59200 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices

notice are the sole responsibility of the

museum, institution, or Federal agency

that has control of these Native

American human remains and

associated funerary objects. The

National Park Service is not responsible

for the determinations within this

notice.

A detailed assessment of the human

remains was made by the University of

Colorado Museum, Eastern New Mexico

University, the Maxwell Museum of

Anthropology (University of New

Mexico), the New Mexico State

University Museum, the Museum of

New Mexico, the San Juan County

Museum, and Bureau of Land

Management professional staff in

consultation with representatives of the

Hopi Tribe, the Navajo Nation, the

Pueblo of Acoma, the Pueblo of Jemez,

the Pueblo of Isleta, the Pueblo of San

Ildefonso, the Pueblo of Zia, and the

Zuni Tribe of the Zuni Reservation.

In 1981, human remains representing

eight individuals were recovered from

site LA 282 in New Mexico during

legally authorized excavations and

collections conducted by the

Archeological Field School of the

University of New Mexico. These

human remains are presently curated at

the Maxwell Museum of Anthropology,

University of New Mexico. No known

individuals are identified. The 11

associated funerary objects are pottery

bowls and sherds.

Based on material culture,

architecture, and site organization, site

LA 282 has been identified as an

Anasazi pueblo occupied between

A.D.1300–1600.

Continuities of ethnographic

materials, technology, and architecture

indicate affiliation of Anasazi sites in

this area of New Mexico with historic

and present-day Puebloan cultures. Oral

tradition presented by representatives of

the Pueblo of Isleta indicate cultural

affiliation with the Anasazi sites in this

portion of New Mexico.

Based on the above-mentioned

information, officials of the New Mexico

State Office of the Bureau of Land

Management have determined that,

pursuant to 43 CFR 10.2 (d)(1), the

human remains listed above represent

the physical remains of eight

individuals of Native American

ancestry. Officials of the New Mexico

State Office of the Bureau of Land

Management also have determined that,

pursuant to 43 CFR 10.2 (d)(2), the 11

objects listed above are reasonably

believed to have been placed with or

near individual human remains at the

time of death or later as part of the death

rite or ceremony. Lastly, officials of the

New Mexico State Office of the Bureau

of Land Management have determined

that, pursuant to 43 CFR 10.2 (e), there

is a relationship of shared group

identity that can be reasonably traced

between these Native American human

remains and associated funerary objects

and the Pueblo of Isleta and the Pueblo

of Ysleta del Sur. This notice has been

sent to officials of the Hopi Tribe, the

Navajo Nation, the Pueblo of Acoma, the

Pueblo of Jemez, the Pueblo of Isleta, the

Pueblo of San Ildefonso, the Pueblo of

Zia, and the Zuni Tribe of the Zuni

Reservation. Representatives of any

other Indian tribe that believes itself to

be culturally affiliated with these

human remains and associated funerary

objects should contact Stephen L.

Fosberg, State Archeologist and

NAGPRA Coordinator, New Mexico

State Office, Bureau of Land

Management, 1474 Rodeo Road, Santa

Fe, NM 87502–0115, telephone (505)

438–7415, before November 3, 2000.

Repatriation of the human remains and

associated funerary objects to the Pueblo

of Isleta and the Pueblo of Ysleta del Sur

may begin after that date if no

additional claimants come forward.

Dated: September 26, 2000.

John Robbins,

Assistant Director, Cultural Resources

Stewardship and Partnerships.

[FR Doc. 00–25399 Filed 10–3–00; 8:45 am]

BILLING CODE 4310–70–F

DEPARTMENT OF THE INTERIOR

Bureau of Reclamation

Colorado River Basin Salinity Control

Advisory Council

AGENCY: Bureau of Reclamation,

Interior.

ACTION: Notice of public meeting.

SUMMARY: The Colorado River Basin

Salinity Control Advisory Council

(Council) was established by the

Colorado River Basin Salinity Control

Act of 1974 (P.L. 93–320) (Act) to

receive reports and advise federal

agencies on implementing the Act. In

accordance with the Federal Advisory

Committee Act, the Bureau of

Reclamation announces that the Council

will meet as detailed below.

DATES AND LOCATION: The Advisory

Council will conduct its annual meeting

at the following time and location:

Henderson, Nevada—October 26, 2000.

The meeting will begin at 8 a.m. and

recess at 12 noon and reconvene briefly

the following day at about 1 p.m. The

meeting will be held in the Sierra Room

of the Henderson Convention Center at

200 Water Street in Henderson, Nevada.

Agenda: The purpose of the meeting

will be to discuss the accomplishments

of federal agencies and make

recommendations on future activities to

control salinity. Council members will

be briefed on the status of salinity

control activities and receive input for

drafting the Council’s annual report.

The Department of the Interior, the

Department of Agriculture, and the

Environmental Protection Agency will

each present a progress report and a

schedule of activities on salinity control

in the Colorado River Basin. The

Council will discuss salinity control

activities and the content of their report.

The meeting of the Council is open to

the public. Any member of the public

may file written statements with the

Council before, during, or up to 30 days

after the meeting, in person or by mail.

To the extent that time permits, the

Council chairman may allow public

presentation of oral statements at the

meeting. To allow full consideration of

information by the Advisory Council

members, written notice must be

provided to David Trueman, Bureau of

Reclamation, Upper Colorado Regional

Office, 125 South State Street, Room

6107, Salt Lake City, Utah 84138–1102;

telephone (801) 524–3753; faxogram

(801) 524–5499; E-mail at:

dtrueman@uc.usbr.gov at least FIVE (5)

days prior to the meeting. Any written

comments received will be provided to

the Advisory Council members at the

meeting.

FOR FURTHER INFORMATION CONTACT:

David Trueman, telephone (801) 524–

3753; faxogram (801) 524–5499; E-mail

at: dtrueman@uc.usbr.gov.

Dated: September 29, 2000.

Eluid L. Martinez,

Commissioner, Bureau of Reclamation.

[FR Doc. 00–25458 Filed 10–3–00; 8:45 am]

BILLING CODE 4310–10–P

DEPARTMENT OF JUSTICE

Confidentiality in Federal Alternative

Dispute Resolution Programs;

Evaluation of Federal Alternative

Dispute Resolution Programs

AGENCY: Department of Justice/Federal

Alternative Dispute Resolution Council.

ACTION: Notice.

SUMMARY: This notice solicits public

comment on two documents designed to

assist Federal agencies in developing

alternative dispute resolution (ADR)

programs: ‘‘Confidentiality in Federal

Alternative Dispute Resolution

Programs’’ and ‘‘Evaluation of Federal

Alternative Dispute Resolution

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices 59201

Programs.’’ These documents were

created by the Federal ADR Steering

Committee, a group of subject matter

experts from federal agencies with

active ADR programs. They were

approved for publication in draft form

by the Federal ADR Council, a group of

high level government officials chaired

by the Attorney General. The first

document contains detailed guidance on

the nature and limits of confidentiality

in Federal ADR programs and also

includes a statement on these issues for

Federal neutrals to use in ADR

proceedings. The second document

contains detailed recommendations for

agencies to follow when evaluating their

ADR programs.

All interested individuals or

organizations are invited to submit

comments on these documents for the

consideration of the Federal ADR

Council before they are published in

final form at the end of this year.

DATES: All comments must be

postmarked by November 1, 2000, in

order to receive consideration.

ADDRESSES: Address all comments to

Jeffrey M. Senger, Deputy Senior

Counsel for Dispute Resolution, United

States Department of Justice, 950

Pennsylvania Ave. NW, Room 4328,

Washington, D.C., 20530

Dated: September 27, 2000.

Jeffrey M. Senger,

Deputy Senior Counsel for Dispute

Resolution, Department of Justice.

SUPPLEMENTARY INFORMATION: In recent

years, the government and the private

sector increasingly have been using

techniques known as alternative dispute

resolution (ADR). Our experience has

shown that ADR can resolve disputes in

a manner that is quicker, cheaper, and

less adversarial than traditional

processes such as litigation. In ADR,

parties meet with each other directly,

under the guidance of a neutral

professional who is trained and

experienced in handling disputes. They

talk about the problems that led to the

complaint and the resolution that will

work best for them in the future. While

litigation often silences the parties and

severely restricts their control over the

outcome of their own dispute, ADR

allows them instead to work

collaboratively to find creative, effective

solutions that are agreeable to all sides.

The Administrative Dispute

Resolution Act of 1996 (ADRA), 5 U.S.C.

571–584, requires each Federal agency

to promote the use of ADR and calls for

the establishment of an interagency

committee to assist agencies in the use

of ADR. Pursuant to this Act, a

Presidential Memorandum dated May 1,

1998, created the Interagency ADR

Working Group, chaired by the Attorney

General, to ‘‘facilitate, encourage, and

provide coordination’’ for Federal

agencies. In the Memorandum, the

President charged the Working Group

with assisting agencies with training in

‘‘how to use alternative means of

dispute resolution’’ and evaluation ‘‘to

ascertain the benefits of alternative

means of dispute resolution.’’ The

following two documents are designed

to serve these goals.

The first document describes the

nature and limits of confidentiality in

Federal ADR proceedings.

Confidentiality is vital for the success of

ADR for several reasons. Parties must be

free to engage in candid, informal

discussions of their interests in order to

reach the best possible settlement of

their claims. Guarantees of

confidentiality permit parties to speak

openly, without fear their statements

will be used against them later.

Confidentiality also facilitates ADR by

encouraging parties to avoid the

posturing that often occurs when

proceedings are on the record. Further,

confidentiality gives parties the ability

to trust the mediator because they are

assured he or she will not later take

sides and talk publicly in favor of one

party or the other. At the same time,

members of the public have a general

right to know what happens in

government proceedings and do not

want ADR to be used to shield improper

activity that involves public business.

The ADRA is designed to strike the

appropriate balance between the public

interest in access to government

decision-making and the necessity for

certain guarantees of confidentiality in

ADR in order for the process to be

effective.

Understandably, there has been a

great deal of interest in understanding

what statements made in the context of

a Federal ADR proceeding are

confidential and what statements are

not. This document is designed to give

a detailed explanation of the reasonable

expectations of confidentiality for

parties who participate in ADR

involving the government. The first

section of the report reprints the

confidentiality provisions of the ADRA.

Next, the report contains a section-bysection analysis of these confidentiality

provisions. Then the report sets forth, in

question-and-answer format, an

expanded analysis of the issues likely to

arise in practice. Finally, the report

presents a model confidentiality

statement suitable for use by neutrals in

Federal ADR proceedings.

The second document contains

detailed guidance for agencies to use

when conducting evaluations of their

ADR programs. Proponents of ADR have

described many benefits from its use,

including savings of time and money,

increased party satisfaction with the

process and its outcome, increased

settlement rates, and improved

relationships. In order to ensure the

growth of ADR programs, these benefits

must be rigorously documented and

communicated to the public. If

evaluations determine problems with

ADR programs, these must be remedied.

