Lessons Learned from Two Decades of Alternative Dispute Resolution Programs and Processes at the U.S. Environmental Protection Agency

The U.S. Environmental Protection Agency (EPA) recently announced plans to increase the use of alternative dispute resolution (ADR) techniques and practices across all agency programs. (1) In this context, ADR refers to the variety of approaches that allow parties to meet face to face to reach a mutually acceptable resolution of the issues in a dispute or potentially controversial situation (Bingham 1986). ADR is often viewed as an intervention between conflicting parties or viewpoints to promote reconciliation, settlement, compromise, or understanding (McCrory 1981). This includes mere assistance from a neutral third party to the negotiation process (Bingham et al. 1987). Such assistance can be directed toward settling disputes that arise out of past events, or it can be directed toward establishing rules to govern future conduct (Eisenberg 1976). For the purposes of this research, we focus on ADR as a negotiation tool through which third-party neutral facilitators and mediators (herein referred to as "neutrals") are called upon to aid parties' attempts to resolve disputes related to EPA enforcement activities. The EPA's efforts in this area began in earnest in 1981. Table 1 provides a historical overview of the agency's ADR efforts. This article analyzes the strengths and weaknesses of the program, as well as 10 lessons learned from the EPA's experiences that can be used to improve ADR programs at the EPA and other federal and state agencies. The data for this effort were collected from archival records, government statistics, and interviews with four key stakeholder groups: EPA attorneys, potentially responsible parties (PRPs--defendants in EPA enforcement actions), (2) the EPA's ADR specialists, and professional third-party neutrals. We hope these findings will be of assistance to the EPA as it expands its ADR efforts and will provide useful lessons for other agencies and organizations considering similar programs. The Literature The essence of ADR is face-to-face meetings of stakeholders to reach a consensus decision that best satisfies their interests. Based on the extant literature, O'Leary et al. (1999) identify five principle elements of ADR: (1) the parties agree to participate in the process; (2) the parties or their representatives directly participate; (3) a third-party neutral helps the parties reach agreement but has no authority to impose a solution; (4) the parties must be able to agree on the outcome; and (5) any participant may withdraw and seek a resolution elsewhere. The literature is rife with normative pleas to increase the role of the lay public and interested stakeholders in resolving environmental disputes. One author, for example, argues that participation in the resolution of water conflicts in the western United States is a fundamental tenet of our democratic government (Waller 1995). Other literature focuses on problems that might be more amicably and more efficiently resolved through ADR. For instance, Whitman (1993) argues that the use of ADR techniques could greatly improve the management of hazardous waste cleanups. A study of intergovernmental conflict stemming from North Carolina state laws that regulate solid waste concludes that state and local governments may be able to positively resolve disputes by adopting a problem-solving stance and searching for win-win results (Jenks 1994). The EPA's Office of Site Remediation states in one of its publications that there are several benefits of using ADR in its environmental enforcement actions: lower transaction costs, a focus on problem solving (as opposed to positioning), settlement options that are more likely to be tailored to stakeholders' needs, and time savings (EPA 1995). Describing ADR as a more effective problem-solving or policy-making method than alternatives such as litigation or traditional role-making procedures is a common theme. Examples of analyses that do not include enforcement ADR at the EPA are deHaven-Smith and Wodraska (1996), who examine consensus building in integrated resources planning within the Metropolitan Water District of Southern California; Kerwin and Langbein (1995), who analyze negotiated rule making at EPA; Fiorino (1988), who looks at regulatory negotiation as a policy process at the EPA; Blackburn (1988), who examines environmental mediation as an alternative to litigation; and Perritt (1986), who analyzes the use of ADR techniques in negotiated rule making. …