FEDERAL CONFLICT MANAGEMENT SINCE 1995
AND
OPTIONS FOR THE ADMINISTRATIVE
CONFERENCE
CHARLES POU JR.

REPORT
TO THE

OFFICE OF THE CHAIRMAN
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

JANUARY 2011
This report was prepared for the consideration of the Administrative Conference of the United States. The
views expressed are those of the author and do not necessarily reflect those of the members of the
Conference or its committees.

FEDERAL CONFLICT MANAGEMENT SINCE 1995
AND
OPTIONS FOR THE ADMINISTRATIVE CONFERENCE
CHARLES POU JR.1

Overview. In May 2010, the Office of the Chairman of the Administrative Conference of
the United States (ACUS) commissioned me to examine and report on recent developments
in government agency dispute resolution and conflict management. In carrying out my
research, I reviewed relevant literature and interviewed approximately two dozen experts
and representatives of affected entities.2 This resulting report seeks to:
Briefly survey developments in government agency dispute resolution and conflict
management since ACUS was discontinued in 1995;
Offer advice on how the restored ACUS might support and improve federal agencies‟
use of innovative conflict management activities to engage members of the public in
agency decisions, upgrade agencies‟ dispute handling, or seek better, more acceptable
outcomes; and
Lay out some possible research and related activities to promote improvements in the
fairness and efficiency of agencies‟ conflict management operations.
ACUS leadership and coordination through 1995. Between 1982 and 1995, ACUS‟s Office
of the Chairman made agency use of alternative means of dispute resolution (ADR) a major
focus of its research and staff implementation activity. In establishing a statutory
framework for agency ADR, Congress charged ACUS in 1990 with spearheading the federal
government‟s implementation of these consensus processes.3 Some observers have credited
1

For 10 years, Charles Pou directed the Dispute Resolution Program at the Administrative Conference of the United
States, the agency designated in the Administrative Dispute Resolution Act of 1990 with lead responsibility for
promoting federal ADR use. Pou co-authored that statute, and he and other ACUS staff members assisted agency
dispute resolution specialists appointed under the Act in the government‟s implementation of consensus-based
processes. Since 1995, Pou has consulted with many agencies setting up or improving conflict resolution programs,
served as a neutral in a variety of regulatory and other conflicts, and written on ethics, confidentiality, design, and
related issues involving governmental bureaucracies employing ADR. Pou graduated from Rice University and Harvard
Law School.
2
Appendix A contains a list of persons interviewed for this report.
3
The Wikipedia entry for ACUS states in part:
The Conference also adopted a series of recommendations that set forth procedures and criteria for utilizing a
variety of alternative dispute resolution techniques and approaches for eliminating excessive litigation costs and
long delays in federal agency programs. These activities led to enactment of the Administrative Dispute
Resolution Act in 1990, which established a framework for agencies to resolve administrative litigation through
alternative dispute resolution. ACUS applied a similar approach for consensual resolution of disputes in
rulemaking, and its recommendation on negotiating regulations in appropriate situations led to enactment of the
1