Evaluation is a vital part of any ADR

program, and it is consistent with the

obligations of all Federal agencies under

the Government Performance and

Results Act (Pub. L. 103–62).

The first part of this document is a

two-page description of general

evaluation recommendations for Federal

ADR programs. It sets forth specific data

that agencies should capture and gives

a brief introduction to other important

concepts, such as validity, reliability,

and presentation of data. The remainder

of the report is a twenty-page detailed

description of evaluation, including

planning and design, methodology, and

communicating results. The report

concludes with a bibliography of

additional resources in this area.

The Federal ADR Council encourages

all interested parties to submit

comments on these documents. The

Council will consider all comments in

connection with its review of the final

versions of these documents at the end

of 2000.

Nothing in these guidance documents

shall be construed to create any right or

benefit, substantive or procedural,

enforceable at law or in equity, by a

party against the United States, its

agencies, its officers or any other

person.

The Federal ADR Council

Chair: Janet Reno, Attorney General,

Department of Justice

Vice Chair: Erica Cooper, Deputy

General Counsel, Federal Deposit

Insurance Corporation

Members: Leigh A. Bradley, General

Counsel, Department of Veterans

Affairs; Meyer Eisenberg, Deputy

General Counsel, Securities and

Exchange Commission; Mary Anne

Gibbons, General Counsel, U.S. Postal

Service; Gary S. Guzy, General Counsel,

Environmental Protection Agency; Jeh

C. Johnson, General Counsel,

Department of the Air Force; Harold

Kwalwasser, Deputy General Counsel,

Department of Defense; Rosalind Knapp,

Acting General Counsel, Department of

Transportation; Anthony N. Palladino,

Director, Office of Dispute Resolution,

Federal Aviation Administration,

Department of Transportation; Janet S.

59202 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices

Potts, Counsel to the Secretary,

Department of Agriculture; Harriett S.

Rabb, General Counsel, Department of

Health and Human Services; Henry L.

Solano, Solicitor, Department of Labor;

John Sparks, Principal Deputy General

Counsel, Department of the Navy; Peter

R. Steenland, Jr., Senior Counsel for

Dispute Resolution, U.S. Department of

Justice; Mary Ann Sullivan, General

Counsel, Department of Energy; Robert

Ward, Dispute Resolution Specialist,

Environmental Protection Agency.

Report on the Reasonable Expectations

of Confidentiality Under the

Administrative Dispute Resolution Act

of 1996

Table of Contents

I. Introduction

II. Administrative Dispute Resolution Act

III. Section-By-Section Analysis of

Confidentiality Provisions

IV. Questions & Answers on Confidentiality

under the Administrative Dispute

Resolution Act (ADR Act)

V. Model Confidentiality Statement for Use

by Neutrals

I. Introduction

The Administrative Dispute

Resolution Act of 1996 (‘‘ADR Act’’)

contains provisions that affect the

confidentiality of administrative ADR

proceedings. Neutrals and participants

in federal dispute resolution

proceedings need to have an accurate

understanding of these provisions. The

Federal ADR Council directed the

Interagency ADR Working Group

Steering Committee to review the ADR

Act confidentiality provisions and

provide the Council with a report

outlining reasonable expectations of

confidentiality for parties in federal

dispute resolution. This report, the

product of that effort, describes the ADR

Act confidentiality provisions

principally located at 5 U.S.C. Section

574.

The report has four sections: (1) A

reprint of the confidentiality provisions

of the ADR Act; (2) a section-by-section

analysis of the confidentiality

provisions; (3) a set of questions and

answers designed to expand upon the

analysis and address issues likely to

arise in practice; and (4) a model

confidentiality statement suitable for

use by neutrals in federal ADR

proceedings.

During preparation of this report,

several issues emerged regarding

implementation of the ADR Act that are

not fully addressed in this report. These

issues are important to the practice of

federal ADR and would benefit from

further investigation and study. As

federal sector experience with ADR

evolves, some issues addressed in this

report will be refined and new issues

are likely to arise. It is also important to

note that the ADR Act is not the only

means of maintaining confidentiality

and other laws, regulations, and agency

policies may impact confidentiality. A

complete analysis of all such authorities

is beyond the scope of this report.

II. Administrative Dispute Resolution

Act

Definitions (5 U.S.C. 571)

For the purposes of this subchapter,

the term—

(1) ‘‘agency’’ has the same meaning as

in section 551(1) of this title;

(2) ‘‘administrative program’’ includes

a Federal function which involves

protection of the public interest and the

determination of rights, privileges, and

obligations of private persons through

rule making, adjudication, licensing, or

investigation, as those terms are used in

subchapter II of this chapter;

(3) ‘‘alternative means of dispute

resolution’’ means any procedure that is

used to resolve issues in controversy,

including, but not limited to,

conciliation, facilitation, mediation,

factfinding, minitrials, arbitration, and

use of ombuds, or any combination

thereof;

(4) ‘‘award’’ means any decision by an

arbitrator resolving the issues in

controversy;

(5) ‘‘dispute resolution

communication’’ means any oral or

written communication prepared for the

purposes of a dispute resolution

proceeding, including any memoranda,

notes or work product of the neutral,

parties or nonparty participant; except

that a written agreement to enter into a

dispute resolution proceeding, or final

written agreement or arbitral award

reached as a result of a dispute

resolution proceeding, is not a dispute

resolution communication;

(6) ‘‘dispute resolution proceeding’’

means any process in which an

alternative means of dispute resolution

is used to resolve an issue in

controversy in which a neutral is

appointed and specified parties

participate;

(7) ‘‘in confidence’’ means, with

respect to information, that the

information is provided—

(A) with the expressed intent of the

source that it not be disclosed; or

(B) under circumstances that would

create the reasonable expectation on

behalf of the source that the information

will not be disclosed;

(8) ‘‘issue in controversy’’ means an

issue which is material to a decision

concerning an administrative program

of an agency, and with which there is

disagreement—

(A) between an agency and persons

who would be substantially affected by

the decision; or

(B) between persons who would be

substantially affected by the decision;

(9) ‘‘neutral’’ means an individual

who, with respect to an issue in

controversy, functions specifically to

aid the parties in resolving the

controversy;

(10) ‘‘party’’ means—

(A) for a proceeding with named

parties, the same as in section 551(3) of

this title; and

(B) for a proceeding without named

parties, a person who will be

significantly affected by the decision in

the proceeding and who participates in

the proceeding;

(11) ‘‘person’’ has the same meaning

as in section 551(2) of this title; and

(12) ‘‘roster’’ means a list of persons

qualified to provide services as neutrals.

Confidentiality (5 U.S.C.574)

(a) Except as provided in subsections

(d) and (e), a neutral in a dispute

resolution proceeding shall not

voluntarily disclose or through

discovery or compulsory process be

required to disclose any dispute

resolution communication or any

communication provided in confidence

to the neutral, unless—

(1) all parties to the dispute resolution

proceeding and the neutral consent in

writing, and, if the dispute resolution

communication was provided by a

nonparty participant, that participant

also consents in writing;

(2) the dispute resolution

communication has already been made

public;

(3) the dispute resolution

communication is required by statute to

be made public, but a neutral should

make such communication public only

if no other person is reasonably

available to disclose the

communication; or

(4) a court determines that such

testimony or disclosure is necessary

to—

(A) prevent a manifest injustice;

(B) help establish a violation of law;

or

(C) prevent harm to the public health

or safety, of sufficient magnitude in the

particular case to outweigh the integrity

of dispute resolution proceedings in

general by reducing the confidence of

parties in future cases that their

communications will remain

confidential.

(b) A party to a dispute resolution

proceeding shall not voluntarily

disclose or through discovery or

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices 59203

compulsory process be required to

disclose any dispute resolution

communication, unless—

(1) the communication was prepared

by the party seeking disclosure;

(2) all parties to the dispute resolution

proceeding consent in writing;

(3) the dispute resolution

communication has already been made

public;

(4) the dispute resolution

communication is required by statute to

be made public;

(5) a court determines that such

testimony or disclosure is necessary

to—

(A) prevent a manifest injustice;

(B) help establish a violation of law;

or

(C) prevent harm to the public health

and safety, of sufficient magnitude in

the particular case to outweigh the

integrity of dispute resolution

proceedings in general by reducing the

confidence of parties in future cases that

their communications will remain

confidential;

(6) the dispute resolution

communication is relevant to

determining the existence or meaning of

an agreement or award that resulted

from the dispute resolution proceeding

or to the enforcement of such an

agreement or award; or

(7) except for dispute resolution

communications generated by the

neutral, the dispute resolution

communication was provided to or was

available to all parties to the dispute

resolution proceeding.

(c) Any dispute resolution

communication that is disclosed in

violation of subsection (a) or (b), shall

not be admissible in any proceeding

relating to the issues in controversy

with respect to which the

communication was made.

(d)(1) The parties may agree to

alternative confidential procedures for

disclosures by a neutral. Upon such

agreement the parties shall inform the

neutral before the commencement of the

dispute resolution proceeding of any

modifications to the provisions of

subsection (a) that will govern the

confidentiality of the dispute resolution

proceeding. If the parties do not so

inform the neutral, subsection (a) shall

apply.

(2) To qualify for the exemption

established under subsection (j), an

alternative confidential procedure under

this subsection may not provide for less

disclosure than the confidential

procedures otherwise provided under

this section.

(e) If a demand for disclosure, by way

of discovery request or other legal

process, is made upon a neutral

regarding a dispute resolution

communication, the neutral shall make

reasonable efforts to notify the parties

and any affected nonparty participants

of the demand. Any party or affected

nonparty participant who receives such

notice and within 15 calendar days does

not offer to defend a refusal of the

neutral to disclose the requested

information shall have waived any

objection to such disclosure.

(f) Nothing in this section shall

prevent the discovery or admissibility of

any evidence that is otherwise

discoverable, merely because the

evidence was presented in the course of

a dispute resolution proceeding.

(g) Subsections (a) and (b) shall have

no effect on the information and data

that are necessary to document an

agreement reached or order issued

pursuant to a dispute resolution

proceeding.

(h) Subsections (a) and (b) shall not

prevent the gathering of information for

research or educational purposes, in

cooperation with other agencies,

governmental entities, or dispute

resolution programs, so long as the

parties and the specific issues in

controversy are not identifiable.

(i) Subsections (a) and (b) shall not

prevent use of a dispute resolution

communication to resolve a dispute

between the neutral in a dispute

resolution proceeding and a party to or

participant in such proceeding, so long

as such dispute resolution

communication is disclosed only to the

extent necessary to resolve such

dispute.

(j) A dispute resolution

communication which is between a

neutral and a party and which may not

be disclosed under this section shall

also be exempt from disclosure under

section 552(b)(3).

