 

Agency’s mission, workplace, or employee morale. 

Independent: The Ombudsman’s Office is independent in structure, function, and appearance to 

the highest degree possible within the organization. 

The Office of the Ombudsman is a separate office, outside of the USPTO business lines, 

reporting directly to the Office of the Under Secretary. The Ombudsman will meet regularly with 

senior leadership to serve as an early warning system, highlight systemic challenges, and make 

recommendations for systemic change. The Ombudsman staff hold no other positions within the 

organization that will compromise independence. 

Confidentiality: As designated neutrals, each Ombudsman has the responsibility to maintain 

confidentiality. The Ombudsman generally does not disclose confidential communications unless 

given permission to do so. This includes not revealing: the identity of individuals who visit the 

Ombudsman, the identity of contacts made by the Ombudsman in resolving an issue, specific 

details and circumstances of matters handled by the Office of the Ombudsman, and any material 

related to specific cases. 

Under ordinary circumstances, this confidentiality will not be broken, but the Ombudsman will 

make all best efforts to ensure that allegations of misconduct are reported in a timely manner to 

the appropriate authorities by the employee. In rare circumstances, an Ombudsman will have to 

notify the appropriate authorities where, in the Ombudsman’s determination: 

•	 There is an imminent risk of physical harm; or 

•	 There is mismanagement, waste of funds, abuse of authority, or a violation of law or 

regulation that must be reported to the Department’s Office of Inspector General. In 

such cases, the Ombudsman will report the allegation(s) and any supporting 

information to the OIG Hotline, but without identifying the individual who provided 

the information. 

Neutral/Impartiality: The Ombudsman, as a designated neutral, remains unaligned and 

impartial. The Ombudsman does not engage in any situation which could create a conflict of 

interest. 

The Ombudsman will remain neutral in any matter within the Ombudsman's purview and shall 

avoid taking sides in any dispute, conflict, or disagreement. The Ombudsman strives for 

impartiality and does not advocate for any particular individual, or groups of individuals. 

Rather, the Ombudsman examines all sides of an issue and advocates for a fair process, which 

may include making recommendations on how an individual matter or systemic issue should be 

addressed. 

Informal: The Ombudsman, as an informal resource, does not conduct any formal adjudicative, 

administrative procedure or investigation related to concerns brought to his/her attention. 

2
 
 

 

 

 

 

 

 


 

The Ombudsman is an informal channel to address individual and workplace concerns, and does 

not replace any formal channels. Use of the Ombudsman services are voluntary and 

recommendations made by the Ombudsman need not be implemented. Services are by informal 

means such as listening, providing and receiving information, identifying and reframing issues, 

developing a range of responsible options, and engaging the parties in a third-party 

intervention. 

The Office of the Ombudsman is not authorized to accept complaints of discrimination or 

harassment and raising such an issue with the Ombudsman’s Office does not provide the Agency 

notice of an allegation or intent to file an EEO complaint. 

Staffing the Office of the Ombudsman (pilot) 

From May 2016 through November 2016, the Office of the Ombudsman was staffed with one 

full-time and one part-time conflict resolution practitioner, and one administrative support 

personnel. We are currently staffed with one full-time conflict resolution practitioner and one 

administrative support personnel. The USPTO Ombudsman staff adhere to all applicable laws 

and standards, to include the IOA Code of Ethics and Standards of Practice to the extent 

possible, and endeavor to be worthy of the trust placed in the Ombudsman Office. 

The Ombudsman’s Office has a range of options to assist with an inquiry such as discussing 

options and resources, referrals/consultations, facilitated discussions, shuttle diplomacy, 

group/team meetings, and mediation. 

The Ombudsman serves as the designated non-EEO Alternative Dispute Resolution (ADR) 

practitioner for USPTO and participates in the Sharing Neutrals Program. The Sharing Neutrals 

Program is an interagency mediation program that provides free mediators to participating 

Federal agencies and operates through a pool of trained and experienced collateral duty 

mediators. Thus, the Ombudsman may use external third party neutrals as needed or upon 

request by the individual. 

Response to the new Office of the Ombudsman (pilot) 

• All three Union Presidents (Patent Office Professional Association (POPA), National 

Treasury Employee’s Unions (NTEU), Chapters 243 and 245) have collaborated with

USPTO leadership to allow their bargaining unit members have access to the Office of

the Ombudsman. 

• The Ombudsman’s Office has provided on-going awareness training for specific interest 

groups and business units. To date, over 1200 employees, including union officials,

supervisors, and senior executives have received awareness briefings on the Office of the 

Ombudsman (pilot). 

3
 
 

 

 

 

 

 

 

 

 


 

Impact of the new Office of the Ombudsman (pilot) 

The Office of the Ombudsman continues to receive an overwhelmingly positive response from 

our employees, union officials, managers, and senior executives. From the date of our Office 

launch, May 16, 2016 through September 30, 2016, the Ombuds office has responded to at least 

136 visitors that prompted an additional 143 Ombuds communication with other employees and 

supervisors. From the 279 Ombuds communications a combined total of over 1000** 

issues/concerns were shared by visitors. The office’s rapid growth attributes to referrals and 

nearly 35 awareness presentations (> 1,200 individuals) given by the Ombuds’ staff. 

We capture data using the International Ombudsman Association Uniform Reporting Categories. 

Five categories represent nearly 86 percent of all issues discussed: Evaluative Relationships 

(405, 40%), Mission, Strategy, and Organizational Concerns (165, 16%), Career Progression and 

Development (117, 12%), Peer and Colleague Relationships (92, 9%), and Values, Ethics, & 

Standards (89, 9%). Regarding evaluative relationships, the top sub-categories include 

supervisory effectiveness, communication, respectful treatment, and feedback. 

Many of the visitors described the respective personal impacts of their issues to include increased 

anxiety, lowered morale, defensiveness, and/or reduced productivity. Others expressed that the 

issues raised had a widespread impact across the organization, including distrust, reduced 

collaboration, damaged credibility, spilt alliances and/or passive/aggressive behavior. 

Additional impacts: 

Employees have access to an independent, neutral, informal, and confidential resource to explore 

the full range of possible resolution options. It is anticipated that such options will improve 

employee relations by helping resolve conflicts before they enter any formal process, thereby 

reducing USPTO’s potential liability in awards and damages resulting from formal claims. 

Early resolution efforts will help focus the corporate culture on the values of ethics, integrity, 

diverse opinions, disagreements, concerns, safe reporting channels, engagement, proactive 

conflict resolution, accountability, and transparency. 

The Office of the Ombudsman will help the USPTO maintain its high standards of excellence 

and reinforce a culture of ethics, integrity, and professional responsibility. Additionally, the new 

Office of the Ombudsman will increase the Agency’s ability to enhance employee engagement, 

foster strong relationships, and improve collaboration, which is consistent with objectives 

outlined in the USPTO Strategic Plan. 

Status of the Office of the Ombudsman: In July 2016, the USPTO submitted a reprogramming 

package. The request was sent to Department of Commerce, Office of Management and Budget, 

and Congress for review and approval. In November 2016, Congress approved our 

reprogramming request. Thus, we intend to move forward with full implementation and staff the 

new office accordingly. 

4
 
2016 REPORT ON ADR IN THE DEPARTMENT OF DEFENSE 
 

Consolidated Response of the Department of Defense Service Branches, 
 

Defense Agencies and DoD Field Activities (collectively known as "the 
 

Department of Defense Components") 
 

for 
 

The 2016 ADR Report on ADR in the Federal Government 
 

Point of Contact for Department of Defense (DoD) ADR Program functions: 

Name: Kathryn D. MacKinnon 

Title(s): Associate Director, Defense Office of Hearings and Appeals ­

Center for ADR and Liaison Functions (DoD ADR Liaison) 

Department/ Agency: Department of Defense 

Email Address: mackinnk@osdgc.osd.mil 

Phone number: 703-696-6601 

Mailing Address: P.O.Box 3656 Arlington, VA 22203 

The Department of Defense (DoD) General Counsel, Ms. Jennifer M. O'Connor, is the 

designated Dispute Resolution Specialist for the Department of Defense. By 

implementing DoD Issuance, the Deputy General Counsel (Legal Counsel) (DGC (LC)) 

manages the ADR program, and holds policy and oversight responsibilities for the DoD 

ADR program as a whole. The Acting DGC(LC) is Paul Lekas. 

The DGC(LC) responsibilities are executed through the assistance, on a day-to-day basis, 

ofthe Associate Director, Defense Legal Services Agency (DLSA), Defense Office of 

Hearings and Appeals, Center for Alternative Dispute Resolution (DOHA CADR). On 

behalf of the DGC(LC), the Associate Director of DOHA CADR acts for the DGC(LC), 

and as the DoD ADR Liaison, to facilitate communication and sharing of expertise with 

and between ADR programs in the Department of the Air Force (Air Force), the 

Department of the Army (Army), the Department of the Navy (DON), the National 

Guard Bureau (NGB), 17 Defense Agencies, 10 DoD Field Activities, and other entities 

in the DoD (collectively known as "the DoD Components"). 

ADR programs within the DoD are decentralized. The Components vary greatly in the 

size and complexity oftheir programs, with the largest and most active ADR programs 

predominately, although not exclusively, found in the Service Branches (Air Force, 

Army, DON and NGB). The Components are responsible for managing their own 

programs and defining their own priorities, given their unique missions. Some have 

designated a Dispute Resolution Specialist for their ADR program, and others place their 

programs under an ADR Program Lead. (See Attachment 1) 

1 
 
ADRPolicy: 

Since 1996, the DoD has operated under an implementing DoD Issuance, setting forth 

official policy and a framework for encouraging the expanded use of ADR throughout the 

DoD. The controlling DoD Directive recently was updated and is now published as DoD 

Instruction 5145.05, Alternative Dispute Resolution (ADR) and Conflict Management 

(May 26, 2016). The DoD Instruction 5145.05 (May 26, 2016) is available at: 

http://www.dtic.mil/whs/directives/corres/pdf/514505p.pdf. 

The Service Branches, and a number of other Components, have published their own 

ADR policies, some of which have been revised during the past decade. (See Attachment 

2) 

ADR Programs within the DoD: 

General Description of the DoD ADR Program As noted above, the DoD 

Components are each responsible for managing their own programs and defining their 

own priorities, given their unique missions. The DoD Office of General Counsel (OGC) 

and Deputy General Counsel (Legal Counsel), together with DOHA CADR, provide 

critical support for efficient development of programs and modifications to continually 

meet changing DoD and Component environments and evolving mission priorities. The 

Components' ADR Program leaders communicate with each other and with the OGC and 

DOHA CADR through a DoD ADR Coordinating Committee. This Committee is 

facilitated by the Associate Director ofDOHA, CADR (a/k/a the DoD ADR Liaison) and 

confers regularly to address common issues and to share and leverage experience and 

information. 

Internal-facing and External-facing The vast majority ofADR programs across DoD 

are internal-facing. The geographic scope and employee population ofsome DoD 

internally facing ADR Programs is, however, substantial. The Service Branches and the 

DoD Education Activity (DoDEA), for instance, each provide ADR to an employee 

population that is located around the world. The National Guard Bureau (NGB) is a 

unique joint bureau, with Army and Air National Guard units located across the 50 states, 

U.S. territories, the District of Columbia and the Readiness Center (Arlington Hall 

Station-Headquarters). 1 NGB's internal-facing ADR program addresses early resolution 

1 The Guard units serve in widely diverse security situations such as regional areas of armed 

conflict, domestic unrest, disaster relief and peacekeeping situations. (See 

http://www.nationalguard.mil). 

2 
 
at the pre-complaint and formal stages of Equal Employment Opportunity (EEO) 

(civilian); Equal Opportunity (EO) (military) complaints; and non-EEO/EO workplace 

disputes and covers these issues for its 54 far flung locations. The Defense Finance and 

Accounting Service (DF AS) is another example of a consolidated, internal-facing ADR 

program in which, although it is administered via three (3) Dispute Resolution Offices 

(DRO) located at the Agency's primary sites (Indianapolis, Columbus and Cleveland), 

the DROs provide ADR services to multiple Defense Military Pay Offices (DMPO) 

throughout the country, and to satellites in other U.S. locations as well as DF AS Japan, 

and DFAS Europe. 

A number ofDoD Components have ADR programs that address not only internal-facing 

functions, but external-facing functions as well. As an example, the Conflict Resolution 

Division ofthe Secretary ofthe Air Force General Counsel's Office (SAF/GCR) 

promotes and coordinates the use of mediation and facilitation with the Air Force 

Personnel (AF/Al) community for its internal-facing, workplace ADR program. 

However, it also coordinates the use of mediation and early neutral evaluation in 

external-facing contract disputes with the Air Force acquisition and acquisition law 

communities. It additionally coordinates the use of ADR in the Installations and Energy 

and Environment Division of the Air Force General Counsel's Office for their externalfacing environmental and real property disputes. 

Similarly, at Army, the main ADR program is internal-facing, and focuses on Army 

workplace disputes, as well as training Army civilian and military personnel in 

negotiation, mediation, and conflict management skills, and ADR awareness. However, 

Army also deals with government contract (acquisition) disputes, and its larger ADR 

presence also includes two important external-facing programs, those conducted by the 

Army Materiel Command (AMC) and the U.S. Army Corps ofEngineers (the Corps). 

The Dept. ofthe Navy (DON) follows a similar pattern, with its use of mediation and 

facilitation being an internal-facing workplace ADR program. All DON EEO and 

workplace ADR is jointly managed by the DON OGC ADR Program Office and the 

Office of Civilian Human Resources (OCHR). In 2014, mediation convening services 

consolidated into a centralized "OCHR ADR Center ofExcellence" located in 

Philadelphia, PA. However, DON' s environmental and procurement ADR processes are 

external-facing and are managed by DON OGC. 

Various other DoD Components also have both internal-facing and external-facing ADR 

functions, as dictated by their specific missions. For instance, the Defense Contract 

Management Agency (DCMA) is the DoD Component that works directly with defense 

suppliers to ensure that DoD, federal and allied government supplies and services are 

delivered on time, at projected costs, and to all performance requirements. As DCMA's 

3 
 
ADR program is mission driven, it has an internal-facing workplace dispute ADR 

program, but additionally employs external-facing ADR for DCMA contracting disputes. 

Another example ofthe manner in which DoD ADR programs are tailored to a 

Component's unique missions is the program at DoDEA. The DoDEA Center for Early 

Dispute Resolution (CEDR) has an internal-facing program that provides neutral, 

confidential services to assist DoDEA and its employees in constructively addressing and 

managing conflicts and disputes that are not covered by any available legal remedies, and 

to provide mediation for non-EEO matters that have entered the legal arena. DoDEA 

CEDR additionally provides external-facing services using both facilitation and 

mediation to improve communication and resolve issues relating to provision of special 

education to DoD dependents, and on occasion CEDR also addresses disputes with 

DoDEA contractors. 

A third example ofthe mixed internal- and external- facing applications of ADR, driven 

by the unique mission of a DoD Component, can be seen at the Washington Headquarters 

Service (WHS). WHS provides its internal population with ADR resources and also 

services a number of other federal agencies. However, this decade, WHS and the 

Defense Freedom of Information and Policy Office (DFOIPO) also provided applied 

conflict resolution and conflict communications training (internal training) that facilitated 

effective handling of Freedom oflnformation Act (FOIA) interactions with the public (an 

external-facing benefit). 

Subject Matters Addressed Across DoD, ADR is currently being used in disputes 

arising in the EEO arena, for disputes (grievances) filed by members of collective 

bargaining units, for administrative grievances over personnel decisions, and in a variety 

of other workplace disputes. Within the DoD Components, workplace mediation 

programs typically constitute the most fully developed use of ADR. Currently, the 

Components all report at least some ADR activity in the workplace dispute area. (See 

Attachment 3, which, for simplicity's sake, groups all EEO and non-EEO workplace 

disputes into a single category) 

As noted in the above examples of externally facing programs, DoD ADR is additionally 

being used in contract, acquisition or procurement disputes and claims, and for 

environmental issues. (See Attachment 3) 

DoDEA 's dispute resolution program, CEDR, includes ADR and conflict management 

techniques tailored to an important aspect of DoDEA's unique educational mission 

within DoD - provision of special education and related services under the Individuals 

with Disabilities Education Act (IDEA), as applied to the DoD school system. Under the 

IDEA, individualized educational programs (IEPs) must be developed through a 

collaborative process that involves parents and school personnel reaching agreement on 

4 
 
an appropriate education plan for the particular child. At times, however, parents and 

school personnel differ as to what services should be included in the IEP for a particular 

child and what constitutes appropriate educational treatment. In this sensitive context, 

emotions at times run high, making collaboration and agreement difficult. 

While such disagreements can later be mediated or proceed to a due process hearing, 

DoDEA CEDR has recognized that a facilitator who has no stake in the conflict, and who 

comes in during the IEP process, is often able to assist the parties in communicating more 

effectively. This gives each the opportunity to speak and encourages listening and 

greater understanding. DoDEA CEDR conceptualized and created an IEP facilitation 

program, following best practices in the special education dispute resolution field and 

with the support and collaboration of DoDEA's Special Education function. As a result of 

this process, the participants in DoDEA IEP development now have an opportunity to 

engage with each other through facilitated IEP meetings. The DoDEA experience has 

been that, despite differing perspectives, the parents and school personnel have almost 

always been able to come together and reach agreement on an IEP, allowing the child's 

educational program to progress, avoiding both educational delay and litigation, and 

preserving the parent-teacher relationships going forward. 

ADR Processesffechnigues Used 

i. ADR Processesffechnigues Used in Resolving Workplace Disputes 

Throughout the decade, the DoD Components have continued to use multiple 

ADR methods (mediation, conciliation, facilitation, early neutral evaluation, 

settlement judge) to resolve workplace disputes, choosing the process that best fits 

the particular dispute and parties' needs. (See Attachment 4) 

Mediation of workplace disputes has continued to dominate as the type of ADR 

process/technique - subject matter pairing that is used across the Department. 

DoD Components 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 Opportunity Statistical Report of 

Discrimination Complaints (EEOC Form 462). 

Over the past decade, however, the DoD Components have increasingly 

recognized the need for an ADR option when a workplace dispute is not being 

pursued as an EEO complaint. Likewise, the DoD Components recognize the 

value of intervention at ever earlier stages, applying ADR techniques before 

conflict becomes an entrenched dispute. Thus, mediation in the DoD is now 

followed more closely by the use offacilitation and related conflict management 

techniques. A third and similar development is the recognition, by a number of 

DoD Components, that however valuable ADR has proven to be for resolving 

5 
interpersonal conflict outside adjudicative and administrative forums, the 

resolution of some workplace conflict requires a means to work with a larger 

segment ofthe workplace population. DoD Components have therefore found 

increasing value in group facilitations, "sensing" sessions, and various hybrid 

methods combining the fundamental communication skills of a mediator with 

facilitation, conciliation and other techniques. 

These trends are given voice in the new DoD Instruction 5145.05, which is 

addressed to both Alternative Dispute Resolution (ADR) and Conflict 

Management. 

The DON ADR program has incorporated this approach into the very core ofits 

traditional mediation delivery. During the year, conveners of mediations are 

provided an intensive two-day training course where they focus on exploring 

ways to resolve disputes, apply early dispute resolution, and use conciliatory and 

facilitative techniques in the intake and convening process to resolve party 

concerns, potentially avoiding the need for mediation. 

Along these lines, recognizing that some conflicts are the predictable result of 

common communication challenges, other Components include coaching and 

other preventive training in their ADR programs, often tailored towards issues 

unique to their Component's mission. The Defense Intelligence Agency (DIA) 

provides a robust example of an ADR program built upon the premise that 

conflict within organizations is inevitable, but that it also provides an opportunity 

for individual and organizational growth. DIA offers a broad array of services 

from a staff that includes trained facilitators and mediators, while they also 

expand focus onto growing conflict competence in the workforce. The Program 

offers mediations (colleagues and supervisor/employee), facilitated conversations, 

organization assessments, education and training workshops, and conflict 

coaching. The overarching themes/issues that are encountered are in all 

likelihood representative of many workplaces: communication (95%), delineation 

ofroles and responsibilities (50%), and personality conflict (35%). 

Organizational facilitations are also a frequently requested service at the DIA 

ADR program. They are submitted by management and voluntary for participants. 

During organizational facilitations, team members are interviewed and asked 

targeted questions and once the interviews are complete, the DIA ADR Program 

assesses the data gathered and provides the requesting manager a report (personal 

identifiers removed) and recommendations for change/improvement. Ifa conflict 

or issue is out ofthe ADR Branch's jurisdiction, the employee is referred to a 

6 
 
more relevant office, such as the Office ofthe Inspector General, or the Equal 

Opportunity and Diversity Office. 

DoDEA's early dispute resolution program, CEDR, also operates in part upon the 

assumption that a conflict avoided is the optimal alternative conflict resolution. 

Since its program began, DoDEA CEDR has seen an increasing number of 

requests from the field for preventive training, as well as for early resolution 

services. Preventive training has grown to include services such as 

Communication and Conflict Management employee skills training, both in 

person and as 15-hour webinars; training on conflict and dispute resolution as 

part ofinterventions addressing high conflict situations in schools and offices; 

Conflict Coaching to help employees better understand conflict and consider 

constructive options in addressing it; and Communication and Conflict 

Management training for educators involved in the provision of Special Education 

to DoD dependents. 

Both National Security Agency (NSA) and WHS ADR programs, supported by 

senior leadership, have developed into programs broadly centered in capacities 

to address conflict not only at the level of disputes (mediation), but at earlier 

stages. Both Components, like DIA, deliver not only individual conflict 

coaching but organizational interventions as well. With increased awareness 

and leadership support, managers and supervisors reach out to the ADR 

program more frequently to schedule group facilitation sessions and training for 

their employees, as a part oftheir commitment to provide an inclusive and 

respectful work environment. These Component ADR programs provide 

multiple services that include not only more "traditional" neutral assisted 

dispute resolution, but also an increased set of more proactive conflict 

management techniques such as group facilitation, organizational climate 

assessments, EEO impact analyses of employment actions, and training in 

conflict management skills. These programs have seen an increased demand for 

such techniques, which are deployed to address workplace conflict before 

disputes become entrenched. 

One particularly notable trend in the ADR program at WHS is an increased 

demand for "sensing sessions." Sensing sessions are meetings attended 

voluntarily by employees, facilitated through the ADR Program. The request is 

usually in response to employees voicing their concerns about some aspect of the 

work environment. The issues discussed are related to work and include, but are 

not limited to, employee morale, leadership cohesion, job satisfaction, and the 

overall EEO health ofthe organization. A neutral trained facilitator guides the 

discussion and ensures that the participants have a respectful and productive 

exchange ofideas. The participants' comments are written down by a co7 
 
facilitator, transcribed, and forwarded to management in an Executive Summary. 

The goal ofthe sensing session is to provide employees with a safe platform to 

communicate freely, and provide management with honest feedback in a manner 

that protects the anonymity ofthe employees. 

ii. ADR Processes/Techniques Used in Resolving Contracting, 

Acquisition and Procurement disputes In contracting disputes, the ADR 

techniques used are largely dictated by the type of dispute and the forum. Army 

reports, for instance, that protests filed with the Government Accountability 

Office (GAO) principally use negotiation assistance and outcome prediction, 

whereas disputes pending Contracting Officer decisions and appeals to the Armed 

Services Board ofContract Appeals (ASBCA) use what can be described as 

evaluative mediation, often employing uniquely tailored processes and ADR 

technique.2 The Army Materiel Command (AMC) has its own agency - level bid 

protest program, which affords an alternative to GAO or to another external 

forum for prospective bidders and offerors whose direct financial interests would 

be affected by the award or non-award of a contract. A detailed description can 

be found at its website. 3 The Air Force similarly makes use of ASBCA processes, 

and the DON reports using not only mediation and arbitration with ASBCA 

neutrals, but also facilitated partnering to resolve procurement disputes. 

m. ADR Processes/Techniques Used in Resolving Environmental disputes 

On September 7, 2012, the Director of the Office of Management and Budget 

(OMB), and the Chairman ofthe President's Council on Environmental Quality 

(CEQ) issued a revised policy memorandum on environmental collaboration and 

conflict resolution (ECCR).4 The memorandum requires annual reporting on 

2 The ASBCA is the forum in which DoD and its contractors adjudicate the majority of all DoD 

contract disputes. Its judges are available to serve as highly skilled neutrals, affording the parties 

a sophisticated, often hybrid form of ADR for resolution of disputes before adjudication. The 

timing and specific characteristics of the mediation are negotiated and tailored in any given 

dispute by the parties, as set forth in an agreement entered into prior to the initiation of the 

neutral-assisted process itself. Mediation of contract disputes, in the DoD experience, may occur 

somewhat later in the dispute than occurs in other subject matters, after the facts have been more 

fully developed and explored. 

3 Collaborative process techniques include, as an example, collaborative process design; 

collaborative modelling tools developed through CPCX's Shared Vision Planning Program; 

engaging different stakeholders during parts of the planning and decision-making process; 

conflict assessment and resolution techniques; and collaborative evaluation of results and 

tradeoffs. See http://www.amc.armv.mil/amclcommandcounsel.html. 

4 The term 'ECCR' includes third-party neutral assistance in environmental collaboration and 

environmental conflict resolution. 

8 
 
progress made each year in implementing policy direction to increase the 

effective use and institutional capacity for ECCR, which is coordinated by DOHA 

Associate Director CADR (DoD Liaison). Within the DoD, the Air Force, the 

Army Legal Services Agency Environmental Law Division, the Army Corps of 

Engineers, and the DON are annual reporters, and those results need not be 

repeated in detail. 

At Air Force, Policy Directive 51-12 specifically references the use of ADR in 

environmental disputes, and the Air Force continues to report a number of 

techniques used in ECCR, including participation in numerous partnering and 

collaborative groups. The Army and the NGB also report use of various ECCR 

techniques. Likewise, DON uses facilitated partnering to resolve environmental 

disputes, and has demonstrated a long standing capacity for ECCR in the area of 

installation restoration. For instance as reported in a recent annual ECCR filing, 

the DON currently participates in 41 facilitated partnering teams that oversee the 

restoration efforts at 788 active and 1,155 total environmental restoration sites. 

Within these teams, representatives from the DON, EPA, state governments, local 

officials, and sometimes various other groups use collaborative methods to craft 

creative and cost effective restoration processes designed to address as many 

interests as possible. The third-party partnering team facilitators are sponsored by 

DON. 

Additional examples ofthe use of environmental collaboration and conflict 

resolution (ECCR) techniques in the DoD are provided by the Army Corps of 

Engineers, which employs these techniques to address disparate interests of 

multiple stakeholders affected by planning and decision-making in support ofits 

missions (including, e.g., projects to maintain and improve the nation's navigable 

waterways). The Corps' Collaboration and Public Participation Center of 

Expertise uses collaborative tools to ensure that the interests ofthe public are 

addressed in Corps decision making, and that such tools are used proactively to 

prevent and minimize conflicts, in addition to their application once conflict 

emerges. Further detail is available at the Corps' main web page.

5 

Sources of neutrals 

(See Attachment 5 for a consolidated summary) 

5 The Corps' collaborative process techniques include collaborative process design (engaging 

stakeholders during different parts ofthe planning and decision-making process, conflict 

assessment and resolution techniques, collaborative modeling tools and numerous other 

specifics). See 

http:llwww.iwr.usace.army.mil/About/TechnicalCenters/CPCXContlictResolutionPublicPartici 

pation.aspx . 

9 
i. Sources of Neutrals in Workplace Disputes The Service Branches and 

some ofthe other DoD Components manage a large part of their need for neutrals 

in EEO and workplace dispute resolution by drawing upon personnel trained and 

serving as collateral duty neutrals. The Air Force, for instance, uses its own 

developed collateral duty mediators. The Army also trains its own personnel as 

non-conflicted collateral duty mediators, although it also uses other DoD or 

federal agency mediators who are co-located with the activity processing the 

complaint. The DON also trains internal personnel as collateral duty mediators 

and its centralized "OCHR ADR Center of Excellence" administers all DON 

workplace mediation scheduling and mediator assignment around the world and 

tracks mediator certification and recertification. As a result ofits intensive 

training efforts, the DON ADR Program has a cadre of skilled, dedicated 

mediators and conveners, and with the exception of2013, when furloughs 

reduced mediator availability, they have been able to address the steady rise in the 

number of mediations conducted each year. 

Similarly, in the Defense Logistic Agency (DLA) 's RESOLVE program ("Reach 

Equitable Solutions Voluntarily and Easily") for EEO and workplace disputes, 

agency employees are trained to serve as collateral duty neutrals. A number of 

other DoD Components also utilize in-house neutrals. 

The next most frequent sources ofneutrals for DoD Component workplace ADR 

are: (a) the Investigations and Resolutions Directorate (IRD) ofthe DoD Civilian 

Personnel Advisory Service6 and (b) the DoD Roster ofNeutrals, which is 

maintained by the DOHA Center for ADR (CADR) and is made up ofDoD 

employees serving as collateral duty neutrals. The WHS also offers neutral 

services to the multiple DoD entities it services, 7 with conflict management 

offerings that include sensing sessions and climate surveys. 

The Components will also occasionally reach out to other agencies for collateral 

duty neutrals. At times, some DoD Components seek neutrals from the federal 

interagency Sharing Neutrals program, maintained by Health and Human Services 

(HHS). DoD Components also obtain workplace dispute neutrals from 

adjudicative organizations, such as the EEOC and, in non-EEO civilian personnel 

disputes such as grievances and appeals, the Federal Mediation and Conciliation 

Service serves as an additional source of mediators. With the rise oftelephone 

6 IRD offers mediation in EEO cases, at both informal and formal states ofthe complaint. 

7 As stated on its website, WHS customers include the DoD, and various government offices, 

installations, and field activities at the Pentagon, Mark Center, and DoD-leased facilities in the 

National Capital Region and beyond. (See also Attachment 5, fn 2) 

10 
 
and video-teleconferencing, the need for privately contracted neutrals due to 

remote locations ofthe parties has been reduced. 

ii. Sources of Neutrals in Contract, Acquisition and Procurement 

Disputes Subject to individual ADR program capabilities, neutrals for these 

disputes are most frequently drawn from judges of the ASBCA and U.S. Court of 

Federal Claims (COFC) and from among the hearing officers at the GAO. Some 

Components have collateral duty mediators with sufficient subject matter 

expertise to address these disputes. 

iii. Source of Neutrals in Disputes Involving Environmental, Special 

Education, and Other Specialized Subject Matters The DoD ADR Programs 

of the Components procure qualified neutrals for specific disputes on a case-bycase basis. These may be contracted mediators when specialized expertise 

required for mediation services exceeds in house capacity. DON, for example, 

uses professional contract facilitators for large construction projects and 

environmental restoration efforts. The U.S. Institute for Environmental Conflict 

Resolution maintains a National Roster ofECR Professionals available to the 

DoD community. 

Public Access DoD ADR websites: 

The DoD ADR Program, under the OGC, does not maintain a website. The DOHA 

Center for ADR website can be found at http://www.dod.mil/dodgc/doha/adr/ . 

(See Attachment 2 for a list of the individual websites maintained by the Service 

Branches and other DoD Components for their ADR Programs) 

Trends in ADR Within the DoD Over the Past Ten Fiscal Years (FY06-FY15): 

Trends in Funding Over the past decade, there has been no universally applicable trend 

in funding for the Components' ADR programs, apart from the fact that the Department 

of Defense experienced the effects of sequestration and changing budgeting priorities 

during that time period. Generally speaking, the DoD Components have been able to 

minimize the impact on ADR programs, structuring functional programs for the future 

through new synergies and approaches. 

Trends in Number of Full Time Emolovees Devoted to DoD ADR Again, such trends 

are difficult to identify DoD-wide because staffing of ADR Programs varies by 

11 
Component. While some Components have full time employees dedicated to their ADR 

and Conflict Management mission, others rely on employees for whom the ADR function 

is but one ofmultiple duties. 

Trends in ADR Usage Generally speaking, the use of ADR has become widely 

accepted and institutionalized across the DoD, and DoD-wide ADR usage (all subject 

matters and techniques) has been holding essentially steady throughout the decade. 

In some Components, the ADR programs that now exist were established during this past 

decade. DCMA, DF AS, DMA and Missile Defense Agency (MDA), for instance, with 

the support of leadership each built their current programs during this period. DF AS 

ADR developed out ofthe recommendation of a Lean Six Sigma Black Belt Study 

commissioned by the Agency Director in 2010-2011, which then resulted in the creation 

of an implementation planning team. The implementation has been fully in place since 

2013 when the final DRO was opened, and ADR usage has increased accordingly. 

Underlying trends in subject matters and in the use of ADR techniques at earlier stages of 

conflict and for institutional as well as interpersonal conflict are reported above and 

evident in the success stories that follow below. In another response to unique agency 

circumstances, following a 2011 consolidation of its locations the Defense Media 

Activity (DMA) developed a new, formal ADR program in 2014 under an ADR Program 

Manager. Since that time, the ADR program has flourished and become a reliable tool for 

the DMA workforce to resolve EEO complaints and workforce disputes. MDA found a 

way forward to develop its own program following relocation as a part of the Base 

Realignment and Closure, after previously having relied upon WHS for services. 

The DoD tracks numerical variations in individual Component ADR usage during the 

decade and recognizes that variations are typically driven by factors unique to the 

reporting Component. For example, in some Components, e.g, Defense Health Agency 

(DHA), in addition to EEO and non-bargaining unit ADR, the right to elect ADR is 

written into a Collective Bargaining Agreement, and covered employees actively 

request ADR. In other instances, e.g., Defense Contract Audit Agency (DCAA) and 

the Air Force (specifically the Air Force Materiel Command, which possesses 

approximately 75% of the Air Force civilian command population and about 75% of the 

Air Force workplace ADR program), ongoing union and management negotiations and 

collective bargaining has impacted ADR usage for affected disputes. 

Trends in Tangible and/or Intangible Benefits Realized by Use of ADR The DoD 

Components continue to confirm those observed advantages of ADR in the context of 

workplace disputes that have been recognized in prior decades. A fairly comprehensive 

statement ofthese advantages has been reported by the DLA, whose ADR program acts 

to ensure "ADR is a part ofDLA's culture and is the first thing mentioned when conflict 

exists." DLA reports, "The various dispute resolution processes have: reduced the 

12 
 
amount oftime 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 the Agency's primary mission which is 

to support the warfighter." DoD Components continue to recognize that significant 

intangible costs can be avoided or reduced when conflicts are resolved through ADR 

and proactive conflict management, i.e. reducing the impacts of loss of productivity, 

diversion of resources from mission accomplishment, and problems in morale. Many 

believe that these are the most important benefits of using ADR and conflict 

management practices in the workplace setting. 

Not surprisingly, the benefits ofintentional early conflict management approaches in 

various DoD Components parallel those reported by DIA, NSA and others, where 

benefits are seen not only in cost avoidance (over more formal litigation processes), but 

in a workforce of employees who manage conflict better. As reported by DIA, 

organizational facilitations have been shown to prevent conflict and encourage best 

practices, help improve efficiency and effectiveness and develop new ideas. DIA has 

observed that these processes offer a proactive way of measuring the health and wellbeing of an organization, and addressing change, with the Agency mission better served 

as a result. 

The DoD Components also have identified tangible fiscal benefits from the use ofADR 

over the past decade. For example the DCMA EEO ADR program reported an estimated 

savings of $2.4Million in FY 2014 and $1.6Million in FY 2015 through the use of ADR. 

These savings reflected the estimated litigation costs, as well as estimated savings from 

the remedies initially sought by the complainants. The DLA ADR program has reported, 

from several hundred ADR events each fiscal year, over 91,000 days saved from more 

formal litigation each fiscal year and an estimated savings each year exceeding $3 .1 

million dollars by using ADR in all areas: contract, labor, EEO, litigation and workplace 

disputes. Air Force has similarly calculated tangible, fiscal benefits realized by utilizing 

ADR within the agency, estimating that over the past ten fiscal years, the acquisition and 

workplace ADR saved the Air Force over $1 Billion.8 

8 Cost avoidance in acquisition ADR was calculated by adding the difference between aggregate 

contractor claims and the amount the Air Force pays as a result ofresolving contract 

controversies and disputes through ADR. Cost avoidance in workplace ADR is calculated with 

projections from the Management Advisory Service project conducted by the Air Force Personnel 

Operating Agency, which determined the estimated cost of workplace disputes not resolved by 

ADR. 

13 
Trends in ADR Processes Used The DoD Components' trends towards institutionally 

accepted use ofmediation in EEO and other disputes, and an expanded number of options 

and techniques, are reported above and are further evident in the success stories that 

follow below. Over the past decade, DoD support for effective use of ADR has expanded 

in accordance with the field of ADR as a whole. Lessons learned from more formal ADR 

processes indicate that disputes often occur as a result of poor or mis- communication. 

An emphasis on increasing individuals' capacity to effectively manage conflict at an 

early stage is an outgrowth of this experience. As DoD examines how to accomplish its 

military mission, troop support and civilian support objectives in a changing climate, 

leadership has recognized that DoD ADR and conflict management practices can and 

should retain more traditional ADR processes (such as mediation and neutral-assisted 

settlement conferences) while further developing and applying conflict management 

techniques beyond such practices, in order to enable the DoD Components to function 

ever more effectively and efficiently. This view of ADR expands the opportunity to tailor 

available procedures and techniques to the specifics ofthe situation at hand, and has been 

codified in the current DoD Instruction on ADR and Conflict Management (DoDI 

5145.05 (May 26, 2016)). These expanded options enable ADR techniques to be applied 

as they best suit individualized disputes and the needs ofthe parties involved therein. 

The DoD's use of Ombuds (a/k/a Ombudsman functions) is one ofthe functions that 

bears mention in any discussion of developing trends in DoD application of Alternative 

Dispute Resolution techniques. However, given the independence of Ombuds offices 

within the DoD Components' organizational structures, Ombuds activity is discussed 

later in this Survey response. 

Building Program Capacity 

Over the past ten fiscal years (FY06-FY15), three core actions have expanded ADR 

availability and usage within the DoD: (1) providing targeted awareness training and 

skill building to current and new personnel as the workforce changes and grows; (2) 

integrating conflict management across the Component so that there are multiple points 

of access and a broader array of dispute resolution techniques suited to diverse conflicts; 

and (3) increasing the sophistication of delivery systems. 

Awareness Briefings and Skills Training Over the past decade, most of the DoD 

Components have engaged in significant training initiatives. The Air Force ADR 

Program provided soft-skills conflict management training to approximately 35,000 

employees, for instance, in FY2007-2008. This training proved critical in dispute 

resolution processes as it provided managers and union stewards with the skills 

needed to resolve many disputes in their earliest stages by way of interest-based 

14 
 
bargaining. The Air Force also created the Air Force Negotiation Center in 2006 

through a partnership between the Air Force General Counsel's office and Air 

University. Initially created to provide negotiations training and ADR awareness to 

senior military officers, the Center has grown dramatically in both assigned 

personnel and budget during the reporting period and Air Force General Counsel 

has continued to partner with the Center throughout the reporting period to make 

Airmen better problem-solvers in an ever more diverse global operating 

environment.9 The Center has become the lead agent for ADR education and 

training and directly supports the Air Force Chief of Staffs Guidance to improve 

Total Force conflict resolution skills, including the design and implementation of 

basic mediation courses to ensure installation ADR Program Managers have the 

required roster of neutrals to perform local mediations. 

The Army ADR Program, over this past decade, has similarly been one of developing and 

deploying mediation training to build the ranks of Army collateral-duty mediators; 

establishing a long-term collaboration with the Army Civilian Human Resources Agency 

to train all Army civilian personnel officers and labor-management relations specialists in 

both mediation and collaborative problem-solving skills; and collaborating with both 

DOHA CADR and other DoD components to provide quality mediation services and 

training opportunities to Army and other DoD audiences. As of 2016, the Army has 

delivered approximately 40 different basic mediation courses to Army and other DoD and 

federal agency training audiences at various locations, some of which is geared towards 

developing mediators, with other targets being ADR awareness and application ofinterest 

based communication and problem solving skills across the Army personnel. 

The DON OGC ADR Program Office has developed a program that provides conflict 

management training to DON managers and supervisors at DON locations around the 

world, and advanced skills training for DON ADR professionals throughout the year. 

Recognition ofthe value ofADR awareness training is by no means exclusive to the 

Service Branches. DIA's ADR Branch has gradually built its capacity, culminating in 

steps taken to enhance marketing to increase awareness and education through biannual 

workshops for managers and employees as well as workshops upon request throughout 

the DIA enterprise. The ADR Branch has also added quarterly brown bag sessions, 

information tables, and produced professional grade information sheets on popular ADR 

topics, and during Conflict Management Month (October 2015) hosted DIA's first ADR 

Symposium that included a panel discussion with partnering offices (Office ofInspector 

9 In Fiscal Year 2015 alone, the Center developed and delivered curriculum to more than 30 Air 

University programs and courses, reaching more than 35,000 Airmen. 

15 
 
General, Office of General Council, Employee Management Relations Branch, Office of 

the Ombudsman, and Equal Opportunity and Diversity Office). Commensurate with its 

proactive focus, the Symposium also offered two Conflict Competency workshops. DLA 

reports a significantly increased workload associated with its steps to increase awareness 

and educate employees on ADR services. 

A different and equally intentional approach has been taken by the DLA. Like 

other Components, DLA has sought to build program capacity over the last 10 

fiscal years by ADR awareness training for the workforce at each primary level 

field activity and the DLA Headquarters Component. However, the agency also 

established, within the DLA Disposition Services, an active ADR Working 

Group that meets semi-annually to discuss ways to enhance ADR Program 

visibility. The ADR Working Group is chaired by the ADR Specialist from the 

Office ofCounsel and is comprised ofrepresentatives from J7 Contracting, DLA 

Logistics Information Services (DLIS), Equal Employment Opportunity Office, 

and the American Federation of Government Employees (AFGE). This 

diversified group of professionals engages positive steps to promote ADR 

awareness, so that issues are resolved before ever becoming major problems. 

Integrating Conflict Management with Dispute Resolution Aspirationally, an 

institutional ADR program should be sufficiently linked and cooperative with other 

offices in the agency (e.g., EEO and Diversity (EEOD) Office, Employee/Human 

Relations, Employee Assistance Program, Chaplain's Office, Legal Services, Office 

ofInspector General), that an employee initially seeking help through one such 

office is also offered the option to interact with the ADR or Conflict Management 

Program Office, and any Ombuds office. The ADR (and Ombuds) functions do not 

replace the formal assistance available through these other points of entry, but 

support and expand them. 

During the past ten fiscal years, the Air Force ADR Program established and 

developed an Integrated Conflict Management System (ICMS) tailored to its own 

structure and mission needs, in which negotiation also figures prominently as an 

additional problem solving skill based upon expectations oftop leadership. This 

system leverages the crosscutting applications of dispute resolution, conflict 

management, and negotiation skills in order to more effectively prevent and resolve 

Air Force disputes. The ICMS promotes conflict management skills and also 

maintains a robust capability to effectively and efficiently resolve those disputes 

that cannot be prevented. 

The DIA provides a different example of an organizational structure for integrating 

ADR with other points of entry for employee assistance inquiries, as touched upon 

above. Its program specifically provides that, if the initial inquiry is made with the 

16 
 
ADR program, but the conflict or issue is out ofthe ADR Branch jurisdiction, the 

employee is referred to a more relevant office, such as the EEOD, HR, etc. The 

function ofthe Ombuds office may also come into play. Other Components 

increasingly are involving the multiple functions oftheir organizations in ADR 

training and awareness in order to ensure a more seamless opportunity for ADR to 

be identified as a problem solving option both at early stages of conflict and when 

disputes have become more entrenched. Defense information Systems Agency 

(DISA) leadership also has supported a move beyond mediation in EEO disputes, 

over the past ten years, training facilitators and approving the addition of a 

dedicated employee to develop a systematic, measurable, proactive "way-ahead" for 

the ADR program that will include a plan for ADR program education/outreach and 

training. 

The NSA also reports such a system, in which ADR and conflict management are 

integrated in a single program and also coordinated by open communication with 

other aspects of employee services. Traditional EEO mediations are handled 

primarily by IRD mediators, but the ADR program staff have become trained in 

conflict management techniques, coaching, and other proactive very early dispute 

resolution techniques. In addition, the program provides managers and supervisors 

with concentrated conflict competency training, and addresses group facilitations. 

The NSA Ombuds function serves as a "front door" for assuring access to ADR at 

NSA. 

Increased Sophistication of Deliverv Svstems Over the preceding decade, the three 

Service Branches have also maximized their ability to deliver effective and timely ADR 

services through application of new tracking technologies. Between FY 2007 and FY 

2009, the Air Force created its own data reporting system to capture workplace dispute 

resolution accomplished at its bases located around the world. This data reporting system 

provides installation ADR program managers with the opportunity to capture workplace 

dispute data real-time and calculates program metrics at the installation, Major 

Command, and HQ Air Force levels. The new data reporting system replaced a static 

system in FY 2010 and has been a critical component of program management and 

determining return on investment ever since. The system tracks workplace disputes filed 

and resolutions, and offers a host of dispute types, to include discrimination complaints, 

administrative and negotiated grievances, unfair labor practice allegations, merit system 

protection board cases, and peer-to-peer disputes. 

Army also used its own tracking system, which facilitates annual assessment ofits 

program. DON addressed its decision to expand capacity by revamping its program and 

standing up the ADR Center of Excellence (COE) in 2014 through the OCHR. The 

OCHR administers all DON workplace mediations. The DON OGC continually 

improves and manages ADRTracker, a web-based comprehensive case management and 

17 
 
data collection system that helps conveners schedule, communicate and monitor the 

status of all workplace ADR events. The DON ADRTracker system also facilitates the 

training and recertification process for DON' s Certified Mediator Program and improves 

other ADR data collection at all levels in the DON process. 

The use oftechnology has also increased the reach ofDoD ADR training initiatives. For 

instance, the Air Force reports that extensive use ofreal-time computer-based trainings 

has made it possible to keep collateral-duty mediators and program managers refreshed 

on mediation techniques, informed on program management, and available to perform 

local mediations. As mentioned elsewhere in this survey, Air Force has also developed a 

monthly ADR webinar program that has provided "non-resident students" access to ADR 

and negotiations curricula. The DON ADR Program continues improving and increasing 

the use of advanced communication technology such as video teleconferencing training 

sessions available to multiple DON locations, the web-based computer conferencing 

system Defense Connect Online, and DON ADR training DVDs to expand the 

availability of ADR training resources to the DON ADR community. 

The Future of ADR Within the Department of Defense, and the Role of the Interagency 

ADR Working Group: 

The ongoing mission of the DoD ADR Coordinating Committee and the DoD Liaison is 

to ensure continued exchange of resources and expertise in order to build up the 

individual Components' ADR programs as best suited to their individual needs and 

missions. 

The Interagency ADR Working Group provides valuable support to this ongoing mission 

as it plays out in Workplace, Contracts and Procurement, Litigation and Environmental 

uses ofADR. Over the past ten fiscal years, a number of IADRWG Steering Committee 

publications since 2006 have proven to be of benefit to the DoD Services Branches and 

other Components. The Confidentiality Guidance for ADR Program Managers and the 

Guide for Federal Employee Mediators, containing the model standards of conduct for 

mediation practice, have been very useful to ADR practice DoD-wide. The Air Force, 

Army and DON specifically cite it as informing their training programs. Also cited as 

especially helpful to informing the Air Force ADR training programs is the Working 

Group's Guide for Federal Employee Mediators, which is a supplement to and annotation 

of the Model Standards of Conduct for mediators. Likewise, the Electronic Guide to 

Federal Procurement Alternative Dispute Resolution (ADR), now in its Second Edition, 

has proven a valued resource providing detailed, substantive information on the use of 

ADR for resolving contracting, or acquisition and procurement, disputes. 

18 
 
ADR Success Stories at the Department of Defense 

The DoD and other Federal Agencies were requested to provide ADR success stories 

from the past ten calendar years - illustrations that include the types ofissues the DoD 

ADR program resolves, the inherent benefits of ADR (even when the disputed issues are 

not fully resolved), the ADR methods, and key lessons learned. 

ADR programs across the DoD Components report multiple success stories, such that it 

has been difficult to select from among them. A number ofthese success stories are 

embedded in the responses to the above Survey questions. (See Attachment 6 for several 

additional success stories that are illustrative of subject matter applications, innovative 

process approaches, how the ADR process was critical to resolution and beneficial 

outcomes. Key lessons learned from each experience are highlighted) 

ADR Use Beyond the ADR Programs Discussed Above: 

Over the past decade, the DoD has developed an increasingly robust set of Ombuds 

programs which, by design, apply ADR processes and techniques but generally are 

structured in the organization to do so independently ofthe Component ADR Programs. 

A number ofDoD Components report these as ADR activity, however, recognizing that 

Ombuds offices apply multiple ADR techniques towards the resolution of workplace and 

other disputes. Generally speaking, these programs report a steady increase in the 

number of employees (or other users) reaching out to the Ombuds office each year since 

the office was established. The cornerstones of confidentiality, the value of a sounding 

board, information resources; shuttle diplomacy and other fundamentals of Ombuds 

practice are reported to be responsible for this trend. During the decade, Defense 

Commissary Agency (DeCA), Defense Human Resources Activity (DHRA) and NSA 

were counted among the Components that added an Ombuds function for addressing 

workplace issues and conflicts, with highly successful results. 

In 2015, DIA established its Office ofthe Ombudsman, which is aligned under the DIA 

Chief of Staff and staffed with three full-time employees (one Agency Ombudsman, one 

Deputy Ombudsman, and one Staff Director/ Associate Ombudsman). This office is 

charged with providing the DIA workforce with a safe place to voice any issues of 

concern. It does not replace any office that otherwise offers formal assistance to the 

workforce (such as Office ofthe Inspector General, Equal Opportunity and Diversity 

Office, Employee Management Relations Branch, Employee Assistance Program, or 

Chaplain's Office). Rather, the Office ofthe Ombudsman offers an additional service to 

render assistance quickly and informally, with a keen focus on systemic issues that 

negatively impact mission accomplishment and/or team members' well-being. 

19 
 
At the National Geospatial-Intelligence Agency (NGA), workplace ADR offers 

mediation for EEO dispute resolution, and additionally an Ombudsman provides a key 

function as an independent, informal (categorically not part of investigative or oversight 

functions), neutral, and confidential forum to hear and address individual and systemic 

concerns about the agency's mission, policies, and practices. At NGA, there also is 

established an Analytic Ombudsman, whose responsibility it is to address concerns about 

adherence to analytic standards, and also (as throughout much ofthe DoD) a TaskDelivery Order Ombudsman who - while recognizing that the contracting officer has the 

primary responsibility for procurement integrity - provides a neutral, informal, 

confidential and independent sounding board for, e.g., employees, managers, and 

customers who seek assistance in resolving issues related to procurement concerns. 

10 

The Pentagon Force Protection Agency (PFPA) is provides a good example ofthe 

function an Ombuds office serves within a DoD Component. Typically, the PFPA 

Ombudsman uses a variety of conflict resolution techniques including coaching, neutral 

fact finding, conciliation, and shuttle diplomacy to help resolve workplace disputes. The 

Ombudsman is also available to intervene as a mediator to assist disputing parties to 

reach win-win solutions to their conflicts. When appropriate, the Ombudsman makes 

referrals to other offices and programs (e.g., employee assistance programs) to further 

assist PFP A staff members with their concerns. At PFP A, the Office ofthe Ombudsman 

is an informal first step to resolving workplace disputes before they escalate into formal, 

adversarial, and sometimes hostile complaints and grievances. Additionally, the PFPA 

Ombudsman serves as an early warning channel by alerting top management to systemic 

problems and offering recommendations for change within the Agency. As with other 

Ombuds offices, confidentiality is a cornerstone oftheir process. The PFP A 

Ombudsman's office provides a safe haven for PFPA staff members to confidentially 

discuss work related issues without fear ofretaliation or reprisal. The Ombudsman listens 

to staff members' concerns and helps them to identify and evaluate a range of options for 

resolving issues. 

The DoD Office of the Inspector General (OIG) Office ofthe Ombudsman has long 

provided a robust example of an internal-facing resource for informal conflict resolution. 

Along with the OIG Equal Employment Opportunity Office (also providing internalfacing conflict resolution) this Ombuds office addresses a variety of disputes, the subject 

matter of which could include performance ratings, performance progress, access to 

training and developmental opportunities, fairness and equal opportunity in assigning 

meaningful work projects to team members, personality conflicts between co-workers, 

issues of trust between employees, fairness and equal opportunity in promotion process, 

opportunities to influence strategic direction of organization, and a legion of other 

10 The statutory and regulatory scope of this latter Om buds function throughout the DoD is 

beyond the scope ofthis Survey. 

20 
 
concerns. The processes used by the neutrals at the OIG Office of the Ombuds (and the 

OIG Equal Employment Opportunity Office), include brainstorming, facilitated 

discussions, role-playing, mediation, team building, action-planning, shuttle diplomacy 

administration of multi-rater assessments, organization climate assessments, and referrals 

to policy and program experts. 

Within the WHS organizational structure, an Office ofthe Ombudsman similarly 

provides informal dispute resolution services to all Deputy Chief Management Officer 

(DCMO) and WHS employees. Consultation with the Ombudsman is entirely voluntary 

and may not be compelled by anyone for any reason. The Ombudsman Office receives 

questions and concerns about individual situations or broader systemic issues and, to the 

extent permitted by law, keeps them confidential. The Ombudsman listens, makes 

informal inquiries or otherwise reviews matters received, offers resolution options, and 

informally reconciles disputes independently and impartially. The response of the 

Ombudsman is tailored to the dynamics of the situation and the nature ofthe concerns. 

The Ombudsman assists individuals in reaching resolutions that are consistent with the 

stated ideals, objectives and policies. Services offered by the Ombudsman Office 

supplement, but do not replace, other more formal processes available to employees. The 

Ombudsman acts as a catalyst for institutional change through reporting of trends and 

identifying opportunities to enhance policies and procedures. 

Other Components also have Ombuds programs that are notable because they serve 

unique functions. Of particular note is the Army "Medical Assistance Group" (MAG), 

established in March 2007, consisting of the Ombudsman Program for Wounded Soldiers 

and their families, and the Wounded Soldier and Family Hotline, to address medical 

issues and concerns of wounded Soldiers and their families, in a confidential, positive 

environment. In April 2007, the Army augmented the program with liaisons at 18 sites 

having a significant Warrior in Transition (WT) population. Since then, the program has 

grown to 49 Ombudsmen at 26 medical treatment facilities in the U.S. and overseas. In 

addition to counseling Wounded Soldiers and their families, Army Ombuds serve as 

liaisons with military medical authorities on issues relating to medical care and treatment, 

rehabilitation, and post-treatment transition. Since its inception, the MAG has helped 

over 62,000 Soldiers and family members and provided Army medical leaders visibility 

concerning medically related issues and trends. 

Training in ADR Awareness and ADR Skills and Techniques at the DoD: 

The Service Branches, and some ofthe other Components, have conducted and continue 

to conduct ADR awareness and to provide periodic skills training for their personnel. 

21 
 
ADR Awareness Training Some examples ofADR awareness training are provided 

above, in response to the question addressed to steps taken to build programs over the 

past decade. Successful ADR awareness training at DoD begins with ensuring the 

support of DoD leadership. Awareness training for leadership is a regular effort at DF AS, 

where ADR Specialists regularly brieftheir site directors and the ADR Director annually 

briefs the DF AS Strategic Council and the DF AS Enterprise Business Council on the 

state ofthe program. 

For Supervisory and Management personnel, readily available written brochures and 

face-to-face awareness and skills training seem the preferred engagement across many 

Components. DF AS, for example, offers a 60 minute module, presented by an ADR 

Specialist, to supervisors during the New Supervisors Training Program. The module 

provides an ADR primer, discussion of the advantages of ADR over formal processes, 

and an explanation ofwhat ADR looks like at DFAS. At DHRA, ADR awareness 

training is presented to supervisors during the mandatory Supervisor/Leadership training. 

DIA ensures that its personnel have ready access to professional - grade tri-fold 

information brochures, and information sheets widely distributed in the organization, and 

its officers also have access to information through informational briefings delivered 

throughout the enterprise. WHS is among the Components that deliver awareness training 

as a part of an EEO and Diversity training module to scheduled training of new 

supervisors, supplemented later by brown bag luncheons on various ADR topics. 

A number of Components provide some ADR awareness briefing for all new employees. 

DF AS, for instance, offers multi-faceted training through its multiple Dispute Resolution 

Offices, beginning with a brief (15-20 minute) awareness training module presented by 

an ADR Specialist as a part ofthe New Employee Orientation Program. The 60 minute 

module offered to supervisors is later available to employees. These modules are repeated 

in various formats during periodic site visits and in monthly video teleconference 

trainings for the Defense Military Pay Offices. ADR topics are also presented during 

periodic forum meetings (Supervisors, Labor-management), union steward "lunch and 

learn" sessions and other informal meetings. DHRA informs its new employees about 

ADR during the on-boarding process in a series of briefings/presentations when they first 

arrive at DHRA. The ADR awareness and promotion is also presented by DHRA during 

the EEO and No Fear trainings mandatory for all employees. 