4

the passage of the Administrative Dispute Resolution Act of 1990 (ADRA or ADR Act) and
ACUS‟s implementation role with creating a framework for innovation. ACUS‟s efforts
included:
Conducting about a dozen research projects leading to recommendations on issues
in federal agencies‟ employing ADR, negotiated rulemaking, and consensus
processes to improve decisionmaking;
Working closely with the ABA to prepare, and support enactment of, two major
1990 APA amendments – the ADR Act and Negotiated Rulemaking Act (NRA);
Taking lead responsibility under both laws for assisting government agencies to
implement the statutes: chairing a Federal ADR Coordinating Committee,
creating and providing staff support for several interagency working groups,
developing guidance for agencies implementing new conflict management
systems, and consulting with individual agencies on implementing new programs;
Developing publications, videos, topical roundtables, educational programs,
training activities, and an ADR Reading Room to help agencies understand and
make effective use of ADR methods; and
Submitting reports to Congress in 1995 documenting agency implementation of –
and recommending amendments to, and permanent reauthorization of – ADRA
and NRA.
Many of these activities were accomplished using ACUS staff, contractors, and
appropriations. Others involved “Visiting DR Fellows” detailed from other federal agencies
for 6 to 12 months, interagency fund transfers, and grants from the Hewlett Foundation and
others.
Main themes in current federal ADR use. Over the past 15 years, the conflict management
landscape has changed considerably. Based on observation, interviews, readings, and related
research, I would suggest that these recent trends have emerged:
Mediation and similar “ADR” methods – once experimental and even problematic
in some eyes – have become mainstream in many ways, especially in court
settings and some administrative adjudication programs; notwithstanding those
developments, ADR processes in agencies are nowhere close to being employed
to their full extent or benefit, and often have been confined to collateral disputes
or little used to involve affected interests in significant agency decisions.
Negotiated Rulemaking Act. To help implement these statutes, the Conference provided extensive assistance to
agencies throughout the federal government. These activities included training programs, interagency working
groups to enable agencies to address specific issues through study and sharing of information about best
practices, and the publication of two voluminous Sourcebooks for agency reference.
4
5 U.S.C. §571-584 (general provisions, confidentiality, administrative arbitration); 5 U.S.C. §556(c) (ALJ authority); 9
U.S.C. §10 (arbitration, judicial review); 41 U.S.C. §604-607 (contract disputes); 29 U.S.C. §173 (FMCS authority); 28
U.S.C. §2672 (tort claims); and 31 U.S.C. §3711(a)(2) (government claims); enacted November 15, 1990 by Pub. L.
No. 101-552, 104 Stat. 2736; significantly amended August 6, 1992 by Pub. L. No. 102-354, 106 Stat. 944, and October
19, 1996 by Pub. L. No. 104-320, 110 Stat. 3870.
2

Use of some intensive, multi-party consensus processes like negotiated
rulemaking has slowed since the early 1990‟s.
Personnel at a number of federal agencies (especially those with environmental
duties) have made increasing use of collaborative, though not necessarily
consensus, approaches to planning, siting, policy development, and other
regulatory activities.
Some public sector conflict managers and private service providers have
developed methods for employing computer networks and other technologies to
inform members of the public about agency intentions, involve them in
decisionmaking, receive relevant input, and obtain timely feedback.
The conflict management field has devoted considerable thought and activity to
“dispute systems design” inquiries, practice statements, and advice intended to
ensure that interventions are soundly conceived, are put into practice effectively,
and prove fair and acceptable to users. Some federal ADR managers have taken
these notions to heart, but many agencies still need sustained exposure to these
strictures and the conflict management philosophy they embody.
In addition to the very real, but limited, progress in employing “ADR,” new conflict
management processes have been developed, and previously existing ones modified or
extended beyond their initial applications in courts, agency adjudication, or consensus
policymaking. While no one sees mediation and similar ADR methods as having come
close to reaching their potential to help agencies improve decisionmaking, some conflict
management (CM) practitioners now see “‟90‟s” processes like mediation as somewhat
narrowly focused “downstream” – i.e., upon litigation or other disputes involving named
parties or more localized or specific issues – instead of “upstream” – that is, uses that
involve broader policy or planning questions and large numbers of affected interests.
Today a variety of concepts (collaborative governance, integrated conflict management
systems, workplace and public ombuds offices) bring to bear interest-based negotiation,
improved communication, collaborative problem-solving, and similar strategies. While
employed in diverse settings with varying goals, these processes all seek to engage
individuals and entities in significant agency decisions from the outset, enhance workplace
or other relationships, or seek better, more acceptable outcomes than “win-lose” approaches.
These initiatives – themselves fairly limited to date – reflect the idea that agencies should
not simply react to problems after they occur but should also build internal capacity to
manage conflict actively, whether in the workplace, within or among agencies, or with the
public.
These recent developments offer new opportunities for ACUS systematically to explore, and
advise agencies on, taking better advantage of interest-based decisionmaking approaches
and addressing obstacles. Those impediments do not appear to have changed substantially
in recent years. They include:
3