III. Section-by-Section Analysis of

Confidentiality Provisions (5 U.S.C.

574)

Section 574(a)

In general, a neutral in a dispute

resolution proceeding is prohibited from

disclosing any dispute resolution

communication or any communication

provided to him or her in confidence.

Unless the communication falls within

one of the exceptions listed below, the

neutral cannot voluntarily disclose a

communication and cannot be forced to

disclose a communication through a

discovery request or by any other

compulsory process.

The exceptions to this general rule are

found in subsections 574(a)(1)–(4),

574(d) and 574(e).

Section 574(a)(1)

A neutral may disclose a

communication if all parties and the

neutral agree in writing to the

disclosure. If a nonparty provided the

communication, then the nonparty must

also agree in writing to the disclosure.

Section 574(a)(2)

A neutral may disclose a

communication if the communication

has already been made public.

Section 574(a)(3)

A neutral may disclose a

communication if there is a statute

which requires it to be made public.

However, the neutral should not

disclose the communication unless

there is no other person available to

make the disclosure.

Section 574(a)(4)

A neutral may disclose a

communication if a court finds that the

neutral’s testimony, or the disclosure, is

necessary to:

A. prevent a manifest injustice;

B. help establish a violation of law; or

C. prevent harm to the public health

and safety.

In order to require disclosure, a court

must determine that the need for

disclosure is of sufficient magnitude to

outweigh the detrimental impact on the

integrity of dispute resolution

proceedings in general. The need for the

information must be so great that it

outweighs a loss of confidence among

other potential parties that their dispute

resolution communications will remain

confidential in future proceedings.

Section 574(b)

Unless the communication falls

within one of the exceptions listed

below, the party cannot voluntarily

disclose a communication and cannot

be forced to disclose a communication

through a discovery request or by any

other compulsory process.

Section 574(b)(1)

The party who makes a statement or

communication is free to disclose it.

Section 574(b)(2)

A party may disclose a

communication if all the parties agree in

writing to the disclosure.

Section 574(b)(3)

A party may disclose a

communication if the communication

has already been made public.

Section 574(b)(4)

A party may disclose a

communication if there is a statute

which requires it to be made public.

59204 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices

Section 574(b)(5)

A party may disclose a

communication if a court finds that the

party’s testimony, or the disclosure, is

necessary to:

A. prevent a manifest injustice;

B. help establish a violation of law; or

C. prevent harm to the public health

and safety.

In order to require disclosure, a court

must determine that the need for

disclosure is of sufficient magnitude to

outweigh the detrimental impact on the

integrity of dispute resolution

proceedings in general. The need for the

information must be so great that it

outweighs a loss of confidence among

other potential parties that their dispute

resolution communications will remain

confidential in future proceedings.

Section 574(b)(6)

(1) Parties may use dispute resolution

communications to show that a

settlement agreement was in fact

reached or to show what the terms of

this agreement mean.

(2) Parties may also use

communications in connection with

later issues regarding enforcing the

agreement.

(3) Communications may only be

revealed to the extent that they meet the

above purposes.

Section 574(b)(7)

(1) There is no confidentiality

protection for parties’ dispute resolution

communications that were available to

everyone in the proceeding. For

example, in a joint mediation session

with all parties present, statements

made and documents provided by

parties are not confidential.

(2) Communications coming from the

neutral are confidential. For example,

early neutral evaluations or settlement

proposals from the neutral are

protected.

(3) A party may not use this provision

to gain protection for a communication

by providing it to the neutral who then

provides it to the other party.

Section 574(c)

No one may use any dispute

resolution communication in a related

proceeding, if that communication was

disclosed in violation of Section 574 (a)

and (b).

Section 574(d)(1)

(1) Parties may agree to alternative

confidentiality procedures to limit

disclosure by a neutral.

(2) Parties must inform the neutral of

the alternative procedures before the

dispute resolution proceeding begins.

(3) If parties do not inform the neutral

of the alternative procedures, the

procedures outlined in Section 574(a)

will apply.

Section 574(d)(2)

(1) Dispute resolution

communications covered by alternative

confidentiality procedures may be

protected from disclosure under FOIA.

(2) To qualify for this protection, the

alternative procedures must provide for

as much, or more, disclosure than the

procedures provided in Section 574.

(3) Dispute resolution

communications covered by alternative

confidentiality procedures do not

qualify for protection from disclosure

under FOIA if they provide for less

disclosure than those outlined in

Section 574.

Section 574(e)

(1) A neutral who receives a demand

for disclosure, in the form of a discovery

request or other legal process, must

make reasonable efforts to notify the

parties and any affected non-party

participants of the demand.

(2) Parties and non-party participants

who receive a notice of a demand for

disclosure from a neutral:

a. must respond within 15 days and

offer to defend a refusal to disclose the

information; or

b. if they do not respond within 15

days, will have waived their objections

to disclosure of the information.

Section 574(f)

Evidence that is otherwise

discoverable or admissible is not

protected from disclosure under this

Section merely because the evidence

was presented during a dispute

resolution proceeding.

Section 574(g)

The provisions of Section 574 (a) and

(b) do not affect information and data

that are necessary to document

agreements or orders resulting from

dispute resolution proceedings.

Section 574(h)

Information from and about dispute

resolution proceedings may be used for

educational and research purposes as

long as the parties and specific issues in

controversy are not identifiable.

Section 574(i)

(1) Dispute resolution

communications may be used to resolve

disputes between the neutral in a

dispute resolution proceeding and a

party or non-party participant.

(2) Dispute resolution

communications may be disclosed only

to the extent necessary to resolve a

dispute between a neutral and party or

non-party participant.

Section 574(j)

A dispute resolution communication

between a neutral and a party that is

protected from disclosure under this

section is also protected from disclosure

under FOIA (Section 552(b)).

IV. Questions and Answers on

Confidentiality under the

Administrative Dispute Resolution Act

of 1996 (ADR Act)

General Confidentiality Rules

1. What communications are

confidential?

Subject to certain exceptions, the

following two types of communications

are potentially confidential under the

ADR Act:

A. A dispute resolution

communication. A dispute resolution

communication is any oral or written

statement made by a party or a neutral

that occurs during a dispute resolution

proceeding and any writing prepared

specifically for the purposes of a dispute

resolution proceeding. Written

agreements to enter into a dispute

resolution proceeding and any written

final agreement reached as a result of

the proceeding are not dispute

resolution communications. Citation: 5

U.S.C. 571(5).

B. A ‘‘communication provided in

confidence to the neutral.’’ A

‘‘communication provided in

confidence to the neutral’’ is any oral

statement or document provided to a

neutral during a dispute resolution

proceeding. The communication must

be made: (1) With the express intent that

it not be disclosed, or (2) provided

under circumstances that would create

a reasonable expectation that it not be

disclosed. Citation: 5 U.S.C. 571(7) and

574(a).

2. What confidentiality protection is

provided for dispute resolution

communications?

Generally, neutrals and parties may

not voluntarily disclose or be compelled

to disclose dispute resolution

communications. The ADR Act contains

specific exceptions to the general rule.

Citation: 5 U.S.C. 574(a), (b).

3. What confidentiality protection

applies to a ‘‘communication provided

in confidence’’ by a party to a neutral?

A neutral may not disclose any

communication provided in confidence.

Citation: 5 U.S.C. 574(a).

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices 59205

4. What is a dispute resolution

proceeding?

A dispute resolution proceeding is

any process involving the services of a

neutral that is used to resolve an issue

in controversy arising from an agency’s

program, operations, or actions. A

dispute resolution proceeding includes

any stage of such a dispute resolution

process. Citation: 5 U.S.C. 571(6) and

(8). See also, Question 10.

5. Who is a Neutral?

A neutral is anyone who functions

specifically to aid the parties during a

dispute resolution process. A neutral

may be a private person or a federal

government employee who is acceptable

to the parties. There may be more than

one neutral during the course of a

dispute resolution process (e.g., an

‘‘intake’’ neutral, a ‘‘convener’’ neutral,

as well as the neutral who facilitates a

face-to-face proceeding). It is important

that agencies clearly identify neutrals to

avoid misunderstanding.

The ADR Act supports a broad

reading of the term ‘‘neutral.’’ An intake

or convening neutral is included in this

definition as ‘‘an individual who * * *

functions specifically to aid the parties

in resolving the controversy’’ because

such neutrals take the necessary first

steps toward a potential resolution of a

dispute.

In situations where an intake neutral

is identified by an agency, a party’s

willingness to contact and/or work with

the intake neutral to initiate an ADR

process is an indication that the intake

neutral is acceptable to the party.

Citation: 5 U.S.C 571(9), 571(6), 571(3),

573(a).

Example: An employee contacts an agency

ADR program and describes a dispute to an

intake person. The conversation is

confidential only if the intake person has

been appropriately identified as a neutral by

the agency to aid parties in resolving such

disputes.

6. Who Is a Party?

A party is any person or entity who

participates in a dispute resolution

proceeding and is named in a legal

proceeding or will be affected

significantly by the outcome of the

proceeding. The obligations of parties

extend to their representatives and

agents. Citation: 5 U.S.C. 571(10).

7. What Constitutes Disclosure?

Disclosure is not defined in the ADR

Act. Disclosure occurs when a neutral,

a party, or a non-party participant

makes a communication available to

some other person by any method.

8. May a Party or Neutral Disclose

Dispute Resolution Communications in

Response to Discovery or Compulsory

Process?

In general, neither a neutral nor a

party can be required to disclose dispute

resolution communications through

discovery or compulsory process.

Compulsory processes include any

administrative, judicial or regulatory

process that compels action by an

individual. (See also Question 15)

Citation: 5 U.S.C. 574(a) & 574(b).

9. What Confidentiality Protection Is

Provided for Communications by a

Nonparty Participant in a Dispute

Resolution Proceeding?

A nonparty participant in a dispute

resolution proceeding is an individual

other than a party, agent or

representative of a party, or the neutral.

This could be an individual who is

asked by the neutral to present

information for use of the neutral or

parties. A nonparty participant has an

independent right to protect his or her

communications from disclosure by a

neutral. A neutral needs to obtain the

consent of all parties and the nonparty

participant to disclose such a

communication. Citation: 5 U.S.C.

574(a)(1).

10. When in an ADR Process do the

Confidentiality Protections of ADR Act

Apply?

Confidentiality applies to

communications when a person seeking

ADR services contacts an appropriate

neutral. A communication made by a

party to a neutral is covered even if

made prior to a face-to-face ADR

proceeding. Confidentiality does not

apply to communications made after a

final written agreement is reached, or

after resolution efforts aided by the

neutral have otherwise ended. Citation:

5 U.S.C. 571(6), 574(a) and (b).

Exceptions to Confidentiality Protection

11. What Communications Are Not

Protected by the ADR Act?