Various DoD Components offer regularly scheduled awareness and ADR skills training 

for employees by taking advantage of communications technology to efficiently 

distribute this education. For example, Defense Security Service (DSS) offers a selfguided, online ADR tutorial for DSS employees. The tutorial explains the agency's ADR 

program, the benefits of using ADR, how the mediation process works, and how 

employees can prepare for a mediation session. The Pentagon Force Protection Agency 

22 
 
provides ADR awareness/promotion trainings and skills training to agency employees 

through the iCompass training website. 

Components that do not provide ADR awareness or skills training on a regular basis, 

nonetheless look for opportunities to provide periodic training. For example, recent a 

week-long seminar for the DCMA Office of General Counsel personnel featured speakers 

that included the DoD ADR Liaison speaking on the benefits both workplace and 

contracting ADR and addressing myths about the effectiveness of ADR in both contexts. 

The seminar also featured a judge from the ASBCA who also increased audience 

awareness by discussing ADR techniques at the ASBCA. Defense Threat Reduction 

Agency (DTRA) uses facilitated/sponsored ADR trainings to encourage the use ofADR, 

as well as "Brown Bag" sessions specifically targeted to eliminating common 

misconceptions regarding ADR. 

The Service Branches similarly brief and train their civilian and military personnel 

including supervisory personnel, as discussed in some detail above. As noted on the 

Army ADR website, training ranges from two hour "ADR Awareness" and "Introduction 

to ADR" courses to week long "Advanced Mediation" and "Negotiation and Appropriate 

Dispute Resolution" courses. As a further example, Air Force has developed ADR 

awareness trainings providing information about the Air Force ADR Program and the 

benefits of ADR. This program was created with commanders and supervisors in mind, 

but has been delivered worldwide to its major commands (MAJCOM)11 audiences and at 

Air Force Equal Opportunity Worldwide Conferences. 

ADR Skills Training The Air Force ADR Program, in collaboration with the Eaker 

Center for Professional Development (ECPD) at Maxwell Air Force Base, Alabama, 

created a 32-hour basic mediation training course that is primarily given to Air Force 

employees who have volunteered to serve as collateral-duty mediators. This course is 

typically offered twice each fiscal year and can train a maximum of 33 students per class. 

The Air Force Advanced Mediation Course, a 40-hour course also created in 

collaboration with ECPD, is conducted every other fiscal year for experienced collateralduty mediators. This course provides advanced mediation training to up to 15 students. 

Air Force ADR Program also provides refresher training for its mediators, to meet the Air 

Force ADR instruction requirement that mediators receive at least eight hours ofrefresher 

11 As of January 2008, the ten major commands and the stations of their headquarters are: Air 

Combat Command, Langley AFB, Virginia; Air Education and Training Command, Randolph 

AFB, Texas; Air Force Global Strike Command, Barksdale Air Force Base, Louisiana; Air Force 

Materiel Command, Wright-Patterson AFB, Ohio; Air Force Reserve Command, Robins AFB, 

Georgia; Air Force Space Command, Peterson AFB, Colorado; Air Force Special Operations 

Command, Hurlburt Field, Florida; Air Mobility Command, Scott AFB, Illinois; Pacific Air 

Forces, Hickam AFB, Hawaii; and United States Air Forces in Europe, Ramstein AB, Germany. 

(See http://www.afhra.af.mil/organizationalrecords/majorcommands.asp.) 

23 
 
mediation training each year. Some ofthis training is provided at ADR and EO 

worldwide conferences. 

Since 2008, the Army ADR Program has been deploying a week-long basic mediation 

course. The developed course curriculum provides 36-40 hours of classroom instruction 

and evaluated mock mediations using role-play techniques over a 4 and Yz day period and 

criteria for determining whether a mediation student receives a certificate of course 

completion. As in other respected mediation training courses, following the basic skills 

course, the student is then expected to co-mediate in at least two active mediation 

situations as a final phase of basic mediator skill development. As noted above, as of 

2016, the Army has delivered approximately 40 different courses to Army and other DoD 

and federal agency training audiences at various locations. In addition to the basic 

mediation training, Army ADR provides the following courses to its personnel: 

Mediation Refresher (4 or 8 hours for current mediators). Interest-Based Negotiations (1­

2 days for all audiences). Conflict Coaching (3-4 days for supervisors/managers/dispute 

resolution specialists-subject to availability).Collaborative Problem Solving (2 days for 

all audiences). 

DON ADR professionals are provided the opportunity to attend a three day workplace 

ADR training seminar with three concurrent ADR training sessions. This seminar offers a 

wide variety of ADR training classes, including: skills courses for conveners; labor and 

employee relations ADR training; Americans with Disabilities Act/Rehabilitation Act 

(ADA/RA) for mediators training, advanced mediator skills training, ADR-related EEO 

law and procedure training, settlement agreement training, and federal mediator ethics 

training. These annual seminars rotate each year to different geographical locations, 

providing DON ADR professionals around the world access to a wide array of skillsbased training classes. Local DON managers and supervisors at these different seminar 

locations are also provided an opportunity to attend a completely separate day-and-a-half 

conflict-management training session with course content, including conflict 

management and EEO for supervisors training, designed to help them provide effective 

leadership. In addition to this yearly training event, the DON also provides conflict 

management training to DON managers and supervisors at other DON locations around 

the world, and advanced skills training for DON ADR professionals throughout the year. 

Some ofthe courses offered to DON ADR professionals include "Breaking Through 

Impasse", "Generating Options", "Reflective Practice", and "Critical Skills for Critical 

Moments in Mediation. 

Both Army and DON further coordinate their ADR efforts with their Human Resources 

functions to ensure solid development of mediation and conflict resolution skills for 

relevant personnel. The Army ADR Program delivers training world-wide in conjunction 

with the Army Civilian Human Resources Agency at Aberdeen Proving Ground. The 

24 
DON OGC ADR Program Office coordinates with OCHR to manage the DON's 

Workplace ADR Program. 

Of additional note are the collaborative training opportunities provided by the Service 

Branches. For instance, since 2008, a 36 hour Negotiation and Appropriate Dispute 

Resolution Course has been presented with the support of the Army ADR Program, Army 

OGC' s office and students from the Army legal career field. The course was originally 

created by the Air Force ADR Program in collaboration with the Air Force Judge 

Advocate General's School, as a Negotiation and Appropriate Dispute Resolution Course 

which provides negotiation training and ADR awareness to the legal career field. In 

2016, it celebrated its highest audience - 66 legal practitioners from the Air Force, Army 

and the Defense Finance and Accounting Service. 

DECA's unique mission within DoD is to operate a worldwide chain of commissaries 

providing groceries to military personnel, retirees and their families. Accordingly, it is a 

DeCA leadership expectation that its employees will engage in positive, intentional 

interactions with patrons, staff and visitors, and aims to sustain a capable, diverse and 

engaged civilian workforce. 12 Thus, in furtherance of the DeCA mission and leadership 

expectations, during the past decade the DeCA ADR program formed a one day Conflict 

Management Course that is taught to supervisors and managers and that includes 

Personal Assessment (Thomas-Kilmann Conflict Handling Modes13 and True Colors14

), 

Communication Skills, and Conflict and Conflict Management Strategies. This training 

initiative, together with the Ombuds function discussed above, is assisting DeCA to 

advance its mission by resolving conflicts at earlier and informal stages, thereby avoiding 

the loss of productivity, decline in working relationships, and heightened exposure to 

liability entailed with prolonged conflict and litigation. 

DoD-wide Training Resources Upon request from a Component, the Defense Equal 

Opportunity Management Institute (DEOMI), established by Department of Defense 

Directive 1322.11, continues to provide basic mediation and other training relevant to 

resolution of disputes in the DoD workplace. For a number of years, WHS (initially on 

its own, then in co-sponsorship with DCPAS - IRD) has presented an annual ADR 

Symposium providing ADR awareness training to DoD supervisory and management 

personnel, and ADR skills update training to DoD ADR personnel. The Air Force 

Negotiation Center (AFNC) graciously makes webinar training in ADR as well as 

12 See https://www.commissaries.com/about us.cfm. 

13 Thomas Kilmann Conflict Mode Instrument and products copyright© 2009-2016 by Kilmann 

Diagnostics.and Copyright © 1991-2016 by Organizational Design Consultants. 

14 See www.truecolorsintl.com . 

25 
negotiation skills available to ADR professionals beyond Air Force, and the Anny and 

DON ADR Programs likewise offer open slots for skills training to other Components, 

when available. Other resources are periodically accessed; for instance the Defense 

Human Resources Activity has obtained training through Human Resources University. 15 

DOHA, CADR provides awareness briefings, and supports skills training efforts with 

instructional presentations and observer feedback, upon request. The DoD Roster of 

Neutrals regularly distributes continuing education opportunities to Roster neutrals. 

DoD Components also provide periodic training to their own personnel, through various 

methods and modules. As noted above, such training has made a significant contribution 

to the development ofADR Programs across the DoD. 

Final Comments - Goals Set by the Interagency Working Group for the Use of ADR in the 

Executive Branch of the Federal Government: 

The April 2007 Report for the President on the Use and Results of ADR in the Executive 

Branch ofthe Federal Government, contained the following statement: "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." As should be evident from the above 

responses, the DoD has demonstrated remarkable success in advancing that goal, while 

preserving access to mediation and other more classical dispute resolution processes, and 

sustaining ADR programs that meet the specific needs of individual Service Branches, 

Defense Agencies and DoD Field Activities. Going forward, the integration of ADR and 

proactive Conflict Management into the manner in which federal agencies do business on 

a daily basis will not, however, be a static concept. A valuable resource that could be 

provided by the Interagency ADR Working Group would be the support of such 

development, including but not limited to the sharing of best practices, practical 

applications, and "train-the-trainer" teaching modules to facilitate further progress 

towards continued development ofthese valuable resources within the federal agencies. 

15 HRU is the product of the collaboration between Federal agencies across government through 

the Chief Human Capital Officers (CHCO) Council. The CHCO Council founded HRU in 2011 

and now serves in an advisory role. The U.S. Office of Personnel Management (OPM) manages 

the day to day activities ofHRU. 

26 
 
2016 REPORT ON ADR IN THE DEPARTMENT OF DEFENSE 
 

Attachment 1: 

Attachment 2: 

Attachment 3: 

Attachment 4: 

Attachment 5: 

Attachment 5: 

Consolidated Response of the Department of Defense 

Index to Attachments 

DoD ADR Program - Component POCs 

DoD ADR Program-Component Written Policies & Websites 

DoD ADR Program - Component ADR Programs - Subject 

Matters Reported 2014-2016 

DoD ADR Program - Component ADR Programs - ADR Techniques 

Reported 2014-2016 

DoD ADR Program - Component ADR Programs-Sources of Neutrals 

DoD ADR Program - Component ADR Programs - Additional 

Success Stories 
ATTACHMENT 1- COMPONENT POCS 
 

COMPONENT 

Dept. ofthe 

Air Force 

Dept. ofthe 

Army 

Dept. ofthe 

Navy 

National Guard 

Defense Commissary 

Agency (DeCA) 

Defense Contract 
 

Audit Agency (DCAA) 
 

DISPUTE RESOLUTION SPECIALIST 

Joseph M. McDade, Jr., SES 

Principal Deputy General Counsel 

U.S. Air Force 

SAF/GC 

1740 Air Force Pentagon, Suite 4E836 

Washington, DC 20330-1740 

(703) 697-4406 

joseph.m.mcdade.civ@mail.mil 

Philip R. (Rob) Park 

Principal Deputy General Counsel 

Dept. ofthe Army, Office ofthe General Counsel 

l 04 Army Pentagon, Washington DC 203l0-0104 

703-697-9235 

Philip.r.park3.civ@mail.mil 

Robert Manley 

Assistant General Counsel (ADR), Dispute 

Resolution Specialist 

Department ofthe Navy 

720 Kennon St., SE 

Washington Navy Yard, DC 20074-5012 

(202) 685-6987 

Robert.manley@navy.mil 

Karen White 

ADR Specialist/Mediator 

The National Guard Bureau 

(Air & Army Guard) 

The National Guard Bureau 

111 South George Mason Drive 

Suite 5T-133, AHS 2 

Arlington, Virginia 22204-13 73 

Phone: (703) 607-0770 

Karen.a.white54.civ@mail.mil 

Bradley R. Hansen 

Principal Deputy General Counsel 

Defense Commissary Agency 

1300 E A venue 

Fort Lee VA 23801-1800 

(804) 734-8000 ext. 48116 

bradley.hansen@deca.mil 

David R. Gallagher 

Deputy General Counsel 

Defense Contract Audit Agency (DCAA) 

8725 John J. Kingman Rd., Suite 2135 

Ft. Belvoir, VA 22060 

(571)448-3124 

David.gallager@dcaa.mil 

ADDITIONAL ADR POC 

Rodney A. Grandon 

Deputy General Counsel, Conflict 

Resolution 

U.S. Air Force SAF/GCR 

(703) 604-0423 

rodney.a.grandon.civ@mail.mil 

Marc Van Nuys 

Director, Army ADR Program Office 

703-614-6861 

marc.vannuys.civ@mail.mil 

Detria Liles Hutchinson 

Attorney Advisor 

OGC ADR Program Office 

(202) 685-6974 

detria.lileshutchins@navy.mil 

Maximino Gonzalez, Jr. 

D.R. Specialist/Attorney Advisor 

Office ofthe Chief Counsel 

Litiga. & Employment Law Division 

The National Guard Bureau 

11 l South George Mason Drive, 

NGB-JA 

Arlington, VA 22204 

(703) 607-0837 

Maximino.gonzalez.civ@mail.mil 

William Sherman 

General Counsel 

(804) 734-8000 ext. 48116 

William.shermanC@.deca.mil 

NIA 
ATTACHMENT 1- COMPONENT POCS 
 

Defense Contract 

Management 

Agency (DCMA) 

Defense Finance 

and Accounting 

Service (DF AS) 

Defense Health 

Agency (DHA) 

Defense Human 

Resources 

Activity (DHRA) 

Defense Information 

Activity (DIA) 

Defense Information 

Systems Agency (DISA) 

Richard D. Desmond 

Sr. Associate General Counsel, Personnel & Ethics 

Office ofthe General Counsel 

Defense Contract Management Agency 

3901 A Avenue 

Ft. Lee, VA 23801-1809 

(804) 734-0966 

richard.desmond(iildcma.mil 

Douglas A. Hess 

ADR Director, DoD/DFAS 

8999 E. 56th Street, Column 222z 

Indianapolis, IN 46249 

317-212-0818 

douglas.a.hess4.civ@mail.mil 

Jose R. Maldonado 

Human Resources Specialist (ER) 

DoD-DHA (Defense Health Agency)-HRD/MELR 

300 Convent Street, Room 1820 

San Antonio, Texas 78205 

(210) 526-7085 

jose.r.maldonado30.civ@mail.mil 

Matthew Ponzar 

Associate General Counsel 

DHRA/GC 

4800 Mark Center Drive, Suite 06125 

Alexandria, VA 22350 

(571) 372-1977 

mathew.w.ponzar.civ@mail.mil 

Donna Welch 

Branch Chief, ADR 

Defense Intelligence Agency (DIA) 

7400 Pentagon, ATTN: OHR4 

Washington, DC 20301-7400 

(201) 231-0242 

Donna.Welch@dodiis.mil 

Lia N. Wentworth 

Assoc. Gen. Counsel for Admin. Law and Ethics 

Defense Information Systems Agency 

P.O. Box 549 

Fort Meade, MD 20755 

(301) 225-6107 

Lia.N.Wentworth.civ@mail.mil 

James (Dan) Key 

Associate Counsel 

Office ofthe General Counsel 

804-734-0029 

james.key@dcma.miI 

NIA 

Gregory S. Byard 

DHA EEO Director 

DOD-DHA-EEO 

703-681-4049 

gregory.s.byard.civ@mail.mil 

Cortina Barnes 

Director, DHRA HQ 

(571) 372-1971 

cortina.m.bames.civ@mail.mil 

Danielle Smith 

Deputy Division Chief 

Management Relations Division 

(202) 231-8004 

Danielle.Smith@dodiis.mil 

Susan R. Corcoran 

Management Analyst 

P.O. Box 549 

Ft. Meade, MD 20755 

(301) 225-6117 

Susan.R.Corcoran.civ@mail.mil 
ATTACHMENT 1- COMPONENT POCS 
 

Defense Logistics 

Agency (DLA) 

Defense Media 

Activity (DMA) 

Department of 

Defense Education 

Activity (DoDEA) 

Defense Security 

Cooperation Agency 

(DSCA) 

Defense Security 

Service (DSS) 

Defense Threat 

Reduction 

Agency (DTRA) 

Missile Defense 

Agency (MDA) 

Eura Cherry 

DLA Office of General Counsel 

8725 John J. Kingman Rd., Suite 1644 

Ft. Belvoir, VA 22060 

(703) 767-8905 

Eura.cherry@dla.mil 

Edith Brumskill 

Director, Diversity Management and EEO Office 

DoD Defense Media Activity (DMA) 

6700 Taylor Avenue 

Ft. Meade, MD 20755 

(301) 222-6843 

edith.brumskill.civ@mail.mil 

Edwin H. Daniel 

General Counsel, DoDEA 

4800 Mark Center Drive, Suite 04E 12 

Alexandria, VA 22350-1400 

(571) 372-0976 

Edwin.daniel@hq.dodea.edu 

Roger Sabin 

General Counsel 

201 12th St S, Suite 201 

Arlington, VA 22202 

(703)-697-9024 

Roger.B.Sabin.civ@mail.mil 

Jay Fraude 

General Counsel, Defense Security Service 

27130 Telegraph Road 

Quantico, VA 22134 

(571) 305-6749 

jay.p.fraude.civ@mail.mil 

Christopher Fultz 

EEO Complaints/ADR Program Manager 

Defense Threat Reduction Agency (DTRA) 

8725 John J. Kingman Road, Stop 601 

Fort Belvoir, VA 22060-0601 

(703) 767-2325 

christophe.m.fultz.civ@mai I .m ii 

James Heaton 

Associate General Counsel, MDA/GC 

5700 18th Street, Bldg. 245 

Fort Belvoir, VA 22060-5573 

(571) 231-8126 

james.heaton@m da.m i I 

Michael L. Walters 

Senior Associate General Counsel, 

Labor and Employment Law 

DLA Office ofGeneral Counsel 

(703) 767-6068 

michael.walters@dla.mil 

NIA 

Ellen Wayne 

Assoc. Gen. Counsel/Program Mgr. 

Center for Early Dispute Resolution 

571-372-5752 

Ellen. Wayne@hq.dodea.edu 

Kara Greenberg 

Associate General Counsel 

201 12th St S, Suite 201 

Arlington, VA 22202 

(703 )-697-8981 

Kara.T.Greenberg.civ@mail.mil 

James Peel 

Associate General Counsel 

DSS Office of General Counsel 

(571) 305-6748 

james.h.peel.civ@mail.mil 

Phillip Ellis 

EEO Specialist/SARC/Wounded 
 

Warrior Program Coordinator 
 

EO & Diversity Programs Office 
 

(703) 767-4451 

phillip.t.ellis.civ@mail.mil 

Mike Colopy 

Deputy General Counsel 

Missile Defense Agency 

(256) 450-2803 

michael.colopy@mda.mil 
ATTACHMENT 1- COMPONENT POCS 
 

National 

Geospatial-Intelligence 

Agency (NGA) 

National Security 

Agency (NSA) 

Office ofthe Inspector 

General (OIG) 

Pentagon Force 

Protection 

Agency (PFPA) 

Washington 

Headquarters 

Services (WHS) 

Shaun D. Williams 

ADR Program Manager 

Office ofDiversity Management and 

Equal Employment Opportunity (ODE) 

7500 GEOINT Drive Springfield VA 22150 

(571) 557-3810 

Shaun.d.williams l@nga.mil 

Dawn V. Bedlivy 

Director, DR& Grievances 

National Security Agency 

(240) 373-2607 

dbedliv@nsa.gov 

Edward T. Zrubek 

Ombudsman 

Office ofthe Inspector General 

Office ofthe Ombudsman 

(703) 604-9112 

Edward.zrubek@dodig.mil 

Bradley Weiss 

Ombudsman 

Pentagon Force Protection Agency (PFPA) 

9000 Defense Pentagon 

Room5B890 

Washington, DC 20301 

(703) 614-5518 

Bradley.m.weiss.civ@mail.mil 

Dr. Maria C. Riegger 

ADR Program Manager 

Office ofEqual Employment Opportunity 

Programs (EEOP) 

Department ofDefense, WHS 

4800 Mark Center Drive, Suite 03G 19 

Alexandria, VA 22350 

(571) 372-0844 

Maria.C. Riegger.civ@mai I. mi I 

Scott M. Deyo 

Ombudsman 

National Geospatial-Intelligence 

Agency and Chair, Coalition of 

Federal Ombudsman 

(571) 557-0898 

scott. m.deyo@nga.mil 

NA 

Charlie Battle 

EEO Specialist/Complaints Manager 

Office ofEqual Employment 

Opportunity 

(703) 602-5332 

Charlie.BattleJr@dodig.mil 

NIA 

Pamela R. Sullivan 

Director, EEOP (f/k/a EEOD) 

(571) 372-0838 

pamela.r.sullivan2.civ@mail.mil 

Merry E. Wiley 

Ombudsman for the ODCMO 

Enterprise and WHS 

4800 Mark Center Drive, Suite 03D08 

Alexandria, Virginia 22350-3200 

Phone: (571) 372-4120 

merry.e.wiley.civ@mail.mil 
ATTACHMENT 2 - Component Written Policies & Websites 
 

COMPONENT 

Dept. of the Air Force 

Dept. of the Anny 

Dept. of the Navy 

National Guard 
 

Bureau (NGB) 
 

Defense Commissary 
 

Agency (DeCA) 
 

Defense Contract 
 

Audit Agency (DCAA) 
 

ADRPOLICY POLICY on ADR.GOV? 

Air Fon;e Policy Yes 

Directive 51-12 

(re-certified in 2010, 

currently under revision) 

http://www.adr.af.mil/shared/ 

media/document/ AFD-070209-040.pdf 

Anny general ADR Yes 

policy contained in 2007 

policy memorandum 

signed by the Secretary ofthe Anny 

http://ogc.hqda.pentagon.mil/ 

ADR/Documents/SECARMY ADR 

Policy.pdf Additional 

ADR policies relating to 

government contract 

disputes (revised in 2015 

as part of AFARS); EEO 

complaint activity (2004); 

and administrative 

grievances (2015 supp. 

to DoD Instruction 1400.25, 

Vol. 771, Enclosure 3) 

DON policy, Secretary ofthe Link via 

Navy Instruction (SECNA VINST) program 

5800.13A (revised 2005) 

http://www.secnav.navy.mil/ ADR/ 

Documents/SIGNED580013A.pdf 

NGB ADR policy was No 

amended and modified 2011 and 

current as of2013. Link to the 

ADR policy is http://www.ngbpdc. 

ngb.anny.mil/publications.htm 

DeCA formal written No 

ADRpolicy 

- not amended or 

modified during the past ten 

fiscal years. 

DCAA regulation modified No 

but subject to negotiations 

with union 2016. 

ADR PROGRAM WEBSITE 

http://www.af.adr.mil 

http://ogc.hqda.pentagon.mil/ 

Practice Groups/ AD R.aspx 

http://www.secnav.navy.mil/adr/ 

Pages/ ADR.aspx 

http://www. national guard. mil/ 

Leadership/JointStaff/J I /Officeof 

EqualOpporunity/ Alternate Dispute 

Resolution.aspx 

http://www.commissaries.com/ 

inside deca/publications/Directives 

DeCAD%2080-13-0ct200 l .pdf 

NIA 
ATTACHMENT 2 - Component Written Policies & Websites 
 

COMPONENT 

Defense Contract 

Management 

Agency (DCMA) 

Defense Finance 

and Accounting 

Service (DF AS) 

Defense Health 

Agency (DHA) 

Defense Human 

Resources 

Activity (DHRA) 

Defense Information 

Activity (DIA) 

Defense Information 

Systems Agency (DISA) 

Defense Logistics 

Agency (DLA) 

ADRPOLICY POLICY on ADR.GOV? 
 

DCMA Policy promulgated No 
 

December 2013 
 

http://www.dcma.mil/policy/902/ 
 

DCMA-INST-902.pdf 
 

Updated 2015 
 

http://www.dcma.mil/policy/005/ 
 

DCMA-INST-005.pdf 
 

DFA Instruction 5145.5-1 No 
 

(2013) 
 

coincident with the stand up 
 

of the program (revised 2015) 
 

NIA No 

DHRAADR No 
 

policy in place since 2010 
 

ADR for EEO cases 
 

validated in EEO Handbook 
 

2014 
 

DIA ADR policy No 
 

revised 2014 
 

DISA ADR policy No 
 

updated in 2014 
 

2014 and is currently being 
 

revised 
 

DLA ADR policy is at No 
 

DLA Instruction 5308 (2006), 
 

last modified in 2010 and 
 

currently being updated. 
 

ADR PROGRAM WEBSITE 

NA 

NIA; instruction accessible to 

employees via agency e-portal only 

NIA 

ADR policies made accessible on 

to the DHRA workforce but not to 

the general public 

NIA; the Office of the Ombudsman 

and ADR Branch maintain websites 

that are accessible to the DIA 

workforce, but not to the general 

public 

http://disa.mil/about/policypublication- information/~/media/ 

files/disa/about/publication/ 

instruction/di I 005014.pdf 

DLA maintains a publicly 

accessible website; however it is 

currently under construction and 

is expected to be functional 

within the next 90 days 

[http://www.dscc.dla. miI/offices 

/legal/adr ] 
ATTACHMENT 2 - Component Written Policies & Websites 
 

COMPONENT 
 

Defense Media 
 

Activity (DMA) 
 

Department of 

Defense Education 

Activity (DoDEA) 

Defense Security 

Cooperation Agency 

(DSCA) 

Defense Security 

Service (DSS) 

Defense Threat 

Reduction 

Agency (DTRA) 

Missile Defense 

Agency (MDA) 

National 

Geospatial-Intelligence 

Agency (NGA) 

ADRPOLICY POLICY on ADR.GOV? 

DMA ADR operating No 

instructions modified 

in 2011 and 2015 to reflect 

administrative changes in 

the procedure 

DoDEA's ADR policy (not Yes 

specified) was established in 

2011 and has not been amended 

since. 

http://www.dodea.edu/Offices/ 

Regulations/ upload/ 

A ltemati ve-Dispute-Reso Iution.pdf 

DSCA follows WHS's ADR No 

Policy, cited below. 

DSS ADR policy updated No 

February 27, 2014 to reflect 

current law and DoD 

regulations - replacing the 2012 

Memorandum of Director currently at 

http://www.dss.mil/documents/eeo/adr.pdf 

DTRA has an ADR policy No 

(not specified) 

MDA's ADR Instruction No 

was originally published in 

2011 and is presently 

undergoing revision (all MDA 

policies undergo review and 

revision if necessary every 

five years) 

NGA's published policy is Yes 

that of its Ombudsman function 

https://www. nga.m i I/About/Pages/Ombudsman.aspx 

ADR PROGRAM WEBSITE 

NIA 

http://www.dodea.edu/Offices/ 

CEDR/ index.cfm 

http://www.whs.mil/equalEmployment-opportunity-andDiversity/altemative-disputeResolution 

https://www.dss.mil/eeo/adr.html 

NIA 

NIA; MDA website is accessible to 

the MDA workforce but not to 

the general public 

Same as policy website 
ATTACHMENT 2 - Component Written Policies &Websites 
 

National Security 

Agency (NSA) 

Office of the Inspector 

General (OIG) 

Pentagon Force 

Protection 

Agency (PFPA) 

Washington 

Headquarters 

Services (WHS) 

NSA's Dispute Resolution and No NA 

Grievance Office and its Ombuds 

Services do not report a published 

ADRpolicy 

DoDIOIG ADR policy No NIA 

was issued 2016 

NIA No http:llwww.pfpa.millombuds.html 

WHS ADR policy is published No http://www.whs.mil/equalat AI Number 106 (2014); employment-opportunity-andrecent modifications not diversity/alternative-disputepublished. Policy link at resolution 

http:/lwww.dtic.mil/ 

whsldirectives/corres/pdf/a I 06p.pdf 
Attachment 3 - Component ADR Programs - Subject Matters 
 

Reported 2014-2016 
 

Service 

Branches 

reporting in 

2016 Survev 

Dept. of the 

AIR FORCE 

Dept. of the 

ARMY 

Dept. ofthe 

NAVY 

NGB 

Defense 

Agencies and 

Field Activities 

reporting in 

2016 Survev 

DeCA 

(Defense 

Commissary 

Agency) 

DCAA 

DCMA 

DFAS 

DHA 

DHRA 

DIA 

DISA 

DLA 

OMA 

DoDEA 

DSCA 

DSS 

DTRA 

MDA 

NGA 

NSA 

OIG 

PFPA 

WHS 

Workplace 
 Contract 

(EEO; CBA, nonCBA, 
 Acquisition and 

L&M; Other Workolace) 
 Procurement Environmental Other 

x x 	 x 


x x 	 x 


x x 	 x 


x 
 x 


x 	 x 


x 


x x 


x 


x 	 x 


x 	 x 


Other Issues of concern x 	 reported to Ombud 

FRAUD, WASTE &

x 	 x 
 ABUSE 

x x x 


x 


x x 
 SPECIAL EDUCATION

x 


x 


x 


x 


x 


x 


x 


x x 


x 

Attachment 4 - Component ADR Programs - ADR Techniques Reporte

Early Neutral Conflict Climate Assessmt/ 

Arbitration' Sttlemt Confc/ Evaluation/ Conciliation/ Sensing Sessions/ 

S I 1ud1ge e M d. e tat10n F T oach.mg Partnermg 0 mus 

tt emt Eva uatv I M d f C . act tta ton b d 

Service 

Branches 

reporting in 

2016 Survev 

Dept. of the PEER REVIEW 

AIR FORCE OUTCOME PR

x x x x x x SUMMARY TR

BINDING DE

Dept. of the REVIEW PANE

ARMY FACTFINDING 

x x x x x x x NEGOTIATION 

WITH OUT

SUMMARY TR

Dept. of the 

NAVY x x x x x 

NGB REVIEW PANE

x x x x OTHER 

Defense 

Agencies and 

Field Activities 

reporting in 

2016 Survey 

DeCA DISCUSSION T

(Defense SUMMARY TR

x x x x x Commissary 

Agencv) 

DCAA x x 

DCMA x x 

DFAS 

x x x 

DHA 

x ( f/k/a Tri care) 

DHRA FACT FINDING x x x x 

1 The vast majority are Nonbinding 
Attachment 4 - ComponentADR Programs -ADR Techniques Reporte

Early Neutral Conflict Climate Assessmt/ 

Arbitration Sttlemt Confc/ Evaluation/ Conciilation/ Sensing Sessions/ 

va uatv e e iat10n ac11tat10n 0 mus b d Oht er S I tt emt J d u 1ge E I M d M ct· . F T . Coach.mg Partnermg 

DIA 

x x x 

DISA x 

DLA NEUTRAL ADV

x x 

DLSA 

OMA x x x 

DoDEA x x x x x 

DSS x 

DTRA x 

MDA x x x x 

NGA x x x x 

NSA PEER REVIEW x x x x 

OIG x x x x 

PFPA x x x 

WHS x x 
Attachment 5 - Component ADR Programs - Sources of Neutrals 

{Sources, including for Ombuds, identified in Component Survey Responses and by DoD Roster of Neutrals) 

Component 

(Self sourced) 

Service 

Branches 

reporting in 

2016 Survey 

Dept of the AIR 

x FORCE 

Dept. ofthe 

ARMY x 

Dept. ofthe 

NAVY x 

NGB 

x 

Defense 

Agencies and 

Field Activities 

reporting in 

2016 Survey 

DeCA 

(Defense x Commissary 

Agency) 

DCAA 

DCMA 

DFAS 

DHA 

(:t7k/a Tri care) 

DHRA 

x 

DIA 

x 

DJSA 

DLA x 

DMA 

Do DEA x 

DSS 

DTRA 

MDA x 

NGA x 

NSA x 

OIG x 

PFPA x 

WHS x 

DoD Roster of Neutrals 

(DOHACADR) 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

AS BC A 

DCP AS/ Federal Roster GAO 

IRD Shared Neutrals Ct. Fed Claims OTHER' 

x 

CO-LOCATED FED NEUTRALS 

x x FED MEDIA & CONCILA SVC 

PRlV A TE SOURCES AS NECESS 

PROFESSIONAL CONTRACTED 

x NEUTRALS 

x 

x x OTHER AGENCIES 

x 

x 

x 

OTHER AGENCIES 

[ IN HOUSE TRAINED 

FACILITATORS] 

x FEDERAL EXECUTIVE BD 

CONTRACTED NEUTRALS ­

SPECIAL EDUCA. EXPERTISE 

MEDIATORS FROM COURTS, 

ADMIN AND OTHER AGENCIES 

x 

OTHER AGENCY (WHS) 

1 Excluding adjudicative organizations, e.g. EEOC, MSPB, various COURTS 2 WHS reports that it services, including provision ofADR on request, the following organizations: CIF A (2002-2008); 

DARPA; DLSA; DPAA; DSCA; DTSA; OEA; OSD; PFPA; DHA (f/k/a TMA); TRMC; USCAAF; and WHS 
ATTACHMENT 6 - DoD ADR Program 
 

- Additional Success Stories 
 

The most important lesson learned DoD-wide during this decade is that the selection of the ADR 

process/technique that best suits the dispute is paramount. Mediation continues to be a highly valued 

process for pre-complaint and formal stage EEO disputes, and is most often facilitative in style, in which 

the mediator remains absolutely neutral and, by working with the parties to identify the interests 

behind their respective incoming positions, builds trust and an open environment for the parties to 

analyze options and find their own, mutually agreeable, resolution. Accordingly, the bulk of Component 

training efforts are devoted to developing these mediation skills. However, as discussed in the body of 

the DoD's Consolidated Response, the DoD ADR and Conflict Management program is not static, and 

over the decade the Components have been applying new techniques and acknowledging that some 

disputes are suited to creative ADR approaches. A number of success stories are cited throughout the 

body of the DoD's Consolidated Response. The following comprise some additional examples of the 

dynamic application of dispute resolution and effective conflict management within the DoD. 

Success Stories in Workplace Dispute Resolution 

Defense Security Service (DSS) In 2009, DSS addressed a multi-party dispute involving workplace issues 

within a single office. The parties voluntarily agreed to ADR and DSS obtained the services of a neutral 

provided at no charge from a roster outside DSS. The introduction of a thirty-party neutral to facilitate 

discussions led to a better understanding by management staff and employees of their respective issues 

and concerns. While not all issues were resolved immediately, many issues were resolved with the help 

of the neutral, which resulted in several employees deciding not to pursue formal complaints. Lessons 

learned: The process mediated by an ADR neutral can lead to improved communication and resolution 

of workplace disputes even when not all issues are resolved immediately. 

Department of Defense Education Activity (DoDEA) DoDEA's Center for Early Dispute Resolution (CEDR) 

provides the following example. A professional with responsibility for a key program agreed to a 

"listening session" to discuss difficulties she had in working with and understanding the direction she 

received from her supervisor. After considering and discussing options with the CEDR representative (a 

Conflict Management specialist), she decided to participate in a facilitated conversation with her 

supervisor. The result was an increased level of understanding of the intentions behind each of their 

communications and an improved willingness to develop a positive working relationship. The employee 

later told the ADR specialist that the process and improvements in her work situation afterwards 

resulted in her remaining at her employment when she would otherwise have sought a position 

elsewhere. She was able to return her focus to her work and to help attract new talent to work on her 

program. Lessons learned: A program that provides innovative blends of ADR and Conflict 

Management techniques affords opportunities for resolution of workplace conflict not necessarily 

available through mediation or other more formal ADR processes. 

Washington Headquarters Services (WHS) The WHS use of "sensing sessions," a relatively new 

conflict management technique usually deployed in response to employees voicing their concerns 

about some aspect of the work environment, is discussed in the body of the DoD's Consolidated 

Response. However, WHS also has observed that creative problem solving during traditional 
ATTACHMENT 6 - DoD ADR Program 
 

- Additional Success Stories 
 

mediation can incorporate such conflict management techniques. The WHS ADR program 

acknowledges that, during some individual mediation sessions, a WHS neutral may be made aware 

that broader work environment issues are an issue for the individual employee. Rather than to ignore 

group dynamics influencing the individual parties' respective issues and underlying interests, the WHS 

neutral will explore whether there exists the potential for engaging the employee's entire unit in 

honest communication, without disclosing the merits or resolution of the dispute at hand. WHS has 

observed that, when an agreement to schedule a sensing session becomes an agreed term of the 

mediation settlement agreement, the employee can be afforded an opportunity to see his or her 

concerns heard and addressed, and the larger workplace also reaps the benefit. 

Success Stories in Ombuds Application of Dispute Resolution Techniques 

(Agency name withheld to protect and preserve confidential identity of the employee) A remarkable 

Om buds success story was reported by one DoD Component in which an employee had initially come to 

the Ombudsman seeking a reassignment/transfer. The employee complained that he was being 

"bullied" by the two senior leaders in his directorate. The treatment by his current supervisors was "so 

bad" that it was seriously affecting the employee's mental health and he stated that he needed to move 

to a new work environment as soon as possible. While working with the Ombudsman to resolve his 

dispute, the employee accepted a referral to an Employee Assistance Program (EAP) to help him cope 

with the stress he was experiencing in his work area. The Ombudsman, through shuttle diplomacy (the 

employee did not want face-to-face mediation) discovered that the employee's supervisors were not 

interested in resolving the employee's concerns and stated that the only reason he was complaining 

was because management was finally holding him accountable for his poor workplace performance. The 

parties to the dispute had rea,ched an impasse and the case seemed to be heading toward the Agency's 

EEO program for processing. 

Before this case was referred to the EEO program, however, the Ombudsman received a visit from 

another supervisor in the employee's work environment and the EAP counselor working with the 

employee. Both the supervisor and the EAP counselor (who was given permission to talk to the 

Ombudsman by the employee) expressed their concerns about the employee's deteriorating mental 

health (situational depression) and were concerned that he was becoming suicidal. A decision was made 

(with the employee's permission) to take his concerns all the way up to the Agency's senior leadership. 

The Director of the Agency agreed to temporarily transfer the employee to a new work area with the 

possibility of making it a permanent reassignment. Within a few months of his reassignment the 

employee's mental health dramatically improved. The employee flourished in his new work 

environment and was permanently reassigned to his new position. He became a productive and valued 

staff member who focused on his job and the Agency's mission without being distracted by problems in 

the work environment. 
ATTACHMENT 6 - DoD ADR Program 

- Additional Success Stories 

Success Stories in Contract. Acquisition and Procurement Dispute Resolution 

Defense Logistics Agency (DLA) DLA reports an instance in which the Government asserted an 

affirmative claim against one of its Hazardous Waste disposal contractors. The contractor had been paid 

over $150,000 for disposing of numerous containers of Hazardous Waste, but subsequently the 

Government discovered that the containers had been ordered under the incorrect contract line item 

number {CUN), resulting in the contractor being overpaid by $115,000.00. The contractor denied that 

the containers were improperly identified and asserted that it was entitled to all of the money it had 

been paid. Negotiations were at a standstill, with the Contractor offering to pay back no more than 

$25,000 and with the Government asserting that it was willing to accept no less than $90,000.00. Before 

issuing a Final Decision, the Government suggested mediating the dispute. The Contractor was open to 

this suggestion, but expressed the desire to have an "authoritative" person mediate the disputesomebody's views they could accept. 

The ADR Specialist and Chief Trial Attorney made an exploratory call to the General Counsel for the 

Armed Services Board of Contract Appeals (ASBCA) to explore the possibility of having an ASBCA judge 

act as the mediator, even though no Final Decision had been issued and there was no pending ASBCA 

Appeal. Ultimately, the Board agreed to have one of its judges mediate the dispute. Prior to the 

Mediation, the parties were required to submit succinct summaries of the claim and their respective 

positions, together with a jointly agreed upon set of exhibits for use in the mediation. The Mediation 

opened with each side being given up to 90 minutes to present their positions. From there, a series of 

caucuses were held, with the judge expressing his opinion on many of the points made by the parties. 

The one day mediation ultimately resulted in some compromise, but the settlement obligated the 

contractor to repay substantially more than had been offered. Lessons learned: The use of ADR in 

complex disputes can incorporate limited pre-briefing and documentary evidence, as well as an 

evaluative neutral, upon agreement of the parties, and lead to agreed resolution even when unassisted 

negotiations have reached a dead end. 

The Dept. of the Air Force (Air Force) Federal government procurement contracts may be protested by 

bidders or other interested parties. The Air Force was facing a bid protest concerning the sole-source 

award of a $10 billion contract to United Launch Services for space launch services under the Evolved 

Expendable Launch Vehicle (EELV) program. The Air Force, the Department of Justice, and Space 

Exploration Technologies Corp. (Space-X) entered into a mediated settlement agreement to settle the 

bid protest, and SpaceX dismissed its claims relating to the EELV block buy contract pending in the 

United States Court of Federal Claims. Not only did the mediation result in withdrawal of the bid protest, 

but Space-X received the assurance that it would be fairly considered for upcoming EELV launches it was 

certified as eligible to provide. The resulting path forward improves the competitive landscape and 

achieves mission assurance for national security space launches. Under the agreement, the Air Force is 

working collaboratively with SpaceX to complete the certification process in an efficient and expedient 

manner. The Air Force also has expanded the number of competitive opportunities for launch services 

under the EELV program while honoring existing contractual obligations. Going forward, the Air Force is 
ATTACHMENT 6 - DoD ADR Program 
 

- Additional Success Stories 
 

conducting competitions consistent with the emergence of multiple certified providers as per the 

settlement. Lessons learned: ADR is uniquely suited to result in resolutions benefitting both parties to a 

dispute, moving contractual obligations forward by agreement while preserving future collaborative 

relationships. 

Department of the Army and Defense Contract Audit Agency (DCAA) A particularly instructive 

application of ADR involved the Army Logistics Modernization Program (LMP), a 10-year acquisition 

program to acquire and deploy a new enterprise-wide logistics system for all Army supply-chain 

transactions. For various reasons, the contract for this program resulted in disputed claims against the 

Army that eventually totaled $2.4 Billion. The use of ADR in this case was remarkable, in part, because 

the case involved the largest amount in controversy in the history of the Armed Services Board of 

Contact Appeals (ASBCA). The use of ADR was additionally instructive because it employed a process 

specially tailored by the parties for the particular dispute, and it enabled the parties to efficiently reach a 

creative resolution of claims and related concerns that could not have been accomplished through 

litigation. 

The ADR history began when the contractor's claims were denied in 2006. Appeals were filed with the 

ASBCA in 2007, where they languished on the litigation docket for over three years with no trial date set. 

Meanwhile, the contract was due to expire at the end of 2011, with significant work remaining and no 

alternative means of transferring the completed system to the Army to maintain in-house or to contract 

it out to another vendor. The case presented a number of factors beyond the parties' control, that 

could impact settlement and that needed to be accounted for if resolution was to be successful. In 

October 2010, the Secretary of the Army directed that ADR be offered to the contractor to resolve all 

issues and potential issues relating to the dispute. Within a month, the contractor agreed to ADR and 

co-neutrals were identified from among ASBCA judges with extensive ADR experience. The parties 

worked out a comprehensive ADR plan, setting forth the agreed process to be followed (a non-binding 

evaluative mediation procedure, backed up by a mini-trial procedure if mediation was unsuccessful) and 

a rigorous time line for following it. DCAA, whose primary function includes the issuance of audit reports 

and financial advisory services, engaged with Army in the ADR process, providing assistance for 

mediation preparation and alternative dispute resolution negotiations to the Director, Acquisition 

Alternative Dispute Resolution (ADR) Program, Department of the Army, and the Office of the General 

Counsel. 

In September 2011, just 10 months after first agreeing to use ADR, the parties were able to settle all 

issues and move the program forward to a beneficial conclusion, including the terms of a five-year solesource contract, valued at almost $1 Billion, including transfer of all intellectual property rights to the 

Government. This resolution avoided further delay and expense of continuing litigation, including the 

running of additional interest, which at one point was $80,000 per day. Of equal significance, the use of 

ADR afforded a resolution that could not have been achieved through litigation alone, i.e., extending the 

contract itself to ensure satisfactory completion of all work before the system was turned over to full 

Army control. 
ATTACHMENT 6 - DoD ADR Program 
 

- Additional Success Stories 
 

The Army identifies 7 key lessons learned: 1) ADR is a flexible process that can be scheduled early or, in 

complex cases, after facts have developed sufficiently to enable meaningful negotiations; 2) The ADR 

process can be tailored to meet the specific needs of the dispute- such that negotiating the ADR 

Agreement itself is elevated in importance, as it establishes the roadmap for the whole process; 3) 

Particularly in complex disputes, the merits will matter, and the agreed ADR process must allow 

sufficient decision-quality information to inform the parties' negotiating stances; 4) Likewise, successful 

use of ADR must anticipate and include all known issues that can affect durability of outcome; S) 

Particularly in complex contracting cases, it is critical to involve the right people as part of your team 

(e.g., chief negotiator, contracting officer, program managers, technical experts, legal support, financial 

management); 6) The neutral (or co-neutrals) should have sufficient process expertise, subject matter 

knowledge and gravitas to ensure full trust by the parties; 7) Potential solutions should be approached 

with a creative and open mind in light of the parties' critical interests - none should be assumed beyond 

discussion or automatically off the table, because even in complex cases, ADR solutions are flexible, 

allowing solutions that litigation can't provide. 

Dept. of the Air Force Air Force has estimated that, over the past ten years, acquisition and workplace 

ADR has saved the Air Force over $1 Billion. One such success story, involved a large government 

contract dispute that was resolved through mediation with the assistance of an ASBCA judge acting as a 

third-party neutral. At stake was a $147 million claim for the negotiated price to close the Lockheed 

Martin F-22 production line. The mediation ultimately resulted in a settlement agreement that afforded 

the Air Force $40 million savings (plus $5 million in interest) over the potential judgment. Of equal 

importance were the "intangible" benefits afforded by resolution through mediation. These included: 1) 

maintenance of the business-partner relationship with Lockheed Martin, 2) quicker resolution of the 

dispute rather than waiting for a decision, and 3) preservation of the subcontractor industrial base. 

Success Stories in Environmental Dispute Resolution 

The Department of the Navy The DON reports an important environmental ADR success story 

addressed to the contamination of a formerly DON-owned site by a series of Government-Owned, 

Contractor Operated (GOCO) facility operators. These operators manufactured propellants, rocket 

motors, and missile components. DON sought reimbursement for a portion of the Comprehensive 

Environmental Response, Compensation, and Liability Act (CERCLA) cleanup costs, including future costs 

for ongoing cleanup. The facility itself had been transferred to the local city, but a complex CERCLA 

cleanup effort continued. 

A meeting attended by DON, Department of Justice (DOJ), and counsel representing successors of two 

of the former operating contractors was held in October 2010. At this meeting the parties agreed to 

mediate several complex issues, some with scant legal precedent. Using a number of resources, 

including Udall Foundation - U.S. Institute for Environmental Conflict Resolution (UIECR) Roster of 

Neutrals, the parties jointly selected a private mediator, and a two-day mediation took place in March 

2011. DOJ was responsible for administrating and funding the mediation. 
ATTACHMENT 6 - DoD ADR Program 
 

- Additional Success Stories 
 

The parties recognized that fifty years of documents and complex issues (including the aforementioned 

scant legal precedent) created the potential for costly discovery and high-risk litigation. Prior to 

mediation, the parties had tried repeatedly to settle this case, but were still very far apart. As a result, 

their expectations going into the mediation were fairly modest; they hoped the mediator could get them 

"within shouting distance" on some of the most problematic issues. 

The actual result of mediation was much more significant. Through the expert assistance of the 

mediator the parties were able to settle the case, avoiding years of costly discovery and an uncertain 

outcome. Lessons learned: The case provides a clear example that in the right circumstances and with a 

skilled mediator, even parties to complex disputes can arrive at a mutually advantageous outcome, and 

ADR can provide such a result even when just prior to mediation the facts and the parties seemed too 

far apart to reach resolution. 

U.S. Army Corps of Engineers (USACE or the Corps) Any discussion of DoD success stories would be 

incomplete without reporting examples of the successes of that the Corps sees in its environmental 

collaboration and environmental conflict resolution efforts. Rather than to select from among 

numerous specific examples reported over the decade in its Environmental Collaboration and Conflict 

Resolution (ECCR) Policy Report to OMB-CEQ, the following general benefits identified by the field (not 

attributed to a specific project) are excerpted from the Corps' FY2015 ECCR reporting: 

• Insights into the decision making process which enable the agency to plan for providing the 

required information, and involving the right people in the collaboration process. 

• Coordination of resources, opened lines of communication assisting initiatives. 

• More resilient ecosystem restoration projects. 

• Clearing of policy hurdles and meeting planning process requirements. 

• Increased trust and enhanced relationships with stakeholders, including a common 

understanding of USACE and stakeholder authorities, policies, roles and responsibilities. 

• Increased community resilience by contributing to proactive planning for reduction of the risk 

of environmental conflicts and socio-economic consequences. 

• Increased awareness of information and resources from various agencies that can assist with 

collaboration and project implementation, resulting in a reduction in duplication of effort and 

the ability to combine scarce resources. 

• A shift in culture, so that project teams now routinely engage the local sponsor and key 

stakeholder organizations from the onset of a planning study in a partnership to best manage 

our water resources. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

ADR at the Department of Education (ED) 

ADR Dispute Resolution Specialist Contact Information 

Name: Kathryn A. Ellis 

Title(s): Assistant General Counsel for Educational Equity, and Agency Dispute 

Resolution Specialist, Office of the General Counsel (OGC) 

Department/Agency: U.S. Department of Education (ED) 

Email Address: Kathryn.Ellis@ed.gov 

Phone number: 202-401-5940 

Mailing Address: 400 Maryland Avenue, S.W. 

Room 6E304 

Washington, D.C. 20202 

ADR Policy 

ED first published its ADR policy statement on November 24, 1993 in the Federal Register 

(58 Fed. Reg. 62486-7). 

It states -­

"It is, and has been, the policy of the Department to support fully the goals and objectives 

of the ADR Act, as set forth in section 2 of the ADR Act, and to seek to attain those 

goals and objectives wherever feasible through the Department's dispute resolution 

procedures ... The Department is committed to striking a proper balance between the 

formal adjudication of cases where necessary and their resolution through alternative 

means of dispute resolution where practicable and in the public interest." 

ED’s ADR policy applies to informal and formal dispute resolution, in the administration of 

grant programs, enforcement proceedings, contract administration, and other actions of the 

Department, and the workplace. (Attachment A) 

In addition to this ADR policy statement, on September 7, 2011, the Secretary of Education issued 

ED’s first workplace ADR policy statement to encourage each employee to learn more about 

the ADR process and to use it to help resolve workplace disputes. The workplace ADR policy 

was last updated on April 29, 2016. (Attachment B) 

Distinct ADR Programs at ED 

ED has decentralized ADR programs that are coordinated through OGC. ED engages in a 

range of ADR activities to help resolve disputes, whether a dispute arises between ED and a 

grantee; a student loan borrower and a lender, guarantee agency, or loan collection agency; 

or an ED employee and his or her manager. The use of ADR is an integral part of our 

administrative appeals process and the resolution of civil rights complaints. We also 

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engage in collaborative rulemaking under certain federal statutes, e.g., in elementary and 

secondary education and postsecondary education, and disseminate information about 

ADR activities funded by ED. For example, the Office of Special Education Programs 

supports CADRE, the National Center on Dispute Resolution in Special Education. 

CADRE encourages the use of mediation and other collaborative strategies to resolve 

disagreements about special education and early intervention programs. Beginning with 

strategies proven to prevent conflict, CADRE promotes a continuum of dispute resolution 

practices (see CADRE continuum http://www.directionservice.org/cadre/continuumnava.cfm) 

and works to increase the nation’s capacity to effectively resolve special education disputes, 

reducing the use of expensive adversarial processes. CADRE supports state and local 

educational agencies and early intervention systems, parent centers, families and educators to 

improve programs and results for children with disabilities. (http://directionservice.org/cadre/) 

ED has two offices with full-time staff dedicated to carrying out workplace and other ADR 

activities: the OM, ADR Center and the FSA Ombudsman Group. 

The OM, ADR Center provides all ED employees and external applicants with a 

venue to informally resolve a wide-range of work-related matters that include 

employment disputes, disagreements, or complaints. Work-related disputes can also 

include Administrative Grievances, Negotiated Grievances, and EEO complaints. The 

ADR Center also offers employees additional services to help address, prevent, and 

manage conflict, including conflict coaching, facilitation, training, mediation, and team 

building. 

The email address for the OM, ADR Center is ADRCenter@ed.gov 

The Federal Student Aid (FSA) Ombudsman Group, established by the 1998 amendments to 

the Higher Education Act (HEA), uses informal dispute resolution processes to address 

complaints about the Title IV financial aid programs. The Ombudsman employs a collaborative 

approach in working with institutions of higher education, lenders, guaranty agencies, loan 

servicers, and other participants in the student aid programs. Ombudsman Group staff conduct 

fact-finding, review student loan data and records, and facilitate contacts between borrowers and 

their loan servicers to promote mutually agreeable resolution of issues. 

The website for the FSA Ombudsman Group is: https://studentaid.ed.gov/sa/repayloans/disputes/prepare/contact-ombudsman 

Trends at ED in Workplace ADR 

ED has continued to have a dedicated ADR Center over the years, although it has changed the 

name of the Center, and has adapted its design and location to best serve the needs of the 

organization. Throughout these changes ED has retained full-time mediators in its ADR Center 

because of the steady requests for these services, as well as requests for facilitation and coaching. 

In the workplace context, we have seen an increase in the settlement of cases involving 

performance-based issues through the use of ADR. We have found that it has helped to counsel 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

employees moving forward to establish objective and measurable metrics for performance 

ratings, which has helped to prevent future employment ratings issues. 

ED has continually evaluated how best to use its ADR Center resources to serve the needs of the 

organization. For example, the ADR Center has not only addressed workplace issues but it has 

supported programmatic work of ED and performed mediation services for the Office of 

Administrative Law Judges in many appeals under the General Education Provisions Act, thus 

avoiding the need to hire outside mediators for these cases. 

Use of ADR beyond ED’s dedicated ADR Programs 

In addition to the ADR Center and the FSA Office of the Ombudsman, ED utilizes ADR in the 

resolution of informal grievances, informal and formal EEO complaints; the audit process with the 

Cooperative Audit Resolution Oversight Initiative (CAROI); and in the promulgation of 

regulations through negotiated rulemaking. 

The OM, Office of Equal Employment Opportunity Services (OEEOS) offers employees 

the option of using ADR, primarily mediation, to help resolve applicable issues during both the 

informal and formal stages of the EEO process. OEEOS refers the cases to the ADR Center for 

resolution with the parties through mediation. 

The website for OEEOS is https://connected.ed.gov/om/Pages/Equal-EmploymentOpportunity-Services.aspx 

The Cooperative Audit Resolution Oversight Initiative (CAROI) is a collaborative tool to 

improve education programs and student performance at state and local levels through better use 

of audits, monitoring, and technical assistance. CAROI was developed at ED in the mid 1990’s 

and updated in 2010 by the Association of Government Accountants (AGA) Intergovernmental 

Partnership workgroup Co-Chaired by an ED official to respond to the oversight challenges 

presented by the Recovery Act. 

CAROI plays a pivotal role in preventing and resolving audit findings and oversight issues. 

CAROI differs from traditional resolution processes. It focuses on improving communication 

and on developing a sense of trust among government officials, rather than depending on an 

impersonal letter-writing process. It helps identify the underlying cause of findings and 

empowers the people who know programs best to chart a course for program improvement. 

CAROI relies on the perspectives of government officials from many disciplines, including 

program officials, financial managers, legal staff, auditors, and other officials who are 

knowledgeable about a specific program. These officials develop a written agreement that 

serves as a blueprint for the resolution of compliance issues, and for addressing the underlying 

causes of the compliance problems. In the CAROI process, the independent auditor will most 

often be asked to provide advice to management for the audit resolution process. 

CAROI is now a requirement for Federal agencies under 2 CFR 200.513 (“Uniform 

Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards”, 

otherwise known as the Uniform Guidance, published in December 2013 and generally effective 

as of December 2014). “Cooperative audit resolution” is defined at 2 CFR 200.25 as “the use of 

audit follow-up techniques to promote prompt corrective action by improving communication, 

3
 
 

 

 

 

 

 

 

 

 

 

 

 


 

fostering collaboration, promoting trust, and developing an understanding between the federal 

agency and the non-federal entity.” 

In April 2016, AGA through the Intergovernmental Partnership published another resource titled, 

“Successfully Implementing Cooperative Audit Resolution: A Playbook for Improving Programs 

and Reducing Improper Payments” 

(https://www.agacgfm.org/AGA/Intergovernmental/images/CAR_OI_Playbook.pdf). The new 

Playbook outlines a proactive approach to implementing some of the broad policy reforms 

contained in the Uniform Guidance. It illustrates how key provisions in the Uniform Guidance 

can be leveraged to create a continuous feedback loop for program improvement, strengthening 

internal controls and mitigating improper payments. While CAROI is not required of passthrough entities (grant recipients), according to the 2016 guide/playbook – grantees are 

encouraged to use it with their subrecipients (and subrecipients may request that it be used). 