Most political-level policymakers know little about these processes and their
potential uses and benefits
Many mid-level managers continue to be reluctant to “share” decision-making
with outside interests
In many agencies, ADR programs have been “siloed” or marginalized to the point
where decisionmakers and process managers do not consider using the range of
available processes
ADR has not been integrated into most agencies‟ audit, recruitment, and
performance management structures
There is still a lack of effective, persuasive documentation of the substantive
quality and acceptability of decisions reached via ADR, or of their costs and
benefits compared to more traditional decisionmaking methods
Some experts see the OMB Office of Information and Regulatory Affairs‟ concern
that agencies‟ negotiation of policy issues could limit or affect Presidential
oversight as having presented obstacles5
Interagency coordination since 1995. In 1996 legislation permanently reauthorizing the
ADRA and NRA, Congress directed the President to find a new home within the federal
government for some of the coordinating, consulting, and other functions previously
performed by ACUS. President Clinton designated the Attorney General as the authority
responsible for convening an interagency effort, and Attorney General Janet Reno played an
active role in encouraging agency use of alternative means of dispute resolution, particularly
in litigation and agency adjudication settings. At its peak, this effort was quite active and
consisted of a network that included an Interagency ADR Working Group, four Working
Group Sections (Contracts and Procurement, Civil Enforcement and Regulatory, Workplace
Disputes, and Claims against the Government), an ADR Steering Committee, and a highlevel Federal ADR Council. While the federal Interagency ADR Working Group
(IADRWG) had a major impact during Attorney General Reno‟s tenure and has continued to
play valuable roles in certain areas (e.g., promoting ADR in workplace and contracting
disputes, preparing a 2007 report to the President on agency uses of ADR), some agency
members of the Working Group express frustration and a desire to see it do more going
6
forward to promote improved conflict management in a wide array of settings.
5

In Collaborative Governance Meets Presidential Regulatory Review, 2009 Jnl. Dis. Res. 343, 344, former OIRA
executive Donald R. Arbuckle describes this concern as follows:
The White House environment, including OIRA‟s regulatory review process, is not conducive to formal
collaboration, as it is described by Professor Harter… White House decisionmaking and OIRA regulatory
review have a hierarchical component that is at odds with the horizontal nature of collaboration… [A]ny
sitting President would be loath to delegate his authority to a collaborative panel. Nonetheless, the benefits
of collaboration can be substantial, and the President could use his authority to encourage the use of
collaborative rulemaking…
Philip J. Harter, in Collaboration: The Future of Governance, 2009 Jnl. Dis. Res. 411, 445, states that, although E.O.
12,866 directs agencies to “explore and, where appropriate, use consensual mechanisms for developing regulations,
including negotiated rulemaking,” OMB has in fact “actively discouraged the use of negotiated
rulemaking/collaboration and made it difficult for agencies to implement the directive.”
6
One recent product was a 2007 report for the President on ADR use in the Executive Branch. Another effort in 2006
by a subgroup of this entity, the IADRWG Ethics Committee, put forth a Guide for Federal Employee Mediators, which
supplements the Model Standards of Conduct for Mediators developed by the ABA, AAA, and ACR by adding some
4

While the high-level ADR Council has not met in years and Attorneys General since Reno
have not emulated her in employing their position as a "bully pulpit" to promote improved
conflict management, a recent noteworthy action was Attorney General Eric Holder‟s
issuance of a May 2010 memorandum to all agency heads. It touted ADR as a management
tool, announced his intent to reconvene the interagency working group, requested that each
agency head appoint a senior level representative who is knowledgeable about ADR use at
the agency, and sought detailed information about agencies' current ADR use and plans.
Other recent initiatives and interagency activities. Another set of developments involves
the recent rise of some additional federal entities with conflict-related duties. Most
significantly, these include the U.S. Institute for Environmental Conflict Resolution (IECR)
and the U.S. Institute of Peace (USIP).7 IECR, part of the Morris K. Udall Foundation in
Tucson, AZ, was created by Congress in 1998 to assist parties in resolving environmental
conflicts around the country that involve federal agencies or interests. The Institute has
become quite active in providing a neutral setting, inside the federal government but
"outside the Beltway," where public and private interests can seek to reach common
ground.8 Its staff includes conflict management professionals and it administers a roster of
environmental mediators.
IECR, which has recently created a Washington, DC office, has undertaken a number of
activities in addition to its case-specific resolution efforts. It has sponsored a well-regarded
conference on environmental conflict resolution that is held every other year, begun to
develop an evaluation system with sharing of case evaluation methodology, and held
quarterly coordination meetings for education and idea exchange that take on a variety of
subjects. Several people I interviewed suggested that some of these activities could be
usefully extended to non-environmental agencies by appropriate entities.