A. A party’s own communications

made during a dispute resolution

proceeding. A party may disclose any

oral or written communication which

the party makes or prepares for a

dispute resolution proceeding. Citation:

5 U.S.C. 574(b)(1).

B. A dispute resolution

communication that has ‘‘already been

made public.’’ The ADR Act’s

confidentiality protections do not apply

to a communication that has already

been made public. Examples of

communications that have ‘‘already

been made public’’ include:

1. The communication has been

discussed in a Congressional hearing;

2. The communication has been

posted on the Internet;

3. The communications has been

released to the media;

4. The communication has been

placed in a court filing or testified about

in a court in a proceeding not under

seal;

5. The communication has been

reported in the newspapers;

6. The communication has been

discussed in an open meeting;

7. The communication has been

released under FOIA.

Citation: 5 U.S.C. 574(a)(2) &

574(b)(3).

C. Communications required by

statute to be made public. FOIA is an

example of a federal statute which

requires agency records to be made

public under certain circumstances.

NOTE: A protected dispute resolution

communication which is between a

neutral and a party is exempt from

disclosure under FOIA. (See Question

23) Citation: 5 U.S.C. 574(a)(3),

574(b)(4), & 574(j).

D. When a court orders disclosure. A

federal court may override the

confidentiality protections of ADR Act

in three limited situations. In order to

override the confidentiality protections,

a court must determine that testimony

or disclosure of a communication is

necessary to either (1) prevent a

manifest injustice, (2) help establish a

violation of law, or (3) prevent harm to

the public health or safety. The court

must also determine that the need for

the information is of a sufficient

magnitude in the particular case to

outweigh the integrity of dispute

resolution proceedings in general by

reducing the confidence of parties in

future cases that their communications

will remain confidential. There are no

cases as of August 2000 that have

interpreted these provisions. Citation: 5

U.S.C. 574(a)(4) & (b)(5).

E. In order to resolve a dispute over

the existence or meaning of a settlement

arrived at through a dispute resolution

proceeding. The ADR Act creates an

exception to the general rule of

nondisclosure for the limited purpose of

determining the existence or meaning of

an agreement arrived at through a

dispute resolution proceeding. Parties

may also disclose communications as

required to enforce an agreement arrived

at through a dispute resolution

proceeding. Citation: 5 U.S.C. 574(b)(6).

Example: Parties may disclose dispute

resolution communications as required to

show that a settlement agreement was

reached or to show what the terms of this

agreement were.

59206 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices

F. Parties’ communications in joint

session, with all parties present. A

neutral may not disclose

communications made in joint session.

However, there is no prohibition against

a party disclosing communications

available to everyone in the proceeding.

Citation: 5 U.S.C. 574(b)(7).

G. Information sought for specific

purposes. The ADR Act allows for the

disclosure of information for

educational and research purposes, in

cooperation with agencies,

governmental entities, or dispute

resolution programs. It is essential that

the parties and specific issues in

controversy not be identifiable,

however. Citation: 5 U.S.C. 574(h).

Example: An individual who has served as

a neutral in a number of agency ADR

proceedings may share collected experiences

when participating in a training program

provided that the parties and specific issues

are not identifiable.

Example: An ADR program administrator

may collect statistics to monitor the results

of the program.

H. Communications required to

resolve disputes that arise between the

neutral and a party. If there is a dispute

between a neutral and a party regarding

the conduct of a dispute resolution

proceeding, both may disclose

information to the extent necessary to

resolve the dispute. Citation: 5 U.S.C.

574(i)

Example: If a party refuses to pay the

neutral for services, the neutral can disclose

communications to the extent necessary to

establish that payment is due.

12. Are a neutral’s communications to

parties in joint session or provided to all

parties confidential?

Yes. ADR Act protects

communications by a neutral.

Example: Early neutral evaluations or

settlement proposals provided to the parties

by a neutral are protected.

Note: A party, however, may not use this

provision to gain protection for a

communication by providing it to the neutral

who then provides it to the other party. The

statute says that the communication must be

‘‘generated’’ by the neutral, not just passed

along by the neutral. Citation: 5 U.S.C. 574

(b)(7). (See H. Rept. 104–841,142 Cong. Rec.

H11108–11 (September 25, 1996).

13. Can confidentiality attach to

communications that are provided to or

available to fewer than all of the parties?

Yes. The ADR Act does not prohibit

disclosure of dispute resolution

communications that are ‘‘provided to

or * * * available to all parties to the

dispute resolution proceeding.’’ Under a

plain reading of the statute,

communications are not protected when

provided to, or available to, all parties;

thus, they remain protected if they are

provided to, or are available to, some

(but not all) of the parties in a dispute.

The legislative history states, ‘‘A

dispute resolution communication

originating from a party to a party or

parties is not protected from disclosure

by the ADR Act.’’ H.R. Rep. No. 104–

841, 142 Cong. Rec. H11, 110 (Sept. 25,

1996). The plain language of the statute

is not inconsistent with this piece of

legislative history, in that it can be

interpreted to mean both parties in a

two-party (‘‘party to the other party’’) or

all parties in a multi-party dispute

(‘‘party to all other parties’’). Citation: 5

U.S.C. 574(b)(7).

14. Does ADR Act provide

confidentiality protection for all

evidence used in the course of a dispute

resolution proceeding?

No. All evidence that is otherwise

discoverable is not protected merely

because it was presented at a dispute

resolution proceeding. Citation: 5 U.S.C.

574(f).

15. Does the ADR Act protect against the

disclosure of dispute resolution

communications in response to requests

by federal entities for such information?

Section 574 of the ADR Act prohibits

a neutral or a party from disclosing,

voluntarily or in response to discovery

or compulsory process, any protected

communication. The ADR Act further

states that neutrals and parties shall not

‘‘be required’’ to disclose such

communications. However, a number of

federal entities have statutory authority

to request disclosure of documents from

federal agencies and employees.

Examples of such statutes include, but

are not limited to, The Inspector General

Act (5 U.S.C. App.); The Whistleblower

Protection Act (5 U.S.C. Section

1212(b)(2)); and the Federal Service

Labor-Management Relations Act (5

U.S.C. Section 7114(4)). None of the

exceptions to the ADR Act’s

confidentiality provisions directly

applies to requests for disclosure of

information from federal entities. For

example, these statutes do not require

information to be made public under

ADR Act Section 574 (a)(3) & (b)(4). In

addition, the judicial override

procedure outlined in Section 574 (a)(4)

& (b)(5) is not always available to federal

entities with authority to access

information. Some federal entities may

lack jurisdiction to seek a court order to

compel disclosure. Other federal entities

may have such jurisdiction, but may

seek disclosure under other statutory

authority.

In summary, a tension between these

statutory authorities exists. The issues

of statutory interpretation of these

differing authorities have not yet been

considered in an appropriate forum. We

do not anticipate that there will be

many occasions when such requests

will be directed to neutrals or

participants. However, it is important

for agencies, neutrals and participants to

be aware of the potential for requests.

In order to prevent unnecessary

disputes over requests for information

pursuant to an access statute and to

mitigate damage to ADR programs, we

recommend:

• Agency ADR programs should enter

into a dialogue with potential requesting

entities so that each may be educated

about their respective missions.

• Procedures should be established

for access to information that recognize

the importance of confidentiality in

dispute resolution processes and protect

the integrity of the agency’s ADR

program.

• ADR programs should identify

classes of information that are not

confidential.

• Requesting entities should use nonconfidential information as a basis for

information requests.

• Requesting entities should seek

confidential information only after other

potential sources have been exhausted.

• Requesting entities should seek

information from a neutral only as a last

resort.

• The ADR program and requesting

entities should agree to procedures to

resolve specific disagreements that arise

with regard to the disclosure of

information.

• If a federal employee party or

neutral receives a request for disclosure,

he or she should contact the agency’s

ADR program as soon as possible to

discuss appropriate courses of action.

Neutrals must also notify parties of any

such request (See Question 19).

Alternative Procedures To Establish

Confidentiality Protection

16. May parties agree to confidentiality

procedures which are different from

those contained in ADR Act?

Yes. Parties may agree to more, or

less, confidentiality protection for

disclosure by the neutral or themselves

than is provided for in the Act.

Subsection 574(d)(1) provides that the

parties can agree to alternative

confidential procedures for disclosures

by a neutral. While there is no parallel

provision for parties, the exclusive

wording of this subsection should not

be construed as indicating

Congressional intent to limit alternative

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices 59207

procedures by parties. Parties have a

general right to sign confidentiality

agreements, and there is no reason this

should change in a mediation context.

If the parties agree to alternative

confidentiality procedures regarding

disclosure by a neutral, they must so

inform the neutral before the dispute

resolution proceeding begins or the

confidentiality procedures in the ADR

Act will apply. An agreement providing

for alternative confidentiality

procedures is binding on anyone who

signs the agreement. (See Questions 23

and 24 for potential FOIA implications.)

Example: Parties to an ADR proceeding can

agree to authorize the neutral to use his or

her judgment about whether to voluntarily

disclose a protected communication, as long

as the neutral is informed of this agreement

before the ADR proceeding commences.

Example: Parties to an ADR proceeding can

agree that they, and the neutral, will keep

everything they say to each other in joint

session confidential.

Issues Regarding the Disclosure of

Protected Communications

17. What restrictions are put on the use

of confidential communications

disclosed in violation of the ADR Act?

If the neutral or any participant

discloses a confidential communication

in violation of Sections 574(a) or (b),

that communication may not be used in

any proceeding that is related to the

subject of the dispute resolution

proceeding in which the protected

communication was made. A dispute

resolution communication that was

improperly disclosed may not be

protected from use in an unrelated

proceeding. Citation: 5 U.S.C. 574(c).

18. What is the penalty for disclosing

confidential communications in

violation of the statute?

The ADR Act does not specify any

civil or criminal penalty for the

disclosure of a protected

communication in violation of the Act.

However, such disclosure may violate

other laws, regulations or agreements of

the parties.

19. What must a neutral do when he or

she receives a ‘‘demand for disclosure’’

of confidential communications?

A demand for disclosure is a formal

request for confidential information.

The demand must be made by a

discovery request or some other legal

process. Upon receiving a demand for

disclosure of a confidential

communication, a neutral must make a

reasonable effort to notify the parties

and any affected non-party participants

of the demand. Notice must be provided

even if the neutral believes that there is

no basis for refusing to disclose the

communication.

Notice should be delivered to the last

address provided by a party. Parties

have fifteen days, from the date they

receive the notice, in which to offer to

defend the neutral against disclosure.

Therefore, notice should be sent by a

process that provides certification of

delivery. For example, delivery could be

by registered mail, by any carrier that

provides tracking and certification of

delivery, or by courier. Use of telephone

or email communications as notice

could be problematic. Since the parties

must respond within 15 days or waive

their right to object to disclosure, there

must be a written record of when the

notice was sent and when it was

received. Citation: 5 U.S.C. 574(e).