The Playbook also works in conjunction with the original AGA CAROI Guide published in 2010 

(Guide to Improving Performance and Accountability Through Cooperative Audit Resolution 

and Oversight, published by the Association of Government Accountants in 2010 

(https://www.agacgfm.org/getattachment/Intergovernmental/Free-Online-Products-forFinancial-Managers/CAROI052010.pdf.aspx) 

ED has also engaged in negotiated rulemaking in the development of regulations under the 

Higher Education Act and Title I of the Elementary and Secondary Education Act (ESEA). Most 

recently, ED engaged in negotiated rulemaking to develop regulations on State assessment 

systems and the supplement not supplant requirement under Title I, Part A of the ESEA, to 

implement amendments to the ESEA enacted as part of the Every Student Succeeds Act (ESSA). 

ED established a broad negotiated rulemaking committee comprised of representatives of State 

administrators and State boards of education; local administrators and local boards of education; 

tribal leaders; teachers, principals, other school leaders, including charter school leaders; 

paraprofessionals; the civil rights community, including representatives of students with 

disabilities, English learners, and other historically underserved students; the business 

community; and ED. Meeting three times over a month, the committee operated by consensus. 

During the meetings, the committee reviewed and discussed drafts of proposed regulations on the 

two topics. At the final meeting, the committee reached consensus on proposed regulations 

governing State assessment systems, and ED issued the consensus language as a notice of 

proposed rulemaking (NPRM). Although the committee did not reach consensus on language 

regarding the supplement not supplant requirement, ED took the input it received from 

negotiated rulemaking, as well as subsequent stakeholder input, as guidance in making revisions 

and issued an NPRM on that issue as well. The input from the negotiating committee was 

extremely helpful in ED’s ability to craft proposed regulations, both for State assessment systems 

and supplement not supplant, that reflected the viewpoints of a wide range of stakeholders. The 

resulting proposed regulations, even those for which the committee did not reach consensus, 

represent a collaborative effort that should ultimately better serve the interests of Title I 

constituents. 

4
 
 

 

 

 

 

 

 

 

 


 

ADR Training 

In the workplace area, ED offers classes including Crucial Conversations and strength 

development inventory (SDI) training. The SDI is a powerful and effective tool for 

understanding the motives and values that drive behaviors. The SDI builds on individuals’ 

interest in better understanding themselves and others, and that understanding allows them to 

lead with clarity and empathy, build stronger teams, and more effectively navigate conflict. 

Although not an ADR course per se, ED considers it to be valuable in enhancing dispute 

resolution skills. 

Involvement with Interagency ADR Working Group 

ED’s participation on the Interagency ADR Working Group has allowed ED to learn about the 

work of other agencies to advance ADR. The work of the Sections on Workplace and 

Administrative Enforcement and Regulatory Process, in particular, relate to the ADR programs at 

ED. The Workplace Section has provided very informative workshops and seminars over the 

years, and ED has found materials produced by the ADR Working Group to be helpful, e.g., 

guidelines on confidentiality. The ADR Working Group has also been a useful forum for 

learning from other agencies, and sharing ideas and information across agencies, e.g., ED staff 

made a presentation on CAROI, and for promoting cross-agency ADR efforts, e.g., the Sharing 

Neutrals Program. ED vigorously supports the Sharing Neutrals Program; one of our ADR 

Center mediators is on the roster of the program and one of our newer mediators has recently 

mediated six employment dispute matters at other federal agencies. 

Additional Contacts 

Name: Mr. Frank Furey 

Title: Director 

Program/Office: OM, ADR 

Center 

Email Address: Name: Ms. Joyce DeMoss 

Frank.Furey@ed.gov Title: FSA Ombudsman 

Phone number: 202-245-7520 Program/Office: FSA 

Ombudsman Group 

Name: David Wortham Email Address: 

Title: Senior ADR Program Joyce.DeMoss@ed.gov 

Analyst Phone number:202-377-3992 

Program/Office: OM, ADR 

Center 

Email 

Address:David.Wortham@ed.gov 

Phone number: 202-245-7520 

5
 
m Friday 5 I November 26, 1993 

-


AJ 

- E 

Part IV 

Department of 

Education 

Administrative Dispute Resolution in 

Connection With Agency Actions: 

Administrative Dispute Resolution Act; 

Final Policy Statement; Notice 
62486 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Notices 

DEPARTMENT OF EDUCATION 

Administrative Dispute Resolution in 

Connection With Agency Actions: 

Administrative Dispute Resolution Act; 

Final Policy Statement 

AGENCY: Department of Education. 

ACTION: Final policy statement. 

SUMMARY: The Department of Education 

(ED) issues a policy statement under 

section 3(a) of the Administrative 

Dispute Resolution Act. The statement 

discusses the policy of the Department 

with respect to the use of alternative 

means of dispute resolution with regard 

to its administrative proceedings and 

certain other agency actions under 

Department programs. 

EFFECTIVE DATE: This notice takes effect 

November 26, 1993. 

FOR FURTHER INFORMATION CONTACT: 

Theodore Sky, Office of the General 

Counsel, U.S. Department of Education, 

400 Maryland Avenue, SW., room 4091, 

FOB-6, Washington, DC 20202. 

Telephone (202) 401-2603. Individuals 

who use a telecommunications device 

for the deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 1­

800-877-8339 between 8 a.m. and 8 

p.m., Eastern Time, Monday through 

Friday. 

SUPPLEMENTARY INFORMATION: Public 

Law 101-552, the Administrative 

Dispute Resolution Act (ADR Act) 

amends chapter 5 of Title 5 of the 

United States Code, to authorize the use 

of alternative means of dispute 

resolution in lieu of adjudication to 

resolve issues in controversy. These 

means include settlement negotiations, 

conciliation, facilitation, mediation, 

factfinding, minitrials and arbitration. 

Certain legal obstacles to the use of 

alternative means of dispute resolution 

are removed. The ADR Act, for example, 

repeals a longstanding prohibition on 

arbitration where arbitration can be 

used consistently with the public 

interest. Administrative Law Judges are 

given authority to require attendance at 

prehearing confeiences of parties 

authorized to negotiate the resolution of 

issues in controversy. Other provisions 

are made to ensure that administrative 

dispute resolution is carried out in a 

fair, efficient, and effective manner. 

The Report of the National 

Performance Review, "Creating a 

Government that Works Better and Costs 

Less," observes that it is often cheaper 

to resolve disputes through alternative 

dispute resolution and recommends that 

agencies "expand their use of 

alternative dispute resolution 

techniques." 

In enacting the ADR Act, Congress 

found, among other things, that "administrative proceedings have 

become increasingly formal, costly, and 

lengthy"; that "alternative means of 

dispute resolution have been used in the 

private sector for many years and, in 

appropriate circumstances, have yielded 

decisions that are faster, less expensive, 

and less contentious;" that "such 

alternative means can lead to more 

creative, efficient, and sensible 

outcomes;" and that "the availability of 

a wide range of dispute resolution 

procedures, and an increased 

understanding of the most effective use 

of such procedures, will enhance the 

operation of the Government and better 

serve the public." (ADR Act, Section 2, 

5 U.S.C. 571 note). The ADRAct is 

intended to bring about these 

advantages for federal agencies through 

the expanded use of alternative means 

of dispute resolution. 

The Department's efforts to make 

greater use of alternative means of 

dispute resolution pre-date the ADR 

Act. For example, the procedures ofthe 

Office ofAdministrative Law Judges 

(OALJ), which is vested with authority 

in the Department to consider a wide 

range of disputes arising under ED 

programs, make explicit provision for 

the mediation of cases. See 20 U.S.C. 

1234(h) and 34 CFR 81.13 (1992). 

Mediation is one of the alternative 

means of dispute resolution recognized 

in the ADR Act. 

A substantial number of cases under 

the General Education Provisions Act 

closed by the OALJ since its inception 

have been closed by settlement. In a 

number ofthese cases, mediation 

contributed to the resolution. In others, 

settlement negotiations without 

mediation played the key role. It is 

estimated that the Department is 

resolving approximately 75 percent of 

its OALJ cases short of full adjudication. 

The Department has thus been 

consistently successful in resolving 

adjudicatory matters through techniques 

identified in the ADR Act before as well 

as after the enactment of that legislation. 

The Department has supported 

legislation to facilitate the use of 

alternative means of dispute resolution. 

In 1988 the Department proposed, and 

Congress enacted, legislation that 

permits the Department to compromise 

cases before the OALJ where the 

difference between the original claim 

and the settlement amount is less than 

$200,000. 20 U.S.C. 1234a(j). In these 

cases, this measure encourages greater 

use of alternative means of dispute 

resolution by simplifying the approval 

procedures connected with it. 

The ADR Act specifically requires 

each agency to appoint an 

administrative dispute resolution 

specialist to assist in implementation of 

the ADR Act and to adopt'a policy 

regarding the use of alternative means of 

dispute resolution (Sections 3 (a) and 

(b)). The Department already has 

accomplished the first step. This 

document marks the achievement of the 

second step. It applies to administrative 

dispute resolution with respect to 

formal and informal administrative 

adjudication, enforcement proceedings, 

contract administration, and other 

actions of the Department. To the extent 

relevant, in developing this policy 

statement, the Department has 

examined the matters specified in 

section (a)(2) of the Act. 

On November 27, 1992, the Secretary 

published in the Federal Register a 

notice of proposed policy statement 

under the ADR Act. (57 FR 56424). 

Analysis of Comments and Changes 

In response to the Secretary's 

invitation in the notice of proposed 

policy statement, two parties submitted 

letters of comment. An analysis of the 

comments and of the changes in the 

policy statement since publication of 

the notice follows. Technical and other 

minor changes-and suggested changes 

the Secretary is not legally authorized to 

make under the applicable statutory 

authority--are not addressed. 

Comment: One commenter 

commended the Department for its 

dedication to the use of the ADR and 

recognized the integrity of the 

Department's enforcement and 

regulatory responsibilities. The 

commenter encouraged the Department 

to consider the use of ADR on a small, 

measured scale or pilot basis in some of 

the more controversial issues, such as 

early complaints resolution. The 

commenter also encouraged the 

Department to consider using ADR in 

employee-related disputes, such as EEO 

matters and grievances, as well as 

procurement and contracts. 

Discussion:The Secretary agrees with 

the commenter that ADR should be used 

in attempting to resolve controversial 

issues involving the administration of 

grant programs, as well as in resolving 

employee-related disputes and 

procurement. The Department is 

studying the increased use of ADR 

techniques in grievance proceedings. To 

the extent practicable and appropriate, 

the Department will seek to obtain early 

resolution in grant-related audit cases 

after an appeal has been filed but before 

administrative proceedings have begun. 

Changes:The policy statement has 

been revised to acknowledge the 
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Notices 62487 

potential use of ADR in employeerelated disputes and procurement 

matters. 

Comment: One commenter urged that 

the policy statement provide greater 

emphasis on arbitration, rather than 

mediation, and that the Department 

design a process for deciding before a 

dispute arises which methods of dispute 

resolution will be used. The commenter 

also expressed concern regarding the 

application of sufficient resources to 

implement the policy. 

Discussion:Mediation, rather than 

arbitration, has been the means of 

alternative dispute resolution used most 

frequently in the Department's audit 

appeal procedures. As indicated above, 

mediation is the ADR method 

particularly authorized by Congress in 

part E of the General Education 

Provisions Act relating to enforcement 

of grant requirements in education 

programs. For this reason, particular 

focus was placed on that method. 

However, the Department will consider 

the use of other methods if appropriate. 

The selection of the appropriate method 

for dispute resolution when a dispute 

arises generally will be made by the 

responsible Department employee. At 

this stage in the administration of the 

ADR Act, the development of a fixed 

schedule of ADR methods to be applied 

to particular types of disputes is neither 

appropriate nor useful. The Department 

will, however, continue to evaluate this 

suggestion as it gains experience in 

administering the policy statement. 

Changes:None. 

Policy of the Department 

It is, and has been, the policy of the 

Department to support fully the goals 

and objectives of the ADR Act, as set 

forth in section 2 of the ADR Act, and 

to seek to attain those goals and 

objectives wherever feasible through the 

Department's dispute resolution 

procedures. The Department's 

implementation of the ADR Act will be 

carried out in a manner consistent with 

E.O. 12778, Civil Justice Reform. 

The Department is fully committed to 

implementing the ADR Act through 

steps already taken, steps listed below, 

and other actions to be pursued in 

accordance with the principles and 

goals set out in this policy statement. At 

the same time, the Department 

recognizes that some or all of the 

alternative dispute resolution 

techniques may be inappropriate where 

formal adjudication is necessary to 

achieve accountability or to protect the 

fiscal interests of the United States from 

illegal or wasteful practices or 

expenditures. 

For example, the Department believes 

that use of alternative dispute resolution 

techniques may not be successful, and 

may serve to delay rather than expedite 

resolution of disputes, where the issue 

in controversy pertains to the initial or 

continued eligibility of an entity to 

participate in a program administered 

by the Department, such as those arising 

under the Higher Education Act of 1965, 

as amended, or title VI of the Civil 

Rights Act of 1964. The degree to which 

an institution has already been provided 

with an opportunity to propose informal 

resolution of a claim or a finding of 

violation is another factor that can affect 

the availability of alternative means of 

dispute resolution techniques during an 

administrative hearing. However, in 

these areas, the Department will 

consider the use of alternative means of 

dispute resolution where practicable 

and consistent with the above-described 

considerations. 

The Department is committed to 

striking a proper balance between the 

formal adjudication of cases where 

necessary and their resolution through 

alternative means of dispute resolution 

where practicable and in the public 

interest.



This policy is consistent with and in 

furtherance of the recommendation of 

the Report of the National Performance 

Review quoted above. 

Further Steps To Be Taken 

In furtherance of the policies ofthe 

ADR Act, the Department plans to take 

the following additional steps: 

(1) Each departmental office will be 

asked to assign an ADR liaison officer to 

consider administrative dispute 

resolution issues within that office and 

to encourage the expanded use of all 

appropriate alternative means of dispute 

resolution in resolving disputes arising 

in administrative proceedings involving 

that office. These ADR liaison officers 

will serve as points of contact for 

matters pertaining to alternative means 

of dispute resolution within the 

Department and will collectively, study 

procedural issues pertaining to 

alternative dispute resolution that affect 

the Department generally, including the 

proper stage of a dispute at which to 

invoke alternative means of dispute 

resolution and the appropriate 

distribution of mediation costs among 

the parties to a dispute. The Department 

will provide the liaison officers with 

appropriate training regarding 

administrative dispute resolution and 

the ADR Act. 

(2) The Department will continue to 

design and implement procedures to 

ensure that all parties are aware of 

existing opportunities for alternative 

means of dispute resolution for cases 

before the OALJ. It will be the practice 

of the Department's Office of the 

General Counsel to suggest mediation in 

appropriate cases where mediation 

holds promise for early resolution 

without undue delay or impairment of 

the public interest. 

(3)The Department will work to 

continue to extend the availability of 

mediation to other administrative 

proceedings and functions not presently 

governed by Part E of the General 

Education Provisions Act or part 81 of 

title 34 of the Code of Federal 

Regulations. 

(4) The Department will seek to 

continue and expand the use of all 

appropriatealternative means of dispute 

resolution in employee-related disputes 

and procurement matters, as well as in 

connection with audit resolution 

processes. Appropriate staff training in 

those areas will be pursued. 

(5) The Department will conduct a 

study of its standard contract and other 

terms to determine if they need 

amendment to comply with the ADR 

Act. 

(6) The Department will develop and 

maintain a system for keeping statistics 

related to alternative dispute resolution 

in its administrative proceedings. 

(7) The Department will continue to 

coordinate with the Administrative 

Conference of the United States on 

alternative means of dispute resolution 

matters and to avail itself of training 

provided by the Conference. 

(8) The Department will continue to 

determine what other agency actions 

will lend themselves to implementation 

of the ADR Act and to study how it may 

encourage the appropriate use of 

alternative dispute resolution 

techniques by educational agencies, 

institutions, and organizations that it 

serves to the end of achieving resolution 

of education related disputes without 

the need for unnecessary litigation. 

Authority: Pub. L.101-552, Section 3



(1990).



Dated: October 22, 1993.



Richard W.Riley,



SecretaryofEducation. 

IFR Doc. 93-28930 Filed 11-24-93; 8:45 am) 

BILUNG CODE 4000-01-P 
THE SECRETARY OF EDUCATION 


WASHINGTON, DC 20202 


April 29, 2016 

MEMORANDUM TO ALL DEPARTMENT EMPLOYEES 

SUBJECT: Policy Statement on Alternative Dispute Resolution 

The U.S. Department ofEducation (ED) is committed to maintaining a positive work 

environment that promotes productivity and individual growth by working to resolve workplacerelated issues at the lowest possible level. The Office ofManagement, Alternative Dispute 

Resolution (ADR) Center provides a forum to infonnally resolve employment disputes before 

the disputes advance to a fonnal complaint stage. The ADR process is used to resolve a wide 

range of workplace disputes, including Equal Employment Opportunity and grievance-related 

matters, in a cooperative, cost-effective, and timely manner. Al I employees arc strongly 

encouraged to cooperate and engage in the ADR process. 

The use of ADR methods encourages participants to cooperate and engage in open and honest 

dialogue, focus on common interests, and use creative problem-solving methods to arrive at their 

own resolutions. Most importantly, use ofADR methods can help to foster a collaborative 

organizational culture in which all employees are treated with dignity and respect in support of 

reaching their full potential and maximizing their contributions to ED's mission. 

I encourage each ofyou to learn more about the alternative dispute resolution process. ED 

offers an online course, "Leading Beyond Conflict: Prevention and Solutions," in the Talent 

Management System, which is available to all employees to learn about the ADR process. I 

encourage each ofyou to take the training and use the ADR process to help resolve workplace 

disputes that may arise. 

For additional infonnation on the alternative dispute resolution process, please contact the ADR 

Center by telephone at (202) 245-7520, by e-mail at /\DR centerg,:ed.gov or visit their Web site 

at https:llconnected.ed.govlomlPageslAltemative-Dispute-Resolution-Centcr.aspx. 

Isl 

John B. King, Jr. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 


 


 


 


 


 


 

	 

	 

	 

	 


 

DHHS 2016 REPORT ON ADR IN THE FEDERAL GOVERNMENT 

6/30/2016 

ADR Dispute Resolution Specialist Contact Information 

Provide your name, title(s) and contact information: 

Name: Neil H. Kaufman
 

Title(s): Director, ADR Division
 

Department/Agency: Department of Health and Human Services
 

Email Address: Neil.Kaufman@hhs.gov
 

Phone number: 202 565-0118
 

Mailing Address:
 

ADR Policy 

Does your Department or Agency have a formal written ADR policy? _x_Yes __No (check one). 

Has the written ADR policy been amended or modified during the past ten fiscal years (FY06­

FY15)? If so, please describe how. No 

Please review http://www.adr.gov/fai.html to assess whether a “Policy” link is present for your 

Department or Agency. If a link is either incorrect or not present on the site, provide us with a 

link to any electronic copies of your agency’s current ADR policy. If the policy is not available 

via a link on the internet, please send an electronic copy of the policy with your responses. Fed 

Regist. 1992 Oct 27;57(208):48616-9. (Electronic copy attached to cover letter.) 

ADR Programs 

1.	 List each distinct ADR program at your Department or Agency and for each ADR program: 

Provide a description of the program (in 300 words or fewer). Please note: 

i.	 Whether the program is internal-facing or external-facing; 

ii.	 The subject-matter of the disputes covered by the program; 

iii. The types of ADR processes/techniques used by the program; and 

iv.	 The source of neutrals. 

Departmental Appeals Board (DAB), Alternative Dispute Resolution (ADR) Division. 

The ADR Division (Division) is part of the DAB, a division of the Office of the Secretary, 

Department of Health and Human Services. The mission of the DAB is to provide dispute 

resolution services in a wide variety of cases involving component agencies of DHHS. The DAB 

encourages the use of mediation and other forms of ADR. The Chair of the DAB is the 

Department’s Dispute Resolution Specialist (under the Alternative Dispute Resolution Act (ADR 

Act)). The ADR Division provides ADR services in DAB cases and assists the Chair in carrying 

out her responsibilities under the ADR Act. The ADR Division does both external and internal 

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mediations. ADR services include mediation, facilitation, large group conflict intervention, 

conflict management coaching, training, policy development and guidance, program design, and 

negotiated rulemaking. Additionally, the Division coordinates the Interagency Federal Sharing 

Neutrals Program, a collaboration of over 40 federal agencies that provides collateral duty 

mediators for federal sector EEO and workplace disputes. 

2.	 Does the program maintain a website that is accessible by the public? If yes, provide the 

URL for the site. 

Yes, at www.hhs.gov/dab and follow the links to the ADR Division. 

3.	 To the extent possible, please describe any trends that you (or your colleagues) have 

observed in the program over the past ten fiscal years (FY06-FY15) and, to the extent 

possible, please discuss your views about the meaning of any trends regarding the 

following issues: 

i. The amount of funding for the program, and if it has changed, whether there has 

been any impact on the program, and the nature of that impact. 

ii. The number of full time employees (FTE’s) devoted to the program, and, if the 

number has changed, whether there has been any impact, and the nature of that 

impact; 

iii. ADR usage (number of cases or disputes, subject-matter, early or late); 

iv. Tangible and/or intangible benefits realized by using ADR; and 

v. Types of ADR processes/ techniques used. 

Over the past ten years, mediation has become established as the ADR technique of choice. 

EEO and workplace mediations have increased and program mediations have decreased 

slightly. Conflict coaching has emerged as a new intervention technique; requests are 

infrequent, but increasing as parties learn more about it. Requests for Sharing Neutrals (SN) 

mediators have increased and leveled off at about 300 requests per year. The average size of 

our “Mediation Skills” and “Conflict Management in the Workplace” courses have decreased 

by about 30% per class, but demand is strong for our new “Negotiation” and “Conflict 

Coaching” classes. 

The Division does not have its own dedicated budget, but has approximately three full-time 

FTE (a Director and two ADR attorneys) and one law-school intern. This staffing level has 

remained relatively constant over the last ten years. As the DAB’s training and travel budgets 

have been slashed, however, ADR has had to compensate by using free training over the 

internet and by using video teleconferencing or phone mediation instead of in person 

mediations which would require travel. 

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Over the last ten years, the ADR Division consistently logged about 80 cases per year and 

closes an equal number. We estimate that about 60% of cases involve EEO and workplace 

issues and about 40% involve program related issues (e.g., sanctions against health care 

providers and nursing homes, grants disputes with states and universities). The settlement rate 

in cases that go to mediation is consistently between 50% and 60%. Evaluations indicate 

overwhelming satisfaction with mediation, even when cases do not settle. Using internal and 

SN mediators saves the Department about $1,500 per day of mediation. When EEO cases 

settle at the informal stage HHS also saves the cost of an investigation (about $10,000). The 

indirect cost savings associated with resources otherwise devoted to adjudication and with 

improved party relationships have not been quantified. 

4.	 Describe steps your Department or Agency has taken to build program capacity in this 

ADR program during the past ten fiscal years (FY06-FY15). Please discuss whether the 

steps have been successful, and if not, please discuss the barriers to success. 

Our program has taken steps to build program capacity by using free mediators from the Sharing 

Neutrals program, training agency employees to become Sharing Neutrals mediators, and by 

training agency employees to handle conflict more effectively for themselves. 

5.	 Are there any plans to expand this program in the future? 

Funding constraint make program expansion unlikely. 

6.	 Which of the following sections of the Interagency ADR Working Group most closely 

relates to the work of this ADR program (you may check multiple sections): 

_x_ Workplace 

__ Contracts and Procurement 

_x_ Administrative Enforcement and Regulatory Process 

__ Litigation 

__ Environmental 

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7.	 Please discuss one or more success stories from the past ten calendar years that 

illustrate the types of issues your ADR program resolves and/or the inherent benefits of 

ADR even when the disputed issues are not fully resolved. Consider the following, but 

limit the description to 300 words, if possible. 

•	 The subject-matter or type of dispute; 

•	 The type of ADR process utilized; 

•	 How the ADR was funded; 

•	 How the ADR process was critical in resolving the conflict; 

•	 Whether any innovative approaches to ADR were utilized 

•	 Key beneficial outcomes because of ADR use; 

•	 Key lessons learned 

For the past few years the ADR has used video-teleconferencing (VTC) technology to 

mediate EEO cases and other workplace disputes for the Indian Health Service (IHS). IHS 

performs its mission through area offices located throughout the U.S., often on Indian 

Reservations in remote locations like Aberdeen, South Dakota or Bimijji, Minnesota. Travel 

to these locations is costly in both travel time and dollars. DAB developed a pilot program 

with IHS to mediate cases in these locations by VTC instead of in-person. The pilot has been 

an enormous success and is now a well-established IHS program. While everyone involved 

was initially skeptical that VTC mediation would not be as effective as in-person 

conferences, party satisfaction has been strong. Additionally, the Department has saved 

considerable employee travel time and travel dollars. 

Department or Agency ADR use beyond the ADR Programs discussed above 

Does your Department or Agency apply ADR processes or techniques to facilitate resolutions of 

conflicts or disputes independent of the ADR programs discussed above? If so, please describe 

the type of ADR processes or techniques utilized, how they are utilized, the reasons why the 

processes or techniques are beneficial, and how (if at all) the processes or techniques have 

improved the Department or Agency’s ability to carry out its mission. 

Agencies of HHS use negotiated rulemaking, and DAB provides training and guidance to them 

upon request. DAB neutrals also have served as conveners and facilitators for the process. 

ADR Training 

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Does your Department or Agency offer ADR awareness/promotion trainings or ADR skills 

(techniques) training to agency employees, federal employees, or to the public? If so, please 

provide information about each of the different types of trainings your Department or Agency 

offers. 

Yes. We provide the following courses: 1) Conflict Management in the Workplace – 1-day 

training in communication and interest-based problem solving skills to avoid and resolve 

workplace conflict; 2) Basic Mediation Skills – 3-day training in process of, and skills for, 

conducting a mediation conference; 3) Advanced Mediation Skills – 2.5-day training in the theory 

and practice of transformative mediation techniques and how to integrate them with basic 

mediation practice; 4) Negotiation and Dealing with Difficult People – 1-day skills training in 

basic negotiation concepts, with emphasis on negotiating with difficult people and applying a 

practical principled technique for effective outcomes. 

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Interagency ADR Working Group 

How has your involvement with the Interagency ADR Working Group benefitted your ADR 

programs? Information and resources 

Given the trends you have reported above, how can the Interagency ADR Working Group better 

facilitate, encourage, and provide coordination for the 1) development of ADR programs; 2) 

training of agency personnel; 3) the development of procedures to permit agencies to obtain the 

services of neutrals on an expedited basis; or 4) recordkeeping to ascertain the benefits of ADR? 

Sponsor a study of the benefits of ADR across federal agencies. 

Additional Contacts 

Please provide the names and contact information for no more than four people who can provide 

follow-up information to help clarify any questions that the drafters of this report may have. 

NOTE: these names will not be released in the Report to the President: 

Neil H. Kaufman, Director, Alternative Dispute Resolution Division, Departmental Appeals 

Board, Office of the Secretary, U.S. Department of Health & Human Services, 330 Independence 

Avenue, SW Room G-644, Mail Stop 6127, Washington, DC 20201 

Direct: 202.565.0118 | Main: 202.565.0200 | Fax: 202.565.0223 / Blackberry: 202.459.7181 

Email: Neil.Kaufman@hhs.gov Website: www.hhs.gov/dab 

Provide us with any additional comments, thoughts, or insights that you believe would further 

promote the use of ADR in the federal government in the space below: 

.
 

A.	 HHS Equal Employment Opportunity Compliance and Operations Division 

(EEOCO) 

The HHS Equal Employment Opportunity Compliance and Operations Division (EEOCO) handles 

internal and external (HHS non-federal applicants) employment discrimination complaints. 

EEOCO is a neutral entity and works diligently to reduce workplace conflict and encourages 

resolution at the earliest possible stage. In that regard, we offer Alternative Dispute Resolution 

(ADR) in both the informal and formal stages of the complaint process. Our goal is to facilitate 

the parties involved in engaging in meaningful discussions which can lead to early resolution. 

EEOCO handles all types of discrimination disputes including sex (male, female, LGBT, sexual 

6
 
 

 

 

 

 

 

 

 

 


 

orientation, gender identity, pregnancy), color, Equal Pay Act, disability, religion, genetics. age, 

race, and national origin. To reduce cost to the Agency, we arrange for ADR through HHS’ 

Departmental Appeals Board (DAB) and OPM’s Federal Executive Board (FEB). When neither 

of these resources are available, we use contract mediators through Crossroads Mediations. If a 

resolution is not reached, then the customer will have the opportunity to go through the formal 

stage of the complaint process. 

B. The Provider Reimbursement Review Board (PRRB) at HHS/CMS 

The Provider Reimbursement Review Board (PRRB) at HHS/CMS adjudicates reimbursement 

disputes (primarily with respect to the Medicare cost report) between Medicare institutional 

providers and Medicare Administrative Contractors. Since 1998, the PRRB has provided parties 

the opportunity to participate in a voluntary mediation program. The program is a flexible process 

designed to facilitate voluntary resolution. Mediation sessions are conducted by neutral staff 

attorneys and accountants who support the PRRB members. Sessions are confidential, and staffers 

do not report to the PRRB members regarding the communications the occurred at mediation. 

Mediators help the parties articulate their positions and understand those of their opponent but they 

neither render a decision nor dictate a settlement. A large majority of cases that are mediated 

resolve and, thus, do not proceed to a full hearing before the PRRB. The program has become 

fairly inactive in recent years as the issues under appeal before the Board have largely transformed 

from factual and documentation disputes towards more legal interpretation issues (which are not 

typically mediated). Nevertheless, the program remains fully available to the parties upon request. 

More information can be obtained by accessing Rule 43 of the Provider Reimbursement Review 

Board instructions (https://www.cms.gov/Regulations-and-Guidance/ReviewBoards/PRRBReview/PRRB-Instructions.html). 

C. Centers for Medicare & Medicaid Services 

The Centers for Medicare & Medicaid Services, CMS, is part of the Department of Health and 

Human Services (HHS). CMS manages the Medicare and Medicaid programs along with the 

Children’s Health Insurance Program and the Health Insurance Marketplace. The mission of CMS 

is to strengthen and modernize the nation’s health care system while providing quality care at 

lower costs. The agency provides programmatic oversight of federal medical care quality and 

develops and implements policies for recipients of such services. EEO ADR is an internal-facing 

program at the Centers for Medicare & Medicaid Services (CMS). CMS contracts with Federal 

Mediation and Conciliation Service for mediators and occasionally uses the HHS Sharing Neutrals 

Program. CMS ADR Policy is incorporated into the CMS EEO Policy. 

The agency uses ADR in the EEO complaint process pursuant to Title 29 Code of Federal 

Regulations (C.F.R.) Part 1614. ADR, primarily facilitation, is used in workplace conflicts 

associated with the EEO complaint process. The agency has determined that facilitation has 

reduced the number of formal EEO complaints lodged and improved communication and the 

general quality of life in the workplace. 

Over the last ten years, Counselees and managers have become more knowledgeable about and 

interested in EEO ADR. The number of counselees who have expressed interest in EEO ADR has 

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increased from approximately 50% to 75%. Most managers are interested and willing to 

participate in EEO ADR now, whereas even a few years ago, managers were reluctant to 

participate. CMS has one dedicated ADR Coordinator and pulls additional resources as needed. 

The amount of funding allocated to EEO ADR has also increased over the past ten years to 

accommodate the increased interest. In 2014, CMS modified its ADR technique to incorporate 

facilitation in addition to mediation. This resulted in the trend of improved communication and 

trust-building rather than an emphasis on settlement for tangible terms. The agency has determined 

that facilitation has reduced the number of formal EEO complaints lodged and improved 

communication and the general quality of life in the workplace. For example, in Fiscal Year 2015, 

45% of the EEO cases for which ADR was conducted resulted in resolution of the complaint. For 

those matters, the EEO ADR program also resulted in improved communication, identification of 

corrective actions, and a reduction in the incidence of future disputes. 

In recent years, CMS has, in addition to using the HHS Sharing Neutrals Program, contracted with 

Federal Mediation and Conciliation Service to ensure the availability of mediators 

nationwide. CMS has also developed a process for assessing whether cases are appropriate for 

ADR in order to maximize resources. Moreover, CMS has conducted regular training for all staff 

and managers concerning ADR techniques in order to demystify the process. Finally, CMS has 

incorporated the use of facilitation in addition to mediation as an EEO ADR technique in order to 

address cases where communication challenges are at the heart of the dispute. All of these changes 

have resulted in positive perceptions and improved resolution options for cases that go through 

EEO ADR. For more information please visit: https://www.cms.gov/About-CMS/AgencyInformation/OEOCRInfo/index.html. 

D. Office of Medicare Hearings and Appeals (OMHA) 

Settlement Conference Facilitation (SCF) is an external-facing pilot designed to bring Medicare 

providers/suppliers and the Centers for Medicare & Medicaid Services (CMS) together to discuss 

the potential of a mutually agreeable resolution for claims appealed to the Administrative Law 

Judge (ALJ) hearing level of the Medicare claim appeals process. If an agreement is reached, a 

provider/supplier receives payment from CMS for billed claims subject to the settlement 

agreement. Additionally, the provider/supplier agrees to withdraw its appealed claims from the 

Office of Medicare Hearings and Appeals (OMHA) docket. 

Facilitators use mediation principles to assist the appellant and CMS in working toward a mutually 

agreeable resolution. The facilitators are neutrals from OMHA. OMHA is a staff division of the 

Office of the Secretary of the Department of Health and Human Services (HHS). OMHA is 

functionally and organizationally separate from CMS and the Departmental Appeals Board. 

SCF began in June 2014. Since its inception, OMHA has utilized existing staff resources to run 

the program. The 18 FTEs who work within SCF are not devoted solely to SCF and must work 

on other assignments related to OMHA’s mission of quality Medicare claims adjudication. 

8
 
 

 

 

 


 

To date, SCF has produced 20 settlement agreements which have removed 8,068 appeals from 

OMHA’s docket. The number of appeals removed represents on an average year, the dispositional 

output of more than 8 Administrative Law Judge teams. 

OMHA neutrals utilize facilitative problem-solving and interest-based problem solving 

approaches in settlement conferences. They do not issue findings of fact or analyze aspects of the 

law. They do assist parties in identifying the strengths or weaknesses of their positions in order to 

facilitate an agreement where parties “meet in the middle” to resolve pending appeals. 

In response to its growing workload of medicare claims appeals, OMHA began SCF in June 2014, 

and in less than two full fiscal years, it has expanded twice to open the program to more 

providers/suppliers. In October 2015, OMHA expanded SCF to incorporate more pending 

Medicare Part B requests for hearing filed at OMHA. Additionally, in February 2016, OMHA 

expanded SCF to include certain Medicare Part A requests for hearing. 

In order to process the increase in demand for settlement conferences as a result of these 

expansions, OMHA designated an additional 10 senior attorneys as SCF facilitators in October 

2015. The 10 new facilitators received mediation training at the HHS Departmental Appeals 

Board. SCF specific training was also provided to these new facilitators at OMHA’s Headquarters 

in Arlington, Virginia. 

In May 2016, OMHA successfully facilitated the resolution of over 3,600 appeals in a single 

settlement conference. The parties to the conference were CMS and a large Medicare supplier. 

By utilizing interest-based mediation techniques, OMHA was able to move both parties closer to 

an agreement at key points of the settlement conference. Without an agreement, each of these 

appeals would require adjudication from individual Administrative Law Judges. The appeals 

resolved through this settlement conference represent the dispositional output of nearly 4 

Administrative Law Judge teams working solely on these appeals for an entire year. 

Due to the strength of OMHA’s SCF program and its facilitators, the annual work of at least 20 

individuals (i.e., 4 Administrative Law Judge teams) was completed in one day. We will 

continue to monitor the SCF program in hopes of further success stories for larger numbers of 

appeals. For more information, please visit OMHA’s website: 

http://www.hhs.gov/omha/OMHA%20Settlement%20Conference%20Facilitation/settlement_co 

nference_facilitation.html 

E. Office of the Ombudsman/Center for Cooperative Resolution: 

The Office of the Ombudsman is the NIH’s preeminent resource for managing conflict, fostering 

organizational collaboration and effective communication, and providing organization-wide systemic 

feedback. The Office of the Ombudsman is internal-facing and serves all NIH employees. It leads 

9
 
 

 

 

 

 

 

 


 

NIH’s efforts to facilitate the effective resolution and prevention of highly complex and often highlevel workplace issues and conflicts. NIH uses ADR processes (negotiation, facilitated conversations, 

referrals to the Ombudsman, and peer panel reviews) in certain scientific disputes (e.g., authorship and 

Board of Scientific Counselors reviews) that occur in the Intramural Research Program. In EEO 

complaints in which the Aggrieved Party elects ADR, the Office of the Ombudsman serves as the 

mediator. The areas of the Office of the Ombudsman’s work include intellectual property, authorship, 

scientific research integrity, supervisory-employee, and employee-employee relationship issues. The 

Office of the Ombudsman offers services to approximately 23,000 individuals located on the main 

campus, off-site buildings, and locations in other states. Staff who access the Office of the 

Ombudsman’s services are in a wide range of occupations and grade levels including senior leadership, 

scientific and clinical research, administrative and support, interns, fellows, and other training 

contingencies, and a large wage and contract workforce. The Office of the Ombudsman provides 

consultations, policy and resource information, referrals, coaching, mediation/facilitated conversations, 

group processes, customized training, and provides systemic feedback to agency leadership. Services 

are provided by full-time ombudsmen employed by NIH. The Office follows the Standards of Practice 

of the International Ombudsman Association. 

NIH supports the Office of the Ombudsman in building program capacity by providing financial, 

structural, and organizational support. The Office of the Ombudsman is able to assure confidentiality, 

to work independently from other components of the agency, and to assure that NIH acts in an impartial 

manner. Agency leadership views the Office of the Ombudsman as a credible and constructive resource 

for all employees. The agency is making a commitment to expand an alternative grievance program 

called the Peer Resolution Process throughout the agency in FY 2016 and 2017. This program uses a 

two-stage resolution process consisting of a mediation between employee and supervisor (Stage 1) and 

a Peer Panel of 3 employees and 2 supervisors who determine whether the supervisory action was 

proper (Stage2). The program was launched through the Office of the Ombudsman, and we anticipate 

the agency will support a total of 2 new FTEs and associated budget in FY 2017 and beyond. 

Some of the trends observed over this period of time include the following: a) Increasing awareness of 

the Office of the Ombudsman and utilization of our services by all employees, and particularly by 

senior management; b) Increasing receptivity to strategies to engage in and resolve conflict, including 

coaching, holding their own conversations, and seeking facilitated conversations; c) Proactive use of 

the Ombudsman by seeking guidance on conflicts at an early stage; and d) Greater demand for 

customized training and various forms of group process work. (These trends are supported by case and 

anecdotal data from 2009-2015.) Program funding has increased; FTEs have increased from 6 to 8, 

and ADR usage (number of cases) has increased by approximately 25%. Research would need to 

confirm the benefits of using ADR, yet appear to include increased productivity, better relationships, 

increased collaboration, greater conflict resolution capacity, and higher rates of employee retention. 

Types of ADR processes include inquiry, coaching, facilitated conversations (mediation), shuttle 

negotiations, peer panels, group facilitation and other group processes. The Office of the Ombudsman 

offers customized trainings to NIH employees upon request. The NIH Training Center offers a range 

of conflict management and communications skills trainings to employees on an ongoing basis. The 

Office of Equity, Diversity and Inclusion offers ADR training as a component of its EEO training for 

supervisors and employees. 

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Success Stories: Scientific Collaboration, Discrimination and Identity. 

In this matter, an ombudsman worked with a fellow on layered concerns involving cultural diversity, 

status, race, gender and identity. She was deeply troubled about her lab situation, and described 

situations in which she perceived she was treated less favorably than other fellows, and described how 

she was told to forego opportunities for meaningful projects. Although a United States citizen, her 

family emigrated shortly before she was born, and she considered herself African. Her situation 

deteriorated so that she stopped coming to the lab entirely, and instead worked from another location 

within NIH. Her fellowship was now coming to an end, and she consulted with the ombudsman about 

how to finish a collaboration she led which included her PI, an investigator from another US research 

institution, and an investigator in Africa. In these discussions, she explored with the ombudsman her 

work, struggles to be recognized by her PI, disengagement from the lab, and its impact on her situation. 

She later saw her avoidance as tied to a pattern in her family, how it hurt her standing, and how she 

might choose to respond in the future. She was not interested in talking with her PI, yet was motivated 

to consider how she might finish out the collaboration successfully. After she explored possibilities 

with the ombudsman, she talked with the PI in the US research institution to seek support to continue 

the collaboration. She then contacted the PI in Africa and negotiated her ongoing role with him. 

Finally, she asked her PI to continue with NIH as a special volunteer and work from the lab of the other 

US collaborator. This arrangement was approved, the project completed, a paper published, and the 

fellow later secured a position as a scientist with a local research institution. Before she left NIH, this 

fellow was very interested in voicing her experience in the lab to an NIH senior leader. The ombudsman 

contacted a senior scientist involved in promoting scientific workforce diversity, and they were able to 

meet. The fellow and leader separately described this as a constructive and impactful experience. 

The type of ADR used here was coaching, which was critical in resolving the conflict. The ability for 

the visitor to speak with an NIH senior leader to convey her experiences allowed her to tell her story to 

someone who could acknowledge her experience, potentially to help the organization learn from it, and 

to put it behind her. 

For more information, please visit: www.ombudsman.nih.gov 

F. Food Drug Administration (FDA) at HHS 

Regarding FDA’s ADR Programs, the focal point of the agency’s dispute resolution efforts are the 

FDA ombudsman programs. FDA’s robust external ombudsman programs are at both the level of 

the Commissioner’s Office and also at designated ombudsmen within specific FDA product 

centers (drugs, devices, biologics, tobacco, and veterinary medicine). Companies and individuals 

can turn to the Ombudsman programs for dispute resolution, mediation, breaking up “log jams” 

with the agency, guidance and assistance in solving problems with the agency or with FDAregulated products, and general regulatory questions and concerns. Among the types of cases we 

handle include disputes/complaints from the regulated industry regarding agency product center 

actions, disputes/complaints from the regulated industry regarding actions of FDA field offices, 

complaints from small businesses, including those referred to us by the U.S. Small Business 

Administration, and requests for information and assistance from the regulated industry regarding 

agency policy and regulations and on how to work with the agency. FDA also responds to certain 

11
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

complaints received from consumers about FDA regulated products or actions by FDA product 

centers or field offices. Disputes and complaints are addressed via methods that include 

consultation, dispute resolution and mediation. Typical actions include determining relevant 

issues and obtaining complete and accurate information about a case, reviewing and acting on 

cases in a timely manner, initiating meetings with affected parties, recommending more 

transparent reasons for agency actions/decisions when warranted, and recommending alternative 

courses of action. 

Success Stories: Helping a Food Importer Avert Economic Disaster 

A very recent example of a success story involved our office being able to come to the aid of a 

small business which we believed helped it to stay in business. The case involved a large food 

shipment being imported into the United States which was detained by FDA. The company was 

facing having to shut down if their shipment was not quickly released. Counsel for the food 

importer contacted our office for assistance because they believed the importer’s shipment was 

being unlawfully detained by FDA and should be released immediately. This was a complicated 

case as it involved the importer, their counsel, one FDA Field Office, and two different FDA 

product centers. 

FDA used informal mediation and dispute resolution methods to respond to this case. FDA worked 

diligently with counsel for the firm to identify the scope of the problem and to determine how FDA 

could help their client. FDA then went through a step-by-step process with each of the FDA offices 

involved to address the issues of what was FDA’s regulatory purview in this case and how the 

different parts of FDA were following up. Several meetings were initiated with appropriate FDA 

officials to ensure that the company’s concerns were being addressed. With each success in 

moving the case toward resolution, FDA faced new challenges as new parties had to be brought 

into the agency to address new issues that this review was raising. In the end, FDA’s efforts in 

this case were successful and the shipment was released. 

Investigation of FDA’s Handling of a Case Involving a Question of the Safety of Pet Food 

and the Death of a Beloved Dog 

In late September a few years ago, the FDA Office of the Ombudsman took on a case referred by 

the Immediate Office of the FDA Commissioner. The issue involved a couple from a state in the 

Northeast who were very unhappy with FDA's investigation into the death of their 10-year old 

dog, which they believed was sickened and died from contaminated pet food they had feed to 

them. The complainants believed that FDA was protecting the manufacturer of the pet food and 

was covering up the matter. These were very serious allegations that required immediate action 

by the FDA. 

Because the complainants were so upset with how FDA handled this case, officials from the FDA 

made the extraordinary decision to travel from FDA Headquarters in the Washington, DC area to 

their state in the Northeast to meet with them in their home and to speak with them personally 

12
 
 

 

 

 

 

 

 

 

 

 

 

 


 

about what they thought had been mishandled in FDA’s investigation into their pet’s death. FDA 

officials met with the couple and spent over two hours with them. Afterwards, the FDA did a 

comprehensive review of all the agency actions in the case, including the actions of an FDA 

District Office, an FDA Regional Laboratory, and the FDA Center for Veterinary Medicine. 

Over the next two weeks FDA reviewed the case culminating in a 2 1/2 page report to the 

complainants. The report candidly identified errors made by the agency in the handling of this 

case but concluded that the errors did not affect or change the outcome of the agency's handling 

and disposition of the original consumer complaint that was filed about the pet’s death. The 

complainants, while still unhappy about the errors made by FDA, did respect the process used by 

FDA officials in the investigation and the impartial approach taken by the office in both the 

investigation and the report. 

The Office of the Ombudsman was able to thoroughly review this matter and provide the 

complainants with some closure on how FDA handled this case and the mistakes that were 

made. As important was the fact that senior FDA officials who received the report on this case 

were quick to acknowledge that mistakes were made and that they would take the necessary steps 

to correct the problems identified in the report. FDA’s website can be found here: 

http://www.fda.gov/AboutFDA/CentersOffices/OC/OfficeofScientificandMedicalPrograms/ucm 

197508.htm. Separate from FDA’s Ombudsman programs is a group that is internal and handles 

work place issues. The FDA manager in charge of that program is Albert Conerly. He can be 

reached at (301) 795-5085 or at albert.conerly@fda.hhs.gov. 

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U.S. Customs & Border Protection (CBP) 

2016 Report on Alternative Dispute Resolution 

Contact Information 

Maria Luisa Boyce
 

Senior Advisor for Private Sector Engagement
 

(202) 344-1440
 

Maria.l.boyce@cbp.dhs.gov 

Felicia Felder
 

Chief of Staff
 

(202) 344-3379
 

Felicia.a.felder@cbp.dhs.gov 

U.S. Customs and Border Protection’s (CBP) Office of Trade Relations (OTR) Director serves as 

the Regulatory Fairness Representative (Trade Ombudsman) for the agency under the Small 

Business Regulatory Enforcement Fairness Act (SBREFA) of 1996. The Trade Ombudsman 

serves as the liaison between the international trade community and senior CBP Executives to 

promote compliance with SBREFA. The program is monitored by the Small Business 

Administration (SBA) National Ombudsman and its activities are evaluated for inclusion in an 

annual report to Congress. The OTR Regulatory Fairness Program consists of two areas: 

Outreach and Dispute Resolution. 

Outreach 

The program provides outreach to the small business international trade community through 

roundtables, webinars, the CBP website and its partnership with the SBA. It places emphasis on 

pre-emptive measures that educates small businesses on the requirements for importing and 

exporting. Thus enabling the agency to learn about concerns of the small business community, 

while at the same time improving the trade's knowledge of CBP policies. 

Dispute Resolution 

In response to the establishment of a policy to provide for the reduction or waiver of civil 

penalties, CBP published in the Federal Register Notice, guidelines regarding violations of 19 

U.S.C. 1592 by small entities. The notice provides information on the circumstances and 

procedures for a small business to follow in order to have a civil penalty waived and provide 

means to comment on the activities conducted by CBP personnel. OTR reviews and responds to 

comments filed by small businesses with the SBA National Ombudsman. 

/// 

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Federal Emergency Management Agency (FEMA)
 

2016 Report on Alternative Dispute Resolution
 

ADR Contact Information 

Cindy Mazur 

ADR Division Director 

FEMA 

Cindy.Mazur@FEMA.DHS.GOV 

202.646.4094 

500 C Street S.W., 4NE-2407 Washington DC 20472 

ADR Policy 

The Department of Justice (DOJ) policy on the use of ADR, and case identification criteria for 

ADR can be viewed at https://www.fema.gov/alternative-dispute-resolution-office-policy-publications. 

Has the written ADR policy been amended or modified during the past ten fiscal years (FY06­

FY15)? If so, please describe how. Our internal guidance now includes provision for a 

Reservist Ombudsman. 

ADR Programs 

The ADR Office provides a wide range of dispute resolution processes and tools which help to 

engage, prevent, and manage conflicts. The ADR Office regularly provides facilitated 

conversations, conflict coaching, customized trainings, mediation and conciliation, public and 

large group engagement, team-building, dispute management systems design, and the analysis of 

conflict patterns and systemic issues. The ADR Office consists of nationwide ADR advisors 

who are deployed to disasters upon request and who serve FEMA personnel in disaster 

situations. The ADR Office promotes dialogue, engages in key trainings, facilitates difficult 

conversations, and otherwise prevents and resolves conflicts and disputes at the lowest possible 

level. The ADR Office also works with the FEMA Union, Labor and Employee Relations, 

Human Capital, and other components within FEMA to promote communication among FEMA 

employees and consistency among policies. The FEMA Reservist Ombuds office sits within the 

ADR Division and identifies systemic patterns and issues within the Agency that impact 

reservists (a group of intermittent employees that are on call and deployed to disasters on an asneeded basis). 

Several trends are listed below: 

•	 Staffing. The ADR office has grown significantly in terms of staffing. The impact of 

this increased personnel has been increased capacity to serve even more employees 
 

 

 

 

 

	 

	 

	 

within disasters as well as continued capacity to serve FEMA employees at 

headquarters and in the regional offices. 

•	 Regular uptick in ADR requests as the Office continues to expand the menu of 

services it provides. Recent trends have been away from mediations and towards 

more informal processes such as conflict coaching and “listening and advising” 

sessions. 

•	 A push towards more systemic and organizational ADR, in the form of teambuilding, management workshops, “climate assessments,” facilitation of working 

groups, appreciative inquiry dialogue facilitation, public engagement, and dispute 

management systems design. 

•	 Over the years the ADR Office’s “Conflict Resolution Month” activities have 

generated a great deal of support from management and we regularly showcase 

taped testimonials from key players within the Agency. 

Steps to build program capacity 

The Agency has supported the growth of the ADR team within FEMA to support FEMA 

Employees in disasters and at regional offices. The Agency has also supported the robust 

staffing of headquarters personnel to manage the day-to-day operations and facilitate dispute 

resolution processes at headquarters. 

Plans to expand the program 

We continually analyze whether additional resources are needed at any particular time. As 

the Agency continues to evolve, so too will the ADR Office. 

Which of the following sections of the Interagency ADR Working Group most closely relates to 

the work of this ADR program (you may check multiple sections): 

X Workplace 

__ Contracts and Procurement 

__ Administrative Enforcement and Regulatory Process 

__ Litigation 

__ Environmental 

Please provide additional comments below regarding how your program has benefitted from the 

work of the above section(s): 

Many of our ADR Advisors regularly attend the IADRWG Workplace Conflict 

Management Section’s lunchtime programs. 
 

 

 

 

 

 

 

 

 

 

 

 

Success stories from the past ten calendar years 

Though we are involved in a full range of projects and programs, here are two examples 

of projects: 

1. One ADR Advisor in the field helped facilitate discussions between FEMA, state 

partners, and a Native American tribe over the destruction of property as a result of a 

disaster. The parties were coming together to negotiate the rebuilding of the destroyed 

infrastructure, which was an important site for the Native American tribe. The ADR 

Advisor facilitated a number of public engagement dialogues and was able to ultimately 

build consensus to complete the project. He earned an award from Administrator 

Fugate for his hard work and commitment. 

2. Two of our ADR Attorneys spearheaded a “climate assessment” for a major 

headquarters office. The advisors engaged in informal, one-on-one, listening sessions 

with approximately 50% of the staff in this particular office and used the information 

to brief staff and management on major pressure points, to build morale, engagement, 

respect, and good communication. The information was used by the client to develop 

working groups, which the ADR advisors facilitated for several months. Ultimately 

ADR also developed a customized-training, and also worked with leadership and the 

working groups to develop long-term changes that could potentially reduce conflict and 

improve engagement within the work unit. 

Department or Agency ADR use beyond the ADR Programs discussed above 

FEMA also uses ADR in the EEO context. 

ADR Training 

FEMA provides a wide range of ADR awareness/promotion trainings, including during new 

employee orientation. The FEMA ADR Office develops dozens of customized, skills trainings. 

The ADR Office also regularly puts on an annual series of programs around Conflict Resolution 

Month, as well as ad hoc open houses, partner meetings, and similar awareness events 

throughout the year. 

Interagency ADR Working Group 

Members of the ADR Office are very engaged in the work of the IADRWG. Cindy Mazur has 

and continues to be Chair of the Workplace Section. Matilda Brodnax was formerly chair of the 

IADRWG Steering Committee. Vikram Kapoor is currently Vice-Chair of the Steering 

Committee. Involvement with the work of the Steering Committee has allowed FEMA’s ADR 

Office to remain abreast of cutting edge topics in the field and also creates opportunity for 
 

additional discussion and dialogue among ADR practitioners in the federal government. In this 

way, members of the ADR Office are very proactive in networking and sharing resources with 

ADR practitioners in the federal government. 

Given the trends you have reported above, how can the Interagency ADR Working Group 

better facilitate, encourage, and provide coordination for the 1) development of ADR 

programs; 2) training of agency personnel; 3) the development of procedures to permit 

agencies to obtain the services of neutrals on an expedited basis; or 4) recordkeeping to 

ascertain the benefits of ADR? 

It would be helpful if the IADRWG convened as a group and delegated authority to the 

Steering Committee of the IADRWG. At the moment there is great confusion about mandate 

and what authority the Steering Committee has with respect to reporting and other matters. 

// 
 

 

 

 

 

 

 

 

 

 

 

 


 


 

United States Secret Service (USSS)
 

2016 Report on Alternative Dispute Resolution
 

Contact Information 

William Doyle 

Ombudsman 

U.S. Secret Service 

William.Doyle@usss.dhs.gov 

202-406-5555 

Alternative Dispute Resolution Policy 

Does your Department or Agency have a formal written ADR policy? _X_ Yes __No. 

Has the written ADR policy been amended or modified during the past ten fiscal years (FY06­

FY15)? If so, please describe how. (No) 

ADR Programs 

The U.S. Secret Service (USSS) Ombudsman Program serves as the agency’s ADR program 

and was developed and initiated on October 15, 1987. The USSS Ombudsman Program is an 

internal organizational program and consists of two full-time Ombudsman, as well as, ten 

collateral duty Ombuds (20% of their time to Ombuds issues). The Ombudsman practices 

according to International Ombudsman Association standards and manages internal workplace 

issues. Ombudsman Program’s mission is to assist in seeking fair, equitable solutions to workrelated concerns through an informal confidential process, as well as, provide unfiltered feedback 

to management by reporting trends and systemic issues. 

The Ombudsman Program is open to all employees regarding workplace issues including 

interpersonal conflicts, workplace disputes, safety issues, bureaucratic red tape and harassment. 

The work includes conflict coaching, facilitation, and mediation, and its needs are continually 

being reevaluated. The USSS Ombuds are members of the International Ombudsman 

Association and regularly participates in the Coalition of Federal Ombudsman and values that 

participation. 

The USSS Ombudsman Program also provides mediation services for the agency’s EEO 

program when an aggrieved individual elects to participate in the ADR process. The ADR 

process serves as a mechanism that employees and managers may use as an alternative to the 

EEO process in the hopes of effecting an early and mutually agreed to resolution of EEO 

concerns. This program includes the Equal Employment Opportunity Commission's (EEOC) 

regulations at 29 C.F.R. 1614.102(b)(2), which requires agencies to make available an ADR 

program during both the pre-complaint process and formal complaint process. 
 

 

 

 

 

 

 

 

 

 

 

 

Trends in ADR 

For the last ten years, funding for the Ombudsman Program has been included in the 

Office of Human Resource’s overall budget. However, on July 24, 2016, the Ombudsman 

Program was realigned under the new Office of Equity and Employee Support Services (EES) 

which is part of the Director’s Office. Under this new structure the Ombudsman Program will 

maintain its own budget. 

The USSS Ombudsman Program has used mediation and coaching to reduce the number 

of administrative grievances and to resolve employee conflicts. The office uses some form of 

ADR, typically coaching, in approximately 50% of its 1450 cases in the last 10 year period. 