Federal Guidance Notes. This Guide can be found at http://www.adr.gov/pdf/final_manual.pdf A similar Guide for
Federal Employee Ombuds (which can be found at http://www.adr.gov/pdf/final_ombuds.pdf) is also based on private
sector standards and offers guidance notes for internal agency ombuds operations.
7
USIP is an independent, non-partisan, congressionally-funded entity, created initially in the 1980's, with stated goals
that include:
To help prevent, manage, and resolve violent international conflict both within and between states;
To increase peacebuilding capacity, tools, and intellectual capital worldwide;
To build and shape the field of international conflict prevention and management and to professionalize its
practice; and
To build knowledge and create innovative tools for peacebuilding.
8
IECR's primary objectives are to:
Resolve federal environmental, natural resources, and public lands disputes through assisted negotiation and
mediation;
Increase use of environmental conflict resolution in general and improve the ability of federal agencies and
other interested parties to employ ECR effectively; and
Promote collaborative problem-solving and consensus-building during the design and implementation of
federal environmental policies to prevent and reduce the incidence of future environmental disputes.
5

In November 2005, the Office of Management and Budget and the White House Council on
Environmental Quality issued a joint memorandum on environmental conflict resolution9
urging agencies to “develop strategies to prevent or reduce environmental conflicts and
generate opportunities for constructive collaborative problem solving when appropriate.”
The program was designed to provide practical insights to agency officials and employees
as to how to use environmental conflict resolution (ECR) successfully. It encouraged
agency leadership to promote collaborative processes and directed agencies with
environmental responsibilities to report annually to OMB and CEQ documenting their ADR
planning and implementation effort. The memorandum set forth several basic principles for
agency engagement in ECR and collaborative problem-solving. In early 2006, OMB and
CEQ formed a staff level Implementation Steering Group, led by CEQ and IECR, to guide
implementation of the Memorandum.
Assessing interagency coordination and potential ACUS roles. While there has been some
useful coordination among environmental agencies, as described, recent years have seen a
decline in ADR coordination and leadership across government. Although the IADRWG
established in the late 1990‟s had some early accomplishments (especially in the
confidentiality arena) and has maintained consistent worthwhile activities in several areas
(e.g., workplace, contracting), many agency ADR/CM managers I interviewed expressed the
view that greater focus and additional interagency efforts are now needed. They express
frustration that, while President Clinton directed DOJ to “convene” an interagency group,
there has been recurrent uncertainty and internal divisions as to just what that term
encompasses, what coordinating, guidance, and other obligations it imposes on DOJ, what
authority the group should have to issue guidance or advice, and how group priorities should
be set, activities undertaken, and decisions made. Many people interviewed suggested that,
given some perceived inconsistency in the IADRWG‟s authority and administration, the
group needs at a minimum to rethink or clarify its organization, decisionmaking, and
leadership. A number of interviews with federal ADR personnel also suggested a strong
sense that interagency efforts should focus more broadly on innovative, potentially
beneficial uses of ADR and CM processes in policymaking, dispute avoidance, and other
arenas besides litigation and the workplace.
One recent related development is an intention, expressed by the DR Specialist at the
National Mediation Board, to establish a new interagency group comprised of smaller
agencies with components that provide some ADR or CM services; this group, which met
for the first time in the fall of 2010, could include “traditional” federal providers like NMB
and FMCS, as well as agencies with internal entities (like FERC's Dispute Resolution
Service) that offer collaborative process options to private or agency parties in regulatory or
other disputes.
Interviews with academics, experts and agency personnel suggest that – given ACUS‟s prior
generally competent work handling its ADR Act mandate until 1995 – a revived ACUS
might play potentially valuable roles. There is frustration at the lack of attention paid to
9

Memorandum on Environmental Conflict Resolution, November 28, 2005.
6

addressing ADR use, or improved CM, on a government-wide basis, and a sense that DOJ
and others could accomplish considerably more going forward. There is also a widespread
sense that federal ADR would benefit from ACUS once again conducting credible research;
offering well-grounded advice; promoting high-level awareness, sound usage, and interagency sharing; attempting to document the value of ADR processes and innovative
attempts at collaborative governance; and exerting some intellectual and strategic
leadership.
Many people went further. Some agency program managers acknowledged the potential
resource burdens for ACUS in playing such CM roles and specifically offered to explore
ways to help ACUS meet them. Several argued that ACUS should regard focusing on CM
as more than a worthwhile extension of earlier priorities; they believed that, given the
critical importance of improving trust in agencies‟ decisions and decisional processes,
ACUS could offer unique benefit by addressing agency processes that could bring people
together to solve problems and explore opportunities.
Moving ahead at ACUS.