Example: A colleague asks a neutral what

happened in a mediation. The neutral must

simply refuse to discuss the matter. The

neutral does not need to notify the parties of

the request.

Example: A neutral receives a formal

discovery request for information on what

happened in a mediation. The neutral must

notify the parties of this demand for

disclosure using the procedures described

above.

20. What can/must parties do when they

receive notice of a demand for

disclosure from the neutral?

If a party has no objection to the

disclosure of confidential

communications, it need not respond to

the notice. On the other hand, if a party

believes that the sought-after

communications should not be

disclosed, it should notify the neutral

and make arrangements to defend the

neutral. Where the party is a federal

agency, it should develop departmental

procedures for processing the notice.

21. What responsibilities do agencies

have for ensuring that the notification

requirement is met?

In some federal ADR programs, the

neutral may be a federal employee

performing collateral duty. Imposing an

obligation upon these neutrals to keep

records of parties to dispute resolution

proceedings may be unduly onerous and

ineffective. Agencies should develop

administrative procedures to assure that

the notification functions are fulfilled.

22. May a neutral refuse to disclose

communications even when the parties

have failed to agree to defend the

neutral?

Yes. The ADR Act permits, but does

not compel, a neutral to disclose if the

parties have waived objections to

disclosure under Section 574(e). While

the statute is clear that a neutral ‘‘shall

not’’ disclose where a party objects, the

statute does not say that a neutral must

disclose if a party does not object.

The effectiveness and integrity of

mediation and other ADR processes is

largely dependent on the credibility and

trustworthiness of neutrals. In order to

safeguard the integrity of ADR programs

and to eliminate the potential for

eroding confidence in future ADR

proceedings, neutrals should be allowed

to rely on established codes of ethics

and confidentiality standards to support

a decision not to disclose. Citation: 5

U.S.C. 574(a) & (e).

Issues Related to the Freedom of

Information Act (FOIA)

23. What dispute resolution

communications are protected from

disclosure under FOIA?

Dispute resolution communications

between a neutral and a party that are

covered by the confidentiality

protections of the ADR Act are

specifically exempted from disclosure

under the Freedom of Information Act.

This includes communications that are

generated by a neutral and provided to

all parties, such as an Early Neutral

Evaluation. In addition, other FOIA

exemptions may apply.

Since only federal records are subject

to FOIA, dispute resolution

communications that are not federal

records are not subject to the disclosure

requirements of FOIA. Therefore, this

subsection would not apply to oral

dispute resolution communications.

Citation: 5 U.S.C. 574(j).

24. If parties agree to alternative

confidentiality procedures, are dispute

resolution communications subject to

FOIA?

Parties may agree to confidentiality

procedures that differ from those

provided for in the ADR Act. Parties

should be aware, however, that the

FOIA exemption may not apply to all

the communications protected under

their agreement.

If the agreement provides for the same

or more disclosure than provided by the

Act, dispute resolution communications

are exempt from disclosure under FOIA.

If the agreement provides for less

disclosure, communications are not

exempt from disclosure under FOIA.

The ADR Act, in effect, establishes a

ceiling on the extent to which

confidential communications will be

exempt. Parties cannot contract for more

FOIA protection than the ADR Act

provides.

V. Model Confidentiality Statement for

Use by Neutrals

The confidentiality provisions of the

Administrative Dispute Resolution Act

59208 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices

* Include for multi-party disputes.

(ADR Act) apply to this process.

Generally, if you tell me something

during this process, I will keep it

confidential. The same is true for

written documents you prepare for this

process and give to me. [Similarly, you

are generally required to keep

information confidential that you

receive during conversations with other

parties or me and from writings

prepared for this process. *

Be advised, there are limits on our

ability to keep information confidential.

If you say something or provide

documents to all the other parties it is

not confidential. Under rare

circumstances, a judge can order

disclosure of confidential information.

Even though not required by the ADR

Act, information about a violation of

criminal law, or an act of fraud, waste,

or abuse, or an imminent threat of

serious harm may have to be disclosed

to appropriate authorities by a

participant, but not necessarily by me.

You can agree to more confidentiality

if you want to. For example, you can

agree to keep confidential things you

share with all the parties. If you want to

do any of that, it will require the

agreement of all parties and should be

memorialized in writing. You should be

aware that if you agree to more

confidentiality, written documents may

still be available to others, for example,

through the Freedom of Information

Act. Confidentiality provisions other

than those in the ADR Act may also

apply to this process.

ADR Program Evaluation

Recommendations

I. Introduction

The alternative dispute resolution

(ADR) field has long promoted the

various benefits of using non-traditional

methods to resolve disputes, such as

savings of time and money, party

satisfaction with the ADR process and

outcomes, high settlement rates, and

improved relationships. The ADR

Council recognizes that ADR has the

potential to produce these results, and

notes the value of hard data to back up

the assertion that ADR really delivers

these benefits to agencies. The Council’s

Core Principles for Non-binding

Workplace ADR Programs [and if

approved, the ADR Pledge] identify

evaluation as a key component of

successful ADR program management.

Up-front and thorough evaluation

initiatives allow ADR program managers

to ensure the quality of their programs,

to identify programmatic successes and

difficulties, and to make necessary

improvements. Therefore, it is

important that all federal ADR programs

engage in a rigorous evaluation of ADR’s

use and benefits to ensure quality ADR

programs and to provide the necessary

information to sustain and increase

support of ADR.

As the use of ADR becomes

institutionalized within federal

agencies, the government has a

heightened interest in evaluating the

benefits and impact of these dispute

resolution initiatives. This type of

formal evaluation is consistent with the

legal obligations of all federal programs,

under the Government Performance and

Results Act (Pub. L. 103–62) which

requires that agencies create a

performance plan, define goals, and

track the extent to which they achieve

their desired outcomes. ADR program

management best practices emphasize

the importance of an evaluation

component in program design as well as

practice, and some federal agencies have

initiated evaluations of their ADR

programs. However, the federal sector

will benefit from agencies’ coordinated

and uniform efforts at ADR program

evaluation.

II. Recommendations

The Council acknowledges that

throughout the government, ADR

program goals and services differ

dramatically among Federal agencies.

Consequently, it is appropriate to tailor

evaluation plans and methods to meet

the needs of a particular program. Even

with agency-specific tailoring, effective

evaluations will include certain

common elements. Therefore, to

promote consistency and coordination

among Federal ADR evaluation efforts,

the Council makes the following

recommendations to agencies:

1. Importance of Evaluation. Each

agency should engage in an up-front and

ongoing evaluation of its ADR programs.

2. Data to be Captured. At a

minimum, evaluators should attempt to

capture and analyze in a timely manner

the following information:

a. Usage: the extent to which ADR is

considered and used.

b. Time Savings: the time it takes for

a case to be resolved through ADR as

compared to traditional dispute

resolution processes.

c. Cost Avoidance: the amount of

financial savings (or costs) to the

agency, including staff time, dollars, or

other quantifiable factors, by resolving

cases through ADR as compared to

traditional dispute resolution processes.

d. Customer Satisfaction: parties’

satisfaction with the process and

outcomes, including the quality of the

neutral.

e. Improved Relationships: where

ongoing relationships are important, to

what extent relationships are improved.

f. Other Appropriate Indicators: in

line with the agency’s strategic goals

and objectives.

3. Validity and Reliability of Data.

Methodologies should be valid and

reliable. ADR program results should be

compared to results from alternate or

previously existing dispute resolution

methods.

4. Presentation of Data. ADR Program

Managers should present a realistic,

accurate and complete picture of the

results of their program.

5. Use of Data. ADR success stories

should be summarized and publicized,

to help foster a culture in which ADR

is accepted as beneficial to Federal

agencies and their customers. If areas for

improvement are identified, that

information should be used to enhance

the ADR program.

6. Reporting. Federal ADR Program

Managers are encouraged to report the

results of their evaluations to the

Federal Interagency ADR Working

Group.

7. Potential Resources. In undertaking

ADR activities, agencies should consult:

(1) The Federal ADR Program Manager’s

Resource Manual, Chapter 8: Evaluating

ADR Programs, and (2) The Electronic

Guide to Federal Procurement ADR.

Both of these resources, as well as other

valuable information are available

electronically at: www.financenet.gov/

iadrwg

Evaluating ADR Programs

I. Introduction

For the past ten years the practice of

ADR, the creation of ADR programs, and

the discipline of ADR evaluation have

been developing in tandem. We have

learned that organizations best design

and develop ADR programs by knowing

an organization’s conflict resolution

culture, we see that evaluation can and

should be a reflective feedback

mechanism for ADR program

development, and that evaluation

belongs at the beginning of ADR

program design. While evaluation is

ideally present at the beginning of ADR

program development, we recognize

that there are many ADR programs

already up and running that do not have

evaluation components. This chapter

will address ADR programs at any stage

along the way of program development.

II. Planning and Designing the

Evaluation

Traditional ADR program evaluation

is a way to determine whether an ADR

program is meeting its goals and

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices 59209

objectives. Evaluation data are useful in

finding out what works and what does

not work and may be a critical factor in

decisions to modify or expand a

program.

When planning and designing a

federal ADR program evaluation, it is

important to understand what

components of the program are essential

to comply with federal statutes and

initiatives. To the extent that an ADR

program maintains compliance with

federal ADR requirements, it fulfills a

necessary and useful function for your

organization or agency. A good design

will build upon an existing program

structure and will establish an

evaluation methodology for each

program ‘‘core’’ area, core areas being

defined by statute or initiative. Overall

program effectiveness can then be

determined by combining data from all

function areas, with consideration being

given to intangible benefits and

consumer satisfaction.

Evaluation is an art as well as a

science, even, perhaps, a state of mind.

It is almost never a linear process.

Decisions made early in the evaluation

planning and design process will almost

certainly need to be reconsidered and

modified as your ADR program grows

and develops. In addition, traditional

cost/benefit analysis does not capture

many of the benefits derived from ADR

service programs because these benefits

are often intangible and not easily

quantifiable. With all of this in mind,

evaluators need to strive for a workable

balance between the need for defensible

results and practical limitations.

Key questions to ask when planning

and designing an ADR program

evaluation are:

• What are your goals and objectives

for your ADR program evaluation?

• How will you pay for your ADR

evaluation?

• Who will evaluate your ADR

program?

• Who is your audience for this

evaluation?

• What is your evaluation design

strategy?

• What are your measures of success?

A. What Are Your Goals and Objectives

for Your ADR Program Evaluation?

The goals and objectives of an

evaluation should link closely with the

goals and objectives of the ADR program

being evaluated, should reflect the

needs and interests of those requesting

the evaluation, and should be sensitive

to the needs and interests of the

expected audiences for the results.