Utilizing the Ombudsman Program to resolve workplace conflicts is usually faster and 

less costly than traditional methods of adjudication. Individuals have an opportunity to tell their 

side of the story and interact with another to resolve their issues. The process allows for the 

restoration of relationships. Besides significant cost savings by working with complaints and 

settling disputes, the Ombudsman Program has assisted the USSS by identifying new issues that 

were in their infancy. Some of the intangible benefits include respect for diversity, and an 

increase in employee engagement and morale. 

Steps to build program capacity 

Since 1987, the USSS Ombudsman Program has always maintained two full-time Ombudsman. 

The collateral duty staff has remained steady between ten and twelve employees. This staff 

level has proven sufficient for supporting the needs of the agency. 

Plans to expand in the future 

Future plans include placing greater emphasis on training with respect to mediation and coaching 

for the Ombudsman staff. Plans also include placing greater emphasis on utilizing ADR in the 

EEO Process. 

Which of the following sections of the Interagency ADR Working Group most closely relates to 

the work of this ADR program (you may check multiple sections): 

X Workplace 

__ Contracts and Procurement 

__ Administrative Enforcement and Regulatory Process 

__ Litigation 

__ Environmental 

Please provide additional comments below regarding how your program has benefitted from the 

work of the above section(s): 

The USSS Ombudsman Program is active in the International Ombudsman Association and the 

Coalition of Federal Ombudsman, and will begin to regularly participate in the Interagency ADR 

Working Group Workplace Conflict Management Section’s lunchtime programs. 
 

 

Success stories from the past 10 years 

Due to the relatively small size of this agency, providing too much specificity regarding our 

success stories could violate the confidentiality of those whom we have assisted. However, it is 

noted that the Ombudsman Programs has been successful in addressing and resolving numerous 

workplace conflicts. The program has been beneficial in working within the organizational 

structure to help restore working relationships between peers, coworkers, and between 

employees and their supervisors. The Ombudsman Program has been successful in addressing 

conflicts at the lowest level, an example of which is the following: An employee who was 

making a life altering employment decision chose, for the first time, to visit the Ombudsman 

Office to review their options. With some informal coaching with respect to communicating 

with their supervisor and completing a review of options, the visitor had a better grasp of their 

situation and was more confident in making an employment decision. A month later the visitor 

informed the Ombudsman that due to the coaching and option review, their employment 

situation was better and moral was positive. 

ADR Training 

The Ombudsman provides ADR awareness training during all New Employee Orientation and 

First Line Supervisor trainings. 

// 
 

 

 

 

 

 

 

 

 

 

 

 


 


 


 


 


 


 


 

Transportation Security Administration (TSA)

2016 Report on Alternative Dispute Resolution 

Contact Information 

Claire Heffernan
 

Director, Ombudsman Division 

TSA 

claire.heffernan@tsa.dhs.gov
 

571.227.3793 

Sam Slosberg 

ADR Services Lead, National Resolution Center 

TSA 

Sam.Slosberg@tsa.dhs.gov 

202.731.1291 

Jackie Hoffman
 

ADR Coordinator of Civil Rights, Diversity and Inclusion Division
 

EEO Management Branch
 

TSA 

jackie.hoffman@tsa.dhs.gov
 

571.227.2349
 

ADR Policy 

Does your Department or Agency have a formal written ADR policy? __ Yes _X_No (check 

one). 

Has the written ADR policy been amended or modified during the past ten fiscal years (FY06­

FY15)? If so, please describe how. N/A 

ADR Programs 

There are three distinct ADR programs within TSA. 

1. The Ombudsman 

The Ombudsman practices to IOA standards and serves internal and external constituents. The 

Division is comprised of a Director and several Ombuds Specialists. The work includes conflict 

coaching, facilitations, and reporting to management on trends and systemic issues. 

The Ombudsman has noticed enormous benefit from the increased use of coaching to 

resolve employee conflicts. Complaint resolution statistics have improved as a result of the 

office’s ability to support employees with coaching at the lowest level. The office uses some 
 

 

 

 

 

 

 

 

form of ADR, typically conflict coaching, in approximately 50% of its 1500 cases. There are 

currently 7FTEs – the director plus 6 staff. 

There is an increased emphasis on coaching training for Ombudsman staff. 

The Ombuds is active in the Coalition of Federal Ombuds. 

2. The National Resolution Center 

The National Resolution Center provides non-EEO ADR services throughout TSA by drawing 

on a dozen in-house TSA mediators as well as a contractor. 

The National Resolution Center’s nationwide geographic footprint supports cost-efficient and 

effective responses to ADR requests at the Agency’s headquarters and across its US field 

locations. Since 2013, the NRC has provided an average of 450 mediations per year to address 

employee grievances regarding workplace disputes and disciplinary actions. The resolution rate 

for mediation averages 60-65%, and unresolved disputes continue through the agency’s 

grievance process for final resolution. 

The NRC employs one full-time ADR Lead and utilizes its 7 Regional Resolution Specialists on 

a collateral duty basis to provide mediation, facilitation, and other ADR processes. The NRC 

tracks and reports on ADR requests, processes and outcomes. During FY2016, the NRC has 

received approximately 50 requests for ADR services, to include conflict coaching, facilitated 

interest based conversations (two parties and a facilitator), and customized neutral assistance 

(e.g., small and large group facilitation, conflict climate assessments, interviews, and other 

diagnostic and targeted ADR support strategies). Many of these are still open and active, so 

additional data is not available at this time. 

There are plans to expand the non-EEO ADR program to include more coaching. 

3. The EEO Management Branch 

The EEO Management Branch is responsible for the provision of EEO-related ADR services. 

Mediations can be conducted by TSA employees, DHS Shared Neutrals, or by ADR contractors. 

Funding for the TSA CRDI ADR Program is included in the TSA CRDI overall budget for Civil 

Rights, Diversity and Inclusion for TSA. CRDI ADR Program has one FTE devoted to the ADR 

Program as the ADR Coordinator. This position was established within the last year and the 

impact has been invaluable as the ADR Coordinator has established a more effective and 

efficient process for ADR requests. TSA CRDI provides Civil Rights, Diversity and Inclusion 

oversight and assistance to approximately 65,000 employees, plus applicants. ADR is offered in 

the throughout the EEO complaint process. Resolving allegations of discrimination and work 

place conflict is always better if resolved at the lowest level possible. TSA CRDI currently uses 

mediation and facilitation as the primary methods of ADR and is considering implementation of 

other types of ADR as well. 
 

 

 

 

 

 

TSA’s Civil Rights, Diversity and Inclusion Division (CRDI) created an ADR Coordinator 

position in August 2015 to coordinate and oversee the ADR Program. This has been successful 

because we have a dedicated person to oversee the ADR Program. 

There are plans to expand the types of ADR used in EEO-related cases. 

Which of the following sections of the Interagency ADR Working Group most closely relates to 

the work of this ADR program (you may check multiple sections): 

X Workplace 

__ Contracts and Procurement 

__ Administrative Enforcement and Regulatory Process 

__ Litigation 

__ Environmental 

Please provide additional comments below regarding how your program has benefitted from the 

work of the above section(s): 

Several of TSA’s ADR practitioners regularly participate in the IADRWG Workplace 

Conflict Management Section’s lunchtime programs. 

ADR Trends 

Nothing specific to report at this time, though each of the TSA programs have been very 

successful in addressing conflicts and disputes at the lowest level. 

ADR Training 

Yes, TSA provides a wide range of ADR awareness/promotion trainings, including during new 

employee orientation. 

Interagency ADR Working Group 

Involvement with the work of the Steering Committee has allowed ADR practitioners at TSA to 

remain abreast of cutting edge topics in the field and also creates opportunity for additional 

discussion and dialogue among ADR practitioners in the federal government. 

/// 
 

 

 

 

 

 

 

 


 


 


 


 


 


 


 


 

UNITED STATES DEPARTMENT OF JUSTICE
 

2016 REPORT ON ADR IN THE FEDERAL GOVERNMENT
 

ADR Dispute Resolution Specialist 

Joanna Jacobs
 

Director, Office of Dispute Resolution
 

U.S. Department of Justice
 

jojacobs@jmd.usdoj.gov
 

202-305-4439
 

ADR Policies/Policy 

The Department of Justice (DOJ) policy on the use of ADR, and case identification criteria for 

ADR can be viewed at 61 Fed. Reg. 36895 (Jul. 15, 1996). 

ADR Programs and Use of ADR at the Department of Justice 

1. Office of Dispute Resolution 

The Office of Dispute Resolution (ODR) develops policy and promotes the effective use of ADR 

throughout the Department. ODR monitors and evaluates the use of ADR throughout the 

Department; represents the Department leadership with foreign governments as well as the 

private sector in ADR matters; and facilitates the effective use of ADR in litigation and agency 

administrative disputes. ODR also represents the Attorney General in leadership of federal ADR 

through the Interagency ADR Working Group, an organization which was created by the 

President and convened by the Attorney General to promote the use of ADR throughout the 

federal government. 

Public-facing websites www.justice.gov/olp/alternative-dispute-resolution and www.ADR.gov 

2. Civil Rights Division - Americans with Disabilities Act Mediation Program 

The innovative Americans with Disabilities Act (ADA) Mediation Program is a voluntary 

program that allows people with disabilities and disability rights organizations to resolve ADA 

complaints using ADR before beginning litigation. Cases involve architectural barriers, 

communication impediments and implementation of other ADA compliance issues. 

Public-facing websites www.ada.gov/mediate.htm 

Contact Information 

Lisa Levine 

ADA Mediation Program Officer 

Civil Rights Division, Disability Rights Section 

Lisa.levine@usdoj.gov 

1
 
 

 

 

 

 

 

 

 

 


 

(202) 307-1417 

3. Community Relations Service 

The Community Relations Service (CRS) is the Department of Justice’s “Peacemaker” for 

community conflicts and tensions arising from differences of race, color, national origin, gender, 

gender identity, sexual orientation, religion and disability. CRS works with state and local 

governments, private and public organizations, and community groups and leaders to assist 

communities in developing local mechanisms and community capacity to prevent and resolve 

racial and ethnic tensions and civil disorders, and build communities' capacity to resolve future 

similar conflicts. CRS services are confidential and provided free of charge to communities – 

large and small, rural, urban and suburban – across all 50 states and U.S. territories. 

Public website www.justice.gov/crs 

Contact Information 

Paul Monteiro 

Director, Community Relations Service 

Paul.Monteiro@usdoj.gov 

(202) 305-2935 

4. DOJ Mediator Corps 

The DOJ Mediator Corps (Corps), which was created in 2009, is a workplace ADR program that 

serves all of the DOJ components. The Corps has a roster of more than 130 collateral-duty 

mediators who offer facilitative mediation at all phases of the EEO process, for FBI-specific 

Whistleblower Retaliation claims, and for non-EEO workplace disputes on a case-by-case-basis. 

Contact Information 

Theresa M. Spinola 

ADR Manager 

Department of Justice, Federal Bureau of Investigations 

Theresa.spinola@ic.fbi.gov 

202-324-1024 

5. Internal Workplace Ombudsman Offices 

The Department of Justice has four internal workplace ombudsman program offices that provide 

ADR services to employees and management. The ombuds offices are located within: 

• The Federal Bureau of Investigation – Ombudsman Program 

• Bureau of Alcohol Tobacco and Firearms – Office of the Ombudsman 

• Bureau of Prisons – Ombudsman Program (established in 1998) 

• U.S. Marshals Service – Office of the Ombudsman (established in December 2015). 

These internal ombuds offices are part of an integrated conflict management system that 

complements formal ADR processes. The ombuds offices provide assistance for the full range of 

2
 
 

 

 

 


 

potential disputes among agency employees and managers, including issues related to 

compensation and benefits, career progression and development, performance and performance 

ratings, peer and colleague relationships, legal and compliance issues, organizational culture, and 

any other issues that may arise between and among employees and managers. 

Ombudsman Contact Information 

Monique A. Bookstein 

Ombudsman 

Federal Bureau of Investigation 

monique.bookstein@ic.fbi.gov 

202-324-5933 

Laurel Gordon 

Acting Deputy Chief, Office of the Ombuds 

U.S. Marshals Service 

laurel.gordon@usdoj.gov 

202-999-0730 

Grace Reisling 

Senior Special Agent / Ombudsperson 

Bureau of Alcohol, Tobacco, Firearms and Explosives 

Grace.Reisling@atf.gov 

(202) 648-7351 

Tasha Fleming 

Ombudsman 

Federal Bureau of Prisons 

t4fleming@bop.gov 

202-307-2266 

3
 
 

 

 

 

 

 

 

 

 

 


 

2016 Report on ADR in the Federal Government 

U.S. Department of Labor (DOL) 

DOL has supports three separate ADR programs: The Office of Administrative Law 

Judges, the OSHA Whistleblower ADR Program, and the DOL EEO ADR Program. 

1. Office of Administrative Law Judges 

The Office of Administrative Law Judges (OALJ) has two court-sponsored types of ADR. First, 

it has the regulatory Settlement Judge program as described at 29 C.F.R. § 18.13. Second, OALJ 

offers mediation services through an agency neutral. These ADR programs are external-facing 

and they cover a broad range of labor and employment laws which are within the jurisdiction of 

the U.S. Department of Labor. The office uses ADR most frequently in whistleblower cases, 

Wage and Hour Division enforcement actions, Longshore Harbor Workers' compensation cases, 

and Defense Base Act compensation cases. 

The Settlement Judge Program incorporates a number of techniques and procedures to 

supplement techniques traditionally used by administrative law judges, such as facilitating 

settlement during a prehearing conference. Parties are informed in prehearing orders of the 

availability of settlement judge and mediation services. ALJs frequently suggest OALJ’s ADR 

services during prehearing conferences, and OALJ’s mediator does active outreach on cases 

which appear amenable to a negotiated resolution. OALJ’s ADR services are offered free-ofcharge to litigants. Depending on the case, OALJ uses both facilitative and evaluative 

techniques, and hybrids of those techniques. 

The Department’s Administrative Law Judges, appointed pursuant to 5 U.S.C. § 3105, serve as 

the settlement judges. OALJ also has a mediator who has been certified as a mediator by the 

National Judicial College, and who serves as a neutral pursuant to 5 U.S.C. § 573. 

ADR Policy 

OALJ published its Settlement Judge rule in the Federal Register and in the Code of Federal 

Regulations. See 29 C.F.R. § 18.13. 

The Office of Administrative Law Judges (OALJ) Settlement Judge was originally promulgated 

in 1993. See 58 Fed. Reg. 38498 (1993). In 2015, OALJ issued revised Rules of Practice and 

Procedure that updated its Settlement Judge regulation. See 29 C.F.R. § 18.13; 80 Fed. Reg. 

28767 (May 19, 2015). 

These programs are described in detail at www.oalj.dol.gov/SETTLEMENT_JUDGE.HTM. 

1. Public website: www.oalj.dol.gov/SETTLEMENT_JUDGE.htm. 

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2. Trends and benefits in the program over the past ten fiscal years (FY06-FY15): 

OALJ’s jurisdiction has expanded in the past 10 years, especially in regard to whistleblower 

cases, thereby creating an increased number of cases that are candidates for ADR. Also, OALJ 

caseload has generally increased over the past 10 years, which also creates an increased number 

of cases that are candidates for ADR. 

OALJ does not have a distinct budget line item for ADR. Rather, helping to facilitate 

settlements is an inherent part of an ALJ’s duties. The same is true of OALJ’s mediator, who is 

a Senior Attorney at OALJ. Thus, the number of FTEs devoted to ADR can only be 

estimated. Based on the volume of Settlement Judge and mediator appointments, we estimate an 

equivalent of approximately 4 FTE. OALJ added the mediation services option in FY2015, and 

is accordingly devoting more employee time to ADR. This time, however, is offset by earlier 

resolution of disputes. 

OALJ’s roster of ALJs was reduced over the past decade, which together with the increase in 

jurisdiction and number of cases docketed provided a challenge for the provision of all court 

services, including ADR. Recently, however, OALJ has been able to hire additional ALJs, 

which has improved OALJ’s ability to provide ADR services. Thus, for example, in 2015, 

OALJ was able to provide ADR training for all interested judges, and to start offering the 

services of a mediator. 

The chart below shows the total number of closed cases by case area that had a Settlement Judge 

Assignment; for the period from October 1, 2005 through June 7, 2016: 

Case Area Total 

Cases 

Black Lung 1 

Defense Base Act 295 

Longshore 1219 

Immigration 74 

Traditional 

(Mostly Wage 

And Hour 

Division 

Enforcement 

Actions) 78 

Whistleblower 288 

All Cases 1955 

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Through June 16, 2016 in FY2016, the OALJ mediator has been appointed in 37 cases. Of 

those, three involved H-1B immigration enforcement actions, one H-2A immigration 

enforcement action, one Service Contract Act case, one Davis-Bacon Act case, and the 

remainder whistleblower cases. These statistics only include those cases in which an ALJ or 

mediator were formally appointed. ALJs often assist parties in reaching settlement in traditional 

legal settings, such as prehearing conference calls. 

OALJ employs ADR at all stages of adjudication. OALJ’s mediator reviews cases as they are 

docketed, and will contact parties if the case appears to be amenable to settlement. Many 

settlement judge and mediator appointments, however, occur after the parties have engaged in 

discovery and have a better idea of the case’s litigation stance. OALJ has occasionally provided 

settlement judges or the mediator for cases that have been appealed to the DOL Administrative 

Review Board or Benefits Review Board. 

When leading to a settlement, ADR provides concrete benefits both to the parties and the 

government in the form of reduced litigation costs, such as attorney’s fees; travel costs; 

transcription services; court-room rental; judge, law clerk and judicial support staff time. 

Intangible benefits include an amicable resolution of the dispute; showing that the government 

can assist in resolution of the matter without the need for an ALJ’s formal Decision and Order 

and the possibility of further appeals; freeing of time of both government and non-government 

participants to work on other pending cases. 

3. Steps to build ADR program capacity in this ADR program: 

OALJ is committed to supporting ADR training and continuing education for judges and staff. 

For example, in May 2015, OALJ sent a group of judges and the OALJ mediator to the National 

Judicial College (NJC) for in-depth and immersive mediation coursework. In May 2016, OALJ 

sent a second group of judges and senior attorneys to the NJC for mediation coursework. In 

August 2016 two judges and OALJ’s mediator will be attending Advanced Mediation courses at 

the National Judicial College. Also in 2016, OALJ is conducting two internal Brown Bag 

sessions on settlement judges and mediation to share best practices for judges and staff engaged 

as neutrals or who assist in OALJ’s ADR program. 

The OALJ mediator joined the office in 2015 as an alternative to the more formal settlement 

judge process. The mediator now reviews newly docketed cases to determine early whether they 

are amenable to a negotiated resolution. In many cases, the mediator will initiate contact with 

the parties to explain the settlement judge and mediation services available free of charge. 

Feedback from the parties has been generally positive; they are often pleasantly surprised that a 

government official is showing a personal interest in their case and offering to assist in mediating 

a resolution. 

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Barriers include some hesitation to use court sponsored mediation as compared to traditional, 

non-government ADR sources, such as private mediators. Lack of knowledge about the OALJ 

ADR program by both private and government litigants. 

4.	 Plans to expand this program in the future: 

OALJ is offering ADR training to its interested Senior Attorneys. Those Senior Attorneys have 

subject matter expertise that may be useful in mediations. The Senior Attorney for Longshore, 

for example, has begun this training in FY2016, and has assisted in mediations to begin learning 

about mediation techniques and procedures. 

OALJ is currently overhauling its website, and plans to increase the visibility of its ADR 

programs on its agency Home Page. 

5.	 The OALJ ADR program covers a broad span of employment issues that relate to the 

work of each of the IADRWG’s sections: Workplace, Contracts and Procurement, 

Administrative Enforcement and Regulatory Process, Litigation, and Environmental. 

6.	 Success stories: 

Because of confidentiality requirements, OALJ must decline to discuss any particular ADR 

success story. In general, however, it is possible to report that OALJ has had great success in 

resolving through its ADR program some particularly difficult litigation in the whistleblower 

and immigration case areas. ADR has enabled resolution of some cases where the parties 

were able to agree to novel remedies that an ALJ could not have ordered in a decision 

following a hearing. Flexibility and persistence have proved beneficial. It is clear that 

merely because an ADR process did not work early in the hearing process does not mean it 

will not work on a second or even third attempt later. Although ADR does not always work, 

and there are certainly significant costs involved in offering court-sponsored ADR, resolving 

cases through a negotiated settlement clearly saves both the parties and government money 

and time. 

Department or Agency ADR use beyond the ADR Programs discussed above 

Parties to cases adjudicated by OALJ are free to use ADR processes other than OALJ’s courtsponsored settlement judge and mediation services. For example, in ERISA cases, the Employee 

Benefits Security Administration prefers to uses its own well-established ADR process. And 

parties who are familiar and comfortable with private mediation services often choose to use 

those services over OALJ’s court-sponsored services. 

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ADR Contact Information 

Todd R. Smyth 

Senior Attorney 

U.S. Dept. of Labor, Office of Administrative Law Judges 

smyth.todd@dol.gov 

202-693-7542 

800 K St NW – Suite 400N 

Washington DC 20001 

Additional Contacts 

Beth S. Slavet William S. Colwell 

Senior Attorney/Mediator Associate Chief ALJ 

Off. of Adm. Law Judges Off. of Adm. Law Judges 

Slavet.Beth.S@dol.gov Colwell.William@dol.gov 

(202) 693-7339 (202)-693-7542 

2. The OSHA Whistleblower ADR Program 

OSHA is a regionally based organization with its Whistleblower Protection Programs run by the 

ten regions. OSHA published an Instruction in August 2015 to establish the policies and 

procedures that apply to the “early resolution” process, which is part of a regional alternative 

dispute resolution (ADR) program. Regional Administrators have the option to adopt and 

implement the process as resources permit. Currently, four of the ten regions have dedicated 

ADR coordinators who act as neutral and confidential intermediaries during the early resolution 

process. 

The OSHA Whistleblower Protection Program is externally-faced to resolve complaints of 

retaliation filed by members of the public against their employers. OSHA enforces the 

whistleblower provisions of 22 statutes protecting employees who report safety and health 

concerns as well as perceived violations of various airline, commercial motor carrier, consumer 

product, environmental, financial reform, food safety, motor vehicle safety, health care reform, 

nuclear, pipeline, public transportation agency, railroad, maritime and securities laws. 

OSHA’s ADR program utilizes a conciliation process in which the parties to a whistleblower 

complaint agree to attempt to resolve the complaint with the assistance of a neutral, confidential 

OSHA representative. The early resolution process can be launched either before the case has 

been assigned for an investigation, or at any point while an investigation is ongoing. The focus 

of early resolution is to achieve quick and voluntary resolution of the complaint instead of an 

investigation to determine the validity of the charge and potential statutory violations. Should 

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the parties elect to pursue early resolution but fail to enter into a settlement agreement within a 

reasonable time-frame, the case will be transferred to an OSHA Whistleblower Investigator to 

start or resume the investigation. 

ADR Policy 

OSHA Instruction CPL 02-03-006 “Alternative Dispute Resolution (ADR) Processes for 

Whistleblower Protection Program” became effective on 8/18/15 and has not been amended. 

OSHA Whistleblower Protection Program ADR Program: 

http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-006.pdf 

7. Program websites: 

The OSHA Whistleblower Protection Program website is at www.whistelblowers.gov. 

OSHA Whistleblower Protection Program ADR Program: 

http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-006.pdf 

8. Trends observed over the past ten fiscal years (FY06-FY15): 

The ADR program is new for Fiscal Year 2016 and currently has 4 full time employees. Thus 

far, the Agency has attempted to resolve 142 cases. There have been 76 settlements, which is 

equivalent to the number of cases that 2 investigators routinely complete in a year. OSHA uses a 

conciliation process where an independent third party, the OSHA neutral, helps people identify 

the disputed issues, develop options, consider alternatives, and try to reach an agreement. The 

neutral has professional expertise in the subject matter in dispute and will generally provide 

advice about the issues and options for resolution. The neutral may also give the parties an 

objective perspective on the strengths and weaknesses of their positions, but may not offer 

judgment on the merits of the complaint. 

9. Steps to build ADR program capacity in this ADR program: 

From October 1, 2012 through September 30, 2013, OSHA piloted an Alternative Dispute 

Resolution program in the Chicago and San Francisco regions. The pilot program offered the 

parties two new avenues for exploring resolution of their disputes through a voluntary settlement 

agreement: (1) the “early resolution” process offered parties the opportunity to negotiate a 

settlement with the assistance of a neutral, non-decision-making OSHA whistleblower expert, 

and (2) the “mediation” process offered parties the opportunity to participate in a one-day, inperson mediation session with a professional third-party mediator. The “early resolution” 

process proved to be a very effective and viable alternative to the investigative process and an 

invaluable asset to OSHA’s Whistleblower Protection Programs. The early resolution process 

demonstrated that dedicating staff to the coordination and facilitation of settlement negotiations 

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provides valuable relief to OSHA’s whistleblower investigative staff, and provides a highlydesired service to the program participants. The program was launched nationally on August 18, 

2015. Each of the OSHA ten regions is eligible to have a dedicated FTE as an ADR neutral – the 

Regional ADR coordinator (RADRC). 

10. Plans to expand this ADR program in the future: 

Not at this time, other than recommending that all OSHA regions consider implementing this 

ADR program. 

11. The OSHA ADR Program falls within the work of the Interagency ADR Working
 

Group’s Workplace section. 

12. Success story: 

OSHA helped resolve a high profile workplace dispute in FY16 through ADR. The ADR 

Coordinator used an evaluative ADR approach by discussing potential liabilities for each 

party in an effort to narrow their positions. The ADR process was critical in resolving the 

conflict because it allowed the parties the option of settling their claim at the “11th hour,” 

right before OSHA took enforcement action. As a result of OSHA’s ADR efforts, all of the 

employees received their jobs back. The ADR program was funded by OSHA. 

ADR Training 

OSHA worked with the Federal Mediation and Conciliation Service to develop a basic training 

course for its neutrals. It is only for OSHA staff. 

ADR Contact Information 

Anthony Rosa
 

Deputy Director, Directorate of Whistleblower Protection Programs
 

Rosa.Anthony@dol.gov
 

202-693-1989
 

200 Constitution Ave, NW, Room N-4618, Washington, DC 20210
 

Christine Stewart
 

Policy Division Chief
 

Directorate of Whistleblower Protection Programs
 

stewart.christine@dol.gov
 

(202) 693-2587
 

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Additional Comments 

Both statistically and anecdotally, OSHA’s “early resolution” pilot proved to be an 

overwhelmingly successful process that provided great value to whistleblower parties and the 

Agency alike. 

o	 Great interest from the parties: Hundreds of parties requested to participate in 

the early resolution process (289 total requests were received during FY13), and 

parties consistently expressed appreciation for the early resolution process. 

o	 High success rate: Sixty-two per cent (62%) of the 87 cases that attempted early 

resolution resolved their cases via a settlement agreement. The 54 settlements 

achieved via the early resolution process put four (4) complainants back to work 

through reinstatement, and awarded approximately $4.85 million in remedies. 

o Settlements were reached quickly: Region 9’s ADR Coordinator spent an 

average of 69 days on the 18 cases that settled through the early resolution 

process. 

o Regional ADR Coordinators (RADRCs) were as productive as investigators: 

The RADRCs settled more cases in FY13 through the early resolution process 

than full-time whistleblower investigators completed through the investigative 

process. 

o	 Adding ADR helped increase the region’s overall settlement rate: In FY13, 

both Region 5 and Region 9 doubled the cases that were settled in FY12 prior to 

implementation of the ADR process. 

o Positive feedback from the parties: Even amongst the parties that did not reach a 

settlement as a result of the early resolution process, the RADRCs reported that 

the parties consistently expressed appreciation for the availability of the early 

resolution process. Particularly, the parties cited appreciation for separation of the 

ADR process from the investigative process as well as the opportunity to use an 

OSHA facilitator who had subject-matter expertise in whistleblower law and the 

investigative process. Parties also were attracted to the potential cost savings of 

resolving the dispute quickly and efficiently. 

o 

After reviewing the results from the pilot, the Agency decided to expand the availability of 

ADR to more whistleblower parties by launching the program nationally. OSHA is 

confident that the ADR process will be a valuable asset to both the whistleblower program 

and its customers for years to come. 

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3. The DOL EEO ADR Program 

The DOL EEO ADR program is an internal-facing ADR program that provides ADR to resolve 

EEO complaints made by DOL employees and applicants for DOL employment. The program 

offers mediation and facilitation, which are provided by Federal Sharing Neutrals and the U.S. 

Postal Service National EEO Investigative Services Office (Contractor). 

ADR Policy 

The Department’s EEO ADR policy has been revised to: 1) offer mediation and facilitation as 

methods of ADR for DOL EEO complaints – as opposed to just mediation (the only method 

previously available), 2) have designated agency settlement officials represent the Agency in 

ADR proceedings and sign off on settlement agreements – as opposed to responsible 

management officials (who served this role in the past); and 3) use non-DOL mediators from the 

Federal Sharing Neutrals program and contractors to mediate DOL cases – as opposed to using 

in-house DOL mediators (who were used previously). 

ADR Programs 

1. Trends observed over the past ten fiscal years (FY06-FY15): 

The only major change in funding for the DOL EEO ADR program over the specified time 

period is the availability of designated DOL funds (which varies from year-to -year) to pay for, 

among other services, contract mediators for conflict EEO ADR cases and other special cases 

and travel cost for staff (which is rare). DOL uses internal DOL collateral-duty staff, 

teleconferencing and internal DOL facilities/space for ADR processing – which helps to keep 

program costs low. 

The EEO ADR program currently has three (3) FTEs who handle the management/coordination 

of the EEO ADR program. A fourth FTE was recently vacated with the loss of an employee who 

accepted a positon in another agency the Department. The duties of this employee are currently 

being performed by designated CRC staff until a replacement decision is made. The immediate 

impact of this staffing change is that staff who have taken on the duties of the staff member who 

left sometimes have to work extended hours to accomplish their regular job duties plus the added 

duties of the staff member who left. These staff members are allowed to earn compensatory time 

when required to work extended hours. 

The number of individuals requesting EEO ADR fluctuates from year to year with more than 100 

individuals per year requesting EEO ADR over the past five (5) fiscal year reporting periods 

(with a high of 153 ADR requests in FY 2013). All of our agency’s ADR requests involve EEO 

discrimination allegations. Most of DOL EEO ADR cases are requested and processed early in 

the administrative EEO process – the first 30 to 90 days (during the EEO pre-complaint stage). 

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The program has observed a reduction in the number of formal EEO complaints filed in some 

reporting periods (reducing the amount of agency resources required to process formal 

complaints). The program also provides aggrieved individuals with an additional option to 

attempt resolution of issues early in the EEO process. 

2.	 Steps to build ADR program capacity in this ADR program: 

Our agency has developed and/or strengthened working relationships with internal DOL and 

external partners (e.g., DOL Agency EEO Offices, Federal Sharing Neutrals and the U.S. Postal 

Service’s National EEO Investigative Services Office (NEEOISO)) to maximize use of 

available resources (given our agency’s budget constraints). Each DOL agency has a designated 

EEO office which the CRC has partnered with to provide facilitation of DOL EEO ADR cases. 

We also work with the Federal Sharing Neutrals Program to provide the agency a resource for 

qualified mediators for the DOL’s EEO mediation cases at no cost to the agency, and the 

Memorandum of Understanding that we have had with the U.S. Postal Service’s NEEOISO for 

the past several years gives us access to ADR and EEO counseling services for conflict and other 

special cases at a competitive rate. These steps have proved successful in many ways, including 

cost savings and an increase it our ADR success rate which was approximately 43% in FY2015 

(up from most previous years’ rates of around 25% or less). 

3.	 The work of the EEO ADR Program is closely related to the work of the 

Interagency ADR Working Group’s workplace section. 

4.	 Success story: 

•	 The subject-matter or type of dispute: Allegation of Disability Discrimination 

•	 The type of ADR process utilized: Facilitation 

•	 How the ADR was funded: In-house (no costs) 

•	 How the ADR process was critical in resolving the conflict; The use of facilitation 

allowed the parties to exchange and be creative with resolution options over an 

extended period time with the guidance of a neutral party to keep the resolution 

exchanges between parties on track. Prior to ADR, the parties limited their 

options to ineffective accommodations that had been previously provided. 

•	 Whether any innovative approaches to ADR were utilized: thinking outside the 

box on possible remedies (not just remedies requested by aggrieved individual). 

•	 Key beneficial outcomes because of ADR use; The aggrieved individual received 

an effective accommodation, and the matter was resolved without a formal EEO 

complaint being filed. 

•	 Key lessons learned: Facilitation is more effective than mediation in some cases 

due to the additional time to try to resolve and be creative in coming up with 

mutually acceptable remedies. 

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ADR Training 

The Civil Rights Center and/or Agency EEO Offices provide ADR awareness training to DOL 

Agency Managers, Supervisors, Settlement Officials and non-management employees as part of 

required DOL training. This training includes information on how and when ADR is offered to 

DOL employees who have EEO disputes, the parties involved in the ADR process, the 

components of the ADR program, and the benefits of ADR in attempting resolution of matters of 

dispute. 

ADR Dispute Resolution Specialist Contact Information 

Emory Adams 

Program Manager (& Acting ADR Coordinator – Position Currently Vacant) 

U.S. Department of Labor/ Civil Rights Center 

adams.emory@dol.gov 

(202) 693-6508 

200 Constitution Ave., NW, RM N-4123 

Washington, D.C. 20210 

Additional Contacts 

Lara Turner
 

Equal Opportunity Specialist
 

EEO/ OSAAM EEO Office
 

turner.lara@dol.gov 

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DEPARTMENT OF THE TREASURY 

2016 REPORT ON ADR IN THE FEDERAL GOVERNMENT 

EEO ADR Dispute Resolution Specialist Contact Information 

Provide your name, title(s) and contact information: 

Name: Mariam G. Harvey 

Title(s): Director, Office of Civil Rights and Diversity 

Department/Agency: Department of the Treasury 

Email Address: mariam.havey@treasury.gov 

Phone number: 202-622-1160 (main office number) 

Mailing Address: 1500 Pennsylvania Ave. NW; Washington, DC 20220 

ADR Policy 

1. Does your Department or Agency have a formal written ADR policy? X Yes __No (check 

one). Note: Treasury’s ADR policy pertains to the use of ADR in the EEO complaint 

process. 

2. Has the written ADR policy been amended or modified during the past ten fiscal years (FY06­

FY15)? If so, please describe how. 

Each Treasury bureau maintains and updates its internal ADR policy. 

3. Please review http://www.adr.gov/fai.html to assess whether a “Policy” link is present for your 

Department or Agency. If a link is either incorrect or not present on the site, provide us with a 

link to any electronic copies of your agency’s current ADR policy. If the policy is not available 

via a link on the internet, please send an electronic copy of the policy with your responses. 

Treasury’s public URL to its Dispute Prevention and Resolution page: 

https://www.treasury.gov/about/organizationalstructure/offices/Mgt/Pages/dispute_prevention.aspx 

ADR Programs 

Treasury Shared Neutrals Program 

The Treasury Shared Neutrals (TSN) program assists in resolving workplace disputes 

(EEO and non-EEO matters) through education and training as well as alternative dispute 

resolution services—including mediation, facilitation, and coaching. The TSN program is 

designed to empower Treasury employees to improve their working environment by 

responding appropriately to conflict and resolving disputes at the earliest stages possible. 

The TSN program retains a pool of certified mediators who provide assistance to federal 

organizations upon request. TSN mediators are trained in the art of mediation and serve 

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on a collateral-duty basis. TSN mediators must obtain certification and maintain their 

skills through mediating and annual training requirements. As a Department of the 

Treasury program, the Office of Civil Rights and Diversity has policy oversight for the 

TSN program. 

1.	 Does the program maintain a website that is accessible by the public? If yes, provide the 

URL for the site. No 

2.	 To the extent possible, please describe any trends that you (or your colleagues) have 

observed in the program over the past ten fiscal years (FY06-FY15) and, to the extent 

possible, please discuss your views about the meaning of any trends regarding the 

following issues: 

i.	 The amount of funding for the program, and if it has changed, whether there has 

been any impact on the program, and the nature of that impact; 

Our program is minimally funded. 

ii.	 The number of full time employees (FTE’s) devoted to the program, and, if the 

number has changed, whether there has been any impact, and the nature of that 

impact; 

Since the inception of the TSN program, the Department has always maintained one TSN 

Administrator, who receives ADR requests and coordinates the logistics with all parties. 

The TSN Administrator role moves every two years to a different bureau. Every two 

years, the TSN Program requires its cadre members to re-certify their credentials and, at 

that time, the TSN Administrator make an assessment as to whether he/she needs to 

identify additional staff interested in becoming a neutral in order to replace neutrals who 

have retired or left Treasury. 

iii. ADR usage (number of cases or disputes, subject-matter, early or late); 

For FY 2015, ADR was offered to 95% of the 721 completed counselings and 56% (406) of 

those offered participated in ADR. The TSN completed a total of 252 mediations in which 

they successfully resolved 133 (53%) disputes. In addition, the Department closed 312 

formal complaints of which 12% of complainants participated in ADR. 

iv. Tangible and/or intangible benefits realized by using ADR; 

There is greater awareness within the workforce about how conflict can affect morale and 

more on-line training offerings regarding how to address conflict. The Department’s 

bureau EEO Offices have at least one person who is responsible for supporting and 

promoting ADR programs. The Department has seen a 4.8% decrease in the number of 

formal EEO complaints filed in FY 2015 (394) when compared to FY 2011 (414), which we 

attribute to the use of ADR in the informal EEO process. 

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v. Types of ADR processes/ techniques used. 

Mediation is the EEO ADR technique most used in the Department. 

3.	 Describe steps your Department or Agency has taken to build program capacity in this 

ADR program during the past ten fiscal years (FY06-FY15). Please discuss whether the 

steps have been successful, and if not, please discuss the barriers to success. 

Over the last ten years, the Department put in place the following activities to promote 

dispute resolution: 

•	 Charted the Treasury Shared Neutrals (TSN) Program. 

•	 The Department hosts biennial TSN Steering Committee meetings. Committee 

members are representatives from each bureau’s ADR/EEO program office and 

provide suggestions as to how to strengthen the program as well as the cadre. 

•	 The Department hosts a Dispute Prevention activity in the month of June each year 

for employees and managers. The TSN Steering Committee determines the activity, 

which varies each year (calendar, flyer, checklist, video, training, or keynote 

speaker). 

•	 The Department provides 8 hours of refresher mediator training each year for our 

TSN cadre. 

•	 The Department established a benchmark regarding informal and formal ADR 

participation in the EEO administrative process. Our measure is 45% of employees 

seeking counseling and 25% of complainants will participate in ADR. We collect 

ADR participations rates by bureau and Department wide on a quarterly basis and 

share our statistics through a quarterly internal EEO newsletter. 

•	 We developed and distributed various marketing handouts on the TSN Program, 

employee and manager participation in ADR and on how the mediation process 

works. These items were distributed to all the bureau EEO offices and are 

currently available on our internet site. 

•	 The Department issued policy guidance to its bureaus requiring managers to 

participate in ADR in the EEO administrative process if the matter is suitable for 

ADR (per the bureau ADR Policy) and if the employee elects to participate in ADR. 

4.	 Are there any plans to expand this program in the future? No 

5.	 Which of the following sections of the Interagency ADR Working Group most closely 

relates to the work of this ADR program (you may check multiple sections): 

X_ Workplace 

__ Contracts and Procurement 

__ Administrative Enforcement and Regulatory Process 

__ Litigation 

__ Environmental 

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How your program has benefitted from the work of the above section(s): 

Treasury has not been involved with the ADR Working Group. However, now that we 

are aware of the group, the Department would be pleased to participate. Please contact 

Clarissa Lara, at Clarissa.lara@treasury.gov 

6.	 Please discuss one or more success stories from the past ten calendar years that illustrate 

the types of issues your ADR program resolves and/or the inherent benefits of ADR even 

when the disputed issues are not fully resolved. 

Treasury provides multiple opportunities to participate in EEO ADR throughout the 

informal and formal process. For example, in one case involving multiple alleged 

incidents of harassment based on disability, the Aggrieved elected to mediate during the 

informal process but it ended with no resolution. However, the mediation was successful 

in opening lines of communication and began to repair relationships among the parties 

who participated in the mediation. The same employee went on to file a complaint and 

once again, elected to mediate due to the lines of communication opening during the first 

mediation. In an effort to bring something different into the mix for the second 

mediation, the Department identified a different and higher level senior manager to 

participate in this second mediation. The mediation was conducted, and again, it ended 

with no resolution. However, the mediation was successful in engaging the attention of 

this senior manager involved in the session, who actively pursued bringing changes to the 

work environment. Based on the good faith effort made by the senior manager after the 

second mediation had concluded, the CP decided to drop some of the remedies he/she was 

seeking and went on to settle the case during the investigation stage. 

ADR Training 

The Department hosts a Dispute Prevention activity/training in the month of June each 

year for employees and managers. The Department provides 8 hours of refresher mediator 

training each year for our TSN cadre members. 

Additional Contacts 

Name: Clarissa Lara
 

Title: EEO ADR Program Manager
 

Program/Office: Office of Civil Rights and Diversity (OCRD)
 

Department of the Treasury
 

clarissa.lara@treasury.gov 

Phone number: 512-499-5115 

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Department of the Treasury’s Office of the Comptroller of the Currency ADR Programs 

The OCC Ombudsman and Appeals Process was established in 1993. The Regulatory 

Improvement Act of 1994 required all agencies to establish an appeals process. See 

attachment (entitled Appeals Process Handout November 2015). There are two distinct 

external ADR program offices within the Comptroller of the Currency, each with its own 

management and dedicated staff: 

An external-facing dispute resolution program is available to national banks, federal 

savings associations and federal branches and agencies (collectively, banks). Multiple 

levels of dispute resolution are available to banks seeking a review of supervisory decisions 

and actions. An appeal is informal if submitted in writing to the bank’s local supervisory 

office. The bank may appeal several types of supervisory decisions, including examination 

ratings, adequacy of loan loss reserves, and loan classifications. If the bank is dissatisfied 

with the decision, it may file a formal appeal with the Deputy Comptroller for the local 

supervisory office or directly with the Ombudsman. In addition, the Ombudsman is 

available for informal discussion or to act as a liaison between the OCC and any affected 

person or bank to resolve disputes resulting from the OCC’s regulatory activities. The 

OCC Ombudsman operates independently from the bank supervision process and reports 

directly to the Comptroller of the currency. 

An external-facing dispute resolution program is also available to consumers of banks. 

The appeals process for consumers is a two-tiered structure. The manager of the Customer 

Assistance Group reviews and processes tier-one appeals. If the consumer wishes a further 

appeal, a tier-two appeal is submitted to the Ombudsman’s office. The OCC’s two-tier 

appeals process ensures the same principles of fair and expeditious review to both national 

banks and federal savings associations—and their customers. 

1.	 Does the program maintain a website that is accessible by the public? If yes, provide 

the URL for the site. 

Dispute Resolution: http://www.occ.gov/topics/dispute-resolution/index-disputeresolution.html 

Bank Appeals Summaries: http://www.occ.gov/topics/dispute-resolution/bankappeals/summaries/index-summaries.html 

Bank Appeals Brochure: http://www.occ.gov/topics/dispute-resolution/bank-appeals/bankappeals-process-brochure.pdf 

Consumer Website: http:// helpwithmybank.gov/ 

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2. To the extent possible, please describe any trends that you (or your colleagues) have 

observed in the program over the past ten fiscal years (FY06-FY15) . 

The consumer and bank appeals programs offer several benefits, including an independent 

and fair review of disputes, a transparent appeals process, multiple dispute resolution 

channels, and a no cost alternative providing an opportunity to voice complaints without 

litigation expenses. Funding for the bank appeals program has incrementally increased 

over the years due to increases in internal costs and volume of appeals. Funding for 

consumer complaints has changed incrementally with internal costs and volume of 

complaints. Over the ten year period, the FTE’s increased from two to the current four for 

the bank appeals program. Over the ten year period, the FTE’s have fluctuated with the 

volume of consumer complaints for the consumer complaint program. The changes in 

funding and the FTE’s have not negatively impacted the quality of the programs. 

The dispute resolution process is available to banks throughout the supervisory cycle, 

ranging from informal discussions in the field during the examination cycle to an appeal 

submitted to a local supervisory office or district to a more formal appeal submission to the 

Ombudsman. The existence of a formal bank appeals process does not change the core 

policy of the OCC concerning dispute resolution, which is to resolve disputed issues in an 

informal, amicable manner. Over the past ten years, the Ombudsman resolved one 

hundred thirty-four disputes submitted as informal or formal appeals. In addition, from 

April 2013 to December 2015, the local field office or the deputy comptroller resolved one 

hundred disputes. Common issues appealed are examination ratings, matters requiring 

attention, violations of laws or regulations, and loan classifications. 

Below is the volume of complaints, inquiries (phone calls), and appeals that the OCC has 

received over the past ten years. The complaints have gone from a high of 90,000 to 22,000 

after the creation of the Consumer Finance Protection Bureau in 2011. 

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3. Describe steps your Department or Agency has taken to build program capacity in 

this ADR program during the past ten fiscal years (FY06-FY15). Please discuss 

whether the steps have been successful, and if not, please discuss the barriers to 

success. 

The OCC revised the bank appeals bulletin and the brochure to help banks understand the 

process and to include federal savings associations. We continue to maintain the dispute 

resolution website to provide information to consumers and bankers. These efforts have 

been successful in raising awareness of the consumer and bank appeals programs. 

The OCC updated its consumer complaint process in 2009 to allow submission of electronic 

complaints. We continued to take consumer phone calls directing consumers to our website when they had questions (FAQ) and instructing them how to file a written complaint. 

We deployed an on-line complaint form in 2009, and currently receive about 80% of our 

complaints digitally. An on-line appraisal complaint form was deployed in 2013, in 

conjunction with the other federal regulatory agencies. 

4.	 Are there any plans to expand this program in the future? 

We continue to enhance the overall quality of the consumer and bank appeals programs. 

5.	 Which of the following sections of the Interagency ADR Working Group most 

closely relates to the work of this ADR program (you may check multiple sections): 

__ Workplace 

__ Contracts and Procurement 

_x_ Administrative Enforcement and Regulatory Process 

__ Litigation 

__ Environmental 

Please provide additional comments below regarding how your program has benefitted from the 

work of the above section(s): 

The Customer Assistance Group (CAG) provides consumers a no cost avenue to resolve 

complaints against National Banks and Federal Savings Associations that they have been 

unable to resolve directly with the financial institution. 

The Bank Appeals group provides financial institutions a no cost avenue to resolve 

disagreements with any agency supervisory decision or action. In addition, lessons 

learned from reviews of bank appeals have led to changes in OCC policies and 

procedures. 

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Department or Agency ADR use beyond the ADR Programs discussed above 

Does your Department or Agency apply ADR processes or techniques to facilitate resolutions of 

conflicts or disputes independent of the ADR programs discussed above? If so, please describe 

the type of ADR processes or techniques utilized, how they are utilized, the reasons why the 

processes or techniques are beneficial, and how (if at all) the processes or techniques have 

improved the Department or Agency’s ability to carry out its mission. 

The OCC actively participates in the International Financial Ombudsman (INFO) 

Network, an international group whose members specialize in external dispute resolution 

for banking, investments, insurance, credit, financial advice and pensions. The INFO 

Network was set up in 2007, with the OCC taking a leadership role. The group has over 25 

countries represented and their overall aim is for the Member Schemes/offices to work 

together to develop expertise in dispute resolution, by exchanging idea and information. 

http://www.networkfso.org/ 

The OCC also actively participates in quarterly interagency meetings with the 

Ombudsmen from domestic interagency financial regulatory agencies to share best 

practices. 

7. Please discuss one or more success stories from the past ten calendar years that illustrate the 

types of issues your ADR program resolves and/or the inherent benefits of ADR even when 

the disputed issues are not fully resolved. 

The dispute resolution programs for consumer complaints and appeals as well as bank 

appeals have added value by successfully resolving thousands of consumer disputes and 

hundreds of bank disputes at no cost to the consumer and bank. 

ADR Training 

The OCC, via its role in the INFO Network, assisted the World Bank in completing a white 

paper on “Resolving disputes between consumers and financial businesses: Fundamentals 

for a financial ombudsman.” The report outlines the fundamentals for the creation of an 

independent and effective ombudsman. 

The OCC publish bank appeal summaries since 1994 to raise public awareness. 

http://www.occ.gov/topics/dispute-resolution/bank-appeals/summaries/indexsummaries.html 

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Additional Contacts 

Name: Melinda Goodnight
 

Title: Director
 

Program/Office: Consumer Complaint Operations
 

Office of the Comptroller of the Currency
 

Email Address: Melinda.Goodnight@occ.treas.gov
 

Phone number: (713) 336-4343
 

Name: Priya Scott
 

Title: Appeals Program Manager
 

Program/Office: Bank Appeals
 

Office of the Comptroller of the Currency
 

Email Address: Priya.Scott@occ.treas.gov
 

Phone number: (202) 649-5530
 

Department of the Treasury’s Alcohol and Tobacco Tax and Trade Bureau 

ADR Program 

TTB’s ECPR Program is an internal-facing, workplace dispute ADR program. It provides 

an informal, confidential process to resolve work related disputes. It cannot be used as a 

substitute for exclusive formal processes such as EEO complaints, disciplinary proceedings, 

criminal investigations or collective bargaining. Given the small size of TTB’s workforce, 

this program was assigned under the purview of TTB’s EEO Director to serve as the 

Neutral. The Neutral has the authority to receive and inquire into workplace conflicts 

concerning issues in controversy that are brought to his or her attention by any employee, 

supervisor, or manager; or to initiate independent inquiries as appropriate. As a 

designated independent neutral, the EEO Director assists the parties to reach a mutually 

agreed upon resolution to their conflict. When necessary, a mediator from the Treasury 

Shared Neutrals Program may be used when the Neutral fails to reach a resolution through 

the informal process. 

1.	 Does the program maintain a website that is accessible by the public? If yes, provide 

the URL for the site. 

No. 

2.	 To the extent possible, please describe any trends that you (or your colleagues) have 

observed in the program over the past ten fiscal years (FY06-FY15) and, to the extent 

possible, please discuss your views about the meaning of any trends regarding the 

following issues: 

There have not been any noticeable trends in the ADR program. TTB continues to offer 

ADR when and as appropriate. The Bureau uses mediation as the preferred ADR method 

in formal ADR sessions with certified mediators assigned by the TSN. In informal ECPR 

9
 
 

 

	 

	 


 

Program processes, the EEO Director serves as a neutral party in meetings when 

requested; holds informal and formal discussions with employees, managers, supervisors, 

and senior leaders; provides guidance and recommendations to all parties involved in 

workplace disputes. 

TTB’s EEO Office remains a one-person office since it was created in 2005. The EEO 

Director oversees the ADR program at TTB and collaborates with the Department on 

Treasury-wide ADR efforts. TTB incurs ADR-related costs to the extent that it covers the 

mediators’ transportation, travel, and mediation-related expenses, which has not created 

any negative impact for the Bureau. 

3.	 Describe steps your Department or Agency has taken to build program capacity in 

this ADR program during the past ten fiscal years (FY06-FY15). Please discuss 

whether the steps have been successful, and if not, please discuss the barriers to 

success. 

The Early CPR program was created to provide employees with an additional avenue to 

raise employment concerns if they do not wish to go through the EEO complaint process or 

Human Resources grievance process. This program assists employees in seeking fair, 

equitable solutions to work-related concerns through an informal confidential process to 

attempt resolution at the lowest possible stage. At the time this program was being 

developed, ADR was limited to mediation resulting from the filing of an EEO complaint. 

However, since that time, TTB, in alignment with Treasury, now offers mediation for nonEEO issues as well. 

In 2014, the TTB Administrator designated the EEO Director to also serve as an internal 

Bureau Ombudsman, functioning as an impartial, neutral, and confidential channel with 

responsibility for informal conflict avoidance and resolution. The Ombudsman is not an 

advocate for the staff or management; and provides an impartial environment for staff or 

managers to discuss resolutions of issues. The Ombudsman also identifies emerging policy 

issues and recurring problems; initiates and identifies opportunities to enhance procedures 

and policies; and/or recommends the-establishment of new methods to ensure equity in 

workplace processes, policies and actions. 

4.	 Are there any plans to expand this program in the future? 

Given that TTB’s EEO Office is a one-person office, and TTB is an organization comprised 

of approximately 500 employees, at the present time TTB does not see a need to further 

expand this program beyond the “Neutral” and “Ombudsman”. 

Additionally, since TTB’s ADR program, which was originally developed to resolve 

employment disputes raised primarily during the informal stage of the EEO complaint 

process, now offers ADR for non-EEO issues, employees have an additional avenue to 

participate in non-EEO mediation. 

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5.	 Which of the following sections of the Interagency ADR Working Group most 

closely relates to the work of this ADR program (you may check multiple sections): 

_X_ Workplace 

__ Contracts and Procurement 

__ Administrative Enforcement and Regulatory Process 

__ Litigation 

__ Environmental 

How your program has benefitted from the work of the above section(s): 

Certified mediators provided by the TSN program helps employees and 

managers/supervisors participating in ADR feel assured that the mediators are trained to 

appropriately guide both parties toward resolution and to help them stay on track, 

focusing on the issues and concerns at hand, and not the individuals. 

7. Please discuss one or more success stories from the past ten calendar years: 

In FY 2015, TTB had 13 Intakes, which potentially could have resulted in EEO 

complaints being filed. However, through using the Early CPR program, the employees, 

managers and supervisors, Human Resources Director, and EEO Director worked 

collaboratively, with legal guidance from Counsel, to resolve employees’ concerns, which 

resulted in 0 EEO complaints filed. 

ADR (including mediation, discussions, meetings) was critical in resolving employees’ 

concerns in that it gave them an opportunity to address their workplace issues without 

feeling as though their only option was to file an EEO complaint or a grievance when they 

did not wish to do so. As the individuals were providing detailed information regarding 

their concerns and being guided by the Neutral, they began to recognize and acknowledge 

that their issues did not arise from discrimination such as race, age, gender, etc. but 

rather from lack of communication between them and their supervisors. The Neutral 

provided opportunities and a safe environment for employees to share concerns with 

their supervisors, and provided managers/supervisors with the same opportunities to 

address those concerns and to present their side of the situation. 

In instances where employees’ concerns were resolved internally without a TSN 

mediator, no monetary cost was incurred for the resolution process. In cases where 

mediation was conducted by a TSN mediator, there was no charge for the mediation 

session itself, and TTB only had to pay for transportation, travel-related expenses, as 

appropriate. One major lesson learned is that employees often file an EEO complaint or 

11
 
 

 


 


 


 


 


 


 


 

a formal grievance because they believe that is the only avenue they have to address their 

concerns. Often times they do not believe they have been discriminated against (e.g., 

race, gender, age, etc.) but they feel trapped and believe that the only way they can be 

heard, and/or the only way their issues can be resolved is if they file an EEO complaint or 

grievance. 

Additional Contacts 

Alex Donart
 

Title: Attorney-Advisor
 

Program/Office: General Law & Ethics
 

The Alcohol and Tobacco Tax and Trade Bureau
 

Email Address: Alexander.Donart@ttb.gov
 

Phone number: (202) 453-2248
 

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Department of Veterans Affairs 

2016 ADR Report From Federal Government Agencies 

ADR Dispute Resolution Specialist Contact Information 

Dispute Resolution Specialist for VA 

Name: Meghan Flanz 

Title (s): Assistant Secretary for Human Resources and Administration (Acting) 

Department/Agency: Department of Veterans Affairs 

Email Address: Meghan.Flanz@va.gov 

Phone number: 202-461-7750 

Mailing Address: 810 Vermont Avenue, Washington, DC 20420 

Deputy Dispute Resolution Specialist for Workplace ADR 

Name: Harvey W. Johnson 

Title(s): Deputy Assistant Secretary, Office of Resolution Management 

Department/Agency: Department of Veterans Affairs 

Email Address: Harvey.Johnson08@va.gov 

Phone number: 202-461-4064 

Mailing Address: 810 Vermont Avenue, (Bldg. 1575) Washington, DC, 20420 

ADR Policy 

The Department of Veterans Affairs (VA) ADR Program has directives with associated handbooks and 

policies. These documents are updated and revised on a recurring basis. The current dates for VA ADR 

documents are: ADR Directive 5978 02/07/2013, Handbook 5978.1 ADR Program Central Office 

04/19/2010, Handbook 5978.2 ADR Neutrals Certification Program 10/19/2010. 

The most recent ADR Directive was revised February, 2013. The policy is for the use and promotion of 

ADR, particularly mediation, and responsibilities among staff office heads and other key officials for 

ADR programs in their organizations. 

The revised directive includes the following changes: 

•	 Designated the Assistant Secretary for Human Resources and Administration as the Dispute 

Resolution Specialist (DRS) under the Administrative Dispute Resolution Act; 

•	 Designated the Deputy Assistant Secretary for Resolution Management as the Deputy DRS for 

Workplace ADR; 

•	 Designated the Director, Office of Asset Enterprise Management to manage the Department’s 

Environmental Conflict Resolution (ECR) Program; 

•	 Designated the Deputy Assistant Secretary for Acquisition and Logistics (DAS OA&L) as the 

Deputy DRS for Procurement ADR; 

•	 Established the VA ADR Council; 

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•	 Established ADR data tracking requirements; 

•	 Allowed the Office of Resolution Management (ORM) to offer ADR in every EEO complaint as 

a matter of practice and on behalf of the Secretary; 

•	 Established a Notice of Refusal to Offer ADR option. This allows the VA organization where the 

EEO complaint arose to submit a Notice of Refusal to Offer ADR if the allegations are not 

appropriate for ADR. Allegations not appropriate for ADR are those pertaining to waste, fraud, 

abuse, patient abuse, criminal activity or an investigation actively being conducted in a forum 

other than EEO where the subject of the allegations is the individual who filed the EEO 

complaint. 

ADR Website 

http://www.va.gov/adr/ 

ADR Programs 

Within VA there are three distinct ADR programs: 

The Workplace ADR Program is overseen by the Office of Resolution Management (ORM). 

This program addresses conflict management, workplace disputes, EEO complaints, grievances 

and appeals. The Workplace ADR Program employs mediation, facilitation and conflict coaching 

for individuals and groups. The program offers training on how to manage conflict and prevent 

disputes and complaints and conducts assessments of the climate of organizations and work units 

in order to improve working relationships and increase engagement and productivity. ORM 

employs full time mediators and ADR specialists. In addition, VA has collateral duty neutrals 

certified through the VA Neutrals Certification Program. We also use contract mediators. 

The second distinct program is the Procurement ADR Program. This program provides a core 

of neutral third parties (Neutrals) for use in Alternative Means of Dispute Resolution (ADR). This 

program assists VA contracting officers in using ADR procedures to resolve bid protest issues, 

issues in controversy and contract claims before the matter has been protested or appealed to the 

Civilian Board of Contract Appeals (CBCA) or the Court of Federal Claims. The CBCA 

considers disputes between contracting officers and Federal contractors in connection with VA 

construction, supply, service contracts and leases. As part of that process, CBCA offers 

various ADR options to parties appearing before it. Under the program, the CBCA appoints an 

administrative judge or hearing examiner to be used as a neutral to aid in resolving matters. The 

administrative judges and hearing examiner are trained neutrals and are available to assist in ADR 

proceedings at the request of the contracting activity. 

The third program is the VA Environmental ADR Program which is used to address conflicts 

that arise in the context of environmental, public lands or natural resources issues. 

All VA ADR programs include both internal-facing and external-facing elements. ADR services 

and information are available to VA personnel through the VA Intranet. Information is also 

available to the public through the Internet address below. 

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Trends observed in the program over the past ten fiscal years (FY06-FY15): 

In January 2007, ORM received delegated authority to manage VA’s ADR Program. 

ORM and ADR Funding 

FY 2007 – FY 2015 

(DOLLARS IN THOUSANDS ($000)) 

Fiscal Year ORM Actuals ADR 

Actuals 

ADR % 

of ORM’s 

Budget 

2007 26,284 1,343 5.11% 

2008 27,561 1,748 6.34% 

2009 30,912 1,705 5.52% 

2010 34,643 1,728 4.99% 

2011 34,046 3,973 11.67% 

2012 38,768 3,231 8.33% 

2013 41,646 3,927 9.43% 

2014 40,269 2,943 7.31% 

2015 41,171 2,279 5.53% 

Totals 340,731 22,877 

VA has a complement of twenty-five full time employees devoted to the program. The impact of 

the increase in staff has allowed greater opportunities to resolve workplace and EEO matters 

within the organization as well as market the program more effectively. 

ADR usage (number of cases or disputes, subject-matter, early or late) 

Fiscal Year Informal 

EEO 

Complaints 

Informal ADR 

Participation Rate 

Informal ADR 

Resolution Rate 

Top 3 Basis 

FY 2006 762 20% 69% Reprisal; Disability; Sex 

FY 2007 1008 27% 46% Race; Sex; Reprisal 

FY 2008 1755 44% 32% Race; Sex; Reprisal 

FY 2009 2113 49% 49% Race; Reprisal; Sex 

FY 2010 2234 51% 48% Race; Disability; 

Reprisal 

FY 2011 2395 54% 47% Race; Disability; 

Reprisal 

FY 2012 2580 58% 47% Race; Disability; 

Reprisal 

FY 2013 2440 58% 50% Race; Reprisal; 

Disability 

FY 2014 2508 55% 49% Race; Reprisal; 

Disability 

FY 2015 2966 59% 52% Race; Disability; 

Reprisal 

The Department of Veterans Affairs (VA) uses cost avoidance as one metric for evaluation of 

ADR services. An estimate of $17,000.00 is used for EEO cases; $30,000.00 is the projected cost 

avoidance for non-EEO case resolution. Based on these metrics, the VA identifies 11,567 Non3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

	 

	 


 

EEO, 972 Formal EEO and 19,049 Informal EEO cases for the period FY08 – FY16. Based on 

the resolution numbers for the total cases (31,588), 19,363 cases were resolved (53% overall 

resolution rate). These resolutions equate to a cost avoidance of $480,075,000.00 for the VA over 

this period. 

VA ORM uses the following ADR techniques: Mediation (Facilitative and Evaluative), 

Facilitation (Individual and Group), Conflict Coaching, Settlement Conferencing and Conflict 

Assessments. 

The ADR program was reassigned to ORM in FY07. The program began with a cadre of five full 

time employees. In FY10, VA expanded its ADR Program to provide full-time ADR specialists 

assigned to strategic areas throughout the United States to provide ADR program development, 

oversight, outreach, training, conflict assessments, mediation, facilitation and conflict coaching 

for individuals and groups. Field ADR specialists review program metrics and collaborate with 

VA Administrations, staff offices and labor unions to ensure that ADR services are provided 

efficiently and effectively Department-wide. In FY13, full-time mediators were added to the 

ADR program to provide additional support for timely scheduling of EEO related ADR 

mediations. 

In April 20, 2007, the Secretary of Veterans Affairs approved the establishment of the Secretary's 

Annual ADR Excellence Award to acknowledge employees, managers and organizations within 

the Department who have excelled in promoting and making significant contributions to the 

Department's ADR Program. Awards are given in seven categories to honor both individuals and 

groups who have made exemplary contributions toward VA's ADR goals. 

In 2009, Secretary Eric Shinseki introduced a series of initiatives stating that “To serve Veterans 

in the 21st Century requires a bold investment today for a transformed VA tomorrow.” This 

investment included the following ORM initiatives to improve the Department’s ability to 

manage conflict and resolve workplace disputes and EEO complaints: 

•	 Conflict management and mediation training for senior leaders, management, and 

labor 

•	 Full-time ADR field support 

These initiatives have continued under the leadership of Secretary Robert McDonald with the 

core values Integrity, Commitment, Advocacy, Respect, and Excellence (ICARE). 

An electronic case management and reporting system was implemented in FY08 which provides 

VA senior leaders with a tool to monitor key indicators of the work environment which includes 

real-time EEO and ADR data that can be used to address workplace concerns proactively. The 

dashboard information is accessible by VA personnel involved with the ADR programs at the 

facility level. A scorecard can be generated for key indicators real-time. This allows ORM to 

reach out to local facilities and offer assistance with metrics falling below minimum standards. 

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In addition to resolving workplace disputes and EEO complaints, the Agency encourages the use 

of ADR to resolve administrative and negotiated grievances, merit systems appeals, prohibited 

personnel practices and whistleblower complaints. Many of these efforts are done in 

collaboration with the Office of Special Counsel, Freedom of Information Act disputes, bid 

protests, contract claims and other procurement disputes before or during appeals to the United 

States Civilian Board of Contract Appeals. The agency also utilizes ADR, when appropriate, to 

address environmental disputes involving VA facilities. 

VA has developed a wide range of training programs. A sample of the training offered are ADR 

Awareness, Basic Mediation Skills, Advanced Mediation Skills, Conflict Competence, 

Communication Breakdown, Conflict Coaching, Generations M.E.E.T. for Respect in the 

Workplace and Crucial Conversations. This training has been presented to all levels of the 

organization. 

These gradual, but effective, steps to expand the program have resulted in an ADR program that 

services over 350,000 VA employees and is recognized and relied upon by each administration 

and staff office within VA. 

In FY16/17 ORM plans to expand the ADR program by training ORM personnel to provide VAwide Conflict Management Training. For the past several years, this training was conducted 

through a contract. All instructors will attend the ORM Instructor Development Course (IDC). 

The goal of this initiative is to deploy well-trained instructors to meet the needs for ADR training 

at the local facility level in a timely and efficient manner. By using ORM instructors we, hope to 

increase the training opportunities and reduce the fiscal footprint of this initiative. 

Additional benefits achieved through the ADR Programs: 

VA has had several successes over the past 10 years. The VA Office of Resolution Management (ORM) 

ADR program has improved delivery of services with the inclusion of contract Non-VA ADR services 

which include conflict management processes and training. ORM has received over 36 thousand cases 

from FY09 through FY16 with an overall resolution rate of approximately 53%. The cost avoidance for 

resolving over 19 thousand cases is slightly more than $480 million over this period. 

Early intervention has been identified as a significant factor in resolution rates. The approach used by 

ORM to decrease the time period from initial contact to ADR includes training of VA employees to serve 

as collateral duty mediators, use of contracted ADR service providers and adding FTE to serve as full time 

ORM mediators. Each VA ORM region has assigned full time mediators to cover their respective 

geographic area. 

ORM has also gone through reorganization. One example is the development of the Centralized ADR 

(CADR) section. CADR is the central point for receiving ADR requests for EEO cases. Every EEO case 

is assigned to an ORM mediator or ADR Specialist. The assigned ORM personnel are expected to contact 

the VA facility EEO point of contact and work with the facility to ensure ADR is scheduled timely. ORM 

5
 
 

 

 

 

 

 


 

developed standard operating procedures on pre-mediation to support timely and high quality ADR 

services. 

ORM also has provided training and support for using virtual technology for providing ADR services. 

Video conferencing and telephonic conferences are offered to expedite scheduling of ADR sessions. 

ADR Success Stories: 

The VA ADR program is recognized and used frequently throughout the organization. Many of 

our ADR specialists and mediators are contacted directly because of their exemplary 

professionalism and effectiveness in ADR. Mediators have been asked to conduct facilitations 

and conflict coaching in addition to their regular mediation duties. Recently two of the mediators 

were asked to participate in a Mediator Rally. The idea behind the Mediator Rally was to increase 

enthusiasm, sharpen mediation skills and create a stronger Mediator community in the region. 

The mediators received outstanding feedback from their participation in this regional event. 

Another example of how the ADR program is a recognized success is through the requests 

CADR receives for training. In June, 2016, a request from senior officials was received for ORM 

to develop a specialized Senior Executive Service Conflict Management Training curriculum. 

ORM plans to deliver this training by August, 2016. 

Finally, the VA ADR program is helping our Veterans—the heart of what VA does. One of our 

Veterans reported difficulty entering a Regional Office building. Through mediation the 

Regional Office management team and the Veteran was able to arrive at a reasonable agreement 

that has benefitted the subject Veteran and others as well. 

Department or Agency ADR use beyond the ADR Programs Discussed Above 

Veterans Benefits Administration (VBA) has used ADR to resolve Title VI complaints (priority schools) 

and an external complaint filed by a Veteran against a VBA Regional Office. The two Title VI 

complaints were referred to VA by the U.S. Department of Education. In both instances, mediation was 

used. One case was resolved in a settlement agreement, the second was not resolved. 

The VA endorses and supports VA Neutrals to participate in the Federal Executive Board Shared 

Neutral’s Program. VA Neutrals provide the FEB with resources to support the ADR needs of other 

Federal Agencies. The FEB is used to assist VA with ADR services as well. 

ADR Training 

Conflict Management Training/Basic Mediation Training 

As described above, the VA developed and implemented a Conflict Management Training in 2010. The 

Conflict Management and Alternative Dispute Resolution (CMT) training has continued through FY16. 

As an example, in FY16 twenty-two 3-day and four 1-day CMT courses were provided by a contractor to 

VA employees from all levels of the organization. 

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ADR Awareness Training 

The VA ORM provides VA facilities and offices with ADR awareness training. The trainings are tailored 

to the specific needs of the requesting organization and audience. Topics typically presented during this 

training relate to EEO complaint and workplace dispute conflict management. ORM also has trainers 

certified to administer the Conflict Dynamics Profile (CDP). The CDP is an assessment instrument which 

helps individuals identifies how they deal with conflict behaviors in the workplace. It also provides a 

powerful way to improve self-awareness of what triggers conflict in individuals as well as how they 

respond to conflict. 

Interagency ADR Working Group 

VA ORM actively participates with the Interagency ADR Working Group (IADRWG). VA has 

membership on the IADRWG Steering Committee. VA ORM has recognized the value of engaging in 

IADRWG scheduled meetings. The presentations provided are an excellent resource for ideas and 

information to assist VA ORM with advancing the VA ADR program. As one example, Federal 

Mediation and Conciliation Service (FMCS) shared their workplace bullying training during an 

IADRWG meeting.VA ORM contacted FMCS to provide this webinar during a VA ORM scheduled call 

with ADR practitioners. Additionally, VA ORM has developed professional relationships with other 

Federal ADR Programs to collaborate with other Federal Agencies and promote ADR best practices 

within the organization. 

Additional Contacts 

Please provide the names and contact information for no more than four people who can provide followup information to help clarify any questions that the drafters of this report may have. NOTE: these names 

will not be released in the Report to the President: 

Name: Tracey Therit 

Title: Associate Deputy Assistant Secretary 

Program/Office: Office of Resolution Management 

Email Address: Tracey.Therit@va.gov 

Phone number: (202) 461-0235 

Name: Perdita Johnson-Abercrombie
 

Title: Regional Director
 

Program/Office: Office of Resolution Management
 

Email Address: Perdita.Johnson-Abercrombie@va.gov
 

Phone number: (202) 461-6743
 

Name: Tony Smith 

Title: CADR Supervisor 

Program/Office: Office of Resolution Management 

Email Address: Anthony.smith08@va.gov 

Phone number: (202) 461-4038 

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Consumer Financial Protection Bureau (CFPB) 2016 ADR Report Submission 

ADR Dispute Resolution Specialist Contact Information 

Provide your name, title(s) and contact information: 

Name: M. Stacey Bach 

Title(s): Director, Office of Civil Rights 

Department/Agency: Consumer Financial Protection Bureau 

Email Address: Stacey.bach@cfpb.gov 

Phone number: 202-435-7528 

Mailing Address: 1700 G Street, NW, Washington, DC 20552 

Name: Wendy Kamenshine 

Title(s): Ombudsman, CFPB Ombudsman’s Office 

Department/Agency: Consumer Financial Protection Bureau 

Email Address: Wendy.Kamenshine@cfpb.gov 

Phone number: 212-328-7003 

Mailing Address: 1700 G Street, NW, Washington, DC 20552 

ADR Policy 

Does your Department or Agency have a formal written ADR policy? X Yes __No (check one). 

Has the written ADR policy been amended or modified during the past ten fiscal years (FY06-

FY15)? If so, please describe how. 

CFPB is a new federal agency that opened in July 2011. In June 2013, CFPB issued its first ADR 

policy. The Equal Employment Opportunity Commission (EEOC) issued a revised Management 

Directive 110 in August 2015, which contains parameters for model ADR programs. CFPB is 

reviewing its current policy to assess whether any updates are necessary. 

The CFPB’s ADR policy does not encompass the Ombudsman’s Office, rather, that office has a 

separate office Charter, available at: 

http://files.consumerfinance.gov/f/2011/12/CFPB_Ombudsman_Charter_12-7-11.pdf 

ADR Programs 

List each distinct ADR program at your Department or Agency and for each ADR program: 

CFPB currently has two dispute resolution programs: (A) a program for resolving workplacerelated disputes; and (B) an externally facing Ombudsman pursuant to Section 1013(a)(5) of the 

Dodd–Frank Wall Street Reform and Consumer Protection Act. 
 

 

 

 

 

 

 

 

 

 

 

 

 

	 

	 

	 

	 


 

Consumer Financial Protection Bureau (CFPB) 2016 ADR Report Submission 

The Dodd-Frank Act, Section 1035, also establishes a Private Education Loan Ombudsman to 

work collaboratively with borrowers, schools, lenders, guaranty agencies, loan servicers, and 

other participants in private education student loan programs in order to informally assist 

consumers with private education loans. 

Employment-related Dispute Resolution 

1.	 Provide a description of the program (in 300 words or fewer). 

CFPB has a robust policy encouraging ADR for employment-related disputes. The 

program is administered by the Offices of Civil Rights and Human Capital, and the core 

principles of the program are voluntariness, neutrality, confidentiality, enforceability, 

and flexibility. The Office of Human Capital (OHC) is responsible for approving and 

coordinating non-EEO requests for ADR made under the Administrative Grievance Policy, 

under CFPB’s Collective Bargaining Agreement with the National employees Treasury 

Union (NTEU), or those made on an ad hoc basis to address workplace disputes. The 

Office of Civil Rights (OCR) manages all aspects of EEO-related disputes filed by 

employees, former employees, and applicants for employment and offers ADR at the 

informal, formal, and hearing stages of EEO cases. OHC and OCR typically offer 

mediation services, and they use the GSA Schedule to obtain neutral mediators on a 

case-by-case contract basis. 

2.	 Does the program maintain a website that is accessible by the public? 

No. The program does not maintain a website that is accessible by the public, but it 

does maintain an intranet site that is accessible by all employees and OCR provides 

information about ADR options to applicants and former employees as needed. 

3.	 To the extent possible, please describe any trends that you (or your colleagues) have 

observed in the program over the past ten fiscal years (FY06-FY15) and, to the extent 

possible, please discuss your views about the meaning of any trends regarding the 

following issues: 

i.	 The amount of funding for the program, and if it has changed, whether there has 

been any impact on the program, and the nature of that impact; 

CFPB does not yet have a ten-year perspective on its employment-related ADR 

Program. The program was created in FY13, and the Agency has committed to 

providing ample funding to ensure its success and will fund any budgetary 

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Consumer Financial Protection Bureau (CFPB) 2016 ADR Report Submission 

overages, if necessary. For example, for FY16, OHC budgeted $10,000 and OCR 

budgeted approximately $177,000 for EEO programmatic services, including 

offering ADR services to participants at various stages of the EEO complaint 

process. 

ii.	 The number of full time employees (FTE’s) devoted to the program, and, if the 

number has changed, whether there has been any impact, and the nature of that 

impact; 

OHC Employee Relations Specialists approve and coordinate the logistics of 

requests for ADR under the Administrative Grievance Policy, under the Collective 

Bargaining Agreement with NTEU, and on an ad-hoc basis as a collateral duty. 

One Human Resources Specialist has the collateral duty of serving as the 

Contracting Officer’s Representative (COR) to ensure the contractor is paid. OCR 

currently has various personnel working to implement the ADR program and 

received approval in FY16 to hire a full-time employee to serve as a Dispute 

Prevention and Resolution Manager. The Agency intends to leverage this FTE to 

drive positive enhancements to the employment-related ADR program. 

iii. ADR usage (number of cases or disputes, subject-matter, early or late); 

FY13 – 1 (OHC) and 7 (OCR)
 

FY14 – 3 (OHC) and 20 (OCR)
 

FY15 – 1 (OHC) and 12 (OCR)
 

FY16 to date – 2 and 2 pending (OHC) and 9 (OCR) 

iv.	 Tangible and/or intangible benefits realized by using ADR; and 

At this juncture in CFPB’s ADR Program development, it is difficult to quantify the 

long-term tangible benefits or assess the intangible benefits of ADR, but the 

Agency believes dispute resolution services have aided in furthering employee 

engagement, increasing productivity, and have saved time and resources from 

being expended on more formal dispute resolution avenues. Several pending EEO 

cases have been resolved to the mutual satisfaction of the parties through ADR. 

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Consumer Financial Protection Bureau (CFPB) 2016 ADR Report Submission 

v. Types of ADR processes/ techniques used. 

OCR and OHC typically offer mediation or facilitated discussions to resolve 

workplace disputes and are working toward additional ADR offerings in the 

future. 

4.	 Describe steps your Department or Agency has taken to build program capacity in this 

ADR program during the past ten fiscal years (FY06-FY15). Please discuss whether the 

steps have been successful, and if not, please discuss the barriers to success. 

The Agency has authorized ample funding for OCR and OHC to use contract ADR 

professionals to resolve workplace disputes. In FY16, the Agency approved OCR to hire 

an FTE focused on dispute prevention and resolution. Once onboarded, this employee 

will assess options for expanding the program. 

5.	 Are there any plans to expand this program in the future? 

Yes. In FY16, the Agency approved OCR to hire an FTE focused on dispute prevention and 

resolution. Once onboarded, this employee will assess options for expanding the 

program. 

6.	 Which of the following sections of the Interagency ADR Working Group most closely 

relates to the work of this ADR program (you may check multiple sections): 

X Workplace 

__ Contracts and Procurement 

__ Administrative Enforcement and Regulatory Process 

__ Litigation 

__ Environmental 

Please provide additional comments below regarding how your program has benefitted from 

the work of the above section(s): 

CFPB is looking forward to move active participation in this program in the future as it 

continues to expand its ADR program. 

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Consumer Financial Protection Bureau (CFPB) 2016 ADR Report Submission 

7.	 Please discuss one or more success stories from the past ten calendar years that 

illustrate the types of issues your ADR program resolves and/or the inherent benefits of 

ADR even when the disputed issues are not fully resolved. Consider the following, but 

limit the description to 300 words, if possible. 

•	 The subject-matter or type of dispute; 

•	 The type of ADR process utilized; 

•	 How the ADR was funded; 

•	 How the ADR process was critical in resolving the conflict; 

•	 Whether any innovative approaches to ADR were utilized 

•	 Key beneficial outcomes because of ADR use; 

•	 Key lessons learned 

In an EEO matter that resolved in March 2016, the filer stated in a post-mediation survey 

that it was a “great mediation session.” Leading up to the mediation the filer noted “the 

entire OCR team made me feel very welcomed, comfortable, and was able to provide me 

with timely answers to all my questions. Each member made me feel like I was their 

number one client when I walked through the door or sent an email.” The filer also stated 

“it was very helpful to bring in my own representative to help explain my case without 

emotion I would have had if I was on my own.” This feedback reiterates the importance of 

customer service, preparing parties for what to expect during ADR, and taking steps to 

ensure a comfort level during the ADR session exists for each party, which, in turns, 

cultivates an atmosphere where resolution is possible. 

In May 2016, OCR offered mediation to parties that are in formal EEO litigation and who had 

not been able to reach resolution through direct conversations. OCR paid for the mediation 

session and asked the mediator to offer the parties an evaluation of the facts and legal 

parameters, which was an approach accepted by the parties. Although not all matters were 

resolved during the mediation session, the parties were able to come to agreement on a list 

of parameters that will allow the employee to continue to contribute productively to CFPB’s 

mission and to de-escalate some of the workplace tensions that had been ongoing. OCR 

learned that a tailored approach to each dispute is necessary to further the goals of the ADR 

program and that success can occur even when the matter is not closed. 

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Consumer Financial Protection Bureau (CFPB) 2016 ADR Report Submission 

B. Externally Facing Ombudsman, CFPB Ombudsman’s Office 

1.	 Provide a description of the program (in 300 words or fewer). 

The CFPB Ombudsman's Office provides an independent, impartial, and confidential 

resource to informally assist consumers, financial entities and others in resolving 

process issues with the CFPB. In carrying out its work, the Ombudsman’s Office 

advocates for a fair process and utilizes a toolbox of resources to assist in resolving 

individual and systemic issues. The Ombudsman may seek to resolve an issue by 

providing feedback and making recommendations to the CFPB. To assist, we also can: 

facilitate discussions, brainstorm and evaluate options and resources, share 

independent analyses, offer an impartial perspective, ensure confidentiality of 

someone’s identity, and engage in shuttle diplomacy, among other options. 

2.	 Does the program maintain a website that is accessible by the public? If yes, provide the 

URL for the site. 

Yes. The CFPB Ombudsman’s Office webpage may be accessed via the following URL: 

http://www.consumerfinance.gov/cfpb-ombudsman/ 

3.	 To the extent possible, please describe any trends that you (or your colleagues) have
 

observed in the program over the past ten fiscal years (FY06-FY15) and, to the extent
 

possible, please discuss your views about the meaning of any trends regarding the
 

following issues:
 

The CFPB Ombudsman’s Office opened in December 2011, one month ahead of the statutory 

requirement. In the federal ombudsman field, particularly in the financial regulatory space, it 

appears that stakeholders welcome the opportunity to utilize informal avenues to efficiently and 

effectively resolve process issues that they may encounter as they engage with the CFPB and/or 

other federal agencies. 

i.	 The amount of funding for the program, and if it has changed, whether 

there has been any impact on the program, and the nature of that 

impact; 

As an independent office of the CFPB, the Ombudsman’s Office requests its budget according to 

its mission needs. The office has received full funding from the CFPB, sufficient to carry out office 

program activities. 

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Consumer Financial Protection Bureau (CFPB) 2016 ADR Report Submission 

ii.	 The number of full time employees (FTE’s) devoted to the program, and, 

if the number has changed, whether there has been any impact, and the 

nature of that impact; 

The Ombudsman’s Office currently has five (5) FTE positions, including a newly added Deputy 

position to be filled in FY2016. The office started with one (1) FTE – the Ombudsman - and has 

grown over time, adding one (1) Assistant Ombudsman position and two (2) Associate 

Ombudsman positions. The FTE positions are supplemented by term detailee positions to 

include, over time, an Acting Outreach Specialist and an Acting Associate Ombudsman who join 

the office temporarily from other agencies. The Ombudsman’s Office has leveraged the number 

of available FTE staff and detailees to best execute its mission needs and responsibilities. 

iii.	 ADR usage (number of cases or disputes, subject-matter, early or late); 

In FY2015, the CFPB Ombudsman’s Office received 1,166 individual inquiries. As the office is 

informal in nature, many of these inquiries were early-stage, yet complex, matters. In addition, 

in FY2015 and over time, the office has reviewed several broader systemic topics, also complex 

matters, pertaining to CFPB process issues as consumers, financial entities, and others engage 

with the agency. 

iv. Tangible and/or intangible benefits realized by using ADR; and 

The benefits realized by use of the Ombudsman’s Office may include: the ability to resolve 

process issues before they evolve into resource intensive formal matters, serving as an early 

warning mechanism for the agency to address issues as soon as possible, facilitating discussion 

with and across the agency, assisting the people who contact the agency in understanding the 

options they may have, and the ability to study process issues impacting all stakeholders and 

suggesting solutions that are helpful to everyone . 

v.	 Types of ADR processes/ techniques used. 

In resolving process issues, the CFPB Ombudsman’s Office utilizes a wide-range of techniques, 

such as: problem solving, shuttle diplomacy, facilitation, hearing issues in confidence, providing 

an impartial perspective, serving as an independent advisor and providing an early warning 

mechanism. 

4.	 Describe steps your Department or Agency has taken to build program capacity in this 

ADR program during the past ten fiscal years (FY06-FY15). Please discuss whether the 

steps have been successful, and if not, please discuss the barriers to success. 

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Consumer Financial Protection Bureau (CFPB) 2016 ADR Report Submission 

The CFPB has been highly supportive of the Ombudsman’s Office program and mission. 

Moreover, the CFPB has authorized funding appropriate to support the Ombudsman’s ability 

to execute its mission and expand the number of Ombudsman program FTEs. 

5.	 Are there any plans to expand this program in the future? 

Yes. It is anticipated that the Ombudsman’s Office will onboard a Deputy position in FY2016, 

further bolstering office capacity. 

a.	 Which of the following sections of the Interagency ADR Working Group most 

closely relates to the work of this ADR program (you may check multiple 

sections): 

__ Workplace 

__ Contracts and Procurement 

_X Administrative Enforcement and Regulatory Process 

__ Litigation 

__ Environmental 

Please provide additional comments below regarding how your program has benefitted from 

the work of the above section(s): 

The CFPB Ombudsman’s Office appreciates the opportunity to connect with colleagues and 

peers via the Interagency ADR Working Group particularly as it affords the opportunity to 

share innovative and best practices in the ombudsman field and with respect to ADR, 

generally. 

4.	 Please discuss one or more success stories from the past ten calendar years that 

illustrate the types of issues your ADR program resolves and/or the inherent 

benefits of ADR even when the disputed issues are not fully resolved. Consider 

the following, but limit the description to 300 words, if possible. 

a.	 The subject-matter or type of dispute; 

b.	 The type of ADR process utilized; 

c.	 How the ADR was funded; 

d.	 How the ADR process was critical in resolving the conflict; 

e.	 Whether any innovative approaches to ADR were utilized 

f.	 Key beneficial outcomes because of ADR use; 

g.	 Key lessons learned 

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Consumer Financial Protection Bureau (CFPB) 2016 ADR Report Submission 

The CFPB Ombudsman’s Office seeks to utilize innovative methods and best practices to 

facilitate the resolution of process issues. 

For example, in FY2015, the office held its first Ombudsman Forum, inviting trade groups 

with which the office had engaged in outreach over time for a four hour, confidential session 

to discuss process issues the groups raised with the office over time. The Ombudsman’s 

Office facilitated the conversations to further inform the work of our office. On the other 

side of 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 

Ombudsman’s Office will hold its next Forum later this spring with consumer-focused 

organizations. 

The Forum illustrated the flexibility inherent in the ombudsman role and in the creative tools 

available to the ombudsman practitioner. Additionally, the value of the ombudsman as a 

place to share concerns and consider solutions as an independent, impartial, and 

confidential resource was reinforced to stakeholders. 

Department or Agency ADR use beyond the ADR Programs discussed above 

Does your Department or Agency apply ADR processes or techniques to facilitate resolutions of 

conflicts or disputes independent of the ADR programs discussed above? If so, please describe 

the type of ADR processes or techniques utilized, how they are utilized, the reasons why the 

processes or techniques are beneficial, and how (if at all) the processes or techniques have 

improved the Department or Agency’s ability to carry out its mission. 

N/A 

ADR Training 

Does your Department or Agency offer ADR awareness/promotion trainings or ADR skills 

(techniques) training to agency employees, federal employees, or to the public? If so, please 

provide information about each of the different types of trainings your Department or Agency 

offers. 

CFPB requires all supervisors and managers to attend training about ADR through a two-day 

course led by the EEOC Training Institute. OCR also offers a voluntary ADR workshop describing 

ADR, discussing the types of ADR and creative resolution possible through OCR, and allowing 

participants to role play a mediation. This workshop is open to any CFPB employee. 

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Consumer Financial Protection Bureau (CFPB) 2016 ADR Report Submission 

Interagency ADR Working Group 

How has your involvement with the Interagency ADR Working Group benefitted your ADR 

programs? 

OHC and OCR have not yet actively participated with the Interagency ADR Working Group and 

look forward to learning and sharing best practices in the future. 

The CFPB Ombudsman’s Office has benefitted from the Interagency ADR Working Group’s 

valuable and timely ADR-related programming and seminars. 

Given the trends you have reported above, how can the Interagency ADR Working Group better 

facilitate, encourage, and provide coordination for the 1) development of ADR programs; 2) 

training of agency personnel; 3) the development of procedures to permit agencies to obtain 

the services of neutrals on an expedited basis; or 4) recordkeeping to ascertain the benefits of 

ADR? 

CFPB welcomes the opportunity for partnerships with the Interagency ADR Working Group and 

participating in sub-working groups to enhance the areas noted. As a relatively new ADR 

program, we welcome learning about best practices, including settlement structures that best 

cultivate early resolution. 

From the CFPB Ombudsman’s Office: In connection with the growth in federal ombudsman 

programs and ADR in the federal sector, the Interagency ADR Working Group may seek to 

facilitate meetings or gatherings that explore cross-cutting practice issues arising in the space. 

In addition, the Interagency ADR Working Group may seek to communicate awareness of 

success stories, best practices and standards within federal ADR to interested agencies as they 

consider effective methods of working with their external stakeholders. 

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To: Department of Justice 

From: U.S. Environmental Protection Agency, Conflict Prevention and Resolution Center 

Re: 2016 ADR Report from Federal Government Agencies 

ADR Dispute Resolution Specialist Contact Information 

Name: Jeanne Briskin 

Title: Director, Conflict Prevention and Resolution Center, Dispute Resolution 

Specialist
 

Agency: U.S. Environmental Protection Agency
 

Email: briskin.jeanne@epa.gov
 

Phone: (202) 564- 4583
 

Mailing Address: U.S. Environmental Protection Agency
 

(MC-2388A) 

1200 Pennsylvania Ave. NW 

Washington, DC 20460 

ADR Policy 

The U.S. Environmental Protection Agency (EPA) has a formal written ADR policy. The policy 

has not been amended during the past ten years. The link is: 

https://www.epa.gov/sites/production/files/2015-09/documents/epaadrpolicyfinal.pdf 

EPA ADR Programs 

The Environmental Protection Agency (EPA) has four distinct ADR programs, each with its own 

management and dedicated staff. For purposes of this report the programs are grouped by 

whether they are external or internal facing and by subject area. 

External-Facing Programs 

A. Environmental Collaboration and Conflict Resolution 

• Conflict Resolution and Prevention Center 

• Office of Administrative Law Judges 

• Environmental Appeals Board 

B. Ombudsman Services 

• Office of Inspector General Whistleblower Protection Ombudsman 

• Asbestos Small Business Ombudsman 

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Internal-Facing Programs 

C. Workplace and Early Intervention Conflict Resolution Program 

• Workplace Solutions 

D. Pilot Mediation Program to Resolve Workplace Discrimination Dispute and EEO Complaints 

• Office of Civil Rights 

A. Environmental Collaboration and Conflict Resolution 

EPA’s environmental collaboration and conflict resolution (ECCR) program supports the 

effective use of ADR to prevent and resolve disputes related to the Agency’s environmental and 

public health mission. Neutrals are available to assist in matters arising under any of the laws 

that EPA administers, including the Clean Air Act; Clean Water Act; Comprehensive 

Environmental Response, Compensation and Liability Act; Federal Insecticide, Fungicide, and 

Rodenticide Act; Resource Conservation and Recovery Act, Safe Drinking Water Act, Toxic 

Substances Control Act and the National Environmental Policy Act. The ECCR program 

promotes ADR for environmental program issues that arise in either internal settings (e.g., 

interoffice dialogue) or external contexts (e.g., situations involving other agencies, state or local 

governments, tribes, regulated entities, or non-governmental organizations). ECCR neutrals 

employ a wide range of ADR techniques tailored to the needs of parties involved in agreement 

seeking or non-agreement seeking cases, including situation assessments, convening, facilitation, 

mediation, training and joint fact-finding. The ECCR program benefits from multiple sources of 

neutrals and related services. 

The Conflict Prevention and Resolution Center (CPRC) in the Office of General Counsel is 

EPA’s primary resource for services and expertise in the areas of consensus-building, 

collaborative problem solving, ADR and environmental conflict resolution. The CPRC develops 

and implements Agency ADR policy, administers Agency-wide ADR programs, coordinates 

case management and evaluation, and provides support to program-specific ADR activities. The 

CPRC provides professional facilitators and mediators experienced in environmental conflicts; 

workshops and seminars aimed at strengthening staff negotiation and consensus-building skills; 

situation assessments and stakeholder assessments; and expert one-on-one advice on addressing 

difficult programmatic issues and effective negotiation strategy. To improve our services and 

build capacity the CPRC regularly evaluates the benefits and effectiveness of our services. 

Since 1988, EPA 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 CPRC, is available to all agency headquarters and regional offices and 

provides many of the agency’s environmental conflict resolution services. 

https://www.epa.gov/adr 

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The Office of Administrative Law Judges offer the parties ADR in the form of mediation in 

nearly all environmental cases filed. Mediation is offered to the parties immediately upon arrival 

of the case in the Office providing parties the opportunity to explore settlement in a confidential 

forum before the case is assigned to a judge for litigation. The mediation process is initiated only 

if it is accepted by all parties. The neutral mediator is one of the Administrative Law Judges, all 

of whom have had mediation training. There is no charge to either side in connection with the 

mediation. https://www.epa.gov/alj/adr 

The Environmental Appeals Board (EAB) ADR program offers parties in appropriate cases the 

option of participating in ADR with the assistance of an EAB Judge acting as a neutral 

evaluator/mediator. The primary purpose of this program is to provide a neutral, confidential 

forum for the settlement of cases before the Board. The Board employs video conferencing 

equipment to provide parties remote access to the ADR process. Participation is completely 

voluntary and is conducted in compliance with the confidentiality provisions of the 

Administrative Dispute Resolution Act of 1996 (“Act”), 5 U.S.C. § 574. 

https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/8f612ee7fc725edd852570760071cb8e/4cca7 

c779f77983b85257a3800410585/$FILE/INFORMATION%20SHEET.pdf 

Funding of ECCR Program FY2006 – FY2015 

The extramural funding for EPA’s ECCR program comes from a number of EPA headquarters 

offices and regions. Most of this funding has supported ECCR neutrals and related services 

under either the Agency’s Conflict Prevention and Resolution Services Contract (CPRS) or an 

interagency agreement with the U.S. Institute for Environmental Conflict Resolution (USIECR) 

at the Udall Foundation, both managed by the Conflict Prevention and Resolution Center. EPA 

spent an average of about $5 million a year on ECCR and related services through the CPRS 

contract between FY 2006 and FY 2015. While there is some variation, the amount of funding 

expended through the CPRS contract has been relatively stable, reflecting a consistent demand 

for ECCR and related services. With respect to the EPA-USIECR interagency agreement, while 

the average funding expenditures were about $116,000 a year and the high point was $300,000 in 

FY 2011, the overall trend has been downward. For example, the amount of annual expenditures 

in FY 2015 totaled only $20,000. The reasons for the decline in ECCR work under the 

interagency agreement are threefold: 1) reduced demand for the types of ECCR expertise in 

which USIECR specializes (e.g., interagency and tribal issues), 2) elongated procurement 

timeframes resulting from changes to USIECR’s contracting practices, and 3) USIECR’s 

decision to no longer convene an annual ECCR conference, which EPA had been supporting 

through the interagency agreement. In general, any changes to the annual funding for ECCR and 

related services have not had a lasting impact on the EPA overall ECCR program. 

Number of FTEs Devoted to ECCR Program 

Approximately 10 FTEs support the ECCR program across EPA headquarters and regional 

offices. There has been some variation over the past ten fiscal years, mostly due to temporarily 

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vacant positions, but the total number of FTEs has been fairly stable. Any impacts on the ECCR 

program have been temporary and have not changed ECCR service provision over the long term. 

Number of Cases/Disputes 

EPA previously reported data on ECCR cases as part of its ECCR annual reports to OMB and 

CEQ for each fiscal year between FY 2007 and FY 2015. In the FY 2007 report, we were still 

refining our approach to collecting data on ECCR cases; thus, the data for FY 2008 onward are 

considered sufficiently reliable as a basis for identifying trends. We also note that OMB and 

CEQ’s definition of ECCR prior to FY 2013 was limited to cases in which the parties were 

seeking to reach agreement, whereas EPA has consistently used a broader definition that also 

includes cases in which the parties had goals other than seeking agreement (e.g., improved 

dialogue, more effective information exchange). Beginning in FY 2013, OMB and CEQ’s 

definition of ECCR cases has been the same as EPA’s. For purposes for our response below, we 

use the EPA definition of ECCR cases. 

The overall trend in EPA ECCR cases from FY 2008 to FY 2015 was downward, from 206 cases 

in FY 2008 to 161 cases in FY 2015. The maximum number of ECCR cases was 220 in FY 

2011. Two important underlying trends help explain this overall trend. One is that the number 

of ECCR cases initiated for matters before administrative tribunals, such as EPA’s Office of 

Administrative Law Judges, showed a similar pattern of decline, with 97 cases in FY 2008 and 

33 cases in FY 2015. A second, related trend was the reduction in cases that addressed 

compliance and enforcement matters, with 142 cases in FY 2008 and 61 cases in FY 2015. 

Other trends in ECCR cases from FY 2008 to FY 2015 were notably positive. In response to 

OMB and CEQ’s direction for the ECCR annual reports, EPA tracks the number of ECCR cases 

that emerged from administrative tribunals (see the trend noted in the previous paragraph), 

judicial tribunals (e.g., the federal courts), EPA decision making processes (e.g., permits, 

Superfund site decisions), and “other” forums. Among these, the “other” category of ECCR 

cases increased. Examples of “other” ECCR case forums include voluntary programs, joint EPA 

state or tribal decisions, interagency coordination, collaborative planning, or decisions to be 

made by non-government stakeholders (e.g., EPA participated to offer advice). The number of 

“other” ECCR cases increased from 31 in FY 2008 to 60 in FY 2015. A second positive trend 

occurred in ECCR cases addressing planning matters. This category is somewhat broad, but 

what the majority of these cases have in common is that the participants had goals other than 

reaching agreement. The number of ECCR cases focused on some type of planning issue rose 

from 16 in FY 2008 to 47 in FY 2015. 

A final trend is the change in the relative proportions of ECCR cases in which the parties are 

seeking agreement compared to those in which goals were other than reaching agreement. From 

FY 2008 until FY 2012, agreement seeking ECCR cases occurred in larger numbers than cases 

with other goals. Beginning in FY 2013, the non-agreement ECCR cases have consistently 

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reflected a larger proportion of all ECCR cases than the agreement seeking cases. Agreement 

seeking ECCR cases declined from a high point of 142 cases in FY 2008 to a low point of 68 

cases in FY 2015. Over the same time frame, non-agreement ECCR cases rose from 64 cases in 

FY 2008 to 93 cases in FY 2015 (with a high point of 102 cases in FY 2010). This information 

suggests the increasing importance of non-agreement ECCR processes in EPA’s business. 

Tangible and/or Intangible Benefits Realized by Using ADR 

As part of EPA’s ECCR annual reporting to OMB and CEQ since FY 2013, the Agency 

assembled information on the comparative costs of ECCR (relative to alternatives such as 

litigation and unassisted negotiation) and benefits. A summary of this information is provided 

below. 

Comparative Costs - With respect to the relative costs of ECCR, the CPRC collected quantitative 

data for FY 2011 to FY 2014 on EPA staff time spent on 185 individual ECCR cases, the 

number of EPA staff members involved, and the duration of the ECCR process. EPA compared 

the data for a likely decision-making process scenario that would have occurred if ECCR had not 

been used. We administered a survey with questions concerning staff time and case duration for 

ECCR cases and comparison scenarios (e.g., litigation, unassisted negotiation) to the EPA staff 

lead involved in all known litigation-related ECCR cases that concluded in each of these fiscal 

years. The ECCR cases that were part of the survey included those initiated in matters before 

EPA’s Office of Administrative Law Judges, Environmental Appeals Board, and the Federal 

Courts. The parties reached agreement in all these cases, which mostly addressed environmental 

compliance and enforcement matters. 

Based on analysis of the data collected, the CPRC estimates that ECCR cases assessed through 

the costs survey required 56% fewer EPA staff lead hours per case for active periods compared 

to the decision making processes that would likely have been used otherwise (e.g., litigation, 

unassisted negotiation). More specifically, the CPRC estimates a median of 38 total work hours 

for the EPA staff lead participating in active periods of these ECCR processes and a median of 

87 hours for the decision making processes that would likely have been used otherwise. 

Regarding the results for the number of EPA staff members involved, the CPRC estimates that 

ECCR required 22% fewer staff members compared to decision making processes that would 

likely have been used otherwise. This proportion is derived from an estimated median of 2.7 

EPA staff members for the ECCR cases and 3.4 staff members for the likely comparison decision 

making processes. 

The survey results also suggest one-third less elapsed time to reach a decision using ECCR 

compared to decision making processes that would likely have been used otherwise. The CPRC 

estimates a median of 16 total weeks for the ECCR cases and a median of 24 weeks for the likely 

comparison decision making processes. 

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These estimates and the methodology used to generate them are subject to a number of 

limitations. For example, the savings for costs other than for EPA lead attorneys were not 

assessed. These include savings for other EPA staff and non-personnel EPA costs (e.g., travel 

for court sessions, contractor analyses), as well as savings for non-EPA participants, who are 

usually corporations represented by outside legal counsel, and savings for other federal agencies, 

especially the U.S. Department of Justice, where it represented EPA. The results also do not 

address costs for ECCR neutral third parties nor the benefits associated with decisions reached, 

including any EPA personnel time savings associated with implementing a decision. In addition, 

the results presented here only apply to a subset of EPA ECCR cases for FY 2011 through FY 

2014 the results do not include non-agreement ECCR cases or “upstream” ECCR cases that 

arose, for example, in the context of federal agency decisions unrelated to active litigation. Most 

importantly, this is only an early attempt by the CPRC to quantify time expenditures and 

duration for ECCR processes and likely comparison processes for a large population of cases, if 

possible we will refine the analysis in the future as we learn from this experience. 

While acknowledging these and other important limitations, the results do suggest a noticeable 

net savings of EPA staff lead time, reduced need for staff participation, and a shorter case 

duration by using ECCR compared to other decision making processes for the population of 

cases studied. This conclusion is bolstered by EPA staff lead responses to two qualitative 

questions included in the same questionnaire. The CPRC asked about the relative expense of 

ECCR and the likely comparison process. A clear majority of EPA staff leads – 69% -- indicated 

that the comparison process would have been either significantly or somewhat more expensive 

than ECCR. The CPRC also asked EPA staff leads whether ECCR was a good investment for 

EPA in their case. Their level of agreement with this statement was 83%. 

Benefits - To gather information about ECCR benefits, the CPRC asked EPA headquarter offices 

and regions about their views concerning the benefits associated with ECCR cases that occurred 

in FY 2013 through FY 2015. To minimize the burden on the responding headquarter offices and 

regions, the CPRC asked about collective benefits of the ECCR cases in which they participated, 

rather than individual case benefits. Key themes concerning the collective benefits of FY 2015 

ECCR cases in each EPA office and region are very similar to those for FY 2013 and FY 2014. 

•	 Efficiency: Nearly all headquarter offices and regions stated that the use of ECCR 

resulted in more efficient processes. The reported efficiency has two primary dimensions: 

o	 Maintaining timely progress: A neutral third party responsible for providing 

structure and focus to negotiations and conversations helped keep the parties’ 

attention on the case and moved cases along more quickly. One particular result is 

that the agency can better meet required case or project deadlines. 

o	 Savings: The cost and time savings was most often cited in the context of ECCR 

used for enforcement cases. Early resolution of enforcement cases resulted in cost 

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savings (compared to the expense of litigation), quicker case resolution 

(compared to the time required to litigate a case), and reduction of wasteful 

gamesmanship, posturing, and delays between counter-offers. Resource savings 

were also seen as a benefit in upstream, more collaborative cases as well. 

•	 Avoidance of litigation: The uncertainty associated with litigation outcomes in some 

cases was also cited as a reason for using ECCR. Thus, the use of ECCR was considered 

beneficial for enforcement cases. 

•	 More productive conversations: The use of ECCR produced more productive 

conversations in both enforcement and non-enforcement contexts. The use of a neutral 

third party resulted in better-designed processes; improved communication of all parties’ 

interests, goals, and concerns; more efficient use of time; and more focused outcomes 

from conversations. Involving neutral facilitators and mediators also helped overcome 

language barriers, cultural differences, and challenges in communicating about risk. Even 

in enforcement cases where the parties did not reach agreement, offices and regions 

reported that ECCR resulted in a better understanding of the issues and sometimes 

narrowed the range of disagreement. 

•	 Better outcomes: Many offices and regions stated the use of ECCR resulted in better 

outcomes, some of which could not have been achieved without neutral third party 

assistance. These include: 

o	 Outcomes that had improved environmental conditions when compared to nonECCR cases: These include direct environmental benefits and indirect outcomes 

from settlements achieved (e.g., enforcement settlement proceeds were expected 

to or significantly increased the pace of remedy implementation). 

o	 More creative outcomes: In both enforcement and upstream non-litigation cases, 

the use of ECCR allowed for more thoughtful and creative decision making which 

increased the range of possible outcomes. 

o	 External ownership: Outside stakeholders were more likely to take ownership in 

the EPA’s initiatives and programs. 

•	 Improved relationships: Nearly all headquarter offices and regions stated that the use of 

ECCR resulted in enhanced collaboration and improved working relationships among 

participants, and, in particular relationships between EPA and its stakeholders. These 

improved relationships were exhibited during the course of the ECCR process, and 

enabled more productive conversations among stakeholders following the conclusion of 

the ECCR process. 

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•	 Capacity building: The use of ECCR professionals helped build the capacity of the EPA 

and external participants to engage in collaborative processes. These capacity building 

measures enhanced the parties’ abilities to identify common interests and develop 

mutually satisfactory policies or action plans. Moreover, capacity building activities 

enabled partnerships and workgroups to work together more effectively after neutral 

facilitation support ended. 

•	 Reduced stress levels: The EPA offices and regions reported reduced stress levels among 

staff due to the support they received from neutral third parties, particularly with respect 

to difficult processes, complex issues, and challenging personalities. 

•	 Furtherance of the EPA’s mission: Nearly all headquarter offices and regions reported 

that the use of ECCR helped further the Agency’s mission to protect human health and 

the environment. 

Types of ADR Processes/Techniques Used 

EPA employs a full range of ADR processes in its ECCR cases, including: convening, 

formal and informal situation assessments, conciliation, facilitation, mediation, joint factfinding, neutral evaluation, and arbitration, as well as any appropriate combination of 

these processes. Among these, convening, informal situation assessments, facilitation, 

mediation, and neutral evaluation are the most common ADR processes EPA uses for 

ECCR cases. EPA makes little use of arbitration for ECCR cases. Experience has shown 

that the types of matters addressed through ECCR do not lend themselves to successful 

resolution through arbitration. 

Building Program Capacity 

EPA has been engaging in and providing significant programmatic/institutional support 

for ECCR for decades. As a result, the agency has one of the more advanced ECCR 

programs in the executive branch. The EPA continued to provide high levels of 

programmatic/institutional capacity for ECCR during the period from FY 2006 to FY 

2015. EPA built capacity in four areas: 1) Integrating ECCR objectives into agency 

mission statements, and strategic planning; 2) assuring that the agency’s infrastructure 

supports ECCR; 3) investing in the ECCR program; and 4) focusing on accountable 

performance and achievement. 

EPA’s experience with ECCR is generally positive. Two barriers to success have been 

identified by some EPA’s headquarters offices and regions. One is the limited availability 

of funding for ECCR processes, which inhibits use in situations where the parties may 

otherwise see a benefit. The second barrier is previous negative experiences with using 

ECCR, where, for example, EPA may have invested significantly in using ECCR, but 

failed to achieve a resolution of the matter. 

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As reported to OMB and CEQ in EPA’s FY 2015 ECCR Annual Report, EPA worked to 

build capacity for the ECCR program. 

Area 1) Integrate ECCR Objectives into Agency Mission Statements, Government 

Performance and Results Act Goals, and Strategic Planning 

EPA Themes – In September 2013, EPA Administrator Gina McCarthy issued a 

memorandum entitled “EPA Themes – Meeting the Challenge Ahead.” In the 

memorandum, she articulated seven themes: 

•	 Making a Visible Difference in Communities Across the Country 

•	 Addressing Climate Change and Improving Air Quality 

•	 Taking Action on Toxics and Chemical Safety 

•	 Protecting Water: A Precious, Limited Resource 

•	 Launching a New Era of State, Tribal and Local Partnerships 

•	 Embracing the EPA as a High Performing Organization, and 

•	 Working Toward a Sustainable Future 

o	 ECCR is an important tool in furthering the EPA’s work in each of these areas 

and the agency used ECCR, as appropriate, in related matters. 

EPA’s Strategic Plan – The EPA’s ECCR program supports all five goals in the EPA’s 

2014-2018 Strategic Plan: 

o	 addressing climate change and improving air quality; 

o	 protecting America’s waters; 

o	 cleaning up communities and advancing sustainable development; 

o	 ensuring the safety of chemicals and preventing pollution; and 

o	 protecting human health and the environment by enforcing laws and assuring 

compliance. 

One way that EPA built capacity for ECCR was to assure that the Agency programs and 

employees understood that there has been and continues to be high level support and an 

expectation that we will undertake ECCR. For example, in the EPA Administrator’s message at 

the front of the Strategic Plan, she explicitly recognizes the importance of the agency’s role in 

promoting dialogue and engagement on environmental issues, stating, “we will convene broadbased dialogue and engagement at the national, regional, and local levels to foster innovation and 

collaboration.” ECCR is an important way to encourage and facilitate this dialogue and 

engagement. Similar to previous years, the Agency used ECCR in processes supporting each of 

the five Strategic Plan goals in FY 2015. 

ECCR Strategy - During FY 2015, CPRC continued implementing its second strategic 

plan (2011- 2015) with a commitment to bringing people together to solve their 

environmental problems. The CPRC meets this commitment in two ways. First, it 

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responds to client requests for help with facilitation, mediation, training, or advice. 

Second, it works to build the EPA's conflict prevention and resolution capacity. The 

CPRC maintained a strategic focus on providing excellent services, building knowledge 

and skills, cultivating opportunity, and demonstrating the results of the use of ECCR at 

the EPA. The strategy contains measurable performance objectives and describes the 

anticipated approach to reach these objectives. In FY 2015, as in previous years, the 

CPRC developed and implemented an annual operating plan with specific action items 

and dedicated personnel and funding to further the objectives of the ECCR strategy. Also 

in FY 2015, the CPRC began developing its third strategic plan, which covers the period 

from 2016 to 2020, and contemplates an increased focus on outreach and 

communications to build knowledge of and support for ECCR Agency wide. 

Area 2) Assure that the Agency’s Infrastructure Supports ECCR 

The EPA provides a high degree of support for ECCR through the Agency’s 

infrastructure. The CPRC is headed by the EPA’s Dispute Resolution Specialist, who is 

appointed pursuant to the Administrative Dispute Resolution Act of 1996 (ADR Act of 

1996). The CPRC provides policy support and access to neutral third party services for 

ECCR as well as alternative dispute resolution (ADR) used in other contexts. 

EPA’s ADR Policy - The agency’s ADR policy (65 FR 81858, December 2000), which 

states the EPA’s strong support for the use of ECCR and other forms of ADR to deal with 

disputes and potential conflicts, contains many themes in common with the OMB/CEQ 

ECCR policy memorandum. In particular, it articulates the following expected benefits 

from ADR/ECCR: 

•	 Faster resolution of issues; 

•	 More creative, satisfying and enduring solutions; 

•	 Reduced transaction costs; 

•	 Fostering a culture of respect and trust among the EPA, its stakeholders, and its 

employees; 

•	 Improved working relationships; 

•	 Increased likelihood of compliance with environmental laws and regulations; 

•	 Broader stakeholder support for agency programs; and 

•	 Better environmental outcomes. 

•	 The EPA’s ADR policy is intended to meet the following objectives, similar to those 

in the OMB/CEQ ECCR policy memorandum: 

•	 Promote understanding of ADR/ECCR techniques; 

•	 Encourage routine consideration of ADR/ECCR approaches to anticipate, prevent, 

and resolve disputes; 

•	 Increase the use of ADR/ECCR in EPA business; 

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•	 Highlight the importance of addressing confidentiality concerns in ADR/ECCR 

processes; 

•	 Promote systematic evaluation and reporting on ADR/ECCR at the EPA; and 

•	 Further the Agency’s overall mission through ADR/ECCR program development. 

Based on the ADR policy, the EPA adopts a broad perspective on what qualifies as 

ECCR -- any technique to address environmental issues that involves a neutral third 

party, whether or not the participants’ goal is to reach agreement. ADR/ECCR is used 

in many contexts at the EPA including adjudications, rulemaking, policy 

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

administration of contracts and grants, stakeholder involvement, negotiations, and 

litigation. 

Senior Leadership Support for ECCR Use - Senior EPA leadership continues to 

provide encouragement and support for the use of ECCR, as it has for more than three 

decades. In FY 2015, EPA Assistant Administrators, Regional Administrators and their 

Deputies engaged in and supported the use of ECCR in high-profile matters, including 

the following cases and projects: 

o	 Camp Minden Dialogue 

o	 Cape Cod Commission 208 Water Quality Planning Process 

o	 Clean Water Act Assumption Federal Advisory Committee 

o	 General Electric-Housatonic Citizens Coordinating Council 

o	 Gowanus Community Advisory Group 

o	 Green Chemistry/Safer Choice Conference 

o	 Green Infrastructure: ORD/New England States/Region 1 Dialogue 

o	 Greenbelt Station Charette 

o	 Hinkson Creek Collaborative Adaptive Management Process 

o	 Lawrence Making a Visible Difference (MVD) Stakeholder Group 

o	 Narragansett Tribe/Charlestown housing mediation convening 

o	 Passaic Community Advisory Group 

o	 Portland Harbor 

o	 Proctor Creek Watershed Project 

o	 Tribal/Idaho DEQ Fish Consumption Survey Collaboration 

ECCR Outreach, Education, Training, and Career Development - As in previous 

years, the agency emphasized outreach, education, training, and career development 

activities to promote the increased use of ECCR in FY 2015. The EPA’s ECCR outreach, 

education, training, and career development activities included the following: 

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CPRC and Other EPA Headquarters Outreach, Education, Training, and Career 

Development Activities 

•	 The CPRC delivered 50 hours of ECCR training in FY 2015. There were 15 separate 

deliveries, and approximately 320 training attendees in FY 2015. 