Ideally, the ADR program’s goals and

objectives will have been established

early on. Sometimes, however, these

goals may not have been clearly

articulated, may not be measurable as

stated, or may have changed. Evaluators

may need to ask program managers and

other stakeholders to provide input (and

hopefully arrive at a consensus) on the

program’s goals, while addressing

questions such as, how well is the

program working, should changes be

made, should the program be continued

or expanded, and how well is the ADR

program working in a particular federal

context?

B. How Will You Pay For Your ADR

Evaluation?

The cost of conducting an ADR

program evaluation depends upon a

number of factors, such as the number

and complexity of success measures, the

type of ADR program selected, the level

of statistical significance required of the

results, the availability of acceptable

data, and who is selected to carry out

the evaluation. Costs can be controlled,

however, by careful planning,

appropriate adjustments in the design

phase, and a creative use of outside

evaluators, from universities, for

example.

C. Who Will Evaluate Your ADR

Program?

When selecting an evaluator, or a

team of evaluators, a number of

qualifications should be considered.

Objectivity (i.e. no stake in the outcome)

is essential for your results to be seen

as credible. An evaluator should have

sufficient knowledge of the ADR process

as well as program expertise to design

the evaluation, perform the data

collection process and data analysis as

well as present your results to your

audience if you chose to have the

evaluator present your results. Such

expertise may be found inside some

agency policy and program evaluation

offices, at the U. S. General Accounting

Office, or at various outside evaluation

consulting firms and university

departments specializing in social

science research. Some understanding

of the organization or the context in

which the program operates can be

helpful to the evaluator, as are good

interpersonal and management skills.

Evaluations can be conducted by

people outside the agency, within the

agency but outside the program being

evaluated, or by people involved with

the ADR program. There are advantages

and disadvantages to each option. An

outside evaluator has the potential for

the greatest impartiality, lending

credibility and validity to your results.

In addition, depending upon the

expertise available in a particular

agency, an outside evaluator may have

more technical knowledge and

experience. Outside evaluation may be

relatively expensive, however,

depending upon the affiliation of the

evaluators (e.g. colleges or universities,

other non-profit groups, or private

sector entities such as management

consulting or social science research

firms). If the agency has evaluation

capacity inside the organization where

the ADR program is being implemented,

the requisite neutrality may be available

at a potentially lower cost. An inside

evaluator involved in ADR program

implementation or design may be the

least expensive, and offer the best

understanding of program context, but it

also carries with it potential perceptions

of a lack of impartiality. One way to

avoid some of the disadvantages of each

of these approaches is to use a team of

people, representing internal and

external groups.

Regardless of who does the evaluation

(outside or inside), it is useful to have

someone in the ADR program who can

serve as a liaison with the evaluator to

ensure access to the necessary

information. The liaison might be the

person responsible for planning the

evaluation.

D. Who Is Your Audience For This

Evaluation?

There are usually a variety of people

who have an interest in the results of a

program evaluation. These audiences

may be interested in different issues and

seek different types of information.

Potential audiences should be identified

as early as possible, and kept in mind

while planning the evaluation, so that

their questions will be addressed.

Possible audiences for an ADR

program evaluation include ADR

program officials, other agency officials,

program users, members of Congress,

the general public, and others. Agency

program officials may be interested in

finding out how the ADR program is

working, and how it might be improved.

Their interests might focus, for example,

on the program’s impact on case

inventory (backlogs), the effects of ADR

use on long-term relationships among

disputants, or how well information

about the program is being

disseminated. Program officials

involved in the day-to-day operation

may have different interests than those

at higher levels.

Other agency officials such as budget

officers, staff within offices of General

Counsel and Inspector General, or

managers from other programs may also

have an interest in evaluation results.

Budget officials may be interested in

59210 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices

whether cost savings have been

achieved through implementation of the

program. The Inspector General may be

interested in the nature of the

settlements and whether ADR use

promotes long-term compliance.

General Counsels may care about how

long it takes to resolve cases or the

nature of outcomes; other managers may

want to know how effectively the

program was implemented.

Members of Congress and their staffs

may be interested in how ADR use

affects budgets and how related laws,

such as the Administrative Dispute

Resolution Act, are being implemented.

Members of the public may be

interested in how efficiently the agency

is resolving its disputes, and how

satisfied participants are with ADR

processes. Disputants may be interested

in finding out how typical their

experience was compared to other users.

Officials in other federal agencies may

find evaluation results helpful as they

plan or modify their own ADR

programs. There may be other audiences

whose interests or desire for information

should be considered.

Although terminology differs,

evaluations are commonly characterized

as either: (1) Program effectiveness (also

known as impact, outcome, or

summative) evaluations, which focus on

whether a program is meeting its goals

and/or having the desired impact; or (2)

program design and administration (also

known as process or formative)

evaluations, which examine how a

program is operating. Program

effectiveness evaluations may be useful

in determining whether a program

should be continued or expanded;

program design/administration

evaluations often focus on how a

continuing program can be improved.

Remember that decisions on the

future of programs (or even how they

could be improved) are usually not

made solely on the basis of program

evaluation results. Agency priorities,

other institutional concerns, budget

limitations, and other factors will also

affect program decisions.

While it is not possible to satisfy

every audience by answering all

potential questions, it is useful to figure

out what the possible questions are and

then focus the evaluation on the most

important ones. Talking to members of

the various potential audiences can help

identify the issues they are interested in,

and may help develop consensus about

which issues to address. Such

discussions also improve the likelihood

that evaluation results will be a useful

and meaningful part of future decision

making processes.

E. What Is Your Evaluation Design

Strategy?

ADR program design is based on an

understanding that certain components

of a program are essential to comply

with federal statutes and initiatives.

Program effectiveness evaluations are

conducted to answer fundamental

questions about a program’s utility, e.g.,

does the program provide a necessary or

useful function, is the program

accomplishing its goals, and is the

program being administered effectively.

A comprehensive evaluation system

measures tangible and intangible

benefits, including customer

satisfaction, using both quantitative and

qualitative data. To be a useful and

effective management and planning

tool, an evaluation system must do more

than provide comparison data. It also

must provide a flexible process for

reevaluating the goals of the program,

modifying the evaluation methodology,

and implementing necessary changes.

Development of an evaluation design

might include the following steps:

1. Identification and Clarification of

ADR Program Goals

Clear goals and objectives mean that

useful conclusions can be drawn from

the data collected.

2. Development of an Appropriate

Evaluation Methodology

It is necessary to determine what is to

be measured and how, what the sources

of the data are, and how the data will

be collected. To do this most effectively,

core functional areas of ADR program

practice need to be identified, as do

quantitative and qualitative sources of

data.

3. Development of an Analysis Plan and

Research Methodologies

Traditionally-based experimental

designs (time-cost benefit analysis)

provide statistically reliable results.

Program analysis, while producing

quantifiable results, must go beyond a

bare assessment of program outcomes to

explain the outcomes and to offer

suggestions for program improvement.

4. Collection Data Mechanisms

Status reports, case studies, time

series collections, agency databases,

logs, surveys, and evaluation forms are

all sources of information, as are

personal interviews.

F. What Are Your Measures of Success?

1. Program Effectiveness (Impact)

Program effectiveness measures are

aimed at assessing the impact of the

program on users/participants, overall

mission accomplishment, etc.

The indicators of program

effectiveness can be further divided into

three categories: efficiency,

effectiveness, and customer satisfaction.

• Efficiency

b Cost to the Government of using

alternative dispute resolution vs.

traditional dispute resolution processes:

Is the use of ADR more or less costly

than the use of traditional means of

dispute resolution? (Cost may be

measured in staff time, dollars, or other

quantifiable factors.)

b Cost to disputants of using

alternative dispute resolution vs.

traditional dispute resolution processes:

Is the use of ADR more or less costly

than the use of traditional means of

dispute resolution? (Cost may be

measured in terms of staff time, dollars,

or other quantifiable factors.)

b Time required to resolve disputes

using alternative dispute resolution vs.

traditional means of dispute resolution:

Are disputes resolved more or less

quickly using ADR, compared to

traditional means of dispute resolution?

Such factors as administrative case

processing, participant preparation,

dispute resolution activity timeframes,

and/or days to resolution may be

considered.

• Effectiveness

b Dispute Outcomes

Number of settlements achieved

through the use of mediation vs.

traditional dispute resolution processes:

Does the use of alternative dispute

resolution result in a greater or a fewer

number of settlements?

Number of cases going beyond

mediation steps:

Does the use of alternative dispute

resolution result in a greater/fewer

number of investigations, further

litigation activities, etc.?

Nature of outcomes:

What impact does the use of

alternative dispute resolution have on

the nature of outcomes, e.g. do

settlement agreements ‘‘look different’’?

Do settlement agreements reflect more

‘‘creative’’ solutions? Do outcomes vary

according to the type of alternative

dispute resolution process used?

Correlations for cases selected for

alternative dispute resolution, between

dispute outcomes and such factors as

complexity or number of issues, or

number of parties:

Is there any correlation, where ADR is

used, between the complexity and/or

number of parties/issues in a case and

the outcome of the case?

b Durability of Outcomes

Rate of compliance with settlement

agreements:

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices 59211

Does the use of alternative dispute

resolution result in greater or lesser

levels of compliance with settlement

agreements?

Rate of dispute recurrence:

Does the use of alternative dispute

resolution result in greater or lesser

levels of dispute recurrence, i.e.

recurrence of disputes among the same

parties?

b Impact on Dispute Environment

Size of case inventory:

Does the use of alternative dispute

resolution result in an increase/decrease

in case inventory?

Types of disputes:

Does the use of alternative dispute

resolution have an impact on the types

of disputes that arise?

Negative impacts:

Does the use of alternative dispute

resolution have any negative

consequences, e.g. an inability to

diagnose and correct systemic problem/

issues?

Timing of dispute resolution:

Does the use of alternative dispute

resolution affect the stage at which

disputes are resolved?

Level at which disputes are resolved:

Does the use of alternative dispute

resolution have any impact on where

and by whom disputes are resolved?

Management perceptions:

What are the quantitative and

qualitative effects of using alternative

dispute resolution on management, e.g.

how does the use of ADR impact upon

allocation and use of management time

and resources? Does the use of ADR ease

the job of managing?

Public perceptions:

Is the public satisfied with alternative

dispute resolution outcomes? Is there

any perceived impact of use of ADR on

effectiveness of the underlying program?

‘‘Public’’ may be defined differently,

depending on the particular program/

setting involved.

• Customer Satisfaction

b Participants’ Satisfaction with

Process

Participants’ perceptions of fairness:

What are participant perceptions of

access to alternative dispute resolution,

procedural fairness, fair treatment of

parties by neutrals, etc.?

Participants’ perceptions of

appropriateness:

What are participant perceptions of

appropriateness of matching decisions

(i.e. matching of particular process to

particular kinds of disputes or specific

cases)?

Participants’ perceptions of

usefulness:

What are participant perceptions of

the usefulness of alternative dispute

resolution in the generation of

settlement options, the quantity and

reliability of information exchanged,

etc.?