•	 CPRC training topics included interest-based negotiation, communication skills, dealing 

with interpersonal conflicts, and situation assessments. Audiences included internal EPA 

audiences from the Office of the Inspector General, Office of the Chief Financial Officer, 

Office of Pesticide Programs, EPA Region 4 Water Protection Division, Office of 

Resource Conservation and Recovery, and Office of General Counsel. 

•	 The CPRC partnered with the U.S. Department of Justice, the U.S. Institute for 

Environmental Conflict Resolution (USIECR), and the U.S. Department of the Interior’s 

(DOI’s) Office of Collaborative Action and Dispute Resolution to deliver a session on 

Conflict Resolution and Negotiation for the National Advocacy Center’s Training on 

Wildlife and Pollution Enforcement Issues Affecting Tribal Lands. 

•	 The CPRC sponsored an exhibit, provided handouts, and gave a presentation on ECCR at 

the 2015 Community Involvement Training Conference. 

•	 The CPRC conducted regular bi-weekly ten-minute presentations on collaboration and 

ECCR for new EPA hires. 

•	 The CPRC continued to implement an ECCR outreach and marketing strategy for the 

agency, including identification of target audiences and working with representatives 

from those audiences to improve communications and service delivery to on-the-ground 

staff. 

•	 The CPRC sponsored and publicized a series or activities associated with Conflict 

Resolution Day in October 2015. The events elevated awareness of CPRC and the ECCR 

and ADR services CPRC provides. 

Regional Outreach, Education, Training, and Career Development Activities 

•	 Region 2 (New York) conducted internal training and outreach to build capacity for 

ECCR. Region 2's ECCR specialist provided a full-day internal training on interest-based 

negotiation to the Division of Environmental Science and Assessment's Hazardous Waste 

Support Branch. The Branch required the negotiations course to support training 

requirements for credentialed employees. The ECCR specialist taught a Continuing Legal 

Education program for the Office of Regional Counsel and other interested Divisional 

staff called "Strategies for Dealing with Difficult People." Also, after co-facilitating 

meetings of the Long Island Smart Growth Resiliency Partnership, the ECCR specialist 

served as a moderator of a panel at Tuoro Law School with members of the Partnership. 

The panel discussion focused on the Partnership's successful collaborative process, the 

challenges its participants faced along the way, and the strategies to overcome those 

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challenges. Finally, Region 2 initiated an Effective Meetings training that was taken by 

nearly all of the employees in the Region. Attendees have reported to the trainers that 

some of the effective meeting strategies have been used in recent meetings. 

•	 Region 3 (Philadelphia) provided mediation, negotiation, collaboration, conflict 

management/resolution and facilitation training to EPA employees in order to increase 

awareness, promote the use of ECCR, and enhance ECCR skills. One of Region 3's 

ECCR specialists is a member of the Regional Training and Skills Development 

management workgroup. A product of this workgroup is a framework for identifying 

critical competencies, learning events and target audiences in order to further the goal of 

leading a diverse and collaborative workforce. Chief among the competencies identified 

are managing conflict, teamwork, communication, and self-awareness. The ECCR 

specialist teamed with the Regional Training Officer (RTO) regarding the design, 

development and presentation of learning events. In addition, the RTO, ECCR specialist 

and others designed and facilitated retreats and workshops which, among other things, 

assist in conflict management in intra-agency relationships as well as in inter-agency 

relationships and in enforcement contexts. 

•	 Region 4 (Atlanta) continues to support or sponsor topical training in its efforts to 

promote the use of ECCR and other collaborative activities in the Region. In an effort to 

promote capacity building and expertise within the Region, the Region sponsored seven 

employees from a variety of program offices to attend the Atlanta Federal Executive 

Board (FEB) Mediation Skills training course in June 2015. The course provided 

mediation training and the opportunity to network with fellow mediation oriented 

employees and managers in other agencies. The training and associated certification 

allows additional EPA staff to join and work with the FEB Mediation corps in the 

Southeast. 

•	 Region 5 (Chicago) worked to build partnerships with other agencies via the Chicago 

Federal Executive Board shared neutral program and offered training, including two 

deliveries of “Interest-Based Negotiation” and one delivery of “Effective Advocacy in 

Mediation of Administrative Environmental Cases.” The Region 5 ECCR specialists 

attended training, including a two-day training in Colorado titled "Advanced Multi-Party 

Negotiation of Environmental Disputes" and presented by the U.S. Institute for 

Environmental Conflict Resolution. 

•	 Region 9 (San Francisco) offered a variety of training for EPA staff and management. 

Training topics included basic facilitation, designing effective meetings, group dynamics, 

and how to have a difficult conversation. The difficult conversation training was 

presented to the Region 9 Tribal Programs Office in the Land Division; all others were 

available to all Region 9 employees. 

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Planning for Future Outreach, Education, Training, and Career Development
 

Activities
 

During FY 2015 the CPRC planned for FY 2016 training activities, including the possible 

introduction of new training topics and redesign of existing training, and development of 

more opportunities to practice conflict resolution skills. 

•	 International ECCR Outreach – The EPA worked to develop international capacity 

and expertise in ECCR (and similar activities) during FY 2015. In cooperation with the 

Government of Chile and building on previous public participation trainings, the EPA 

facilitated a regional workshop in March 2015 for government and NGO representatives 

from Chile, Brazil, and Dominican-Central America Free Trade Agreement countries that 

focused on case studies and best practices of public participation and conflict resolution. 

A "Tools and Approaches Manual for the Latin America and Caribbean Region" 

(available in both English and Spanish) was developed based on the presented case 

studies. 

•	 In August 2015, the EPA facilitated a training for regional government representatives 

throughout Chile to build their capacity for public participation, conflict resolution, use of 

social media, and working with indigenous communities. Region 2 supported this event 

by sending two staff members. The program brought together environmental ministry 

officials and NGOs from many countries in Central and South America, most of whom 

had participated in prior EPA-led ECCR training programs. This training focused on 

difficult challenges faced by the attendees, using a mock public hearing and other 

interactive exercises to build their ECCR skills. Following the training in Santiago Chile, 

Region 2’s ECCR specialist conducted a learning session in the EPA Regional Office to 

discuss the cross-cultural exchanges and differences in approaches to conflict prevention 

and resolution in other countries. 

•	 In FY 2015 the Office of International and Tribal Affairs (OITA), with support from the 

U.S. Agency for International Development, worked to improve public participation in 

efforts to improve urban water quality in Ouagadougou, Burkina Faso, and Accra, Ghana, 

as well as to increase good governance and laboratory capacity. This project is intended 

to serve as a model for future projects to improve urban drinking water quality 

throughout West Africa. EPA staff traveled to West Africa and met with leaders in 

government, NGOs, and representatives from civil society to assess these counties' 

capacities in these three focus areas. Their assessment will inform the creation of 

workshops in FY 2016 where EPA staff and West African partners will map assets, risks, 

needs, and opportunities to further develop capacity in these focus areas. 

•	 The CPRC made presentations to visiting delegations on the topics of public participation 

and ADR. Delegations included representatives of government ministries from Southeast 

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Asia and the Pacific Islands, South Korea, and representatives from NGOs and 

environmental justice community members from Brazil. 

Area 3) Invest in Support of Programs 

Over the years, the EPA made considerable investments to support its ECCR program, a 

trend that continued in FY 2015. This section lists examples of key program investments. 

ECCR Personnel - In FY 2015, CPRC had seven FTEs. The agency supported an 

additional three and a half FTEs in the New England, Denver, Kansas City, and San 

Francisco regional offices devoted to ECCR. In addition, at least 25 other individuals 

supported the ECCR program as part of their job responsibilities or on a collateral duty 

basis. For example, each EPA regional office has at least one staff member who serves as 

a liaison for ECCR activities. These regional ECCR staff members support ECCR 

education/training; draw on existing regional resources to resolve disputes; build expert 

knowledge, skills, and capacity; track requests for assistance/ECCR cases/projects; 

coordinate regularly with the CPRC; and contribute to the development of the ECCR 

annual report. 

Office of Administrative Law Judges - The Office of Administrative Law Judges 

(OALJ) continued to make ADR a priority, offered neutral mediation services in nearly 

all environmental cases filed with the Office. Over the course of the year, the parties in a 

majority of EPA cases accepted ADR services from OALJ. 

Environmental Appeals Board – Since FY 2010, the EPA’s Environmental Appeals 

Board (EAB) has offered parties the option to resolve disputes through ECCR with the 

assistance of an EAB Judge acting as a neutral evaluator/mediator. The EAB’s ECCR 

program has proven highly effective and efficient in fostering negotiated settlements that 

speed up resolution of EAB cases and preserve agency resources. To date, over 85% of 

the matters submitted to ECCR have reached resolution. 

In FY 2015, the EAB engaged in ECCR in two complex matters that are ongoing. In one 

matter, the parties reached a final settlement in principle and the Clean Air Act permit 

modification that effectuates their agreement is out for notice and comment from the 

public. The second ECCR process was a complex, multi-party dispute regarding four 

Clean Water Act permits. The process involved two Indian tribes, two environmental 

NGOs, two regulated entities, and EPA Region 8. The parties have reached an agreement 

in principle resolving all issues in dispute. Both of these matters will likely be completed 

and removed from the EAB’s docket in FY 2016. In FY 2016, the EAB will continue, to 

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offer parties the option to participate in, and attempt to resolve their disputes through, 

ECCR. 

Office of Land and Emergency Management – The Office of Land and Emergency 

Management (OLEM - formerly the Office of Solid Waste and Emergency Response ­

OSWER) used or built capacity for ECCR use during FY 2015 in a variety of ways: 

o	 The Office of Resource Conservation and Recovery has used ECCR services 

since 2006. These services have included supporting efforts for certification 

programs for electronic equipment recyclers, establishing a stakeholder dialogue 

on sustainable financing of municipal solid waste recycling programs, developing 

a Memorandum of Understanding and implementing a national vehicle mercury 

switch recovery program, and planning and convening stakeholder meetings 

regarding EPA's regulatory efforts concerning CERCLA 108(b) issues. 

o	 The Office of Superfund Remediation and Technology Innovation (OSRTI), 

Community Involvement and Program Initiatives Branch (CIPIB) and the CPRC 

made several presentations to describe EPA’s Technical Assistance Services for 

Communities (TASC) program and the CPRC’s program. The presentations 

discussed the types of services that can be accessed through the TASC and CPRC 

contracts and provided information on how to use each contract. 

o	 OSRTI CIPIB and the CPRC worked closely to coordinate and assess ECCR 

services for Superfund sites through the CPRC’s contract. OSRTI provided 

support and funding to the CPRC’s Superfund Just-in-Time Task Order for shortterm superfund activities. 

Office of Water - A variety of units in the Office of Water (OW) have used or built 

capacity for ECCR use during FY 2015: 

o	 The Office of Ground Water and Drinking Water (OGWDW) made significant 

contributions to increase the effective use of ECCR. OGWDW used a neutral 

third party conflict-resolution facilitator for continued support of the National 

Drinking Water Advisory Council's Working Group on Lead and Copper. This 

facilitated process was designed to foster open communication early in the preproposal development process. Activities included four public meetings and a 

number of working group webinars and conference calls. 

o	 The Office of Wetlands, Oceans and Watersheds (OWOW) continued its 

implementation of recommendations from the U.S. Institute for Environmental 

Conflict Resolution/EPA/U.S. Army Corps of Engineers (USACE) programmatic 

assessment. In FY 2015, OWOW offered beginning, intermediate, and advanced 

Clean Water Act, Section 404 training in the EPA’s regional offices. The training 

emphasized communication skills, collaboration with the USACE, and early 

conflict prevention. 

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Regional Support for ECCR – Some specific examples of EPA regional support for 

ECCR include the following: 

•	 Region 1 (Boston) has a culture of support for ECCR that has remained strong 

throughout FY 2015. As in previous years, the Regional ECCR Program is managed 

by a full-time senior attorney-mediator. Approximately ten other regional staff from a 

variety of program areas and professional backgrounds provide support to the ECCR 

Program on a collateral basis with support from their managers. Most of the collateral 

staff are trained mediators and facilitators with varying degrees of experience who 

serve as in-house neutrals when they are needed and available. The group also 

included a contracts specialist from the Superfund branch who handled ECCR 

contracting issues and paperwork. At the highest levels of management, Regional 

leaders were aware of the services the program provides, frequently referred parties 

(from both inside and outside the agency) to the ECCR program, and are generally 

receptive to and support the use of ECCR when it is proposed for projects within their 

areas. Because of the proliferation of collaborative approaches to environmental 

problem-solving, there was a growing demand for facilitation services, which the 

Region addressed, in part, with in-house resources. Workload permitting, staff with 

ECCR skills were supported in their participation on the ECCR team and in their 

efforts to develop and hone their skills. 

•	 Region 2 (New York) used ECCR in the Making a Visible Difference (MVD) 

program for Camden, NJ, in FY 2015 and laid the groundwork for more robust use of 

ECCR in other MVD communities in FY 2016. In particular, in FY 2015, the CPRC 

funded Region 2 for a facilitator for the Newburgh, NY MVD community, to assist 

with water sharing negotiations among Newburgh, New York City, and surrounding 

towns. The CPRC also funded the Vieques, Puerto Rico MVD community project, 

and the Office of Water provided funding for facilitation in the Newark, NJ MVD 

community to identify business process changes that will help Newark City 

departments implement green infrastructure projects. The funding for facilitation and 

collaboration in FY 2015 is expected to yield ECCR benefits in MVD communities in 

FY 2016. 

•	 Region 4 (Atlanta) Office of Regional Counsel (ORC) regularly participated in the 

monthly ECCR specialist Conference Calls, which provide discussion on ways to 

improve and promote the use of ECCR in EPA. Region 4 ORC team members 

disseminate information on ECCR processes and the types of case support provided 

by the agency in such efforts (e.g., contracting/funding support, mediator services and 

training). Region 4 is currently working to improve intra-agency connections among 

the Superfund, Environmental Justice, Civil Rights, and other program offices 

concerning collaborative activities. 

•	 Region 6 (Dallas) permanently appointed one of its senior attorneys to serve as the 

Region's ECCR specialist. During FY 2015, the Region actively supported the use of 

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ECCR when appropriate. The Region 6 managers, program staff, and attorneys, were 

aware and familiar with ECCR as a viable option and pursue it as the need arose. 

•	 Region 7 (Kansas City) continued to encourage and support the use of ECCR in 

addressing a wide range of agency matters, both in the Region and across the nation. 

During a vacancy in headquarters, the Region 7 ECCR specialist became the Acting 

ADR Counsel for the Alternative Dispute Resolution Law Office within the Office of 

General Counsel in EPA headquarters. This temporary appointment helped educate 

senior management and programs within the Region about the applications and cases 

elsewhere, the benefits of ECCR, and new ideas on how ECCR can be integrated 

within the EPA. The ECCR specialist continued to promote region-to-region ECCR 

opportunities. The Region continued to regularly participate in the ECCR 

opportunities offered by EPA's Office of Administrative Law Judges in contested 

administrative cases. Particular Region 7 efforts included during FY 15: 

o	 Region 7 provided facilitation and process design support for multiple high 

profile Superfund cases, including work with the outgoing and incoming 

Regional Administrators and other upper management to design helpful 

processes for engagement of stakeholders and communities. 

o	 The Region 7 ECCR specialist continued as a member of the nine-person 

Process Excellence Team in Region 7. He provided facilitation and conflict 

resolution expertise to the team and used ECCR tools internally as was 

necessary or useful. He shifted his duties in late FY 2015 to focusing the team 

on process enhancements and training in ECCR methods as implementation 

phases take place in the Process Excellence (LEAN) initiatives. 

o	 The established presence and continued high profile projects associated with 

ECCR in Region 7 are building an inherent understanding of the spectrum of 

processes available to every division and branch in the Region. All of the 

region’s divisions participated in some form of ECCR process or training with 

the ECCR specialist in FY 2015. Most interactions were consultative, 

coaching, and advisory. In FY 2015, the process design consultative work 

increased from FY 2014. This is due to internal retreats and training featuring 

ECCR methods, a blending of ECCR into LEAN Six Sigma projects, and the 

higher profile of ECCR within the region. 

•	 The Region 8 (Denver) ECCR specialist gave a presentation in May 2015 to the 

Region 8 Regional Leadership Team regarding several successful instances where 

ECCR was used in the preceding twelve months. At this meeting, the Regional 

Administrator spoke of his personal involvement in one of the processes, encouraging 

every management official in attendance to consider and use environmental conflict 

resolution tools and processes wherever appropriate. The ECCR specialist instituted 

the Region's first environmental conflict resolution resource web page on Region 8's 

local intranet homepage. 

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•	 Region 10 (Seattle) supported the effective use of ECCR tools and to build 

institutional capacity by working with programs, staff, and outside stakeholders to 

identify ECCR opportunities. The Region worked with its ECCR specialists and 

CPRC staff to identify and evaluate potential cases, and to identify specific ECCR 

processes to use. The Region supported ECCR training for its staff. Superfund and 

water program uses were the dominant but not exclusive types of cases in the Region. 

The Region also continued to use ECCR processes tailored to address environmental 

justice and tribal issues. Consideration of ECCR was the norm in enforcement matters 

and becoming more routine in non-enforcement matters. 

Contracting for External ECCR Services - The EPA continued to provide services 

under the seventh CPRS Contract which has a ceiling of $51,000,000 over five years. The 

contract, now in its second year, provided comprehensive access to neutral third parties 

and related services all over the country, with most services being initiated within two 

weeks of a request. In FY 2015, the EPA spent about $6 million on ECCR and related 

services (e.g., neutral third parties for ECCR cases, ECCR training) under the CPRS 

contract, one of the highest demand years in the 28-year history of the contract. The work 

occurred on 59 active task orders and nearly 100 subprojects. On average more than eight 

contract actions a week all year were undertaken for this contract. 

Interagency Agreement with the U.S. Institute for Environmental Conflict 

Resolution – The EPA’s interagency agreement (IA) with USIECR continued to provide 

cooperative support for conflict prevention and resolution assistance. The IA supported 

the National Roster of Environmental Dispute Resolution Professionals and provided 

access to neutral mediation and facilitation services for cases and matters in which the 

EPA and USIECR had a shared interest, such as those involving the National 

Environmental Policy Act and intergovernmental conflicts. For example, in FY 2015, the 

IA provided support for two projects, one related to intergovernmental coordination on 

section 404 of the Clean Water Act in the Northeast, and the other related to wetlands 

protection on tribal lands in the in the U.S. Southwest. In FY 2015, the EPA funded two 

projects through the IA. 

Interagency Partnerships – The EPA continued to strengthen its partnerships with other 

federal agency ECCR programs during FY 2015. Approximately 44% of the EPA’s 

ECCR cases involved other federal agencies, including those in which the Department of 

Justice was representing the EPA in a litigation context. 

Area 4) Focus on Accountable Performance and Achievement 

The EPA believes that it is very important to track the use and outcomes of ECCR and 

has been working toward that end with other federal and state partners since before the 

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original OMB/CEQ ECCR policy memorandum was issued in 2005. In FY 2015, the 

EPA pursued three efforts addressing performance and accountability. First, it continued 

to collaborate with USIECR and others to evaluate the practice of ECCR. Second, it used 

multiple approaches to gauge the use of ECCR at the EPA. Third, it continued to evaluate 

ECCR-related training sponsored by the CPRC. All three of these activities were initiated 

prior to FY 2015 and updates on each are provided below. 

Evaluating the Practice of ECCR - For many years the EPA has collaborated with 

USIECR, and other federal and state agencies in the development and use of common 

evaluation instruments to assess the practice of ECCR. In FY 2015, the EPA continued 

using the fourth set of OMB-approved evaluation instruments developed through this 

collaboration and continued to collect and analyze evaluation data and used the results to 

improve its program. The EPA also initiated development of a fifth set of evaluation 

instruments, in collaboration with USACE and DOI, for OMB approval in FY 2016. 

Gauging the Use of ECCR – The EPA used three methods to gather data about the use 

of ECCR throughout the agency. The first method was reporting by the CPRS contractor 

and the USIECR on use of its IA with EPA. This reporting allowed the CPRC to quickly 

and regularly identify current ECCR cases where external service providers served as 

neutral third parties, and the nature of the cases. 

Second, CPRC relied on a network of EPA Headquarters office and regional staff 

members who are designated to assist with the ECCR annual reporting process. Some of 

the designees also provided additional ECCR program services as needed by their 

respective organizational units. These individuals confirmed preliminary ECCR case lists 

generated by the CPRC and supplemented such lists with additional ECCR cases. 

Third, CPRC staff members logged requests received for ADR and ECCR services in 

CPRC’s request tracking system. Each of these three methods of tracking ECCR 

provided an important component of the information needed to track and understand 

trends in ECCR use at EPA, in spite of the unique data quality challenges that each 

presents. 

ECCR-related Training Evaluation - In parallel to the CPRC’s training efforts 

described above, it continued to evaluate training. By measuring both the satisfaction of 

participants with presentations and logistics and the participants’ views about whether the 

training achieved the learning goals set out in the courses. The CPRC used the results of 

the training session evaluation to make regular improvements in training delivery. In FY 

2016, the CPRC is continuing the evaluation process for CPRC sponsored training and 

beginning to develop additional tools to assess the impact of its training. 

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Plans to Expand Program in the Future 

EPA’s ECCR program is one of the most advanced in the executive branch and already has the 

ability to address the full spectrum of public health and environmental issues that the Agency 

and its stakeholders face, where parties in specific matters opt to use ECCR. We are 

continuously seeking opportunities to increase the effective use of ECCR at EPA. The CPRC’s 

FY 2016-2020 Strategic Plan for ECCR furthers this objective by promoting the provision of 

excellent ECCR services, building knowledge and skills, cultivating opportunity, and 

demonstrating results. 

Environmental Conflict Prevention and Resolution Case Example 

Oregon Fish Consumption Rate and Water Quality Standards Rule Dialogue 

After nearly a decade of disagreement and frustration, leaders from the EPA, the Confederated 

Tribes of the Umatilla Indian Reservation, and Oregon’s Department of Environmental Quality 

entered into a facilitated dialogue to develop a revised water quality standard for toxic pollutants 

to protect fish consumers, tribes and environmental justices communities that rely on subsistence 

fishing for their food source in Oregon. A professional facilitation team was funded by EPA to 

help design, convene, coordinate, and facilitate discussions around water quality standards in 

Oregon—specifically human health criteria relating to Oregon’s fish consumption rates. 

The project evolved into three separate phases: 

Phase I—Public workshops & issue identification; 

Phase II— Rule making working groups comprised of knowledgeable individuals from 

affected organizations and stakeholder groups; and 

Phase III—Public hearing and input 

The Oregon Fish Consumption Rate and Water Quality Standards Rule Making Project provided 

an opportunity for a wide range of people and interests to come together, review information, 

and share perspectives and data about what might work to reduce toxic chemicals in Oregon’s 

waterways—and the fish that live in them. The facilitated dialogue supported an open and honest 

exchange of ideas and data among the three governments that had, in past years, struggled to 

have constructive discussions about how to move forward to solve the difficult issue. The 

representatives of the three governments worked hard to “seek to understand, not just to be 

understood.” They worked hard – with each other and with those who came to the public 

workshops or were part of the work groups—to find data, to understand impacts, and to test 

statements that were made about those impacts. At the end of a four year process, a new set of 

water quality standards were agreed upon. The adopted standards were ten times more stringent 

than the original proposal and set an aspirational goal for other developing standards. As a result 

of the ECCR process, some of the most vulnerable populations, tribes and environmental justice 

communities that rely on subsistence fishing for their food sources, are now protected by the 

strictest water quality standards in the nation. 

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B. Ombudsman Services 

EPA has two ombudsman programs. 

The Office of Inspector General Whistleblower Protection Ombudsman provides neutral 

services to educate agency employees about prohibitions on retaliation for protected disclosures. 

These services include educating agency employees who have made or are contemplating 

making a protected disclosure about their rights and the remedies against retaliation for protected 

disclosures. https://www.epa.gov/office-inspector-general/epa-oig-hotline#wbp_ombudsman 

The Asbestos Small Business Ombudsman (ASBO) serves as a conduit for small businesses to 

access EPA and facilitates communications between the small business community and the 

Agency. The ASBO advocates for small business issues, partners with state Small Business 

Environmental Assistance Programs (SBEAPs), EPA Regional Small Business Liaisons 

(RSBLs) trade associations, EPA headquarters and regional offices, the Small Business 

Administration (SBA) and other federal agencies to reach out to the small business community. 

Services include: Acts as a liaison between EPA and the small business community; advocates 

for small business during the EPA rulemaking process; provides technical assistance to small 

businesses; supports national network of Small Business Environmental Assistance Programs; 

and operates a toll free hotline for the convenience of small businesses and the general public, 

seeking free, confidential help as it relates to a variety of environmental regulatory topics. 

https://www.epa.gov/resources-small-businesses/asbestos-small-business-ombudsman 

EPA Internal-Facing ADR Programs 

C. Workplace and Early Intervention and Conflict Resolution Program 

Workplace Solutions is EPA’s headquarter workplace conflict management program. It is 

designed for early intervention in workplace issues to resolve conflict and restore productivity. 

This program provides employees with the opportunity to participate in conflict management 

processes such as conflict coaching, conflict/climate assessments, mediation, conciliation, 

facilitation, and group dynamics interventions to address their concerns. This program also offers 

workshops in conflict and communication related subjects, including self-awareness and team 

awareness, to develop skills and empower individuals and groups to address conflict effectively. 

Workplace Solutions is available for headquarters early intervention and grievance processes. 

Program Funding over Past Ten Fiscal Years 

EPA’s workplace program has not received extramural funding over the past ten fiscal years. In 

FY 2015-2016, EPA initiated a limited initiative to provide extramural funds to the workplace 

program to tackle challenging or protracted issues and build collaboration through the provision 

of a more comprehensive set of conflict management services designed to meet the needs of each 

individual situation. 

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Number of FTEs Devoted to Program 

In 2008 EPA’s Workplace Solutions program was reduced from four full time FTE’s to one full 

time FTE. Since 2008 the program has become responsible for additional duties such as 

Preventing Violence in the Workplace and outreach and course development for the agency’s 

anti-harassment policy and program. The reduction in staff and additional duties have reduced 

the ability of the program to conduct outreach and proactively address workplace conflict. 

Number of Cases/Disputes 

Almost all of the Workplace Solution’s cases are early intervention cases. The majority of cases 

were resolved with very few proceeding to a formal grievance process. The following number of 

cases were conducted each year: 

Fiscal Year Number of cases 

recorded 

2016 64 

2015 52 

2014 32 

2013 40 

2011 42 

2009 21 

2007 43 

2005 25 

Tangible and/or Intangible Benefits Realized by using ADR 

Resolution of interpersonal workplace conflict, restoration of productivity, restored relationships, 

personal healing, group dynamics improvement, collaboration building, self-awareness, teamawareness, team-building, trust building, united focus and united front, return customers for 

application of new skills and self-reflection. 

Types of ADR Processes/Techniques Used 

Conflict coaching, conciliation, facilitation, mediation, group dynamics processes (group/climate 

assessments, team-building), training (conflict management, communication, civility, change 

management, engagement, empowerment, collaboration, Myers-Brigs Type Indicator, Strengths 

Deployment Inventory, Thomas-Kilmann Conflict Mode Instrument and others, ). 

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Building Program Capacity 

During the past ten fiscal years there has been no financial support to build capacity for the 

workplace program. Barriers have included that the program is not directly related to the agency 

mission and there has been a reduction of staff throughout the agency. 

Plans to Expand Program in the Future 

In FY 2016-2017 EPA is conducting an assessment of its workplace conflict management 

services to identify, evaluate and provide recommendations regarding options to improve and 

strengthen the headquarters workplace conflict management services. 

Workplace and Early Intervention and Conflict Resolution Program Case Example 

In 2006 Workplace Solutions presented a communication skills training to an organizational 

retreat for 55 people. The following year, the same organization invited Workplace Solutions to 

provide an MBTI workshop. Conflicts were identified during that workshop and Workplace 

Solutions subsequently proposed that there were issue to uncover and resolve. Workplace 

Solutions conducted a workplace climate assessment for one staff member within the 

organization, provided recommendations for mediation, restructuring, and collaboration 

building. Workplace Solutions was then asked to conduct a similar assessment for 3 other staff 

members within the organization. Those assessments resulted in additional recommendations for 

those staff members, several group interventions, and a managerial rotation throughout the 

organization. The organization implemented the recommendations and obtained the highest 

Employee Viewpoint Survey scores within their organization. The unit further experienced 

improved employee engagement and less interpersonal conflict, a unified management team 

experience and more. When they subsequently were instructed to reorganize 2 organizations into 

one, they requested facilitation of a management retreat for building collaboration capacity, team 

awareness, and action planning. The same organization created a new staff team and 

immediately requested intervention to help the team gel with acting management, uncharted 

functions, etc. and awareness of personality challenges. Through extended engagement with 

Workplace Solutions, between 2006 and 2015, the office and its subgroups identified conflict 

early on and rapidly addressed the challenges to avoid escalation. 

D: Pilot Mediation Program to Resolve Workplace Discrimination Dispute and EEO 

Complaints 

The Office of Civil Rights (OCR) provides employees the option to participate in mediation to 

resolve workplace discrimination disputes or EEO complaints. Managers are required, absent 

extraordinary circumstances to participate if mediation is requested by the complainant. In 

November 2015, OCR initiated a Pilot Mediation Program that used internal EPA collateral duty 

neutrals to serve as mediators. 

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Program Funding over the Past Ten Fiscal Years 

OCR has used the services of the Sharing Neutrals Program and Federal Executive Boards to 

provide mediation services. In November 2015, OCR initiated a Pilot Mediation program that 

utilized internal EPA collateral duty mediators to provide services. If extramural funds are 

required for a case, they are provided by the responsible headquarters or regional office. 

Number of FTEs Devoted to Program 

The Office of Civil Rights has one dedicated FTE to the program. The ADR Coordinator 

position is currently vacant and the duties are being handled by Title VII employees. It is 

anticipated that the position will be filled in the near future with the individual devoting 

approximately 80% of their time to ADR related services. 

Number of Cases/Disputes 

Since the Pilot began in November 2015, the ADR offer rate has run between 72.3% and 92.9% 

of all informal cases, with the ADR election rate between 48.5% and 69.1% of informal 

complaints received. 

Tangible and/or Intangible Benefits Realized by Using ADR 

Less time to resolution of complaints – less salary cost of handling individual EEO cases; 

increased communication between aggrieved individuals and responding management officials; 

better understanding of ADR; less formal complaints, etc. 

Types of ADR Process and Techniques Used 

Generally, ADR EEO cases handled within EPA are completed using facilitative mediation 

techniques. There are a few cases in a few locations where mediation has been completed using 

transformative mediation techniques. 

Building Program Capacity 

OCR continues to utilize mediators from local FEB’s Sharing Neutrals Programs. In addition, 

since November 2015, OCR has conducted a pilot utilizing internal mediators to handle 

appropriate cases throughout the Agency. The internal mediation pilot program has provided 

additional resources through timely access to mediators, which has allowed scheduling of ADR 

sessions to be much faster, providing more timely resolution of cases. 

Plans to Expand Program in the Future 

OCR plans to expand the internal mediator pilot and make it a permanent part of the ADR 

program within OCR within FY 2016. OCR continues to study the results of the pilot to 

understand and implement best practices and streamline procedures. 

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Pilot Mediation Program to Resolve Workplace Discrimination Dispute and EEO 

Complaints Case Example 

Participants elected to use mediation to address an informal complaint regarding non-selection 

for promotional opportunities. The internal mediation pilot provided a mediator who was 

available to mediate several sessions. A key lesson learned was the ability for participants to 

engage in multiple sessions provided the participants’ time to think about options for resolution 

and allowed for continued open discussion. This resulted in better communication within the 

organization, better understanding of the EEO complaint and mediation processes and a 

resolution of issues that avoided a filing of a formal complaint. 

Agency ADR use beyond the ADR Programs Discussed Above 

EPA uses ADR in the promulgation of regulations in the regulatory negotiation process. EPA 

also provides facilitators and trainings to prevent or manage conflicts in community involvement 

activities, especially in difficult situations. 

ADR Training 

The EPA strongly encourages all EPA personnel to learn about ADR. The CPRC offers 

workshops and seminars to help EPA staff learn key skills for consensus building and conflict 

resolution. In addition, Workplace Solutions offers workshops in conflict and communication 

related subjects, including self-awareness and team awareness, to develop skills and empower 

individuals and groups to address conflict effectively. 

The CPRC offers training both at headquarters and at its ten regional offices. The CPRC offers 

scheduled trainings that are open to all EPA staff to attend, for example each year in October as 

part of Conflict Resolution Day, CPRC offers a full day of trainings designed to help employees 

gain conflict resolution skills that can be applied both to environmental and workplace conflict, 

and works with EPA offices to custom design training to meet the organizational ADR needs. 

Examples of trainings offered include: 

• ADR for Environmental Advocates 

• Interest-Based Negotiation 

• Communication Skills 

• Dealing with Interpersonal Conflict 

• The Power of Apology 

• Charrettes: Redevelopment by Design 

• Situation Assessment: Fitting the Forum to the Fuss 

• Environmental Collaboration and Conflict Resolution Foundations 

• Better Decisions through Consultation and Collaboration 

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Interagency ADR Working Group 

The Interagency ADR Working group provided EPA with the opportunity to communicate with 

other Federal agencies, share program information, best practices and to collaboration on training 

and program development. 

The following sections of the Interagency ADR Working Group most closely relates to the work 

of EPA’s ADR programs: 

_x_ Workplace 

__ Contracts and Procurement 

_x_ Administrative Enforcement and Regulatory Process 

__ Litigation 

_x_ Environmental 

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FEDERAL DEPOSIT INSURANCE CORPORATION
 

2016 REPORT ON ADR IN THE FEDERAL GOVERNMENT
 

ADR Dispute Resolution Specialist Contact Information 

Name: Henry R.F. Griffin 

Title(s): Assistant General Counsel 

Department/Agency: Federal Deposit Insurance Corporation (FDIC) 

Email Address: hgriffin@fdic.gov 

Phone number: (703) 562-6404 

Mailing Address: 3501 Fairfax Drive, VS-D-8074, Arlington, VA 22226-3500 

ADR Policy 

The FDIC has a formal written ADR policy which can be found at 

http://www.fdic.gov/regulations/laws/federal/97adrx.html. The policy has not been 

amended or modified during the past ten fiscal years (FY06-FY15). 

ADR Programs 

A. Internal Ombudsman 

The Internal Ombudsman (IO) at the FDIC is a source of independent assistance 

for resolving work-related concerns. The IO reports directly to the FDIC 

Chairman on emerging workplace trends, and recommends changes in policies, 

programs, and practices that would benefit all FDIC employees. The IO pledges 

to be impartial, neutral, and confidential in working with employees of the FDIC. 

The doors of the IO are open to any current or former FDIC employee who needs 

help working through an issue or resolving a workplace matter. 

The Internal Ombudsman provides informal dispute resolution services to all 

levels of FDIC personnel. The IO is a place where employees can seek 

guidance regarding disputes or concerns, without obligation or repercussion, at 

any stage in the issue. The issues may involve policy concerns, interpersonal 

problems, leadership, career development, human resource matters, 

organizational change, efficiencies of operation, or any other area that has a 

correlation to the mission of the office or the FDIC as a whole. 

The IO will confidentially receive complaints, concerns or questions about alleged 

acts, omissions, improprieties, and/or broader systemic problems. The response 

of the IO is tailored to the dynamics of the situation and the visitor’s concerns. 

The IO will listen, make informal inquiries or otherwise review matters received, 

offer resolution options, make referrals, and mediate disputes independently and 

impartially. The Ombudsman will assist parties in reaching resolutions that are 

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consistent with the ideals and objectives of the FDIC. Services of the IO 

supplement, but do not replace, other more formal processes available to the 

FDIC community. 

In addition, the IO will serve as an information and communication resource, 

consultant, facilitator, mediator, coach, dispute resolution expert and catalyst for 

institutional change. The Internal Ombudsman also will provide feedback to the 

Chairman and the executive staff when trends, patterns, policies or procedures of 

the FDIC generate concerns or conflicts. 

The Internal Ombudsman maintains an internal facing website that is not 

accessible to the public. 

The FDIC Internal Ombudsman function was approved as a pilot program in 

2009. The pilot lasted 2 years and the first permanent IO was hired in 2012. The 

IO office has increased in size from one permanent employee to six permanent 

employees. In addition to addressing employee issues and concerns, the IO also 

manages two Chairman’s Office employee engagement initiatives: the 

Workplace Excellence Program and the FDIC-NTEU Labor Management Forum. 

Funding for the IO program and staff positions is part of the FDIC Executive 

Offices budget. 

The number of individuals the IO helped to address/resolve issues has increased 

each year since 2012. 

The following are some of the tangible benefits the IO provides to employees: 

•	 Providing a safe environment to discuss work-related issues and
 

concerns.
 

•	 Understanding how a situation has impacted an employee. 

•	 Answering questions on work-related issues and concerns. 

•	 Providing information, and clarifying FDIC policies, practices, and 

procedures.
 

•	 Brainstorming options for addressing specific issues and concerns. 

•	 Reviewing and evaluating options for addressing specific issues and 

concerns. 

•	 Providing employees with the confidence to address issues and concerns 

before situations escalate. 

•	 Bringing people and groups together to open lines of communication 

about issues and concerns. 

•	 Serving as a channel for directing feedback and views to FDIC
 

management.
 

•	 Helping employees resolve/address a specific situation on their own. 

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Issues and concerns are addressed using a variety of strategies and dispute 

resolution techniques such as facilitation, mediation, conciliation, coaching, and 

organizational assessments. 

The Internal Ombudsman office has expanded over the past four years to a full 

complement of 6 staff. The IO is included in senior executive level meetings and 

serves on numerous committees. The IO meets with the Chairman and Deputy 

to the Chairman/Chief Operating Officer/Chief of Staff, and division/office 

leadership on a regular basis. Coordinating the Workplace Excellence Program 

and Labor Management Forum has further institutionalized the IO’s role as a 

highly effective neutral facilitator/convener for issues and concerns throughout 

the agency. 

There are no current plans to further expand this program in the future. 

1. Which of the following sections of the Interagency ADR Working Group most 

closely relates to the work of this ADR program (you may check multiple 

sections): 

X Workplace 

__ Contracts and Procurement 

__ Administrative Enforcement and Regulatory Process 

__ Litigation 

__ Environmental 

Following are two recent success stories that illustrate the type of issues the IO 

works on, and the outcomes achieved: 

•	 An employee applied for numerous promotions and was not able to make 

the best qualified ranking for any of the positions. The employee was 

extremely upset and thinking about filing a formal complaint. After 

spending a significant amount of time with the employee, the IO (with the 

permission of the employee) reached out to Human Resources to verify 

the number of times the employee applied for promotions and the results 

of their applications. The IO learned that the employee was submitting an 

old resume that had not been updated in many years to different positions. 

The IO coached the employee on the importance of updating their resume 

and customizing it for each position of interest. The employee then 

successfully made the best qualified certificates for several promotional 

opportunities and was finally selected for a promotion. 

•	 An employee was having a difficult time with their supervisor and reached 

out to the IO for assistance. The employee was interested in having a 

facilitated conversation with their supervisor to try and improve the 

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situation. The employee provided permission, and the IO reached out to 

the supervisor who agreed to participate in the facilitated conversation. 

During the conversation, the employee learned that the supervisor was 

very concerned about the employee’s work/life balance. The employee 

had a large workload and volunteered to work on several additional high 

priority projects. The supervisor had begun to remove some assignments 

from the employee to reduce stress and to allow the employee to work on 

the high priority assignments. The employee thought the supervisor had 

lost confidence in them. The facilitated conversation helped them clarify 

recent conversations, prioritize the employee’s workload, and improve 

their working relationship. 

B. EEO Mediation Program 

The FDIC EEO Mediation Program is administered through the Office of Minority 

and Women Inclusion (OMWI). It provides a means for individuals to attempt to 

resolve their EEO complaints before or after a formal EEO complaint is filed. 

With some exceptions, parties who contact OMWI with an EEO complaint are 

provided an opportunity to participate in mediation with a designated FDIC 

management representative in order to discuss and try to resolve the issues that 

are in dispute. The FDIC utilizes independent contract mediators to facilitate the 

mediation sessions and to help the parties in their efforts to resolve the dispute. 

The EEO Mediation Program is used solely for resolving EEO complaints. It is 

an internal program and is offered to all individuals who enter into the EEO 

process with a few exceptions. The types of disputes covered include nonselection (internal only), pay and performance, assignments and work 

environment and harassment (both sexual and non-sexual). There is no public 

website for this program; only an internal webpage is available. 

The EEO Mediation Program is an internally funded program of the FDIC and 

has not been impacted by budget constraints. There is at least one FTE in the 

EEO (OMWI) office devoted to administering the EEO Mediation Program on a 

full-time basis. EEO Mediation is generally requested over traditional EEO 

counseling anywhere from 30%-50% of the time. Benefits realized vary. There 

are no plans to expand this program in the future; access to EEO mediation is 

currently offered to all EEO complainants with a few exceptions. 

The FDIC has not added resources to the EEO Mediation Program. The EEO 

Counselors encourage mediation as a good option to try and resolve EEO 

complaints. Information has been provided to employees, managers and 

supervisors regarding the EEO Mediation Program, and managers and 

supervisors have received training on the benefits of mediation and their roles 

and responsibilities in the mediation program. 

There have been a number of cases where we had resolutions of multiple EEO 

complaints as a result of mediation. This saved the agency time and money from 

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protracted litigation. The cases that have had the highest success rates from 

mediation tend to be those related to evaluation or training issues. 

C. Workplace Disputes Program 

The FDIC Workplace Disputes Program (WDP), which was authorized as a 

permanent program in 2004, is an internally-facing program that provides FDIC 

employees with a confidential, informal forum for resolving workplace issues with 

the assistance of a third-party neutral. The WDP is intended as a mechanism to 

help resolve conflicts through early intervention and without the need to file a 

formal claim in any other administrative forum; it is available to all FDIC 

employees on a voluntary basis, and does not take the place of EEO or 

established employee grievance processes. The WDP is designed to be flexible 

and to handle a variety of situations: conflicts between co-workers, between 

employees and supervisors, within work units, and other situations as 

appropriate. The WDP uses contract neutrals that are selected and retained by 

the ADR Team (as part of the Legal Division) on a case-by-case basis and at no 

cost to the parties. ADR processes that are typically used are mediation and 

facilitation, although other processes, such as conflict coaching, may be 

employed in appropriate circumstances. The WDP does not have a public 

website; only an internal webpage is available. 

The WDP is funded out of the Legal Division’s operating budget; the amount of 

funding for the WDP has not changed in the last ten years, nor has the number of 

employees dedicated to the program. Participation in the program has remained 

fairly constant as well. There are currently no plans to expand this program in 

the future. 

Steps that have been taken to increase program capacity for the WDP include a 

variety of outreach measures, including presentations at staff meetings, targeted 

dissemination of program pamphlets, and a webpage that’s available through 

several different access points on the FDIC’s internal website. 

1. Which of the following sections of the Interagency ADR Working Group most 

closely relates to the work of this ADR program (you may check multiple 

sections): 

X Workplace 

__ Contracts and Procurement 

__ Administrative Enforcement and Regulatory Process 

__ Litigation 

__ Environmental 

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Please provide additional comments below regarding how your program has 

benefitted from the work of the above section(s): 

The FDIC has benefitted from the ADR Resources and Guidance (drafted by members 

of the Workplace Section) on several key issues of importance to workplace ADR 

practitioners, as well as the ADR Lunchtime Series Presentations, which has hosted 

speakers on a variety of substantive topics relevant to the ADR community. Also of 

benefit is the Conflict Management Consortium (CMC), which is an offshoot of the 

Workplace Section. The CMC is a group for federal workplace ADR professionals who 

spend a substantial amount of their time managing, developing or working within a 

federal workplace ADR program as a neutral. The CMC serves as a forum for informal 

discussions about the issues and challenges faced by those ADR professionals in their 

respective programs. 

D. Office of Ombudsman 

The FDIC’s Office of Ombudsman (OO) is an independent, neutral, and 

confidential resource and liaison to anyone affected by the FDIC in its regulatory, 

resolution, receivership, or asset disposition activities. As an external-facing 

ADR program, the OO facilitates the resolution of problems and complaints from 

the banking industry and general public against the FDIC in a fair, impartial, and 

timely manner. The OO uses various types of ADR processes/techniques, 

ranging from facilitation to shuttle diplomacy to informal mediation. OO staff is 

comprised of former bank examiners and liquidation specialists. 

The OO maintains the following external website: www.fdic.gov/ombudsman. 

Staffing and funding increased during the financial crisis starting in 2008, 

primarily due to the OO’s role in financial institution failures and post-closing 

receivership issues. New employees were hired on two-year terms, with options 

to extend two additional years. In support of the Division of Resolutions and 

Receiverships (DRR) and the geographic concentrations of bank failures, these 

OO term employees were located in each satellite office. As the pace of bank 

failures has decreased, these term employees have been released. The postcrisis staffing stands at 20, down from a high of 32 in 2010. There are currently 

no plans to expand this program in the future. 

Receivership Role: The greatest intangible benefit of OO involvement in 

receivership activity was the increased public confidence achieved due to the 

availability of an on-site person to handle problems and complaints from 

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customers and a local face of the FDIC to calm depositors and provide factual 

information, especially in small towns or high-profile situations where rumors run 

rampant. 

While assisting in navigating bureaucracy can be one of the purposes of an 

ombudsman program, managing volatile emotions and expectations while 

explaining processes and providing intra-divisional facilitation requires a high 

degree of conflict resolution skills. Many public callers to the FDIC have been 

impacted in some way by a bank failure; therefore, they can be very emotional, 

especially if they are facing some adverse action such as foreclosure. 

The OO serves as the primary FDIC contact with customers of failed banks who 

have questions, problems or complaints. Some depositors with deposits over the 

FDIC insurance limit do lose money, and such situations understandably involve 

high emotions. In one such situation, the OO was called upon to meet with 

someone who had lost a significant amount of money. This money represented 

the proceeds of a life insurance policy resulting from the death of the depositor’s 

son in Iraq and the matter had drawn attention in the media. The OO teamed up 

with a counselor to meet with the depositor. While the OO explained the FDIC 

processes and served as a liaison between the depositor and the FDIC, the 

counselor managed emotions during the meeting and provided coping 

techniques. Several follow-up calls were required after the meeting, and the OO 

continued to manage emotions and expectations. 

Regulatory Role: The OO provides informal mediation between bankers and 

examination staff. OO representatives use interest-based problem-solving, 

shuttle diplomacy, and reframing complaints into goals. This way both sides are 

provided an opportunity to vent and present their side and desired outcomes to a 

neutral party. One banker who used this process said he was happy to see this 

matter resolved without spending money on legal fees. 

Department or Agency ADR use beyond the ADR Programs discussed above 

With an ADR Program that’s been in existence for over 20 years, the FDIC has 

long used ADR appropriately and creatively to save time, money and human 

resources. Currently, ADR at the FDIC involves a full spectrum of services to 

promote the prevention, de-escalation, resolution and settlement of disputes. In 

addition to the programs described above, the FDIC uses ADR skills and 

techniques in the following areas: 

1. As mentioned above, the Internal Ombudsman manages and facilitates 

two Chairman’s Office employee engagement initiatives: Workplace 

Excellence Program and the FDIC-National Treasury Employees Union 

(NTEU) Labor Management Forum. The FDIC’s Workplace Excellence 

Program plays an important role in helping the FDIC engage employees. 

Workplace Excellence (WE) is a partnership between the FDIC and 

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NTEU. The WE program is composed of a national-level WE Steering 

Committee and 10 Division/Office WE Councils that are focused on 

maintaining, enhancing, and institutionalizing a positive workplace 

environment throughout the agency. In addition to the WE Program, the 

FDIC-NTEU Labor Management Forum serves as a mechanism for the 

union and employees to have pre-decisional input on workplace matters. 

The WE Program and Labor Management Forum enhance 

communications, provide additional opportunities for employee input and 

engagement, and improve employee empowerment. 

2. The FDIC also uses ADR processes, such as mediation and, to a lesser 

extent, arbitration, to resolve disputes with outside parties whenever this 

course of action appears appropriate, is required by contract, or is ordered 

by a court. These ADR processes can be effective in saving time, 

resources and money. 

3. The FDIC uses other ADR processes, such as facilitation and 

collaborative problem-solving, as tools to conduct effective meetings, to 

create an environment conducive to open dialogue on difficult issues, to 

coordinate with other banking agencies and the banking community, and 

to increase participation by stakeholders in important external and internal 

decision-making. 

ADR Training 

A large number of ADR-related training and educational opportunities are made 

available to agency employees through the FDIC’s Corporate University. In 

2015, ADR-related training constituted a part of 17 courses taken by nearly 1,000 

employees, including EEO training that contains a component addressing a 

manager’s/supervisor’s role in the mediation process. The FDIC’s No FEAR Act 

training also contains information about the availability of mediation during the 

EEO process. 

Interagency ADR Working Group 

In addition to the Workplace Section resources noted above, participation in the 

IADRWG has been beneficial in a number of ways; most notably, it has allowed 

us to keep abreast of issues and trends in federal ADR, to develop an invaluable 

network of federal ADR professionals and resources, and to learn from the 

collective knowledge and experiences of those ADR professionals. 

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Alternative Dispute Resolution Presidential Report- Appendix 

Federal Executive Boards Shared Neutrals Programs 

Federal agencies often work together to share resources to resolve workplace disputes using Alternative 

Dispute Resolution (ADR). In some cases, agencies developed formal programs for sharing staff who 

serve as Neutrals (mediators); many of these of efforts are accomplished through local Federal Executive 

Boards (FEB). 

The basic concept of a shared Neutrals program is that agencies “share” employees who are qualified to 

serve as Neutrals (mediators). Through ADR programs, an employee of one agency acts as a mediator 

for a dispute in another agency. The employing agency continues to pay the mediator's salary, and the 

agency receiving the mediator's service pays other necessary expenses such as travel. This arrangement 

typically includes a written agreement between all of the participating agencies. 

Shared Neutrals programs operate in the following FEB locations: 

Atlanta Houston Oregon 

Baltimore Kansas City Philadelphia 

Boston Los Angeles Pittsburgh 

Chicago Minnesota San Antonio 

Cleveland New Mexico San Francisco 

Colorado New Orleans Seattle 

Dallas-Ft. Worth New York City South Florida 

Detroit Oklahoma 

Summary description and metrics from the Los Angeles, Kansas City, and Seattle FEBs Shared Neutrals 

Programs: 

Greater Kansas City FEB: https://kansascity.feb.gov/committees/adrshared-neutrals/ 

Program Overview: 

The Shared Neutrals Program is a cooperative arrangement between diverse Federal agencies in the 

greater Kansas City area. Each member agency makes a reciprocal agreement to submit requests for 

ADR services and to share resources cooperatively. The program maintains a roster of 40 active 

mediators from various agencies who mediate cases as assigned. The Shared Neutrals Program is 

designed to serve three objectives: 1) Provide agencies with a no cost alternative and flexible access to 

effective dispute resolution services; 2) Provide disputing individuals with accessible, timely, and 
 

 

 

 

 

 

 

 

 

 

 

 

	 
 


 


 


 


 


 


 

	 
 


 

	 

	 

	 


 


 

confidential neutral services; and 3) Support a diverse cadre of trained and experienced neutrals 

(mediators) who mentor less experienced neutrals from other agencies on a collateral duty basis. 

Metrics 

FY Total # ADR Interventions	 Mediation Resolution Cost Avoidance*
 

Rate
 

$1,518,413.61 

2015 33 64%
 

2014 26 54% $1,041,562.22
 

2013 50 56% $1,891,619.97
 

2012 43 56% $1,728,161.52
 

2011 31 65% $1,340,900.28
 

Los Angeles Federal Executive Board: http://www.losangeles.feb.gov/services/ 

Program Overview: 

Each participating Federal agency appoints an Agency Coordinator, often the EEO or Labor Relations 

Manager, to work with the SMART (Shared Mediator Team) Manager, who works for the Greater Los 

Angeles Federal Executive Board. 

When a dispute arises, the Agency Coordinator completes the ‘Request and Intake Form’ and faxes or 

e-mails it to the SMART Manager. The SMART Manager identifies an appropriate co-mediation team 

from other agencies from a pool of trained mediators, confirms their availability, and provides them 

with the Agency Coordinator's contact information for scheduling the mediation. The ‘Consent to 

Mediation Form’ is signed by the Parties, Representatives, Agency Coordinator, and Mediators before 

the mediation. If agreement is reached, the ‘Settlement Agreement Form’ is used. At the conclusion of 

the mediation, the co-mediation team provides the parties with the required ‘Confidential Customer 

Feedback Form’. The SMART Manager receives all the forms, which are kept strictly confidential. 

SMART is available for all types of internal workplace disputes at any stage, including EEO complaints 

and grievances. There is no cost to the receiving agency except mediator travel expenses, if any. 

The Los Angeles FEB SMART program maintains a roster of 35 active Mediators from various agencies 

who mediate cases as assigned. 

Metrics 

FY	 Total # ADR Mediation Resolution Cost Avoidance*
 

Interventions Rate
 

$1,356,796.25 

2015	 32 88% 

2014	 22 95% $1,115,015.32 

2013	 27 93% $1,256,258.45 

$1,003,463.03 

2012 24 96%
 

2011 25 92% $1,414,492.57
 
 

 

 

 

 

 

 

 

 

 

 

 

 

	 


 

Seattle FEB: http://www.seattlefeb.us/disputeresolution.htm 

Program Overview: 

The Seattle FEB Dispute Resolution (DR) Program is an intergovernmental pool of Washington Mediation 

Association (WMA) certified mediators. The program is served by a dozen Federal agencies in the Puget 

Sound, King County, City of Seattle, and from Private Practice Mediators in Seattle. There are currently 

85 mediators on the Seattle FEB DR Program Roster. The DR Program serves over two dozen Federal 

agencies in the Puget Sound, the City of Seattle, King County, and the Port of Seattle. The program 

offers the following services: Work Place Mediations, Grievance Mediations, EEO Mediations, 

Interpersonal Conflict Mediations, Team Mediations, Conflict Coaching, Facilitation Services and Conflict 

Resolution 

The Dispute Resolution Consortium is chartered to administer the sharing of the expertise of Federal 

employees trained in dispute resolution. The consortium provides trained mediators to help resolve 

workplace conflicts in Federal government agencies in the Seattle area. The mediators help co-workers 

settle disputes ranging from work style differences and personality disputes, to cases involving possible 

harassment, discrimination, or unfair treatment 

Metrics 

FY	 Total # ADR Mediation Cost Avoidance* 

Interventions Resolution Rate 

2015 62 73% $1,902,130
 

2014 92 80% $2,155,798 

2013 102 77% $2,999,598 

2012 195 87% $4,660,661 

2011 209 85% $7,920,897 

* Cost avoidance calculation is based on “Cost Savings Associated with the Air Force Alternative Dispute 

Resolution Program, 1996.” It is adjusted for inflation using the Bureau of Labor Statistics inflation 

calculator 
 

 

 

 

 

 

 

 

 

 

 


 


 

	 

	 


 

FEDERAL ENERGY REGULATORY COMMISSION
 

2016 REPORT ON ADR IN THE FEDERAL GOVERNMENT
 

ADR Dispute Resolution Specialist Contact Information 

Name: Deborah M. Osborne 

Title(s): Director, Dispute Resolution and Dispute Resolution Specialist under the 

Administrative Dispute Resolution Act (ADR Act) of 1996 

Department/Agency: Federal Energy Regulatory Commission (FERC) 

Email Address: Deborah.Osborne@ferc.gov 

Phone number: 202.502.8831 

Mailing Address: 888 First St. NE, Washington, DC 20426 

ADR Policy 

The Final Rule which implements FERC’s ADR policy can be found by clicking Quick Links at 

FERC’s website: http://www.ferc.fed.us/legal/adr.asp You can also access FERC’s regulations 

on ADR policy at the link you provided above: www.adr.gov 

ADR Programs 

	 Dispute Resolution Division 

The Commission’s Dispute Resolution Division (DRD) promotes and conducts ADR 

processes for the timely and high quality resolution of business and environmental-related 

energy regulatory disputes through consensual decision-making processes. DRD Specialists 

are highly trained in mediation, negotiation, and facilitation and also provide ADR education, 

training, and consultation on effective dispute resolution design to internal and external 

stakeholders and the public. 

	 DRD staff serve as neutral third parties in disputes and can become involved before or 

after a formal complaint is filed with the Commission. DRD will initiate a voluntary 

ADR process of the parties choice once they have voluntarily agreed to ADR. The parties 

may also select a neutral third party neutral from inside or outside the Commission. For 

example, parties may request an Administrative Law Judge from the Commission’s 

Office of Administrative Law Judges and Dispute Resolution to conduct an ADR 

process. In addition, parties may request separated staff for their technical, subject matter 

or legal expert to conduct a non-binding Early Neutral Evaluation. DRD typically 

coordinates the efforts for an ENE during a convening session with the parties in order to 

fit the ADR process to the fuss and be inclusive of the parties’ needs for an ENE. Nondecisional ENEs and Subject Matter Experts are recused from the case should the case 

not be resolved through ADR. In addition, the Commission maintains the Landowner 

Helpline, which addresses landowner matters and guides parties to the informal 

resolution of disputes using ADR techniques associated with the construction or 

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operation of FERC energy infrastructure facilities and projects. The Landowner Helpline 

has a dedicated FERC employee. 

See more on the Commission’s ADR services at this link: 

http://www.ferc.gov/legal/adr/brochure.pdf 

	 EEO, Workplace, Labor Relations 

	 The Office of the Executive Director addresses workplace, EEO, and Labor Relations 

disputes. These conflicts tend to be handled early in the process through informal ADR 

proceedings using outside neutrals and both binding and non-binding arbitration. Even 

once a case progresses to a hearing ADR is strongly encouraged and in some cases the 

Judge will order the parties to make a good faith attempt to resolve the dispute through 

mediation or settlement negotiation. 

1.	 The program maintains a website that is accessible by the public: 

http://www.ferc.gov/about/offices/oaljdr/drd.asp 

	 Over the past 10 years as many agencies have experienced we have 

had to be prudent with financial resources. We continue to receive 

a budget for travel, training, and educational resources and tools to 

streamline our performance per our mandated ADR functions and 

activities. Major components of our work are casework, training 

and public education, and consultation related to effective dispute 

resolution design. 

	 Currently, DRD has 6 FTEs inclusive of the Landowner Helpline 

function. Over 10 years DRD lost 1 FTE for a Senior Dispute 

Resolution Specialist/Attorney Advisor. To compensate for a 

reduction of 1 FTE we reduced slightly the number and length of 

training sessions we deliver on ADR tools and skills sets to 

Commission employees and external entities in their own work to 

prevent and resolve conflict. ADR casework services for energy 

business and related environmental conflicts take priority when 

workload is high. 

	 The DRD addressed a total of 1,660 matters from FY 2006 to FY 

2015. This number includes inquiries about ADR, matters that we 

referred to another office or entity, matters in which persons 

eventually said they were not interested in ADR, and matters that 

became ADR cases. DRD can become involved in a dispute at any 

point in the process. We are seeing an increase in early requests for 

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ADR, often before a complaint is filed or before it has been set for 

hearing if the complaint has been filed. 

	 From FY 2010 to FY 2015 DRD handled 560 energy business, 

environmental, and landowner cases. These cases were addressed 

through the application of voluntary ADR processes such as 

mediation, facilitation, and conciliation. Due to technical changes 

to our record keeping systems, we do not have the ability to filter 

data from FY 2006 to FY 2009 by process used or sector. Of the 

560 ADR cases addressed in FY 2010 to FY 2015, 76 were electric 

cases, 34 were hydro cases, 439 were natural gas cases, and 11 

were oil cases. 

	 Flexibility: One of the strengths of ADR is its flexibility. The 

parties design the process and choose the third party neutral, based 

on their needs and comfort level. With the help of a third party 

neutral, the parties explore how to satisfy underlying interest in 

their disputes. 

	 Confidentiality: One of the major advantages of ADR is that 

parties can agree on the level of confidentiality they need during 

dispute resolution discussions. An agreement by participants to 

keep the process confidential allows all sides in a dispute to speak 

more openly, share more information, and explore ideas and 

options in order to come to a resolution. The Commission 

recognizes that participants should feel free to be completely 

forthcoming without fear that their statements may later be used 

against them if settlement is not achieved. Likewise, a neutral is 

protected from being required to divulge such information. The 

Commission's regulations on confidentiality adopt the same 

guidelines as Section 574 of the Administrative Dispute Resolution 

Act. They are provided on the Code of Federal Regulations 

website at 18 C.F.R. § 385.606 

	 Time and Money: Often litigation can take years to achieve a 

resolution. Our ADR processes can save parties time and money 

by coming to a quicker more economical and final resolution 

earlier in the process. 

	 Regulatory Efficiency: We work with the Judges, ENEs and 

Subject Matter Experts within FERC to ensure the ADR processes 

we design with the parties’ input to help bring narrow to extremely 

complex energy disputes to an effective and quicker resolution. 

This promotes regulatory efficiency and facilitates the ability for 

FERC to accomplish its energy mission. 

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	 Conciliation, Facilitation, Assisted Negotiation, Mediation, Early 

Neutral Evaluation, Arbitration, and Settlement Judge processes. 

	 Notification Letters with our Toll-Free Landowner Helpline’s 

contact information are sent out on new environmental projects 

associated with natural gas facilities. This has increased the 

number of cases where ADR techniques and tools have been 

utilized. 

	 DRD has an ADR Helpline that provides an avenue for energy 

stakeholders to receive information on ADR or to request ADR 

services. 

	 Outreach: We have seen more parties reaching out to us to mediate 

their disputes as a direct result of our outreach efforts. 

	 Training: We have seen more cases come to us internally through 

our internal training and outreach efforts. 

	 Performance: the application of ADR usage is tied to employee’s 

position descriptions, performance standards, and the 

Commission’s measurable performance measures and performance 

results in Commission-wide and public administrative documents. 

	 Institutionalization: Over the course of the last ten years we have 

worked on institutionalization of our ADR services and processes 

in a multitude of ways with internal and external stakeholders and 

partnerships. 

a.	 Our regulations have helped to cement our role within the 

agency taking actions like delegating to the Secretary to 

direct DRD staff to contact parties about ADR, updating 

our ADR confidentiality rules, and giving a formal 

structure to the Landowner Helpline. 

b.	 The Commission has issued Orders to include DRD as a 

part of Interconnection agreements. 

c.	 The industry on their own has begun to make DRD a 

fixture by including DRD in Tariffs as a means of dispute 

resolution. 

d.	 From an institutionalization standpoint we are firmly 

ensconced in the Commission, currently with 6 FTEs 

dedicated solely to ADR. Now that our independent unit 

has merged with Administrative Law Judges in the 

renamed OALJDR not only do we provide the full 

spectrum of ADR services from upstream to downstream 

conflict situations associated with energy regulatory 

4 
 

	 

	 


 

processes we also have worked to institutionalize processes 

that have helped to make sure that ADR is a part of each 

case whether through the use of conciliation, facilitation, 

mediation or even in a Settlement Judge Process. 

e.	 DRD integrates its own talents as neutrals and works with 

the Judges to help resolve cases. Our ADR processes are 

inclusive of broad and narrow problems and conflicts. Our 

role is to promote enhanced regulatory efficiency from the 

initial screening of complaints and disputes to determine 

their ripeness for ADR to systematic inclusion of tiered 

Dispute Resolution provisions in Settlement Agreements to 

ensure parties have a choice to work out consensus based 

agreements should conflicts arise during implementation of 

agreements. Citations to Commission’s regulations on the 

institutionalization of ADR in 18 CFR and Commission 

Orders are available upon request and a search of 

http://www.ecfr.gov/cgi-bin/ECFR?page=browse. Citations 

to referenced items are available upon request. 

	 We anticipate as the demand for consensual decision-making is 

encouraged and grows as a cost-effective resolution of disputes, 

the expansion of ADR services will increase. 

We benefit from knowledge sharing, state-of the-art technology and tools, and expertise 

based on other federal agency program’s experiences and successes to build on that 

foundation and continue to innovate ADR practice for the prevent and resolution of disputes 

across the broad canvas of our Commission’s regulatory functions to accomplish mission. 

DRD staff successfully mediated an outcome on the American Midstream (“Midla”) 

application before FERC for over 300 miles of abandonment of natural gas pipeline facilities 

in Louisiana and Mississippi. Although politically visible and highly contentious with 

multiple interests, issues, all levels of government and sophisticated parties involved, within 

7 months Midla filed a complete and unanimous or uncontested agreement that resolved all 

issues and affiliated complaints. Although the issues mediated were tough--pipeline safety, 

future energy infrastructure reliability and gas service for impacted customers and energy 

consumers, gas contracts and rates, and costs associated with replacement facilities and 

energy services, the parties, guided by FERC neutral staff mediators rolled up their sleeves to 

5
 
 

	 


 

work hard at solving the problems together to achieve the mutually satisfactory resolution. 

A case like the Midla Pipeline Case shows the effectiveness of mediation when parties are 

motivated to find a resolution and guided by experienced neutrals at the Commission. 

Case 2 

Resolution of a decade old dispute that arose out of the California energy crises is another 

great example of the successful use of ADR. This case was originally heard by the Federal 

Energy Regulatory Commission (FERC), appealed to the Ninth Circuit Court of Appeals, and 

eventually was heard by the United States Supreme Court. Finally, this case was remanded 

to the FERC. 

FERC’s Dispute Resolution Division (DRD) engaged the parties in an ADR process. 

DRD worked with the parties to create an open process to resolve this long standing dispute. 

By engaging the parties in an ADR process the participants were able to explore different 

options, to seek a final resolution, and avoid further litigation. After discussing interests and 

options one of the parties to this dispute came up with a novel solution. After exploring the 

ability to implement the solution and get buy in from all effected stake holders including the 

Attorney General of California a settlement was reached. 

The settlement that resulted from this process was $20 million in cash and $100 million to be 

invested in electric car charging stations in the State of California. All claims associated with 

the short term and long term contract stemming from this period were released. Included in 

the agreement was: i) two-hundred fast charging stations that will be available to the public; 

ii) the installation of infrastructure to support ten-thousand privately owned chargers at a total 

of one thousand multi-family, workplace, and public interest sites like universities; iii) the 

development, funding and implementation of electric vehicle related technology programs 

and electric vehicle car sharing programs. 

Using ADR allows litigants to bring not only their legal positions but also their business 

interests into resolving disputes. 

Department or Agency ADR use beyond the ADR Programs discussed above 

	 When cases come in that are set for trial we utilize a Settlement Judge process prior to a 

hearing. It allows the Judge to work as a mediator and help to resolve the conflict without 

the necessity of a trial and initial decision or subsequent litigation. 

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ADR skills training courses DRD provides to employees at FERC and externally help 

these stakeholders facilitate good decision-making and the resolution of disputes on 

behalf everyone involved in FERC matters. 

 ADR Training 

 We provide training in a variety of areas both internally as well as externally. We have 

had trainings in: 

o Negotiation skills 

o ADR Skills in a team environment 

o Communication Skills 

o Advanced Negotiation 

o Facilitation 

o Emotional Intelligence 

Additional Contacts 

Name: Josh Hurwitz 

Title(s): Deputy Director 

Department/Agency: FERC OALJDR 

Email: Joshua.hurwitz@ferc.gov 

Phone number: 202.502.6668 

Mailing Address: 888 First St. NE, 

Washington, DC 20426 

Name: Jeffrey “J.D.” Hoyle 

Title(s): Attorney Advisor 

Department/Agency: FERC OALJDR 

Email: Jeffrey.hoyle@ferc.gov 

Phone number: 202.502.6198 

Mailing Address: 888 First St. NE, 

Washington, DC 20426 

Name: Alexander Kass 

Title(s): Attorney Advisor 

Department/Agency: FERC OALJDR 

Email: Alexander.kass@ferc.gov 

Phone number: 202.502.6747 

Mailing Address: 888 First St. NE, 

Washington, DC 20426 

As we move through 2016 and into 2017 the world and legal markets have changed. Clients 

are no longer interested in paying large fees for litigation and the use of ADR has become 

more commonplace. Arbitration clauses exist in most commercial contracts and mediation is 

moving more and more into the mainstream. Increased institutionalization of ADR and use 

of ADR techniques has proven effective in resolving many disputes before they get to 

litigation and the technology that exists has made things even easier. Telephones and 

videoconferencing have made it so that the parties in conflict do not need to be in the same 

room or even the same state, and shuttle diplomacy has allowed for a neutral to even resolve 

conflicts through email communication. As ADR and the world changes our agencies have 

been quick to adopt that change and make effective use of the tools they have available. 

7
 
 


 

The Federal Energy Regulatory Commission (FERC) issued Order 821 which among other 

things moved the Dispute Resolution Division (DRD) into the Office of Administrative Law 

Judges giving DRD the opportunity to better institutionalize ADR. In addition to handling 

their own cases and the landowner helpline FERC DRD has begun assisting ALJ’s in 

settlement cases. DRD has also begun the process of institutionalizing the use of ADR in that 

setting by presenting to the ALJ’s on several ways dispute resolution could be beneficial to 

the Settlement Judge process or even in hearings to bifurcate issues that could be removed 

and resolved. We employ telephonic mediation through the ADR Helpline and Landowner 

Helpline, as well as with individual cases referred through FERC. 

DRD has continued both internal as well as external outreach looking to get cases to 

mediation before a complaint has even been filed. DRD staff has created and run education 

programs on the benefits of ADR as well as participated in panels working with law firms, 

the Energy Bar Association, and the American Bar Association to increase knowledge and 

awareness of ADR and its benefits to the lawyers as well as the clients involved in disputes. 

We have also worked to increase ADR knowledge in the community thorough involvement 

in and Chairing the ADR and Consensus Building committee. 

DRD has been successful at bringing in and resolving cases early in the process. The FERC 

Dispute Resolution Division has been tracking and reporting data in order to determine the 

types of cases handled as well as the effectiveness of the dispute resolution practices being 

used in DRD. They have also been tracking and reporting trends that have come up in order 

to better handle the overarching issues that need to be addressed. The reporting has also 

allowed DRD to tailor their ADR techniques to specific cases in order to best address the 

specific needs of each case and the parties involved. 

In the recent years our Chairman Norman Bay along with other Commissioners has made 

public statements expressing support for the use of ADR and how beneficial it has been to the 

agency. 

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Alternative Dispute Resolution Report 

The Federal Labor Relations Authority 

The Federal Labor Relations Authority (“FLRA”) promotes stable, constructive labormanagement relations through the prevention and resolution of federal-sector labor disputes in a 

manner that gives full effect to the collective-bargaining rights of employees, unions, and agency 

employers. More specifically, the FLRA resolves complaints of unfair labor practices; 

determines the appropriateness of units for labor organization representation; adjudicates 

exceptions to arbitration awards; adjudicates legal issues relating to the duty to bargain; and 

resolves impasses during negotiations. 

The FLRA has integrated ADR into virtually all of its processes, and it has significantly 

expanded its ADR-related training, outreach, and facilitation activities. All components of the 

FLRA help parties to resolve disputes, using consensus decision-making and other ADR 

techniques, to reduce unnecessary litigation and its related costs. 

External ADR Programs 

1. Collaboration and Alternative Dispute Resolution Office (CADRO) 

CADRO helps federal agencies and labor organizations more effectively perform their 

mission, improve quality of work life, and mend labor-management relationships. CADRO 

dispute-resolution services offer parties an informal, voluntary, expeditious, and confidential 

way to minimize risks and increase opportunities to successfully resolve certain matters pending 

before the FLRA. 

Federal agencies and unions can appeal final arbitration awards to the FLRA on specific, 

narrow grounds. These appeals are called "exceptions." At any point during the exceptions 

process, the parties can voluntarily agree to use CADRO assistance to resolve the exceptions. 

Federal-sector unions can file a negotiability appeal with the FLRA to challenge an 

agency head's disapproval of negotiated contract language or an agency's claim that the union's 

proposals are outside the duty to bargain or contrary to law, rule, or regulation. At any point after 

the union files its negotiability appeal, the parties can voluntarily agree to use CADRO 

assistance to resolve the negotiability disputes and any related bargaining-obligation disputes. 

And most parties do. 

Under the CADRO umbrella, a team of FLRA process and substance experts annually 

help parties voluntarily resolve 150 to 200 legal questions that arise in arbitration exceptions and 

negotiability appeals. The CADRO team helps parties identify the issues that must be resolved, 

assess the strengths and weaknesses of their case, explore possible solutions, and usually resolve 

the case in a mutually agreeable manner. They most often do so using a quicker, less costly, and 

less risky approach than the litigation that brought them to the FLRA. At the election of the 

parties, they also can go beyond the legal questions and solve the underlying problems that 

litigation often ignores. 

To expand the reach of CADRO’s valuable services and assist parties wherever they 

might be, CADRO normally employs a variety of user-friendly technology tools to deliver its 

September 2016 1 
 

 

 

 

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array of ADR services. This conserves valuable resources and makes the ADR process more 

efficient for federal agencies and labor organizations. 

Some of the most important work performed by the CADRO staff is to help labor and 

management representatives acquire the knowledge, skills, and abilities necessary to grow 

healthy workplace relationships that support mission accomplishment and quality of work life. 

CADRO staff can help unions and agencies jointly assess their training needs and develop action 

plans to turn training into effective solutions. They offer custom training for joint labormanagement groups to improve collaborative problem solving and decision-making (including 

interest-based bargaining), effective labor-management forums and pre-decisional involvement, 

collective bargaining, repairing damaged labor-management relationships, effective 

communication skills and other skills such as brainstorming and building consensus. Training is 

offered at no cost other than reimbursement for any travel costs. 

In addition to dispute resolution services and training, CADRO facilitates federal-sector 

labor-management matters. Facilitation is a process in which someone with no stake in the 

outcome -- a facilitator -- helps participants to accomplish goals by managing group processes. 

CADRO offers facilitation services to provide labor-management groups with structure, help 

participants to develop ground rules, and remain focused. As needed, CADRO facilitators 

manage discussion, group dynamics, conflict, communication, problem solving, and decisionmaking processes. CADRO facilitators always allow participants to determine content and make 

the decisions. CADRO offers facilitation services during joint meetings of federal agencies and 

unions, including labor-management forums, problem solving & decision making sessions, 

leadership meetings, and collective bargaining. 

Michael Wolf serves as the CADRO Director and the FLRA’s settlement official for 

post-complaint unfair labor practice cases. He can be reached at 202-218-7933 or 

mwolf@flra.gov. 

2. Office of the General Counsel (OGC) 

The OGC promotes effective labor-management relations in the federal sector by investigating 

alleged unfair labor practices and prosecuting them when warranted; conducting union elections 

and otherwise determining representation matters; issuing guidance and providing training to 

federal managers and unions; and providing case-related ADR services and training to labormanagement parties across the FLRA’s seven regions. The OGC professional staff have been 

trained in ADR techniques and are encouraged to use ADR, as appropriate, to resolve disputes at 

all stages of case processing. For the past three fiscal years, the OGC has used ADR to resolve, 

on average, 13% of all ULP and REP cases, or around 3,700 cases. During this period, the OGC 

obtained over $1.7 million in backpay on behalf of parties to unfair labor practice charges. In 

addition, he OGC has provided ADR services including facilitation, intervention, training, and 

education in an effort to educate the parties and prevent future unfair labor practice charges. 

During the past year, the OGC has collaborated with Federal Mediation and Conciliation Service 

and General Services Administration to develop and present a nation-wide series of training 

programs on union and management rights and responsibilities relating to office moves and 

space allocation and how to use ADR to avoid disputes and litigation. 

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Assistant General Counsel Kurt Rumsfeld is the OGC contact for ADR services and he 

can be reached at 202-218-7789, krumsfeld@flra.gov. 

3. The Federal Service Impasses Panel (FSIP) 

The FSIP resolves collective bargaining impasses between federal agencies and unions 

representing federal employees. These impasses arise from negotiations under the Federal 

Service Labor-Management Relations Statute and the Federal Employees Flexible and 

Compressed Work Schedules Act. The Panel utilizes mediation, med-arb, and a wide range of 

other ADR methods to help parties voluntarily resolve these impasses. In cases where parties 

fail to achieve voluntary resolutions, the Panel is empowered to make determinations to resolve 

the impasse. 

4. The Office of Administrative Law Judges (OALJ) 

The OALJ conducts hearings and issues recommended decisions in cases involving 

alleged unfair labor practices. Administrative Law Judges also render recommended decisions 

involving applications for attorney fees filed under the Back Pay Act and the Equal Access to 

Justice Act. 

The OALJ encourages the use of ADR through its Settlement Judge Program. After the 

FLRA General Counsel issues an unfair labor practice complaint, and the OALJ sets a hearing 

date, the General Counsel, a union, or an agency representative can ask the OALJ to assign a 

settlement official to help resolve the case. 

The CADRO Director serves as the settlement official for most post-complaint unfair 

labor practice cases in which parties elect to utilize the FLRA's Settlement Judge Program. The 

settlement official schedules a settlement conference with the parties, usually prior to the filing 

of prehearing disclosures. During the conference, the settlement official helps the parties explore 

ways to reach a negotiated resolution to the case. For this reason, the settlement official 

normally requires that persons with full settlement authority actively participate or at least be 

available by telephone. 

The settlement official does not discuss any aspect of the case with the hearing judge or 

anyone else in- or outside of the FLRA. To further minimize risk to the parties, the FLRA’s 

regulations provide that no evidence regarding statements, conduct, offers of settlement, or 

concessions made in proceedings before the settlement official are admissible in any proceeding 

before the judge or on appeal to the FLRA, except by stipulation of the parties. 

Internal ADR Programs 

The FLRA utilizes ADR when appropriate to resolve internal matters regarding its Equal 

Employment Opportunity program, its own labor-management forum, and employee 

performance-appraisal concerns. The FLRA has adopted appropriate policies and protocols in 

support of its internal ADR practices. 

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Alternative Dispute Resolution Report 

Metrics 

CADRO, the OGC, and the FSIP each carefully collect and maintain extensive data on 

the application of their various external-facing ADR services. For example, during the twelvemonth period ending in June 2016, CADRO helped parties fully resolve 92% of 204 

negotiability disputes, 84% of exceptions to arbitration awards in which both parties accepted 

CADRO’s invitation to use ADR services, and more than 80% of cases in which parties agreed 

to utilize the FLRA’s post-complaint ULP settlement judge program. 

Trends and Changes 

CADRO was established in 1996 to support the growth of ADR throughout the FLRA. 

For most of the 21st Century, CADRO remained a one-person office. But in the last several 

years, CADRO has experienced an explosion in the number of labor-management parties that 

have voluntarily sought CADRO ADR services, facilitation, and training. As a result, the FLRA 

determined that it could more effectively accomplish its mission by allocating additional 

resources to CADRO. During FY 2016, CADRO grew to three full time professional staff. In 

addition, fourteen attorney advisors in the Authority component of the FLRA each provide legal 

support for two or three CADRO cases annually. The FLRA expects that CADRO will continue 

to play a pivotal role in helping the FLRA accomplish its mission. 

The OGC FTE level has remained essentially unchanged over the years and is not 

expected to increase in the future. The OGC’s ability to provide requested ADR services is 

dependent on staff availability. 

CADRO has become dependent on the application of appropriate technology to satisfy its 

mission-related goals. Secure videoconferencing, teleconferencing, and data-conferencing have 

become the rule rather than exception in CADRO’s nationwide caseload handled by a 

Washington, DC-based professional staff. Technology also is at the heart of scheduling CADRO 

cases, engaging other agencies for travel expenses related to training, and sometimes even 

delivering training online. This trend line is expected to continually strengthen. 

The only source of funds for FLRA ADR services is appropriated funds, supplemented in 

a very minor way by reimbursement from other federal agencies for case-related travel costs. 

END 

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Federal Maritime Commission
 

2016 Report on ADR in the Federal Government Questionnaire
 

Prepared by: 

Jennifer M. Gartlan 

Deputy Director 

Office of Consumer Affairs & Dispute Resolution Services 

Federal Maritime Commission 

jgartlan@fmc.gov 

(202) 688-0244 

ADR Dispute Resolution Specialist: 

Rebecca A. Fenneman 

Director, Office of Consumer Affairs & Dispute Resolution Services 

Federal Maritime Commission, 

800 North Capitol Street, NW 

Washington, DC 20573 

rfenneman@fmc.gov 

(202) 523-5807 

ADR Policy 

The Federal Maritime Commission’s (FMC) formal written ADR policy is located at 46 C.F.R. 

§502.401 available at http://www.ecfr.gov/cgi-bin/textidx?SID=aa16c7cc8c5f061120825f32caf09fd1&node=se46.9.502_1401&rgn=div8 

as well as http://www.adr.gov/fai.html. The policy has not been amended within the past 10 

years. 

ADR Programs 

1. Program description 

The FMC regulates international ocean shipping between U.S. and foreign ports pursuant to the Shipping 

Act of 1984 (Shipping Act) as amended by the Ocean Shipping Reform Act, 46 U.S.C. § 40101- 41309. 

Regulated entities include: ocean transportation intermediaries such as freight forwarders and non-vessel 

operating common carriers, vessel operators, and marine terminal operators. In addition to the FMC’s 

civil enforcement authority, a private party may file a formal complaint before the FMC asserting a 

violation of the Shipping Act. As such, in an effort to reduce its docket load and to prevent the 

unnecessary filing of formal complaints, the FMC created an externally-facing ADR program. 

The FMC’s ADR program resides within the agency’s Office of Consumer Affairs & Dispute Resolution 

Services (CADRS). CADRS employs a staff of seven FTEs that provide ombuds, rapid response, 

mediation, facilitation, and arbitration services. For example, CADRS routinely addresses disputes 

between U.S. exporters/importers and ocean transportation intermediaries and/or vessel operators 

involving cargo delays or failure to deliver cargo. 

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The FMC has limited jurisdiction over cruise lines pursuant to Public Law 89-777 (Financial 

Responsibility for Death or Injury to Passengers and Nonperformance of a Voyage), and CADRS also 

provides ADR services to assist parties resolve commercial disputes such as cancellations, itinerary 

changes, and billing disputes. 

2. Web Presence 

CADRS maintains several landing pages on the FMC’s website, which provide ADR guidance and tools 

as well as subject matter pages that address specific shipping and cruise concerns. The main CADRS’s 

webpage is located at: 

http://www.fmc.gov/bureaus_offices/consumer_affairs_and_dispute_resolution_services.aspx 

3. Trends 

Funding and FTEs 

There are no notable trends with respect to funding or FTE levels over the past 10 year period. The only 

significant administrative change occurred in 2010 when an agency reorganization established CADRS as 

an independent office reporting directly to Chairman. Prior to 2010, CADRS resided within the Office of 

the Secretary. The establishment of CADRS as an independent office was undertaken to ensure 

CADRS’s independence and neutrality when providing ADR services. It should also be noted that once 

CADRS was established as an independent office, the position of Director became an SES-level position. 

The position of Deputy Director was established in 2011. 

ADR Usage: Case Numbers, Subject Matter, and Timing 

There is no discernable trend regarding case volume over the past ten year period. With the exception of 

2013 and 2014 when CADRS received 1,211 and 1,664 cases, respectively, due to multiple disputes 

involving a single failing intermediary, the average case load per year for the years FY 2006-2015 was 

585 cases. 

With respect to subject matter, CADRS divides its casework into three basic categories: commercial 

cargo, shipments of consumer household goods, and cruise line disputes. Between FY 2011 and FY 

2014, household goods comprised the largest percentage of CADRS ombuds casework.1 However, in FY 

2015, commercial cargo matters comprised 60% of CADRS ombuds matters, while HHG cases fell to 

26% of matters handled.2 CADRS speculates that the shift in volume is attributable to fourtfactors: (1) 

the emergence of port congestion challenges; (2) the resolution of a series of matters involving the failure 

of a large household goods intermediary; (3) commercial outreach efforts; and (4) CADRS’s continued 

and targeted outreach and education campaign to educate consumers regarding best practices when 

1 Household goods cases comprised 45% of ombuds matters in FY 2011; 45% of ombuds matters in FY 2012; 71% 

of ombuds matters in FY 2013; and 78% of ombuds matters in FY 2014. 

2 Commercial cargo claims comprised of 30% of ombuds matters in 2011; 39% of ombuds matters in FY 2012; 19% 

of ombuds matters in FY 2013; and 14% of ombuds matters in FY 2014. 

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shipping goods abroad. Despite the significant fluctuation in household goods and commercial cargo 

matters, cruise matters between FY 2011-2015 ranged between 8-25% of the cases handled by CADRS.3 

Ombuds matters are typically submitted prior to the filing of litigation and CADRS regularly tracks 

subject matter trends. Perhaps one of the most notable ombuds subject matter trends generally, is the 

provision of services to address disputes that occur between consumers that ship their household goods 

abroad and the ocean transportation intermediaries that serve as international moving companies. In 

2010, the FMC initiated Fact Finding 27 “Potentially Unlawful, Unfair, or Deceptive Ocean 

Transportation Practices Related to the Movement of Household Goods of Personal Property in US – 

Foreign Oceanborne Trades” (served June 23, 2010), after the Commission and in particular CADRS had 

addressed 2,500 disputes involving household goods over a four year period. Specifically, consumers 

reported complaints involving non-delivery of cargo, failure of the moving companies to pay other in the 

logistics chain, failure of companies to procure insurance, loss or damage of cargo, and related claims. 

While the Fact Finding concluded in 2011, as discussed above, CADRS continues to receive a significant 

requests for ADR services involving disputes regarding the shipment of household goods. 

CADRS also tracks trends that occur within the commercial case context. For example, in FY 2015, 

CADRS received over 250 ombuds matters involving problems arising out of the highly publicized 

congestion experienced at U.S. ports. Specifically, importers and exporters engaged in disputes with 

vessel operators and marine terminal operators regarding demurrage fees (i.e. storage fees for containers 

at the port). Another example of commercial cargo dispute trends involves 258 requests for ADR 

services over the past six years involving exports of used autos. 

There are no notable trends regarding the volume or subject matter of mediation cases over the past ten 

years, as the Office did not maintain a formal mediation log until 2012. Anecdotally, the Office 

historically has mediated matters in both the pre and post litigation phases. Generally, parties have used 

the mediation process to provide “one-stop shopping” to address Shipping Act, legal, and regulatory 

concerns along with contractual and commercial concerns. 

A major mediation development occurred in 2012 with the FMC’s introduction of mandatory mediation 

conferences for private party complaints (“formal dockets”). See 46 C.F.R. § 502.62. Under the new 

requirement, parties must contact CADRS within 15 days of the filing of an answer to explore whether 

the matter may be resolved through mediation. CADRS has conducted six mediation conferences under 

the new rule. Three out of the six mediation conferences resulted in parties opting to utilize mediation. 

One of those cases settled; in another matter that did not settle, the parties provided feedback to CADRS 

staff that even though the process did not generate settlement, it provided the parties with a better 

understanding of the underlying facts and even assisted the parties with gaining a higher level of trust. 

Out of the three matters where parties did not elect to mediate, one party independently settled shortly 

after the mediation conference. CADRS also notes that there are currently eight pending formal docket 

proceedings that will ultimately require a mediation conference under the FMC’s rules. 

With respect to arbitration, CADRS has conducted two arbitrations within the past ten years. The only 

notable trend was that arbitration occurred as the result of a post-dispute agreement to arbitrate. 

3 Cruise matters comprised of 25% of ombuds matters in FY 2011; 20% of ombuds matters in FY 2012; 10% of 

ombuds matters in FY 2013; 8% of ombuds matters in FY 2014; and 14% of ombuds matters in FY 2015. 

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However, CADRS is currently aware of five service contracts that provide for CADRS provided ADR in 

the event of a dispute. 

Techniques Used and Tangible Benefits 

With respect to techniques and tangible benefits, there are two particular areas where CADRS has 

evolved in recent years. The first involves an emphasis on dispute prevention and management through 

the analysis of ombuds dispute trends and targeted education and outreach initiatives. For example, in 

2013, CADRS noted a growing trend of disputes involving yacht transportation services provided by 

various ocean transportation intermediaries. Specifically, yacht owners alleged significant transportation 

delays and the failure of ocean transportation intermediaries to accurately disclose transportation costs 

and terms of service. Some of the complaints received involved unlicensed ocean transportation 

intermediaries. In response, CADRS recommended the issuance of an alert to yacht owners that 

discussed the general types of problems encountered as well as steps that yacht owners and brokers could 

take to avoid problems when shipping yachts. CADRS continued to monitor the trends, noting that 

between 2011 and 2014, it received 20 complaints involving yacht transportation concerns. During this 

period, CADRS reached out to a trade association that addressed yacht brokerage concerns who published 

an article written by the Deputy Director, CADRS, in February of 2015 that provided general information 

and tips on how to avoid challenges and disputes when shipping yachts to and from the U.S. Since 

February 2015, CADRS has only received two matters involving yacht disputes. 

In addition to its work regarding yacht shipping, CADRS has also undertaken significant education and 

outreach efforts to address problems encountered while shipping household goods as well as cruise 

related disputes and challenges. This effort has included the issuance of brochures, webpage development, 

articles in industry trade publications, and industry alerts on the agency’s website. 

Another ADR innovation at the FMC within the past ten years involves the parties’ greater emphasis on 

the need for real time rapid solution of shipping disputes. This need was particularly evident in 2010 

when the FMC initiated Fact Finding 26, “Vessel Capacity and Equipment Availability in the United 

States Export and Import Liner Trades” (served March 17, 2010) to investigate U.S. shipper claims of 

lack of capacity and access to shipping containers and chassis. Through the auspices of Fact Finding 26, 

the FMC augmented its existing ombuds service with a rapid response service. Essentially, the agency 

and CADRS worked with vessel operator’s senior executives to create a senior level contact list for each 

vessel operator. Vessel operators agreed that the contact would begin to work with CADRS and shippers 

within 24 hours of being contacted by CADRS staff. Initially, rapid response cases typically addressed an 

exporter’s inability to obtain a container or to ensure that a loaded container was timely placed on a 

vessel. The new service created immediate tangible results as parties were able to obtain immediate 

satisfaction of their needs (i.e., ensuring that continuous flow of cargo and/or obtaining delivery of cargo) 

rather than waiting to litigate the matter for monetary damages. 

To further illustrate this benefit, recently, during a period of high port congestion in FY 2015, CADRS 

initiated rapid response services to assist a funeral home owner in a small town obtain a shipment of 

urgently-needed caskets. The importer was unable to obtain an estimated date of arrival for the shipment; 

CADRS reached out to the vessel operator and was able to work with the parties to effectuate delivery. 

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4. Efforts to Build Program Capacity 

CADRS constantly strives to enhance its program capacity in several ways. First, CADRS has developed 

strong relationships with other federal and state agencies. Such relationships provide collaborative 

opportunities for training, general information sharing, and case referrals as appropriate. For example, the 

FMC has a Memorandum of Understanding with the Federal Motor Carrier Safety Administration 

(FMCSA) that incorporates referrals of ADR matters to CADRS, as appropriate, while the FMC refers all 

matters within the jurisdiction of the FMCSA to that agency. Further, under the auspices of the MOU, the 

agencies have agreed to explore joint outreach, education, and training opportunities to further enhance 

the missions of both agencies. 

Similarly, CADRS works closely with State Attorneys General Offices and local jurisdictions to 

exchange referrals as appropriate and to provide more immediate service to localities that may be outside 

the immediate reach of CADRS. For example, CADRS recently worked with Miami-Dade Consumer 

Protection Office in its efforts to negotiate with a landlord whose tenant abandoned over 200 shipments 

for unnamed consumers. It successfully negotiated with the landlord to allow third parties to inventory 

the goods and attempt to contact the ultimate consignees, most of which were ultimately reunited with 

their cargo. 

CADRS also strives to ensure that its staff is current with respect to both ADR and transportation law 

training. Staff is encouraged to attend at least one type of transportation or ADR related training each 

calendar quarter, as the Office’s budget allows. Staff are also encouraged to take advantage of free brown 

bags and other webinars offered through the IADRWG. Further, CADRS’s participation on the IADRWG 

and in IADRWG committees has provided staff with greater exposure to innovative techniques such as 

coaching and facilitation and has raised awareness to new technical advances to provide ADR services 

remotely. 

5. Plans to Expand Program in the Future 

While there are no specific plans to expand the program, CADRS is consistently looking for new and 

innovative mechanisms to enhance its services. For example, CADRS is exploring ways to incorporate 

additional electronic communications and social media channels in order to expand its reach to the public. 

Further, CADRS is closely monitoring complaint volume and trends so that it might make 

recommendations relating to program augmentation as appropriate and supported by the data it collects. 

6. IADRWG Section: Administrative Enforcement and Regulatory Processes 

CADRS regularly participates in the Administrative Enforcement and Regulatory Processes Section. Its 

participation on that committee has been particularly beneficial as a means to compare the various ADR 

techniques, methodologies, and advancements employed by other regulatory agencies in providing ADR 

services. For example, in FY 2015 the Deputy Director of CADRS provided a panel presentation at the 

American Bar Association’s Dispute Resolution Conference, discussingthe various techniques and 

processes implemented by members of the Section. 

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7. Case Example 

In 2009, CADRS received a request from an attorney to mediate a complex multi-party case that involved 

Shipping Act, contractual, environmental, and commercial considerations. Essentially, an exporter who 

lacked experience with shipping matters purchased machinery online and hired an ocean transportation 

intermediary to load and transport the cargo from a storage facility to the ultimate destination. The ocean 

transportation intermediary loaded the cargo and hired another ocean transportation intermediary to 

arrange for transportation of the cargo from the facility to destination. Unfortunately, neither the exporter 

nor the first ocean transportation intermediary, labeled the machinery as hazardous, and the machinery 

contained oil, which began to leak as it was loaded into several containers and arrived at port. The port 

authority and the vessel operator refused to allow the containers to be loaded and while the cargo 

languished at port, the bottoms of several of containers sustained significant damage. The various parties 

(the ocean transportation intermediaries, port authority, and vessel operator) asserted various claims 

against one another on various regulatory and contractual basis. CADRS accepted the request for 

mediation and over the course of several months used various convening and multi-party telephone calls 

to begin to address the issues of immediate port clean up and repair of the containers between the various 

parties. CADRS held a traditional mediation between one of the ocean transportation intermediaries and 

the vessel operator to address specific issues between those parties. The matter was ultimately settled and 

at least two of the parties reported that they were able to deepen their commercial relationship based upon 

the work performed in the mediation. From a pedagogical standpoint, the emphasis on the use of strong 

convening meetings as well as the use of several telephonic mini mediation sessions significantly 

impacted the success of the mediation. 

Department or Agency use beyond the ADR Programs Discussed Above 

CADRS is the only agency office that provides ADR services. However, the FMC’s Office of Equal 

Employment Opportunity utilizes the Shared Neutrals program to resolve personnel related disputes. A 

CADRS staff member was recently accepted into the Shared Neutrals program in 2016 and will be 

providing mediation services on a collateral duty basis to assist other agencies. 

ADR Training 

CADRS regularly provides education and outreach to the public regarding its ADR service offerings. It 

has also developed a web tutorial and other tools to assist parties preparing for mediation and negotiation 

generally. The tools are located at: http://www.fmc.gov/resources/cadrs_resources.aspx 

With respect to other agencies, in 2014, the Deputy Director of CADRS was assigned to a 120 day detail 

at the Federal Motor Carrier Safety Administration (FMCSA) to develop and provide a negotiation and 

mediation course to that agency’s civil enforcement staff. FMCSA requested the training to enhance its 

investigators’ ability to negotiate the release of cargo held hostage by domestic interstate moving 

companies. FMCSA has provided feedback that it has implemented the training and that the use of 

negotiation and mediation techniques have further enhanced its programmatic efforts. 

Interagency ADR Working Group 

CADRS has been an active participant in the IADRWG. Through its participation in the Administrative 

Enforcement and Regulatory Processes Section, and committees such as the Collaborative and Facilitative 

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Processes Committee, Outreach Committee, and Technology Committee, CADRS has had the 

opportunity to gain a better understanding of the processes, tools, and techniques implemented in other 

agencies, and to have the benefit of the guidance materials posted on the adr.gov website as well as the 

experience of senior practitioners in the field. For example, in FY 2016, the Deputy Director participated 

on a panel discussion comprised of members from the Workplace and Administrative Enforcement and 

Regulatory Processes Sections that provided tips and tools for providing real time dispute resolution 

services. 

With respect to IADRWG enhancements, perhaps the best way to facilitate IADRWG support and 

development of programs and to enhance training while enhancing recordkeeping would be to provide 

additional access to the adr.gov website for agency and committee contributions with respect to: guidance 

documents as well as announcements regarding potential free training opportunities. 

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2016 ADR Report from Federal Government Agencies 

ADR Dispute Resolution Specialist Contact Information 

Name: Ramona Buck 

Title(s): Commissioner, ADR and International Services 

Department/Agency: Federal Mediation and Conciliation Service 

Email Address: rbuck@fmcs.gov 

Phone number: 202-606-3678 

Mailing Address: 2100 K Street, NW, Washington, DC 20427 

Effective October 24, 2016: 250 E Street, SW, Washington, DC 

20427 

ADR Policy 

The Federal Mediation and Conciliation Service (FMCS) has a formal written ADR policy. The 

policy has not changed substantively in the past ten years. The link is: 

https://www.fmcs.gov/wp-content/uploads/2015/10/DIRECTIVE_9101­

EQUAL_EMPLOYMENT_OPPORTUNITY.pdf 

Please include Edward “Ted” Bantle and Rozmyn Miller to FMCS’ information section on the 

ADR.gov website. 

ADR Programs at FMCS: 

Internal Facing ADR Programs: 

For disputes within the Agency: 

(a) FMCS has a grievance procedure under its collective bargaining agreement covering a unit 

of approximately 29 employees that includes arbitration as the ADR process; 

(b) for EEO disputes, FMCS has a procedure that includes the use of both internal and external 

mediators. 

The FMCS policy for EEO disputes, including the references to ADR, is at the following link: 

https://www.fmcs.gov/wp-content/uploads/2015/10/DIRECTIVE_9101­

EQUAL_EMPLOYMENT_OPPORTUNITY.pdf 

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External Facing ADR Programs: 

FMCS provides three types of external ADR programs 

(A) Labor-Management ADR services 

(B) ADR for Government 

(C) Arbitration Services 

Congress created FMCS in 1947 as an independent agency through the Taft-Hartley Act. FMCS 

has more than 60 offices strategically located throughout the United States in areas of 

concentrated economic activity. 

A. Labor-Management ADR Services: 

The Agency’s core mission is to promote sound and stable labor-management relations by 

providing mediation assistance in contract negotiations disputes between employers and the 

representatives of their unionized employees. FMCS also provides collective bargaining 

facilitation or mediation using a joint problem solving approach in contract negotiations. 

FMCS grievance mediation is offered as a means of helping labor and management improve 

their relationships by more quickly resolving contractual disputes and improving workplace 

communications. Through a needs assessment and training, FMCS can assist parties to 

develop a new labor-management partnership or improve a current relationship. A 

commitment from both labor and management to rebuild and heal a damaged workplace 

relationship can be strengthened by FMCS through the Relationships-By-Objectives (RBO) 

program. Upon request, FMCS can provide panels of arbitrators experienced in labor 

relations issues. 

B. ADR for Government: 

Pursuant to statutory authority, the Agency provides mediation, facilitation, training and 

other assistance within the Federal government. FMCS mediates workplace and 

discrimination complaints as well as disputes involving the administrative, regulatory, or 

enforcement responsibility of an agency, including whistleblower complaints. FMCS 

provides skilled facilitation to help working groups and teams function more effectively, 

including public policy dialogues. In addition, FMCS provides services for dispute 

resolution system design and regulatory negotiations. FMCS has trained many mediators for 

the Federal government and provides many types of conflict resolution training courses for 

the workplace, both through the ADR Department and through the FMCS Institute. The 

Agency has also spread the use of ADR by providing training, consultation, and other 

technical assistance to many countries around the world. FMCS receives funding for these 

international cases through inter-agency agreements with, among others, the US Department 

of Labor-ILAB and the US Department of State. 

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C. Arbitration Services 

The FMCS Office of Arbitration maintains a roster of arbitrators comprising approximately 

1,000 individuals who are private citizens with specific expertise in holding hearings and 

understanding the dynamics of labor-management relations. Each year, pursuant to FMCS 

requirements and party selection, the arbitrators adjudicate between 1,500 and 2,000 

disputes, while thousands of others settle prior to or during the hearing, or pending the 

decision of the arbitrator. The Office of Arbitration reviews arbitrator compliance with 

FMCS regulations and with the code of professional responsibility for labor arbitrators. It 

also investigates and resolves complaints about arbitrators. Instances of serious arbitrator 

misconduct may be referred by the Office of arbitration to the FMCS Arbitrator Review 

Board for further action. In addition, the Office of Arbitration reviews contractual 

arrangements for arbitration within the collective bargaining agreements of the parties to 

assure that the selection process is consistent with the mutual obligations the parties have 

established. 

Website accessible by the public: https://www.fmcs.gov/ 

Funding and Trends in Case Numbers 

The amount of funding for FMCS’s inward looking program is 2/5 of one full time position, 

occupied by the Agency’s EEO Director, plus EEO counselors, all of whom perform this work as 

an ancillary duty. The EEO counselors provide facilitated conversations, which resolve some of 

the concerns. The number of referrals to mediation from the EEO office is generally one to five 

per year. When mediation is used, the Agency uses both inside and outside mediators. FMCS 

has a total of 240 employees in the Agency. 

The amount of funding for the Agency’s outward looking ADR programs is different than many 

agencies. FMCS’s ADR work for Federal government agencies is performed pursuant to 

statutory authority on a reimbursable basis, under interagency agreements. As an example of 

case numbers, between 2011 and 2014, FMCS received about 4,300 ADR cases from other 

Federal government agencies. The reimbursement from these cases varies from year-to-year. In 

the last ten years, Federal agencies have reimbursed FMCS approximately $1 million per year 

for the ADR services it provides. 

Number of Cases/Disputes 

Between 2012 and 2016, FMCS processed about 6,888 ADR cases from other Federal 

government agencies. These cases include the mediation of EEO disputes, general workplace 

conflicts, certain cases for the Postal Service , Age Discrimination Act cases (between 

individuals and agencies receiving money from the Federal government), administrative program 

disputes, training, systems design, outreach, education, and international mediations for the 

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National Contact Point at the U.S. Department of State dealing with OECD Guidelines for multinational corporations. 

Tangible and/or Intangible Benefits Realized by using ADR 

The benefits of using alternative dispute resolution in lieu of litigation are well recognized in the 

legal and business communities. For its internal dispute resolution processes, FMCS does not 

have enough data to specifically measure the benefits of ADR. The greatest intangible benefit is 

realized in the speedy resolution of internal disputes and misunderstandings. Early intervention 

in minor disputes and misunderstandings prevents these incidents from escalating into more 

serious situations. 

The benefits from FMCS’s external ADR work are better established. FMCS’s agreement rate is 

in the 47 to 52 percent range, which is significant considering that in many cases FMCS 

mediators are utilized to mediate the more complex disputes, with agency-based neutrals 

handling more routine cases. Additionally, proactive skills-building and process design and 

implementation allow agencies to deal more effectively and thus more cost-efficiently with 

inevitable conflict. 

More importantly, FMCS ADR work in areas such as regulatory negotiations has paid 

tremendous dividends to the American economy 

Types of ADR Processes/Techniques used 

FMCS provides a full range of processes and techniques in its ADR work. These include 

mediation, facilitation, training, team-building, ADR systems design, and coaching for other 

agencies. 

Building Program Capacity 

For its outward looking programs, FMCS has conducted outreach with other Federal government 

agencies to acquaint them with the Agency’s ADR services and to encourage them to enter into 

interagency agreements for mediation, facilitation, coaching, training, and other processes. For 

example, FMCS held an open house in 2012 for Federal government agencies, and the Agency 

plans another one in January 2017, to coincide with the national headquarters move to 250 E 

Street, SW, Washington, DC. 

FMCS did additional outreach for its labor management work this year by hosting a national 

labor management conference in Chicago in mid-August, 2016, where more than 1,000 

labor/management and ADR practitioners attended. 

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FMCS is always open to expanding the Agency’s outward program offerings, based on the needs
 

of the agencies who contact FMCS.
 

The following sections of the Interagency ADR Working Group most closely relate to the work 

of this ADR program:
 

X_ Workplace 

X_Contracts and Procurement (on occasion) 

X_ Administrative Enforcement and Regulatory Process 

__ Litigation 

X Environmental (on occasion) 

Some Experiences from our Cases: 

Pursuant to the Administrative Dispute Resolution Act of 1996 and the Negotiated Rulemaking 

Act, the FMCS has been tasked with fostering the effective use of ADR by government 

agencies to help reduce the costs associated with litigation, improve stakeholder engagement, 

and encourage better governmental decision-making. In carrying out its ADR mission, the 

Agency has assisted with the resolution of a wide variety of issues, processes, and forums, 

including: 

During 2015, FMCS provided negotiated rulemaking services to the U.S. Department 

of Energy (DOE), which had a goal of defining energy efficiency standards for 

manufactured housing. FMCS mediators helped a working group successfully develop 

a draft document detailing these standards. Those involved praised the facilitators for having 

played a critical role in convening industry, efficiency advocates, and consumer interest groups 

to negotiate an all-encompassing new efficiency standard. The parties successfully concluded 

the draft rule in less than four months – a particularly impressive feat given that industry 

consensus on the rule had been elusive for several years. 

Also during 2015, in what has been hailed by the DOE as the biggest energy-saving standards 

rulemaking in DOE history, FMCS assisted industry, government, and advocacy groups in 

achieving major new consensus energy standards for commercial heating and air conditioning 

equipment. The new standards have the potential to save nearly 15 quadrillion BTUs (quads) 

of energy over 30 years and reduce energy consumption and costs by billions of dollars over 

the lifespan of the equipment. 

In 2015, FMCS also provided training to more than 20 agencies in the skills and 

procedures of alternative dispute resolution. These trainings included an agency-wide 

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effort to assist the Social Security Administration’s ADR program by training 6,000 

supervisors and managers in the effective utilization of ADR. Additionally, in 

conjunction with the Office of Personnel Management (OPM), the Federal Executive 

Boards in Philadelphia, Detroit, Atlanta, Dallas, Washington, and Baltimore, and other 

federal agencies, FMCS provided basic, advanced, and refresher mediation skills training 

to more than 320 neutrals for the Federal Neutral Shared Services and other Federal 

agency ADR programs. The training included more than 120 IRS agents from the IRS 

Office of Appeals. 

FMCS also assisted with a number of complex and high-level disputes, including: a dispute 

under the auspices of the U.S. Department of Labor between two states over the application of 

unemployment compensation payments to dual-state workers; securing the first-ever resolution 

of a complaint filed with the U.S. State Department’s National Contact Point for the OECD 

Guidelines; and supporting the Surface Transportation Board’s efforts to resolve long-standing 

issues between Amtrak and more than 20 states over implementing terms of the Passenger Rail 

Improvement and Investment Act (PRIIA). 

Department or Agency ADR use beyond the ADR Programs discussed above 

FMCS’s labor-management services are quite extensive and are described above in the External 

Facing Programs in Section A. FMCS has also provided mediation for international disputes, 

several of them referred to FMCS by the National Contact Point under the Department of State. 

These services included mediating cases involving disputes in Cameroon, Ethiopia, and the 

Maldives. FMCS has also provided regulatory negotiation facilitation for agencies needing help 

in the process of formulating draft consensus-made rules for regulatory notice and comment. 

ADR Training 

FMCS offers basic mediation training, advanced mediation training, facilitation training, conflict 

resolution training - particularly for workplace venues – and training on specific topics such as 

generational differences, bullying in the workplace, cultural awareness, team building, telemediation, the art and science of inquiry, and mindfulness. Some courses are offered through the 

FMCS Institute, which offers trainings around the country for individuals in the public and 

private sectors. The ADR Office offers training for specific agencies, based on agency needs. A 

recent example was an advanced mediation skills course given through the Department of Justice 

at the National Advocacy Center in Columbia, South Carolina. FMCS also offers occasional, 

free, online webinars available to both the Federal agency ADR community and the general 

public. 

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Interagency ADR Working Group 

Given FMCS’s role under the Administrative Dispute Resolution Act, it is essential that the 

Agency maintain a high level of awareness about the programs, best practices, successes, and 

challenges faced by the Federal ADR community. Close involvement with the working group 

provides the Agency with critical insights, as well as ensures that agencies are aware of FMCS’s 

mission to support them in their ADR efforts. 

The ADR Working Group Steering Committee provides a great opportunity for communication 

among agencies so that no one agency’s program is operating in a vacuum. The group promotes 

collaboration rather than competition and, in so doing, benefits the entire Federal government 

workforce. 

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FEDERAL RESERVE OMBUDSMAN’S
 

SUMMARY FOR THE 2016 REPORT FOR THE PRESIDENT ON THE USE AND 

RESULTS OF ALTERNATIVE DISPUTE RESOLUTION IN THE EXECUTIVE 

BRANCH OF THE FEDERAL GOVERNMENT
 

The Federal Reserve Ombudsman is responsible for acting as a liaison between the 

Federal Reserve and financial institutions or persons affected by its regulatory activities, as well 

as making sure that safeguards exist to encourage those affected to come forward and to preserve 

confidentiality. As such, the Ombudsman’s function is external-facing. The Ombudsman 

performs several key functions in accomplishing its responsibilities, including serving as a 

facilitator; receiving, reviewing, and deciding claims of retaliatory conduct made against Federal 

Reserve staff; reporting to Federal Reserve staff on recurring issues; and advising financial 

institutions regarding available processes for resolving disputes, including procedures for 

appealing material supervisory determinations. 

The Ombudsman maintains a publicly accessible website, which is located at: 

http://www.federalreserve.gov/aboutthefed/ombudsman.htm. 
 

 

 

 

 

 

 

 

 

 


 


 


 

National Aeronautics and Space Administration
 

2016 REPORT ON ADR IN THE FEDERAL GOVERNMENT
 

ADR Dispute Resolution Specialist Contact Information 

Richard J. McCarthy 

Title(s): Senior Attorney/Procurement ADR Dispute Resolution Specialist 

Department/Agency: National Aeronautics & Space Administration 

Email Address: richard.j.mccarthy@nasa.gov 

Phone number: 202-358-2031 

Mailing Address: 300 E Street SW, Code GK, Washington DC 20546 

ADR Policy 

Does your Department or Agency have a formal written ADR policy? Yes 

Has the written ADR policy been amended or modified during the past ten fiscal years 

(FY06-FY15)? If so, please describe how. 

NASA’s general policy on ADR is enshrined in NASA Policy Directive 2010.2C, with the 

responsible office being the Office of the General Counsel. NDP 2010.2C designates the Deputy 

General Counsel as the agency Dispute Resolution Specialist. Please see the NPD at the 

following address: http://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPD&c=2010&s=2C 

This directive delegates the authority to address ADR in EEO matters to the Associate 

Administrator for the Office of Diversity and Equal Opportunity. 

The NASA’s EEO ADR Policy is specified under the NASA Procedural Requirements (NPR) 

3713.2A. The NPR is currently being updated to incorporate new requirements under the revised 

Equal Employment Opportunity Commission (EEOC) Management Directive (MD) 110 issued 

in August 2015. 

ADR Programs 

List each distinct ADR program at your Department or Agency and for each ADR program: 

NASA ADR Program: 

• Ombudsman Program 

• EEO ADR 

• Procurement ADR 

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I. Program Descriptions: 

a. Whether the program is internal-facing or external-facing; 

The NASA Ombudsman Program is an internal-facing program that was established in 

2005 as an informal, independent, confidential and neutral means of communicating and 

facilitating the resolution of safety, organizational performance, and mission related 

issues without fear of retaliation. All NASA Centers have Ombudsmen who will listen to 

an employee's issues, explore options, and weigh the pros and cons of various options for 

resolution. The Ombudsmen reports to the Center Directors at each site. 

NASA has an agency-wide EEO ADR Program. The Associate Administrator (AA) for 

Diversity and Equal Opportunity (EO) is responsible for the development and direction of 

the EEO ADR Program across the Agency. The Agency EEO ADR Program Manager is 

responsible for the daily operation of the EEO ADR Program at the agency level. The 

Center EEO Directors manage the EEO ADR requirements at the Center level. Centers 

also have an EEO ADR Program Manager. 

NASA OGC also supports the use of ADR in the context of procurement and acquisition 

matters. Specifically, use of ADR techniques in bid protest litigation at the Government 

Accountability Office (GAO, and contract claim ADR at the Armed Services Board of 

Contract Appeals (ASBCA). 

b. The subject-matter of the disputes covered by the program; 

The NASA EEO ADR Program is designed to resolve EEO complaints at every Center 

(informal EEO process) and at the Agency level (formal EEO process) through 

facilitation by a neutral third party. The EEO ADR Program is used for a variety of 

issues from non-selection, failure to accommodate to harassment and hostile working 

environment allegations. 

c. The types of ADR processes/techniques used by the program; and 

The NASA EEO ADR Program primarily utilizes mediation, one of the most common 

and effective methods of ADR, as a way to quickly and appropriately resolve EEO 

complaints. It provides individuals with the opportunity to develop mutually agreeable 

solutions. It also allows the individuals involved in the dispute to have a greater voice in 

the outcome than in the traditional EEO process, where the outcome is determined by a 

NASA official or Equal Employment Opportunity Commission (EEOC) Administrative 

Judge. Although Mediation is the most widely used method of EEO ADR at NASA, 

occasionally other forms of EEO ADR are utilized such as facilitation, settlement 

conferences, and shuttle diplomacy. 