Participants’ perceptions of control

over their own decisions:

Do participants feel a greater or lesser

degree of control over dispute resolution

process and outcome through the use of

alternative dispute resolution? Is greater

control desirable?

b Impact on Relationships Between

Parties

Nature of relationships among the

parties:

Does the use of alternative dispute

resolution improve or otherwise change

the parties’ perceptions of one another?

Is there a decrease or increase in the

level of conflict between the parties?

Are the parties more or less likely to

devise ways of dealing with future

disputes? Are the parties able to

communicate more directly or

effectively at the conclusion of the ADR

process and/or when new problems

arise?

b Participants’ Satisfaction with

Outcomes

Participants’ satisfaction with

outcomes:

Are participants satisfied or

unsatisfied with the outcomes of cases

in which alternative dispute resolution

has been used?

Participants’ willingness to use

alternative dispute resolution in the

future:

Would participants elect to use

alternative dispute resolution in future

disputes?

2. Program Design and Administration

(Structure and Process)

How a program is implemented will

have an impact on how effective a

program is in meeting its overall goals.

Program design and administration

measures are used to examine this

relationship and to determine how a

program can be improved.

The indicators of program design and

administration are further divided into

three categories: program organization,

service delivery, and program quality.

• Program Organization

b Program structure and process:

Are program structure and process

consistent with underlying laws,

regulations, executive orders, and/or

agency guidance? Do program structure

and process adequately reflect program

design? Are program structure and

process adequate to permit appropriate

access to and use of the program?

b Directives, guides, and standards:

Do program directives, guides, and

standards provide staff/users with

sufficient information to appropriately

administer/use the program?

b Delineation of responsibilities:

Does the delineation of staff/user

responsibilities reflect program design?

Is the delineation of responsibilities

such that it fosters smooth and effective

program operation?

b Sufficiency of staff (number/type):

Is the number/type of program staff

consistent with program design and

operational needs?

b Coordination/working

relationships:

Is needed coordination with other

relevant internal and external

individuals and organizations taking

place? Have effective working

relationships been established to carry

out program objectives?

• Service Delivery

b Access and Procedure

Participant access to alternative

dispute resolution:

Are potential participants made aware

of the program? Is the program made

available to those interested in using

ADR?

Relationship between participant

perceptions of access and usage of

alternative dispute resolution:

What impact do participants’

perceptions about the availability of the

program have on the levels of program

usage?

Participant understanding of

procedural requirements:

Do program users understand how the

program works? Did they feel

comfortable with the process in

advance?

Relationship between procedural

understanding and rates of usage:

Is there any relationship between the

level of participant understanding and

the degree of program use, e.g. is a lack

of participant understanding serving as

a disincentive to using the program?

b Case Selection Criteria

Participants’ perceptions of fairness,

appropriateness:

Do participants feel that appropriate

types of cases are being handled in the

program? Do participants or nonparticipants feel that the criteria for

which cases are eligible for alternative

dispute resolution are fair? Are cases

being sent to the program at the

appropriate dispute stages?

Relationship between dispute

outcomes and categories of cases:

Is there a correlation between the

nature (size, types of disputants, and/or

stage of the dispute) of cases and the

outcome of the dispute? Are certain

types of cases more likely to be resolved

through alternative dispute resolution

than other types?

• Program Quality

b Training

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Participants’ perceptions of the

appropriateness of staff and user

training:

Do participants feel that they were

provided with sufficient initial

information and/or training on how to

use the program? Do they feel that

program staff had sufficient training

and/or knowledge to appropriately

conduct the program?

Relationship between training

variable and dispute outcomes:

Is there a relationship between the

type/amount of training (for participant

and/or staff) and dispute outcomes?

b Neutrals

Participants’ views of the selection

process:

Are participants satisfied with the

manner in which neutrals were selected

and assigned to cases? Were they

involved in the selection decision? If

not, did they feel they should be?

Relationship between participants’

views of the selection process,

perceptions of neutral competence and

objectivity, and dispute outcomes:

Is there any relationship between

participant views about the neutrals

selection process and dispute outcomes?

How do these views affect participants’

assessment of the competence and

neutrality of neutrals?

Participants’ perceptions of

competence (including appropriateness

of skill levels/training):

Do participants feel that neutrals were

sufficiently competent or trained? Do

participants feel that more or less

training was needed?

Participants’ perceptions of

neutrality/objectivity:

Do participants feel that neutrals were

sufficiently objective? Do participants

feel that neutrals were fair in their

handling of the dispute?

G. Other Specific Program Features

Every dispute resolution program is

unique. Those requesting and/or

conducting an evaluation may want to

consider examining other aspects of the

program. These unique features may

relate to the design of a program, who

was and continues to be involved in

program design and administration, etc.

Each is likely to have at least some

impact on service delivery and the

quality of the program, and should be

considered for inclusion in either a

comprehensive or selected evaluation of

the program, as appropriate.

II. Presentation, Dissemination, and

Use of Results

Results should be communicated in

ways that will allow meaningful

decisionmaking by program

administrators and decisionmakers.

It is easier to make decisions about

the best way to present and disseminate

results if the people who will use the

results (the audience) have been

consulted during the initial and

subsequent evaluation processes. Such

consultation can avoid costly or

embarrassing errors; e.g., omission of a

key area for analysis, and can ensure the

report meets the needs of those who will

be using it.

A. What Is the Best Method for

Communicating Your Findings?

There are a variety of ways that

evaluators can communicate results to

potential audiences. Evaluators or

program staff may provide briefings,

hold meetings with users, and/or

prepare a written report.

Briefings and presentations allow

evaluators or program staff to convey

important evaluation information

quickly and selectively. In selecting

material to be presented, care should be

taken to avoid bias or presentation of

material out of context. Some discussion

of methodology is important, as are

appropriate cautions about the limits

and appropriate use of evaluation data.

Providing for interaction with or

feedback from the audience may allow

issues and potential problems to be

identified.

Written reports typically take a great

deal of time to prepare, but allow

evaluators to provide considerably more

detail on both methodology and results.

Legislation or executive decisions often

require a final, written report. If it is

important to ensure that there is one

‘‘official’’ source of information on

evaluation methodology and results, a

formal, written report may be an

important and/or required format in

addition to briefings and presentations

by evaluators or staff.

B. What Kind of Information Needs to

Be Communicated?

Although the potential audiences,

program content, and evaluation

objectives will vary for each ADR

program evaluation, it is generally

helpful to include the following kinds of

information in a report or other type of

presentation:

• Description of the ADR program

and how it operates;

• Goals and objectives of the

evaluation;

• Description of the evaluator’s

methodology;

• Presentation of evaluation findings;

• Discussion of program strengths

and weaknesses;

• Implications for program

administration (e.g., training, budget,

staff.); and

• Recommendations as appropriate.

Presentation style is entirely a matter

of what works for whom. It is always

important, however, to make sure that

evaluation data are presented accurately

and completely, to prevent charges of

misrepresentation or overreaching, and

to avoid misuse of results.

B. How Can You Enhance the

Effectiveness of Your Presentation?

Variations in presentation format and

style aside, we offer the following

suggestions for making the presentation

of evaluation results as effective as

possible.

• Involve potential users as early as

possible in determining presentation

format and style:

Evaluation data should be organized

and communicated in a way that is

useful for potential audiences and users.

• Tailor presentation method, format,

and style to audience needs:

Select the method of presentation

(e.g., oral briefing, written report),

format, and style of presentation (e.g.,

formal vs. informal, briefing vs.

discussion) based on who your audience

is and what their needs are. There may

be multiple audiences with multiple

needs. Be flexible and willing to adapt

material as appropriate.

• Be clear and accurate:

Evaluation information must be

presented clearly and accurately.

Always keep the audience in mind as

you prepare to describe your ADR

program and present evaluation data.

Avoid any gaps in describing the

program or presenting the results. A

clear and accurate portrayal of the

program and evaluation results will

allow the audience to draw appropriate

conclusions about program effectiveness

and any need for change.

• Be honest and direct:

Sharing evaluation findings with

potential users and involving them in

key decisions concerning presentation

format and style does not mean

publishing only those findings that

reflect well on the program or those

affiliated with it. Evaluators must

present the story objectively; too heavy

an emphasis on the positive may cast

doubt on the integrity of the results as

well as the integrity of the evaluators.

Data that suggest weaknesses in program

design or administration or that reveal

failure to accomplish program goals or

objectives should be reported and can

be used as a basis for suggesting

appropriate changes. Honest analysis

and thoughtful consideration of the

information will enhance both the

credibility and usefulness of the results.

• Keep the body of the report or the

bulk of the presentation simple: Reduce

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices 59213

complex data to understandable form,

use graphic illustrations where

appropriate. Evaluation results must be

presented so that the most essential data

are available, understandable, and

useful. Too complex a format or overreliance on narrative may detract from

evaluation results and analysis.

Organize the presentation or report for

multiple uses. Use headings and

subheadings to help the audience

identify useful information quickly.

Limit the use of technical jargon.

Prevent misinterpretation or misuse by

considering how the data will look if

lifted from the context of the

presentation or report. Use simple

graphics to illustrate results and call

attention to key findings. Use footnotes

and make technical data available in

handouts or appendices so that the body

of the presentation or report is as

uncomplicated as possible.

• Provide an executive summary or

abstract:

Evaluators should provide an

overview. The ‘‘quick take’’ should be

supplemented by more detailed

discussion later in the report.

• Make survey instruments and other

data collection tools available: Materials

can be made available as handouts, at an

oral presentation or face-to-face

meeting, or as appendices to a written

report. The availability of such material

enhances both understanding and

credibility. It also allows other ADR

program evaluators to learn from the

experiences of their peers.

• Note limitations on the

interpretation and use of evaluation

data, where appropriate: Limitations on

the interpretation of the data, such as

those that might relate to the ability to

study results, should be communicated

to the audience. Evaluators need to

exercise caution in expressing their own

views and conclusions. Where

conclusions are not an objective

reflection of the data, they need to be

labeled appropriately; i.e., as the views

of the evaluators and not necessarily of

officials responsible for the program.

• Expect the need for follow-up; be

flexible and responsive:

Have extra copies of reports and

presentation handouts available. Keep

materials accessible. Provide addresses

and telephone numbers for follow-up

discussion or questions. Be available for

consultation. Stay abreast of how results

are being used; provide clarification or

added direction in the case of

misinterpretation or misuse. Prepare

additional materials as needed. Tailor

subsequent releases to customer needs.

B. Who Is Responsible for Making

Decisions Regarding the Dissemination

of Evaluation Results?

It is important to think about

dissemination of the results at two

points: early in the planning process,

and again as results become available.