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d.	 The source of neutrals; 

At the Agency level, NASA uses contract mediators for EEO complaints. Some NASA 

centers work collaboratively with other federal agencies within the local area and utilize 

shared-neutral resource to mediate EEO complaints. 

II. Program Websites 

The NASA Ombudsman Program website can be found at: 

http://ombuds.hq.nasa.gov/index.html 

NASA has developed and is currently finalizing an EEO ADR Website for deployment 

towards the end of FY 2016. 

NASA also plans to deploy another website where information on other avenues of 

redress to resolve conflicts in the workplace will be made available. 

III. Trends over the past ten fiscal years (FY06-FY15): 

a.	 The amount of funding for the program, and if it has changed, whether there has been 

any impact on the program, and the nature of that impact 

The Agency has a robust EEO ADR Program and makes EEO ADR available both at the 

agency and center levels. The program is well funded and resourced accordingly. The 

agency has budget allocation for EEO ADR during the formal complaint process. Each 

center manages their EEO ADR budget for informal complaints. 

The success of the Agency’s EEO ADR Program is attributed to NASA leadership’s 

commitment to early and informal resolution of complaints. Agency leadership’s support 

is evident in its steadfast efforts to ensure appropriate allocation of funds and resources 

for EEO ADR services, training for managers and supervisors as well as marketing 

materials. Consequently, there is more engagement from managers and supervisors and 

other appropriate stakeholders and significant increase in EEO ADR offer and 

participation rates. 

b.	 The number of full time employees (FTE’s) devoted to the program, and, if the 

number has changed, whether there has been any impact, and the nature of that 

impact; 

NASA Ombudsmen are collateral duty Ombudsmen at the GS 14, 15, or SES level. 

When selected by their Center Director, concerted effort is made to ensure that 

Ombudsmen do not hold supervisory positions or have other duties that would make 

fulfillment of the duties burdensome. 

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NASA has Agency and Center EEO ADR Program Managers. The Agency EEO ADR 

Program Manager provides policy and operational guidance for the Center ADR 

Programs and responsible for the day-to-day operation of the EEO ADR Program in the 

formal stage of the EEO complaints process. The Center EEO ADR Program Managers 

are responsible for the Center’s informal EEO ADR requirements. 

c. ADR usage (number of cases or disputes, subject-matter, early or late); 

In 2015, the NASA Ombudsmen saw 237 visitors. 

Of the new informal complaints received in FY 2016, 44% were offered the opportunity 

to resolve their issues through EEO ADR process. This shows an increase from 38% in 

FY 2015 and 35% in FY 2014. The Agency’s offer rate at the formal process jumped 

from 13% in FY 2015 to 48% in FY 2016.1 

Participation rate in EEO ADR at the informal stage has tripled from 19% in FY 2015 to 

57% in FY 20162, which is above the federal-wide participation rate of 53%.3 At the 

formal stage, participation also shows significant increase from 3% in FY 2015 to 46% in 

FY 2016,4 which is over the federal-wide rate of 9%5. This positive trend is attributed to 

support from leadership, active engagement of all stakeholders to utilize EEO ADR at 

various stages in complaints processing as well as aggressive marketing of the program. 

The issues where EEO ADR was utilized ranged from non-promotion, disciplinary 

actions, failure accommodate to workplace harassment. 

d. Tangible and/or intangible benefits realized by using ADR; and 

The NASA Ombudsman Program complements the formal dispute resolution programs 

available within NASA. Often times the Ombudsmen will refer their visitors to these 

formal resources and in return these programs refer people to the Ombudsman Office for 

assistance with dispute resolution. The difference between the Ombudsman Program and 

these other resources is that the Ombudsman is an “off the record informal resource.” 

Going to the Ombudsman does not rule out utilization of the formal options. 

Resolution of cases through EEO ADR was definitely a win-win for the Agency. The 

processing time was considerably faster when compared to the traditional EEO 

complaints processing. In FY 2015, average days for formal EEO ADR process was 19 

days while average to close formal complaint process was 449 days. Feedback received 

from managers and supervisors who participated in EEO ADR showed that they have a 

1

As of April 2016 

2

As of April 2016 

3

Federal-wide participation rate based on EEOC’s Annual Report on the Federal Workforce Fiscal Year 2014. 4

As of April 2016 

5

Federal-wide participation rate based on EEOC’s Annual Report on the Federal Workforce Fiscal Year 2014. 

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better understanding and more appreciation of the process as well as more likely to utilize 

the process when resolving EEO complaints and/or workplace conflicts in the future. 

e. Types of ADR processes/ techniques used. 

EEO ADR: Majority of the cases used mediation. For those cases at hearing, settlement 

conference was utilized. 

IV.	 Steps taken to build program capacity in this ADR program during the past ten fiscal 

years (FY06-FY15): 

The most significant factor that made it possible to establish and maintain an effective 

EEO ADR Program at NASA is leadership’s commitment to and support for the program. 

NASA issued and revised its EEO ADR policy to ensure it is responsive to the changes in 

the working environment. Sufficient funding for EEO ADR was established to assure 

successful operation of the program. EEO ADR Program Managers, both at the center 

and agency levels, were put in place to manage the program effectively and efficiently. 

Furthermore, effective FY 2015, NASA established an EEO ADR scorecard measuring 

each center and agency-wide offer and participation rates. The agency also uses the 

scorecard to identify deficiencies, common solutions to challenges and promising 

practices. 

V. Are there any plans to expand this program in the future? 

Another critical element to a successful EEO ADR Program is buy-in from appropriate 

stakeholders, i.e., managers and supervisors, employees, Office of General Counsel, etc. 

The agency will continue to engage appropriate stakeholders through training and 

marketing of EEO ADR. The Agency is currently developing a more comprehensive 

training for managers and supervisors with a projected deployment towards the end of FY 

2016. This training will be made mandatory for managers and supervisors with a plan to 

provide an annual refresher to keep the momentum and engagement. The Agency’s EEO 

ADR brochures for managers, supervisors and employees underwent a major facelift with 

updated and critical information and an EEO ADR toolkit for managers and supervisors 

is under development with the goal of increasing engagement and utilization of the 

program. NASA also established an EEO ADR Working Group (ADRWG). The group 

will be utilized as a platform to discuss issues, concerns and common solutions and work 

collaboratively with our stakeholders to promote EEO ADR across NASA. All these 

efforts are geared towards ensuring the employees and managers understand the EEO 

ADR process and appreciate the many benefits of using EEO ADR to resolve EEO 

complaints and/or workplace conflicts. 

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VI. Which of the following sections of the Interagency ADR Working Group most closely 

relates to the work of this ADR program (you may check multiple sections): 

X Workplace 

X Contracts and Procurement 

__ Administrative Enforcement and Regulatory Process 

X Litigation 

__ Environmental 

a. Success stories from the past ten calendar years: 

In 2014, NASA engaged the Armed Service Board of Contract Appeals (ASBCA) in an ADR 

process to resolve a construction-related dispute at the Armstrong Flight Research Center 

(Edwards AFB, California). The contractor had submitted a certified claim on a road and 

piping project. NASA counsel at HQ and the center realized the case was well suited for the 

ADR program offered by the ASBCA. Upon the agreement of the contractor, the parties 

entered into an ADR agreement that included an informal hearing and mediation by an ASBCA 

judge in Palmdale, California. The result was a reasonable settlement of the dispute for both 

sides. Procurement disputes, particularly over contract administration issues, are often good 

candidates for ADR. In addition, the ASBCA and other administrative tribunals now offer 

ADR services upon request and agreement. NASA OGC actively encourages the various 

NASA Centers (through the center Chief Counsel offices) to consider ADR in all potential 

litigation situations. 

Department or Agency ADR use beyond the ADR Programs discussed above 

The Office of Diversity and Equal Opportunity (ODEO) sponsors the Agency’s Conflict 

Management Program (CMP). The CMP provides managers, supervisors, and employees with 

tools to explore the sources of conflict and create an environment in which effective 

communication and engagement are consistently utilized. The CMP approach is intended to help 

individuals and organizations improve overall communications across the Agency to maintain 

maximum focus on mission accomplishment. 

The CMP has been recognized by the Office of Personnel Management (OPM) as one of the 

most innovative and proactive civil rights programs government-wide, and OPM’s No FEAR 

Act report to Congress cited the CMP as a Best Practice. In addition, the CMP has been 

integrated into the Agency’s strategy to address heightened levels of stress and strain on the 

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NASA workforce associated with the Agency’s transition from the Shuttle to the Constellation 

Program. 

In January 2008, ODEO launched CMP Agency-wide to assist NASA in responding more 

constructively to workplace conflict at both the individual and organizational levels. In July 

2008, ODEO, in partnership with the Office of Headquarters Operations, began offering full-day 

CMP training sessions for HQ managers, supervisors, and employees, which continue to be 

offered on an ongoing basis. 

Each year, ODEO sponsors Conflict Management instructor-led training at centers across the 

Agency. Course offerings include the following: 

• Basic Conflict Management Training for Managers/Supervisors 

• Basic Conflict Management Training for Employees 

• Conflict Management Training for High Performing Teams 

• Conflict Management Training for Intact Teams 

The Conflict Management Program also offers a Webinar Series designed to further the 

objectives of the above referenced programs for the Agency’s managers, supervisors and 

employees. The Series showcases interactive and engaging 1-hour webinars covering the 

following topics: Trust Building, Effective Communication, Handling Difficult Emotional 

Situations, and Performance Expectations. 

ADR Training 

The Agency will deploy an EEO ADR Training specifically targeting managers and supervisors. 

This training is mandatory effective FY 201 with annual refresher requirement as a follow-up to 

this mandatory training. ADR Training is currently on the agenda at the New Employee 

Orientation and New Supervisor Orientation. NASA also has an ADR training in place for ADR 

Teams and EEO Practitioners as well as for Employees. In addition, the newly-established 

brochure for Managers and Supervisors contain helpful tips for managers and supervisors to 

ensure they have all the information they need to assist them when utilizing EEO ADR. To 

encourage participation from employees, the employee brochure was updated with more 

information on EEO ADR Program. EEO ADR and other conflict resolution techniques are also 

highlighted during the Conflict Resolution Day in October. Centers bring in speakers and/or 

conduct brown-bag luncheons discussing EEO ADR and other avenues of redress available at the 

Center and Agency levels to resolve workplace disputes. 

Interagency ADR Working Group 

The information from the IADRWG was shared across the NASA EEO community including 

training opportunities and/or brown bag discussions. Relevant information assists EEO 

practitioners in the execution of their EEO ADR function. 

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Given the trends you have reported above, how can the Interagency ADR Working Group better 

facilitate, encourage, and provide coordination for the 1) development of ADR programs; 2) 

training of agency personnel; 3) the development of procedures to permit agencies to obtain the 

services of neutrals on an expedited basis; or 4) recordkeeping to ascertain the benefits of ADR? 

Members will benefit through continued collaboration and discussions between agencies on 

promising practices, challenges and training opportunities. Some agencies may also benefit if 

IADRWG will establish a cadre of shared-neutrals to augment the agencies’ ADR resources (or 

lack thereof). 

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NRC 2016 REPORT ON ADR IN THE FEDERAL GOVERNMENT 

ADR Dispute Resolution Specialist Contact Information 

Provide your name, title(s) and contact information: 

Name: Bradley Jones
 

Title(s): Deputy General Counsel
 

Department/Agency: United States Nuclear Regulatory Commission
 

Email Address: Bradley.Jones@NRC.GOV
 

Phone number: 301-415-1900
 

Mailing Address: U.S. Nuclear Regulatory Commission
 

Washington, DC 20555-0001 

ADR Policy 

Does your Department or Agency have a formal written ADR policy? X Yes __No (check one). 

ADR Programs 

At the NRC there are two distinct ADR programs, each with its own dedicated staff: 

•	 The US Nuclear Regulatory Commission Office of Enforcement (OE) Alternative 

Dispute Resolution (ADR) program; and 

•	 The Alternative Dispute Resolution Program (ADR) in the Office of Small Business 

and Civil Rights (SBCR) 

Descriptions of each NRC program are provided below. 

1.	 The US Nuclear Regulatory Commission Office of Enforcement (OE) Alternative 

Dispute Resolution (ADR) program 

The US Nuclear Regulatory Commission Office of Enforcement (OE) Alternative 

Dispute Resolution (ADR) program is an external facing program available to NRC 

licensees, applicants, contractors, and their employees. The program is comprised of 

two sub-programs, Pre-Investigation (or “Early”) ADR and Enforcement ADR. The 

Early ADR program is offered prior to the initiation of an investigation by the NRC’s 

Office of Investigations (OI) and is only available to allegers and their employers for 

resolving allegations of retaliation for raising nuclear safety concerns associated with 

NRC regulations. The Enforcement ADR program, formerly known as the “PostInvestigation” ADR program is available for cases where the NRC has concluded that 

an enforcement action may be warranted, due to noncompliance with NRC 

regulations. The Enforcement ADR program is available for purposes of resolving 

NRC enforcement cases involving discrimination and other wrongdoing, after the 

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completion of a NRC investigation. Enforcement ADR is also available for escalated 

non-willful (traditional) enforcement cases, with the potential for civil penalties. The 

primary type of ADR process used for these programs is mediation. The source of 

neutrals is contractual with both parties incurring the expense of providing a mediator 

in the case of Enforcement ADR and NRC bearing the mediation expense in the case 

of an Early ADR. 

2.	 The Alternative Dispute Resolution Program (ADR) in the Office of Small Business 

and Civil Rights (SBCR) 

The Alternative Dispute Resolution Program (ADR) in the Office of Small Business 

and Civil Rights (SBCR) is administered by an ADR Coordinator and is available to 

all NRC current and former employees and applicants for employment (hereinafter 

referred to as employees). The program is internally facing to the extent that it applies 

to internal NRC employees and externally facing to the extent that it is also available 

to job applicants that are not NRC employees and former employees. A Sr. Civil 

Rights Specialist, Civil Rights Program, Civil Rights and Diversity Directorate, 

SBCR, serves as the ADR Coordinator. SBCR’s ADR Program is made available 

consistent with 29 C.F.R. Part 1614, in order to set forth an informal mechanism to 

attempt resolution of complaints of discrimination, harassment, failure to 

accommodate, etc. arising under laws enforced by the Equal Employment 

Opportunity Commission (EEOC). The ADR program is also available to the NRC’s 

Office of the Chief Human Capital Officer as a tool to resolve workplace discord that 

may not be rooted in EEO related issues. 

The ADR process does not replace already existing equal employment opportunity 

(EEO) discrimination complaint procedures, but supplements them in an effort to 

resolve claims of employment discrimination. The Agency uses mediation as the 

primary form of ADR. Facilitated discussion is also utilized by Civil Rights Program 

staff in appropriate cases to reach informal resolution of claims. Employees may 

request mediation at the pre-complaint or formal complaint stage (after filing a formal 

EEO complaint but before a request for an EEOC administrative hearing). The 

Agency obtains mediators through the Sharing Neutrals Program, U.S. Department of 

Health and Human Services and the Federal Mediation and Conciliation Service 

(FMCS). 

Each NRC ADR Program maintains its own website. 

The Office of Enforcement, Alternative Dispute Resolution Page that is accessible to 

the public. The URL for the site is: http://www.nrc.gov/aboutnrc/regulatory/enforcement/adr.html 

The SBCR’s ADR Program is accessible by the public. The URL for the site is 

http://www.nrc.gov/about-nrc/civil-rights/crp/eeo-adr-program.html 

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Trends that NRC ADR Program managers have observed in each program over the past ten fiscal 

years (FY06-FY15) are described below: 

The Office of Enforcement, Alternative Dispute Resolution Program 

i. Program funding experienced minimal increase in budget since its inception. The 

minimal increase was due to inflation and increase in usage. There has been an increase 

in the use of both subprograms, accredited to increased program awareness, expansion of 

program applicability, and increased appreciation for its benefits. The program is funded 

through our Agency overhead budget (based on specific regulatory mission area – 

oversight). 

ii. In the recent past, approximately 1.0 FTE has been devoted to the OE ADR program. 

The assigned FTE addresses program policy, support and oversight, as well as contract 

oversight and operational tasks. 

iii. Early ADR has an average of 36 cases per year. Enforcement ADR has an average of 

7 cases per year. 

Trending data for the last 5 years is available on the NRC public website: 

http://www.nrc.gov/about-nrc/regulatory/enforcement/adr/trending-data.html 

iv. A benefit of the Early ADR program is that it encourages quick resolution of matters 

between the alleger and employer, with the goal of minimizing negative impact to the 

environment of raising safety concerns. The use of the Early ADR program (and 

associated settlement of cases) also decreases the length of time exhausted addressing the 

matters. The alternative, an investigation by the USNRC Office of Investigation typically 

takes 1-2 years to complete, whereas cases settled using mediation are typically resolved 

within a matter of a few months. 

The Enforcement ADR program provides both tangible and intangible benefit of allowing 

the NRC staff and the licensee to communicate openly and directly and enables the 

parties to reach effective and workable agreements that meet the NRC’s regulatory 

interests. Historically, the Enforcement ADR program has resulted in broader and more 

comprehensive corrective actions than would be expected using traditional enforcement 

means. 

v. The type of ADR method used by the Office of Enforcement, Alternative Dispute 

Resolution Program is mediation. 

The Office of Small Business and Civil Rights (SBCR) ADR Program 

i. SBCR has very low complaint activity (less than one-half of one percent of employees 

file EEO complaints each fiscal year). Thus, we can discern no statistically significant 

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trends based on the limited data. Overall, ADR usage since 2006 has been relatively 

consistent. NRC’s ADR Program run through SBCR does not have a separate budget 

line item. Rather, the funding needed to run the ADR Program is contained within 

SBCR’s budget. During the past two (2) fiscal years, the Agency has solely used the 

Sharing Neutrals Program for all mediations conducted at its headquarters facility in 

Rockville, Maryland, and there is no cost associated with these mediations. Conversely, 

the Agency also uses the FMCS for mediations in any of NRC’s four (4) regional offices, 

which occur a few times a year. These mediations average $400-$600 per mediation 

based on the hourly rate charged by FMCS mediators. Recently, due to travel budget 

constraints, the Agency has successfully used video teleconferencing methods to conduct 

mediations when participants are located in different geographical locations. 

ii. The ADR program function within SBCR is not a full time responsibility. There is a 

Sr. Civil Rights Specialist/ADR Coordinator who oversees the program and a Civil 

Rights Specialist who assists with logistical matters. A contract Civil Rights Specialist 

also provides support to the ADR Program. In prior years, the Civil Rights Program 

Manager and/or the Associate Director, Civil Rights and Diversity Directorate, have 

served as the ADR Coordinator. 

iii. Based on data presented in response to question three above, ADR usage in SBCR has 

remained relatively consistent between FY 2006 and FY 2016 (to date) with only minor 

fluctuations in the level of usage of the ADR program from fiscal year to fiscal year. In 

addition, based on general observations of the ADR Program and an emphasis to resolve 

EEO complaints early, more employees request ADR during the pre-complaint EEO 

process than during the formal complaint stage. SBCR makes its ADR Program 

accessible in 100% of EEO cases, but the program is voluntary (as required by EEOC 

directives). Thus, even if one party wishes to engage in ADR, if the other party declines 

participation, then no ADR session will occur. 

iv. SBCR’s ADR program have yielded several tangible benefits. First, mediation has 

been successful in opening up the lines of communication between management and 

staff. It has given both parties the opportunity to speak frankly and confidentially in a 

safe environment. This results in a greater potential to repair fractured relationships, a 

possible increase in productivity in the branch/program office and an improved 

environment in the Agency. Moreover, SBCR makes its ADR program available to the 

Office of the Chief Human Capital Officer if there are non-EEO related disputes that are 

interfering with workplace productivity and/or creating an environment that is not 

conducive to performing NRC’s mission. On a few prior occasions, the ADR program 

has been instrumental in helping to mend rifts between employees that may not be rooted 

in EEO related issues. Furthermore, SBCR’s ADR Program has benefitted the Agency 

by reducing costs to investigate cases that are resolved, as well as to improve complaint 

processing efficiency. Finally, EEOC has lauded NRC’s ADR program because it 

provides an “Agency Official” at its mediations. An “Agency Official” serves an 

important role as a neutral conduit, someone who can provide information and/or obtain 

information so a mediation can continue without interruption. 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

v. NRC uses mediation as the primary form of ADR. However, all of the Civil Rights 

Program staff are certified mediators and use their skills to obtain settlements of both 

informal and formal EEO complaints through facilitated discussions, when applicable. 

Steps taken by NRC to build program capacity in NRC’s two ADR programs during fiscal years 

(FY06 to FY15) are described for each program as follows: 

The Office of Enforcement, Alternative Dispute Resolution Program 

The Office of Enforcement (OE) ADR program was formalized in 2004, and included the 

Early and Enforcement ADR program components. In 2015, the scope of the 

Enforcement ADR program was expanded to include traditional, non-willful cases with 

the potential for a civil penalty. 

To facilitate utilization of the program, OE has performed outreach activities at various 

conferences/events and maintains a webpage. OE has also maintained a contractual 

relationship with Cornell University’s Scheinman Institute on Conflict Resolution. The 

Institute provides the ADR program with an intake neutral (program manager) and 

nationwide roster of session neutrals thereby providing a resource for maintaining and 

potentially building NRC’s OE ADR program capacity. 

Early ADR may be offered prior to an OI investigation, increasing the likelihood that the 

matter can be resolved prior to potential impacts to the work environment. Enforcement 

ADR may be offered at three distinct points within the enforcement program providing 

the parties with multiple opportunities to utilize the program. Parties are informed about 

the availability of Enforcement ADR, in applicable cases, (1) before a pre-decisional 

enforcement conference, (2) after the initial enforcement action is taken, and (3) with the 

imposition of a civil penalty and prior to a hearing request. 

The Office of Small Business and Civil Rights (SBCR) ADR Program 

Over the last ten years, SBCR has engaged in a number of activities in support of 

expanding the use, effectiveness and capacity of its ADR program. First, NRC believes it 

is vital to share information about SBCR’s ADR Program with NRC employees. On an 

average of once a year, SBCR sponsors a lunch time ADR information table, in a 

strategic location, to maximize the potential for interaction with NRC staff. The 

information table provides employees with the opportunity to ask questions about 

mediation and obtain handouts about the ADR program. SBCR also takes advantage of 

other opportunities to publicize its ADR program such as the SBCR webpage and making 

information available during agency-wide public events (such as Diversity Day) and its 

bi-annual public meeting to the NRC Commissioners. All managers and supervisors 

receive training on NRC’s ADR Program and the value of attempting informal resolution 

early. Furthermore, information about the ADR Program is regularly shared with 

collateral duty EEO counselors so they are in a position to tout its benefits and 

5
 
 

 

 

 

 

 

 

 

 


 

advantages to aggrieved individuals during EEO counseling. Finally, the Chairman of 

the NRC also issues an announcement to all employees which strongly supports the ADR 

program and encourages managers, supervisors, and staff to participate in the program, as 

appropriate. The support of the Chairman and the Commissioners is instrumental in 

helping SBCR to maintain a successful ADR program. Additionally, SBCR’s ADR 

Coordinator has been instrumental in taking advantage of technology to facilitate 

discussions between staff in different geographic regions in appropriate cases. While in 

person mediations are preferred, when budgets or other barriers preclude face-to-face 

communication, the use of technology has helped expand the reach of ADR in 

appropriate cases. Finally, SBCR continually seeks resources that can help to resolve 

disputes for minimal cost. As an example, for a dispute arising in NRC’s Region II 

facility in Atlanta, Georgia, SBCR staff were able to locate and utilize a mediator through 

the Sharing Neutrals Program administered by the Federal Executive Board in Atlanta, 

Georgia. 

Which of the following sections of the Interagency ADR Working Group most closely relates to 

the work of this ADR program (you may check multiple sections): 

X Workplace 

__ Contracts and Procurement 

X Administrative Enforcement and Regulatory Process 

X Litigation 

X Environmental 

NRC ADR Program Success Stories 

Explicit examples of ADR use at NRC cannot be provided without divulging confidential or 

sensitive information. A global response is provided below pertaining to NRC’s Office of 

Enforcement ADR program success and NRC’s Office of Small Business and Civil Rights 

program success: 

Office of Enforcement Example: 

ADR has been used to improve the work environment at nuclear user sites and nuclear user 

contractor facilities. Corrective actions are broader in that they are implemented across the 

licensee’s fleet of reactors, not just at the site where the adverse condition may have existed, 

as appropriate. In some instances, it was found that the corrective actions were also 

implemented across company programs, not just those directly related to the matter at hand. 

The program also presumably improves performance throughout the industry as lessons 

learned are shared amongst the companies. 

Office of Small Business and Civil Rights Example: 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

Under EEOC regulations, an agency offers ADR up to the point when a complainant requests 

a hearing by EEOC. SBCR had an EEO case where a complainant requested a hearing and 

still wanted to go to mediation. Although the agency no longer had jurisdiction, it reached 

out to EEOC and obtained their approval for SBCR to arrange mediation. SBCR utilized the 

Intra-agency Sharing Neutral Program which was of no cost to the NRC. The case settled 

and a hearing was avoided. The lesson learned was that for some cases, it is important to 

consider ADR as a viable option and to communicate with our counterparts even when a 

hearing has been requested. 

Department or Agency ADR use beyond the ADR Programs discussed above 

Does your Department or Agency apply ADR processes or techniques to facilitate resolutions of 

conflicts or disputes independent of the ADR programs discussed above? Yes. If so, please 

describe the type of ADR processes or techniques utilized, how they are utilized, the reasons 

why the processes or techniques are beneficial, and how (if at all) the processes or techniques 

have improved the Department or Agency’s ability to carry out its mission. 

Although they are not intended to be policies that resolve conflicts and disputes, NRC does have 

policies and processes in place designed to promote free and open discussion of differing views 

to the development of sound regulatory policy and decisions. The NRC’s processes are 

communication tools to communicate information from staff to management to support decision 

making. These policies and processes permit employees at all levels to provide differing 

viewpoints on virtually all matters pertaining to the agency’s mission. 

NRC uses a three-tiered system for the management of mission-related differing views. This 

includes the Open Door Policy, the Non-Concurrence Process (NCP), and the Differing 

Professional Opinion (DPO) Program. These policies provide increasing levels of formality to 

air differences. The broad Open Door Policy is the least formal method for airing a differing 

view and does not require documentation, the NCP requires documentation and is part of 

“business-as-usual,” and the DPO Program is most formal and provides for a high level of 

agency review. NRC believes that these processes are beneficial because they provide multiple, 

voluntary channels for expressing differing views and that they support transparency, including 

the ability to have records available to the staff and public. The differing view processes have 

improved the NRC’s ability to carry out its mission by fostering employee engagement and 

supporting effective decision making by the agency. Additional information regarding NRC’s 

philosophy, approach, and processes for addressing differing views can be found at the NRC 

public Web site at http://www.nrc.gov/about-nrc/values.html 

7
 
 

 

 

 

 


 

In addition to NRC differing view processes, NRC also has a robust stakeholder facilitation 

program that is utilized by NRC for many purposes including airing differing views at public 

meetings where NRC programs and policies are discussed with the public. In these cases, the 

facilitation technique utilized involves use of a meeting moderator/facilitator who helps ensure 

that all views are aired in a manner that does not disrupt or curtail the flow of ideas or otherwise 

derail the accomplishment of meeting objectives. In those instances where a charged topic is 

raised that may require further vetting or response by NRC, the facilitator will advise the 

questioner that the question can be discussed outside or after the meeting with NRC staff or ask 

that the commentator submit their view or question in writing so that it can be further addressed 

by NRC outside the confines of the meeting. The facilitation process benefits NRC because it 

provides a means by which all views can be heard, represented and respected without disrupting 

the public meeting. The facilitation process has helped improve the NRC’s ability to carry out is 

mission by helping make public interactions more effective for all those involved. 

Finally, in those instances where NRC initiates a case to impose requirements on a licensee or 

modify, revoke or suspend a license that results in litigation, 10 CFR § 2.203 “Settlement and 

Compromise” and 10 CFR § 2.338 “Settlement of Issues, Alternative Dispute Resolution” 

encourages ADR including assigning a settlement judge. While not frequently used, boards have 

cited these provisions in encouraging dispute resolution and cases over the years have been 

settled by presiding officers encouraging the use of settlements. 

ADR Training 

Does your Department or Agency offer ADR awareness/promotion trainings or ADR skills 

(techniques) training to agency employees, federal employees, or to the public? 

No. 

8
 
 

 

 

 

 

 

 

 

 


 

Additional Points of Contact 

Please provide the names and contact information for no more than four people who can provide 

follow-up information to help clarify any questions that the drafters of this report may have. 

Name: Rhonda Dorsey 

Title(s): Sr. Civil Rights Specialist 

Department/Agency: Office of Small 

Business and Civil Rights/U.S. NRC 

Email Address: 

Rhonda.bethea@nrc.gov 

Phone number: 301-415-2254 

Mailing Address: 11555 Rockville 

Pike Rockville, MD 20852 

Name: Nicole Coleman 

Title: ADR Program Specialist 

(Acting ADR Program Manager 

2016) 

Program/Office: Office of 

Enforcement 

Email Address: 

Nicole.coleman@nrc.gov 

Phone number: (301) 287-9007 

Name: Lance Rakovan 

Name: Renée Pedersen Title: Senior Communications 

Title: Senior Differing Views Specialist Program Manager Program/Office: Office of the Program/Office: Office of Assistant for Operations Enforcement Email Address: Lance.rakovan 

Email Address: @nrc.gov Renee.Pedersen@nrc.gov Phone number: (301) 415-2589 Phone number: (301) 287-9426 

9
 
 

 

 

 

 

 


 


 

REPORT OF THE U.S. OFFICE OF SPECIAL COUNSEL FOR THE 2016
 

SURVEY ON ADR IN THE FEDERAL GOVERNMENT
 

The U.S. Office of Special Counsel (OSC) 

OSC is an independent federal investigative and prosecutorial agency. Its basic enforcement 

authorities come from four federal statutes: the Civil Service Reform Act (CSRA), the 

Whistleblower Protection Act (WPA), the Hatch Act, and the Uniformed Services Employment 

and Reemployment Rights Act of 1994 (USERRA). 

OSC’s roots lie in the reform efforts of Gilded Age America. In 1883, Congress passed the 

Pendleton Act, creating the Civil Service Commission, which was intended to help ensure a 

stable, highly qualified federal workforce free from partisan political pressure. Nearly a century 

later, in the wake of the Watergate scandal and well-publicized allegations of retaliation by 

agencies against employees who had blown the whistle on wasteful defense spending and 

revelations of partisan political coercion in the federal government, Congress enacted sweeping 

reform of the civil service system in the Civil Service Reform Act of 1978. This law replaced the 

Civil Service Commission with the Merit Systems Protection Board (MSPB), with OSC serving 

as the investigative and prosecutorial arm of the MSPB for the next decade. 

In 1989, Congress enacted the WPA, making OSC an independent agency within the federal 

executive branch. The WPA also strengthened protections against retaliation for employees who 

disclose government wrongdoing and enhanced OSC’s ability to enforce those protections. 

Ensuing legislation such as the WPEA and Hatch Act Modernization Act—both passed in 

2012—has significantly affected the agency’s enforcement responsibilities. 

Mission and Responsibilities 

OSC’s mission is to safeguard employee rights and hold the government accountable. To achieve 

this mission and promote good government in the federal executive branch, OSC’s obligations 

are, broadly speaking: (1) to uphold the merit system by protecting federal employees, 

applicants, and former employees from prohibited personnel practices, curbing prohibited 

political activities in the workplace, and preserving the civilian jobs of federal employees who 

are reservists and National Guardsmen; and (2) to provide a safe channel for federal employees, 

applicants, and former employees to disclose wrongdoing at their agencies. These two 

responsibilities work in tandem to maintain the integrity and fairness of the federal workplace 

and to make the government more accountable. 

1 
Excerpted from “OSC’s Strategic Plan (FY 2017-2022)” available at: 

https://osc.gov/Resources/Strategic-Plan-FY-2017-22-FINAL.pdf. 

ADR at OSC 

Through its Alternative Dispute Resolution Unit (ADR Unit), OSC offers mediation in select 

complaints alleging a prohibited personnel practice or “PPP” (see 5 U.S.C. §2302, et seq.) or a 

violation of USERRA (38 U.S.C. §4301 et seq.). 

Dispute Resolution Specialist Contact Information 

Jane Juliano 

Chief, ADR Unit 

US Office of Special Counsel 

jjuliano@osc.gov 

(202) 254-3600 

ADR Policy 

The OSC ADR Unit screens most cases that are referred for full investigation to OSC’s 

Investigation and Prosecution Division or OSC’s USERRA Unit to determine if the case is 

appropriate for mediation. If the case is deemed appropriate, an ADR Unit staff member contacts 

the complainant and the employing agency to invite them to participate in the mediation 

program. If both parties agree, OSC schedules a mediation session. 

Mediation sessions occur in person, by videoconference or telephone. During mediation, each 

party has the opportunity to explain its understanding of the events that transpired and its 

perspectives on how the matter can be resolved. The mediator assists the parties in this process, 

uncovering areas of agreement and exploring creative options to resolve the complaint. OSC’s 

process also includes information resources for the parties. The mediators can arrange for an 

OSC subject matter expert to help parties better understand their alternatives to settlement. This 

information is critical in giving the parties the tools they need to assess whether they want to 

settle the case in mediation or proceed to OSC’s Investigation and Prosecution Division (IPD). If 

both parties agree to settlement terms, the settlement is memorialized in writing. 

See http://www.adr.gov/fai.html. 

ADR Program and Information Tracking 

OSC’s ADR program is for parties to cases filed with OSC as described above. 

2 
 

 

 

 

 

 

 

 

 

OSC currently uses two ADR processes: mediation and conciliation. We define conciliation as 

mediation via asynchronous “shuttle diplomacy” whereby the mediators take the parties through 

the steps of mediation in sequential phone calls. 

We keep track of cases that pass through the ADR Unit in a separate, confidential database 

system (we use Microsoft Access). This database contains all case-related data such as: when 

the case was transferred into ADR Unit, whether and when mediation was offered, mediator 

assignments, mediation session dates and location and case disposition. 

OSC does not keep track of individual attorney or administrative staff hours, though an 

approximation of resources dedicated to ADR may be estimated by calculating the FTEs used for 

mediation and adding the value of this time together with travel expenses dedicated to 

mediations. 

As to measuring the benefits realized to the parties as well as to OSC, we rely on mediation 

evaluations and feedback from stakeholder groups. We have conducted post-mediation 

evaluations by calling mediation attendees and asking them a standard set of questions. OSC 

expects to transition to written or on-line evaluations (with potential follow up phone calls) 

within the next two fiscal years. 

Statistics on our cases are available in our annual reports, which are posted on our web site. 

<https://osc.gov/reportsandinfo>. 

OSC’s EEO policy also provides for the option of mediation of internal EEO disputes. OSC 

maintains EEO case data as required by Federal regulations. 

Plans to expand or implement new ADR programs 

OSC’s ADR Unit implements a continual dispute systems design approach. ADR Unit staff 

evaluates each case experience and consider program adjustments when it appears that some 

aspect of our ADR program or process can be improved. We have also engaged the Harvard 

Negotiation and Mediation Clinical Program several times in recent years to help study our ADR 

program and provide suggestions for process improvements and innovations. 

ADR Unit budget and staffing 

OSC does not utilize individual unit budgets. Three FTEs work in ADR full time and 13 

collateral duty mediators. OSC’s ADR program has no outside sources of funding. 

Building ADR capacity 

OSC established its first mediation program in 2000. After the mediator who handled the 

program left the agency, cases waned to about ten per year. 

3 
 

 

 

 

 

 

 

 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

Shortly after Special Counsel Carolyn Lerner was appointed by the President to head the agency 

in 2011, OSC’s caseload skyrocketed. Drawing on her own background in mediation, Special 

Counsel Lerner recognized that the benefits to complainants, agencies and to OSC of making 

voluntary mediation more widely available. 

She established an independent ADR Unit separate from the Investigation and Prosecution 

Division, and instructed its staff to increase OSC’s capacity to offer and conduct mediations so 

that more parties could take advantage of this process. To implement these directions, the ADR 

Unit took a number of steps: 

•	 Expanded the eligibility criteria so that many more cases qualified for the 

mediation program 

•	 Made USERRA in addition to PPP cases eligible for mediation 

•	 Increased its mediator capacity to accommodate more cases: added to OSC’s inhouse mediator roster and enhanced the skills of those already trained with a fourday comprehensive mediation training 

•	 Conducted a Dispute Systems Design (DSD) process to explore the interests of 

stakeholders and identify mediation features that would work best 

for PPP and USERRA cases; convened meetings with nonprofit “good 

governance” and veterans’ organizations, plaintiff employment attorneys and 

agency employment lawyers 

•	 Gave presentations about OSC’s expanded ADR program to agency attorneys, 

plaintiffs’ attorneys and non-profit groups that represent parties in OSC cases 

•	 Partnered with the Harvard Negotiation and Mediation Clinical Program to 

obtain an independent review and recommendations for the newly expanded ADR 

program 

Some of the key findings from the DSD process were: 

•	 Complainants and agencies both saw mediation as a time and expense saver and 

wanted the option of mediation when possible; 

•	 Both complainants and agency attorneys were interested in obtaining information 

regarding the law involved (especially in USERRA cases) and OSC’s 

investigation/prosecution process that would ensue if there were no settlement; 

•	 Many complainants did not wish to incur the expense of an attorney; 

•	 Unrepresented parties often felt “outnumbered” as the agency usually had both a 

management representative and an attorney; 

•	 Most parties and their representatives valued the confidentiality of the process. 

As a result of this feedback, OSC offers subject matter experts prior to a mediation session or at 

any point in the mediation process. These experts are senior IPD attorneys who have broad 

knowledge of OSC investigation and prosecution practices as well as MSPB case law and 

outcomes. They help each side understand how IPD would approach their type of case, the legal 

4 
 

 

 

 

 

 

 

 

 

standards for establishing a case for violation of the PPP or USERRA laws, and a sense of 

applicable MSPB decisions. The subject matter expert is then disqualified from investigating the 

case should it not settle and move on to IPD. 

Because of limited resources, OSC’s ADR staff works carefully with the parties to set a fruitful 

environment for the mediation session. They help the parties to identify and determine who will 

attend the mediation and for unrepresented employees, whether they wish to bring a support 

person. 

OSC cases are typically mediated where the parties are located throughout the United States and 

sometimes overseas. OSC’s mediators put special emphasis on mediation preparation so that inperson mediation sessions are focused and productive. In pre-mediation discussions, the 

mediators encourage the parties to begin to think about their interests and options for resolution; 

information may be shared in advance of session in order to give the mediation participants time 

to research desired options. 

Indicators of Success 

OSC considers its mediation program a resounding success. We have received consistent 

feedback from stakeholders, complainants, attorneys for complainants as well as agency 

representatives thanking us for this process option and encouraging OSC to provide it in as many 

cases as possible. Secondly, mediation requires less of the subject agency’s and OSC’s time and 

resources than an investigation would—a clear benefit to taxpayers. Finally, parties now ask for 

ADR when they realize that they prefer settlement terms beyond what the law provides. 

Examples of Mediated Settlements (from U.S. Office of Special Counsel Annual Reports for 

Fiscal Years 2013 and 2014, <https://osc.gov/reportsandinfo>) 

PPP cases 

Reprisal after Reporting Agency Culpability 

A senior management official claimed retaliation after reporting agency culpability in a safety 

incident that occurred in a federal building. The situation had drawn media interest and 

congressional oversight. The employee and agency leadership discussed their differences, 

brainstormed solutions and reached a collaborative agreement that included flexibility for the 

employee’s next work assignment and a significant monetary settlement. The agency was able to 

resolve the OSC case and several other related legal matters, and move forward with 

management reorganization plans. 

Reprisal Complaint after a Substantiated Disclosure 

A federal employee claimed that in retaliation for raising concerns about erroneously high 

5 
 

 

 

 

 

 

 

locality pay of a senior employee, he was denied telework options and transferred to an 

undesirable location. Through mediation with OSC, parties were able to clarify key 

misunderstandings and discuss creative proposals and resolutions. This led to a settlement that 

met both parties’ interests, including a specific telework arrangement, a new office location 

assignment, whistleblower training at the agency, and a modest change of work duties. 

USERRA Cases 

Lack of Training 

A federal employee, who is also a reservist with the Army, filed a claim of USERRA 

discrimination. The claimant alleged that the agency did not provide the training and tools 

needed to reintegrate the claimant after deployment. As a consequence, work performance 

suffered, resulting in reprimands and lowered performance evaluations. The claimant and the 

agency came together and discussed ideas for a mutually beneficial solution. Settlement was 

achieved, with the claimant agreeing to withdraw the claim in exchange for the agency returning 

the claimant to work under a different supervisor, providing training and tools for the claimant to 

do the job, providing the claimant with a new performance plan, establishing a clean 

performance record, and considering a within grade increase within 30 days of the claimant’s 

return to work. 

Leave without Pay 

Another federal employee, a member of the Reserve, claimed his agency violated USERRA 

when it put him on light duty and then leave without pay (LWOP) after he returned from military 

duty in which he sustained injuries that impaired his ability to perform his work. The employee 

asked for monetary compensation, restoration of leave, and assignment to a position equal in pay 

and status to his pre-deployment position. Through mediation, the parties explored their interests 

in compensation for the employee, reassignment or retirement for the employee, and increased 

USERRA awareness for agency personnel involved in the mediation. The case settled with the 

claimant agreeing to withdraw the claim and retire in exchange for the agency paying him a 

settlement, and supporting him in the disability retirement application process. 

Section of the Interagency ADR Working Group most closely relates to the work of our 

program/office: Workplace 

ADR Training 

OSC’s ADR Unit conducted a four-day training for new mediators in the fall of 2012. This 

allowed us to greatly expand our collateral duty mediator panel and update the skills of all our 

mediators. The ADR Unit has conducted many more trainings on topics related to conflict 

resolution, negotiation and recent scientific research that relates to dispute resolution (e.g., 

6 
 

 

 

 

 

dealing with difficult behavior, decision fatigue, loss aversion, complex negotiation techniques). 

The trainings are for OSC mediators or all of OSC, but they have not been open to the public. 

Interagency ADR Working Group Steering Committee 

OSC has benefited from the work of the Interagency ADR Working Group. When OSC 

expanded its ADR program in 2011-2012, the Chief of the ADR Unit met with several long-time 

IADRWG attendees to learn about their experience and obtain advice. ADR Unit members 

attend the IADRWG meetings and find the networking, sharing of information and contacts in 

other agency ADR programs to be extremely beneficial in OSC’s ability to provide quality ADR 

services and to continually improve its ADR process. 

ADR Trends 

ADR skills and techniques are being used more extensively throughout OSC. Staff who have 

attended the ADR Unit’s mediation and/or negotiation trainings note that they have found it very 

useful to employ mediation techniques when settling cases at all stages of case processing. 

The future direction of ADR at OSC includes the strategic integration of ADR with our 

investigation and prosecution function. Recently we have experimenting with transferring cases 

back and forth IPD and the ADR Unit in a way that is tailored to the needs of a particular case. A 

complex and complicated whistleblower retaliation complaint, for example, the IPD attorney 

conducts a preliminary investigation and realizes that ADR may be the best process for the 

parties. The parties agree and their case is sent to OSC’s ADR Unit. The parties settle all but 

one issue. The case returns to IPD for a targeted evaluation and opinion from the case 

prosecutor. The case can then either return to ADR for final negotiations, or negotiations many 

simply conclude in IPD. With units working in concert, OSC has a unique capacity to help 

parties to complaints before it. 

In fulfilling its mission to safeguard employee rights and hold the government accountable, OSC 

seeks to employ the most effective and efficient processes possible. ADR has been an important 

part of these processes. 

Contacts for OSC’s ADR program 

Anne Wagner, Associate Special Counsel 

Jane Juliano, Chief, ADR Unit 

1730 M Street, NW, Washington DC 20036 

(202) 254-3600 

Challenges compiling information 

7 
Our primary challenge was our limited staff. 

8 
 

 

 

 


 


 


 


 

UNITED STATES OFFICE OF PERSONNEL MANAGEMENT
 

Washington, DC 20415
 

Equal Employment
 

Opportunity
 

To: Department of Justice 

From: US Office of Personnel Management (OPM) 

Re: 2016 ADR Report from Federal Government Agencies 

ADR Dispute Resolution Specialist Contact Information 

Name: Elizabeth Bottka-Smith 

Title(s): EEO/ADR Specialist 

Department/Agency: OPM EEO Office 

Email Address: Elizabeth.bottka-smith@opm.gov 

Phone number: (520) 745-3727 ext. 208 

Mailing Address: 4400 East Broadway Blvd., Suite 314, Tuzon, AZ 85711 

ADR Policy 

The OPM does not have a formal written ADR policy. 

ADR Program 

OPM’s ADR is an internal-facing program administered by the EEO Office. Requests for 

ADR are subject to approval by the EEO Director, who will determine, on a case-by-case basis, 

whether a matter is appropriate for mediation. As a general matter, claims regarding 

employment applications (eligibility, selection, or referral) or regarding benefits (Federal 

Employees Health Benefits (FEHB), Federal Employees’ Group Life Insurance (FEGLI) or 

annuity will not be approved for ADR. OPM has chosen mediation as its form of ADR 

technique. 

In order to preserve and delineate the role of the OPM EEO Office and its staff, the OPM 

EEO Office staff will not serve as mediators for any OPM EEO cases. In the Washington DC 

Metropolitan area OPM will use the Sharing Neutrals interagency program, coordinated by the 

US Department of Health and Human Services. Outside the Washington DC Metropolitan area, 

similar programs/resources (e.g., Federal Executive Board shared neutrals program) will be 

identified on an as needed basis. 

ADR is an essential part of OPM’s EEO Office; therefore, funding and staff is administered 

as part of the EEO Office. 

www.opm.gov Recruit, Retain and Honor a World www.usajobs.gov -Class Workforce to Serve the American People 
 

 

 


 

From fiscal year (FY) 2009 – 2013 OPM’s ADR program averaged three (3) cases, with a 

resolution rate of 45.0%. In November 2013 (FY14), OPM implemented an Alternative Dispute 

Resolution (ADR) Pilot Program with the purpose of: 

a. Maximize possibilities for the collaborative informal resolution of disputes. 

b. Minimize the escalation of disputes into multiple complaints of discrimination. 

c. Avoid the unnecessary escalation of disputes to entities outside of OPM or to the courts. 

d. Create stronger relationships and enhance overall morale through the process of 

collaborative problem solving and decision making. 

e. Assist employees at all levels in developing the skills needed to prevent and manage 

disputes and conflicts in a constructive manner. 

OPM’s ADR Program will use mediation as its principal ADR technique. The program 

encouraged employees to use ADR whenever possible. Furthermore, once a determination has 

been made as to the appropriateness of ADR to a particular case, the designated agency 

official(s) is required (mandatory) to participate. 

Following the implementation of the aforementioned ADR Pilot program participation in the 

ADR program increased by 133.0% (from 3 to 7 cases), with a resolution rate of 70.0%. 

There are no current plans to expand this program in the near future. 

Information and availability of OPM’s ADR program is provided during New Employees 

Orientation, EEO training, EEO correspondence during informal and formal processes, and 

posted in OPM’s Intranet. 

Additional Contacts 

Name: LaShonn M. Woodland 

Title: EEO Director 

Program/Office: OPM EEO Office 

Email Address: lashonn.woodland@opm.gov 

Phone number: (202) 606-2460 

Name: Yasmin A. Rosa 

Title: Lead EEO Specialist 

Program/Office: OPM EEO Office 

Email Address: yasmin.rosa@opm.gov 

Phone number: (202) 606-2460 

Name: Kim Jones 

Title: EEO Specialist 

Program/Office: OPM EEO Office 

Email Address: kim.jones@opm.gov 

Phone number: (202) 606-2460 

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2016 REPORT ON ADR IN THE FEDERAL GOVERNMENT 

Small Business Administration 

ADR Dispute Resolution Specialist Contact Information 

Name: Lexi Wolfe
 

Title(s): Workplace Conflict Resolution Coordinator
 

Department/Agency: Small Business Administration
 

Email Address: aewolfe@sba.gov
 

Phone number: 202-205-7149
 

Mailing Address: 409 3rd Street SW, Washington, DC 20416
 

ADR Programs 

•	 Ombudsman Services for America’s Small Businesses: As an advocate for small businesses, 

the National Ombudsman helps small business owners navigate federal rules, regulations and 

requirements. In partnership with federal regulators, the Ombudsman delivers fair solutions and 

value to small businesses through a level regulatory playing field that supports small business 

growth and the American economy. SBA’s National Ombudsman assists small businesses with 

unfair and excessive federal regulatory enforcement. As an impartial liaison, the Office of the 

National Ombudsman directs regulatory fairness matters to the appropriate agency for a highlevel fairness review and works across government to address those concerns and reduce 

regulatory burdens. Congress established the Office of the National Ombudsman in 1996 as part 

of the Small Business Regulatory Enforcement Fairness Act (SBREFA). The Act ensures that 

businesses, small government entities, and small nonprofit organizations that experience unfair 

regulatory enforcement actions by federal agencies have a means to comment about such actions. 

The National Ombudsman is an independent office that reports directly to SBA’s Administrator. 

The National Ombudsman office staff serves as a neutral third party in processing the complaints 

from small businesses and facilitating a response from the federal agency. The National 

Ombudsman also reports to Congress annually on how federal agencies work with the small 

businesses they regulate, including the timeliness and quality of its responses to concerns about 

regulatory compliance and enforcement. The National Ombudsman is advised by ten Regional 

Regulatory Fairness Boards comprised of small business owners who contribute insights into 

regulatory challenges confronting small businesses. Office of the National Ombudsman website: 

https://www.sba.gov/ombudsman 

•	 SBA’s Workplace Conflict Resolution Center: In March 2015, SBA launched the Workplace 

Conflict Resolution Center (The Center), which helps SBA’s workforce address conflict at the 

earliest stage by providing the tools and support needed to deal with conflict proactively and 

constructively. The Center is an informal, confidential, impartial, and voluntary resource that 

helps empower employees and leaders to address workplace conflicts in a way that preserves 

professional relationships and encourages a collaborative, problem-solving agency culture. The 

Center is an independent program of the SBA’s Office of Diversity, Inclusion & Civil Rights, and 

is completely separate from the EEO process. As a proactive, prevention-oriented resource, The 

Center provides services before a complaint or grievance has been filed. The Center offers 

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significant value to SBA, including reducing time and money spent on formal complaints; 

increasing organizational performance and productivity; and fostering improved communication. 

The Center provides collaborative, interest-based ADR services including: facilitated discussions, 

conflict coaching, and group facilitation. The Center also provides conflict resolution training to 

employees and supervisors. The Center uses its staff or SBA employees who have been 

credentialed by The Center as a neutral to deliver its services. 

•	 Mediation & Arbitration for Employee Complaints and Grievances: 

o	 Union Grievance Mediation & Arbitration: At any point during the formal stage of the 

negotiated grievance procedure, the parties may request mediation using the Federal 

Mediation and Conciliation Service (FMCS), the Federal Shared Neutral Program or 

other certified mediation service. Alternatively, during the formal stage, parties may also 

request an arbitration panel from Federal Mediation and Conciliation Services (FMCS). 

o	 Informal EEO ADR/Mediation: ADR is more efficient and cost effective than the 

traditional complaint and litigation process. The use of ADR also can mend or improve 

the overall relationship between the parties. SBA primarily uses ADR in the form of 

mediation to resolve issues at the informal stage. Mediation through the EEO process is 

voluntary and allows the parties to craft the agreement or solution themselves. A neutral 

mediator assists participants in reaching a negotiated agreement. SBA primarily relies on 

Federal Mediation and Conciliation Services (FMCS) for EEO mediations. 

o	 Administrative Grievance Mediation: As part of the Administrative Grievance process 

facilitated by the Office of Human Resources Solutions (OHRS), if both parties agree to 

participate, mediation is offered as a means to settle an administrative grievance. 

Mediators are sourced from SBA employees with mediation training or from Federal 

Mediation and Conciliation Services (FMCS). At the appeals level, the Agency’s Office 

of Hearings and Appeals (OHA) may require the parties to participate in mediation 

before the Agency renders a final decision to try to resolve the matter. 

Agency ADR Trends 

•	 Implementation of Proactive, Informal Resource to Resolve Conflicts: One major trend in ADR 

at SBA has been the launch of the Workplace Conflict Resolution Center (The Center), a resource for 

addressing conflict proactively and at the lowest level possible. A major contributor to this decision 

was senior leadership and other key stakeholders’ assessment that employees were turning to formal 

complaint or grievance procedures to resolve interpersonal conflicts as their only option for 

assistance. This raised significant challenges, as filing a complaint or grievance is often perceived as 

adversarial and entering these forums often leads to parties becoming more entrenched in their 

positions and less willing to consider an interest-best approach to resolution. Additionally, direct and 

indirect costs associated with processing complaints and grievances made this trend less than optimal 

from an Agency resource standpoint. To create a more effective and efficient channel for addressing 

workplace conflict, SBA established The Center as a resource for its workforce to get neutral, 

confidential assistance to help resolve issues and prevent escalation to a grievance or complaint. 

Importantly, The Center supports SBA’s commitment to foster an inclusive organizational culture that 

inspires employee engagement, cooperation, and fairness. The Center currently has one FTE devoted 

to the program and serves both headquarters and field employees. Based on demand, the Agency is 

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prepared to scale the program through a cadre of credentialed internal neutrals and additional FTE 

positions. 

•	 Increased Awareness and Utilization of the National Ombudsman Program: In the last four 

years, the National Ombudsman has focused heavily on outreach and connecting directly with small 

business stakeholders in new areas and underserved markets to broaden awareness of the resources 

the office provides to small business owners. As a result, in FY 2014, The National Ombudsman’s 

caseload reached the highest level in six years, with 420 small business owners filing formal cases 

seeking assistance with federal regulations, an increase of 65% over the level just two years ago. The 

Ombuds team assisted more than 400 small businesses and responded to thousands of general 

inquiries. The Ombudsman office has 7 FTE positions but currently has 4 FTEs onboard. 

Success Stories from the National Ombudsman’s Office 

•	 National Ombudsman Success Story- Individual Small Business: In one particularly 

compelling case, a woman-owned small business, 8(a) graduate and successful government 

contractor reported that her business was owed $626,216 for services performed and accepted but 

not paid. The business suffered harassment, discrimination and verbal abuse by federal 

contracting personnel and received a negative performance rating due to retaliation and 

discrimination from the issue. In addition to referring the matter to the contracting agency’s 

Office of Inspector General as required by law, the Ombudsman’s Office worked with its contacts 

at that agency and with the SBA Procurement Center Representative (PCR) to assist the small 

business owner. In response, the contracting agency replaced the Contracting Officer’s 

Representative and affirmed that any inappropriate language or the appearance of discrimination 

would not be tolerated. To address the payment for services and performance rating issues, on 

behalf of the small business, the Office requested a meeting with officials at the contracting 

authority, who were extremely supportive and engaged. Immediately following that meeting, the 

small business owner wrote to the Office: “I’m pleased to report that all three issues were 

addressed and the outcome very favorable. The [agency] has agreed to compensate [the business] 

for the expended labor and material purchases in the entire amount of $626,216. They also agreed 

to submit a final contract rating of ‘SATISFACTORY’.” 

•	 National Ombudsman Success Story- Systemic Issue Resolution: By addressing systemic 

issues in a proactive way, the impacts of individual case resolutions are magnified and the entire 

small business community benefits from smarter, more effective and proportionate regulation. 

Examples of successful advocacy efforts that yielded widespread, systemic benefits including a 

case in FY 2014, involving the Defense Contract Audit Agency. At a small business roundtable in 

Norfolk, Virginia, small business owners reported to the Ombudsman that some Navy contracting 

officers were requiring “DCAA certification,” which had the effect of excluding them from 

bidding on contracts for which they were qualified. Some DoD contracting officers had been 

using language to state that only contractors whose accounting systems had previously been 

“certified” by DCAA could bid on certain contracting opportunities. In response, DCAA provided 

written clarification that DCAA does not “certify” prospective contractors’ accounting systems 

and therefore that “DCAA certification” should not be required as a precondition to bid 

submission. It stated, “DCAA does not ‘certify’ or ‘approve’ accounting systems...There is no 

FAR requirement for a contractor’s system to be deemed adequate in order to compete for an 

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award.... [T]he FAR does not require that the system already be audited and deemed adequate in 

order to bid.” 

ADR Training 

ADR Training: SBA’s Workplace Conflict Resolution Center (The Center) offers conflict resolution 

training upon request to employees and supervisors on a variety of topics including: communication in 

conflict; interest-based problem solving; the Thomas Kilmann Inventory (TKI); building and maintaining 

trust; being an effective negotiator; and conflict management skills for supervisors and managers. 

Additional Contacts 

Name: Earl Gay 

Title: National Ombudsman and Assistant Administrator for Regulatory Enforcement Fairness 

Program/Office: Office of the National Ombudsman 

Email Address: earl.gay@sba.gov 

Phone number: 202-205-7360 

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