Decisions about dissemination may be

made solely by the evaluator, solely by

program officials or other entity that has

requested the evaluation, or, more

typically, cooperatively. Such decisions

may be circumscribed by contract or

agreement, or may be discussed and

resolved informally by evaluators and

decisionmakers.

C. When Should Evaluation Results Be

Made Available?

Decisionmakers need to consider the

implications of releasing evaluation

results at different times. For example,

if you want publicity for the results,

select slower news days. The timing of

data release may be defined by contract

or agreement, or may otherwise be

discussed and resolved by evaluators

and decisionmakers. Releasing

preliminary data before all data are

collected or analyzed may be risky.

D. How Widely Will Evaluation Results

Be Disseminated?

Evaluation results may be

disseminated widely or narrowly. Cost,

convenience, and level of interest are

likely to play a role. It is rare that either

the evaluator or program officials will

have complete control over

dissemination of the results.

E. How Will Evaluation Results Be

Disclosed Initially?

Evaluation results can be initially

disclosed in different ways, with more

or less fanfare. They may be made

available to the selected audiences by

memorandum, by press release, by press

conference, etc. Typically, such

decisions will be made at the executive

level, by those who have the authority

to make the disclosure.

Evaluation Checklist

✔ Is your ADR program ongoing or in

the formative stage?

✔ What are your goals and objectives

for your ADR program evaluation?

✔ How will you pay for your ADR

program evaluation?

✔ Who will do the evaluation?

✔ Who is your audience?

✔ What is your evaluation design

strategy?

✔ What are your measures of

success?

✔ What do you need to know about

your program effectiveness (impact)?

✔ What do you need to know about

your program structure and

administration?

✔ How and when will you

disseminate your evaluation results?

Resources

Administrative Conference of the United

States. (1995). Dispute Systems Design

Working Group. Evaluating ADR Programs:

A Handbook for Federal Agencies.

Washington, D.C.: Administrative

Conference of the United States.

Brett, J. M., Barsness, Z. I., & Goldberg, S. B.

(1996). The Effectiveness of Mediation: An

Independent Analysis of Cases Handled by

Four Major Service Providers. Negotiation

Journal, 12(3), 259–269.

Costantino, Cathy and Sickles-Merchant,

Christine. (1996). Designing Conflict

Management Systems: A Guide to Creating

Productive and Healthy Organizations.

Jossey-Bass.

Empowerment Evaluation: http://

www.stanford.edu/ ̃davidf/

empowermentevaluation.html

Federal Deposit Insurance Corporation.

(1999). Checklist for Evaluation of Federal

Agency ADR Programs: Short and Long

Term. Attorney General’s ADR Working

Group, Workplace Session Notes, 5/18/99.

Federal Deposit Insurance Corporation.

(1997). ADR Program Evaluation Project,

Annual Report.

Galanter, M. (1989). Compared to What?

Assessing the Quality of Dispute

Processing. Denver University Law Review,

66(3), xi–xiv.

Honeyman, C. (1990). On Evaluating

Mediators. Negotiation Journal, 23–36.

Honeyman, C. (1995). Financing Dispute

Resolution. Madison, WI: Wisconsin

Employment Relations Commission.

McEwen, C. A. (1991). Evaluating ADR

Programs. In F. E. A. Sander, Emerging

ADR Issues in State and Federal Courts.

Washington, D.C.

Patton, Michael. (1990). Qualitative

Evaluation and Research Methods. Sage:

Beverly Hills, CA.

Posovac, Emil J. and Raymond B. Carey.

(1997). Program Evaluation: Methods and

Case Studies, 5th Edition. Prentice Hall

Humanities/Social Sciences.

Rossi, Peter and Howard Freeman. (1993).

Evaluation: A Systematic Approach. Sage:

Beverly Hills, CA.

Scher, E. (1996). Evaluations: What for, by

Whom, Who Pays? Consensus, October 5,

7–8.

Susskind, L. E. (1986). Evaluating Dispute

Resolution Experiments. Negotiation

Journal, April, 135–139.

Tyler, T. (1989). The Quality of Dispute

Resolution Procedures and Outcomes.

Denver University Law Review, 66, 419–

436.

Wholey, Joseph S., Harry P. Hatry, and

Kathryn E. Newcomer, Eds. (1994).

Handbook of Practical Program Evaluation.

Jossey-Bass.

Worthen, B.R., J.R. Sanders, and J.

Fitzpatrick. (1997). Program Evaluation:

Alternative Approaches and Practical

Guidelines. Addison, Wesley, Longman.

59214 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Notices

This document was written by Lee

Scharf, ADR Specialist at the

Environmental Protection Agency, and

draws from the work of Cathy

Costantino and Christine SicklesMerchant as well as that of the

Administrative Conference of the

United States. See the Resources section

for cites.

[FR Doc. 00–25397 Filed 10–3–00; 8:45 am]

BILLING CODE 4410–AR–U

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[DEA # 207P]

Controlled Substances: Proposed

Aggregate Production Quotas for 2001

AGENCY: Drug Enforcement

Administration (DEA), Justice.

ACTION: Notice of proposed year 2001

aggregate production quotas.

SUMMARY: This notice proposes initial

year 2001 aggregate production quotas

for controlled substances in Schedules I

and II of the Controlled Substances Act

(CSA).

DATES: Comments or objections must be

received on or before November 3, 2000.

ADDRESSES: Send comments or

objections to the Deputy Administrator,

Drug Enforcement Administration,

Washington, D.C. 20537, Attn.: DEA

Federal Register Representative (CCR).

FOR FURTHER INFORMATION CONTACT:

Frank L. Sapienza, Chief, Drug and

Chemical Evaluation Section, Drug

Enforcement Administration,

Washington, D.C. 20537, Telephone:

(202) 307–7183.

SUPPLEMENTARY INFORMATION: Section

306 of the CSA (21 U.S.C. 826) requires

that the Attorney General establish

aggregate production quotes for each

basic class of controlled substance listed

in Schedules I and II. This

responsibility has been delegated to the

Administrator of the DEA by Section

0.100 of Title 28 of the Code of Federal

Regulations. The Administrator, in turn,

has redelegated this function to the

Deputy Administrator of the DEA

pursuant to Section 0.104 of Title 28 of

the Code of Federal Regulations.

The proposed year 2001 aggregate

production quotas represent those

quantities of controlled substances that

may be produced in the United States in

2001 to provide adequate supplies of

each substance for: The estimated

medical, scientific, research, and

industrial needs of the United States;

lawful export requirements; and the

establishment and maintenance of

reserve stocks. These quotas do not

include imports of controlled

substances for use in industrial

processes.

In determining the proposed year

2001 aggregate production quotas, the

Deputy Administrator considered the

following factors: total actual 1999 and

estimated 2000 and 2001 net disposals

of each substance by all manufacturers;

estimates of 2000 year-end inventories

of each substance and of any substance

manufactured from it and trends in

accumulation of such inventories;

product development requirements of

both bulk and finished dosage form

manufacturers; projected demand as

indicated by procurement quota

applications filed pursuant to Section

1303.12 of Title 21 of the code of

Federal Regulations; and other pertinent

information.

Pursuant to Section 1303 of Title 21

of the Code of Federal Regulations, the

Deputy Administrator of the DEA will,

in early 2001, adjust aggregate

production quotas and individual

manufacturing quotas allocated for the

year based upon 2000 year-end

inventory and actual 2000 disposition

data supplied by quota recipients for

each basic class of Schedules I or II

controlled substance.

Therefore, under the authority vested

in the Attorney General by Section 306

of the CSA of 1970 (21 U.S.C. 826),

delegated to the Administrator of the

DEA by Section 0.100 of Title 28 of the

Code of Federal Regulations, and

redelegated to the Deputy Administrator

pursuant to Section 0.104 of Title 28 of

the Code of Federal Regulations, and the

Deputy Administrator hereby proposes

that the year 2001 aggregate production

quotas for the following controlled

substances, expressed in grams of

anhydrous acid or base, be established

as follows:

Basic class Proposed year

2001 quotas

Schedule I:

2,5-

Dimethoxyamphetamine 15,501,000

2,5-Dimethoxy-4-

ethylamphetamine

(DOET) .......................... 2

3-Methylfentanyl ................ 14

3-Methylthiofentanyl .......... 2

3,4-

Methylenedioxyamphetamine (MDA) ................... 25

3,4-Methylenedioxy-Nethylamphetamine

(MDEA) .......................... 30

3,4-

Methylenedioxymethamphetamine (MDMA) ....... 10

3,4,5-

Trimethoxyamphetamine 2

Basic class Proposed year

2001 quotas

4-Bromo-2,5-

Dimethoxyamphetamine

(DOB) ............................ 2

4-Bromo-2,5-

Dimethoxyphenethylamine (2–CB) ...................... 2

4-Methoxyamphetamine .... 201,000

4-Methylaminorex .............. 2

4-Methyl-2,5-

Dimethoxyamphetamine

(DOM) ............................ 2

5-Methoxy-3,4-

Methylenedioxyamphetamine ............................... 2

Acetyl-alphamethylfentanyl ............... 2

Acetyldihydrocodeine ........ 2

Acetylmethadol .................. 2

Allylprodine ........................ 2

Alphacetylmethadol ........... 7

Alpha-ethyltryptamine ....... 2

Alphameprodine ................ 2

Alphamethadol .................. 2

Alpha-methylfentanyl ......... 2

Alpha-methylthiofentanyl ... 2

Aminorex ........................... 7

Benzylmorphine ................ 2

Betacetylmethadol ............. 2

Beta-hydroxy-3-

methylfentanyl ............... 2

Beta-hydroxyfentanyl ........ 2

Betameprodine .................. 2

Betamethadol .................... 2

Betaprodine ....................... 2

Bufotenine ......................... 2

Cathinone .......................... 9

Codeine-N-oxide ............... 2

Diethyltryptamine .............. 2

Difenoxin ........................... 9,000

Dihydromorphine ............... 634,000

Dimethyltryptamine ........... 2

Gamma-hydroxybutyric

acid ................................ 15,000,000

Heroin ................................ 2

Hydroxypethidine .............. 2

Lysergic acid diethylamide

(LSD) ............................. 37

Marihuana ......................... 350,000

Mescaline .......................... 7

Methaqualone ................... 19

Methcathinone ................... 11

Morphine-N-oxide .............. 2

N,N-Dimethylamphetamine 7

N-Ethyl-lPhenylcyclohexylamine

(PCE) ............................. 5

N-Ethylamphetamine ......... 7

N-Hydroxy-3,4-

Methylenedioxyamphetamine ............................... 2

Noracymethadol ................ 2

Norlevorphanol .................. 2

Normethadone .................. 7

Normorphine ..................... 7

Para-fluorofentanyl ............ 2

Pholcodine ........................ 2

Porpiram ............................ 415,000

Psilocybin .......................... 2

Psilocyn ............................. 2

Tetrahydrocannabinols ...... 131,000

Thiofentanyl ....................... 2