Possible levels of engagement include:

Basic – Undertaking several research projects on ADR-related issues
Moderate – In addition, establishing an ACUS Committee on Conflict Management
(or Collaborative Governance), comprised primarily or entirely of ACUS members,
that focuses on ADR-related research and recommendations and also undertakes a
leadership role in identifying and accomplishing other ACUS-sponsored initiatives to
improve federal conflict resolution and public involvement
High – In addition, signaling ACUS‟s possible interest in reestablishing many or all
aspects of ACUS‟s pre-1995 leadership roles in support of line agencies‟ ADR
implementation and coordination
In finding appropriate roles going forward, ACUS will need to consider closely several
priority, resource, organizational, and other considerations. If ACUS does decide to move
beyond the first “bullet” to place an emphasis on conflict management, I'd suggest
undertaking these near-term actions:
Announce an ACUS-sponsored conference (or co-sponsored “summit”) in spring
2011 that would systematically explore current federal ADR and CM activity, assess
agency needs, and begin to plot a path forward for ACUS.
Delegate one ACUS committee to focus on ADR projects, or, better, create a high
profile Committee on Conflict Management (or Collaborative Governance) with an
energetic chair, an active, diverse membership that includes ADR experts, and
adequate support by a detailee or ACUS staffer knowledgeable about government
7

CM.
Charge the Committee on Conflict Management to:
o Develop an online ADR strategy workplan and for ACUS;
o Oversee bringing the old ACUS ADR Reading Room and ADR sourcebooks
into the 21st century by establishing a computer database that includes good
practice statements, research, advice, evaluations, and other resources
potentially helpful to those interested in government CM;
o Working closely with the Research Director, coordinate with current
interagency groups and other key ADR entities in and outside of government
to obtain feedback on CM research priorities;
o Assist agencies to address specific issues through study and sharing of
information about best practices; and
o Identify other specific clearinghouse, educational, and other practically
beneficial ACUS activities in this area.
Undertake two or three, and ideally more, ADR-related research projects under the
relevant committee‟s auspices.
Reach out very soon at high levels to key entities inside and outside government,
possibly including DOJ, US IECR, relevant ABA sections (e.g., Administrative Law
and Regulatory Practice, Environment, Energy, and Resources, Dispute Resolution),
and a few other entities, to discuss cooperation, priorities, resources, and other
concerns.
If ACUS does decide to give emphasis to collaborative approaches to conflict,
relationships and resources will be important matters and ACUS should consider reestablishing a few selected pre-1995 ADR programs; these include the Visiting ADR
Fellows Program (to obtain resources for new projects by drawing on expressions of
interest from line agencies) and the ADR grants program (to reestablish ACUS in the
minds of potential grants-makers).
An area in particular that will benefit from enhanced attention by both ACUS and the
interagency group (and whose potential has been comparatively neglected in ACUS‟s
absence) involves forging long-term, productive links between federal agencies with
ADR programs and professional organizations in the ADR world; as one
knowledgeable observer told me, “ACUS‟s focusing only on Feds inside the
government produces the sound of one hand clapping.” Thus, ACUS should consider
potential advantages in building close ties with and among the Interagency Group,
other federal ADR entities (e.g., establishing advisory or consultative roles in
planning ACUS ADR research), and private groups, like the Harvard Project on
Negotiation's clinical CM program whose students FERC, NIH, and other agency
CM programs have employed for design and assessments.
8

ACUS-sponsored conference. A “convening” assessment should precede the recommended
conference; it could help structure discussions, identify critical participants inside and
outside the government, and offer background to:
Assess the current federal conflict management landscape, including
accomplishments, obstacles, and statutory and administrative frameworks
Explore possible roles that ACUS and others might play in obtaining high-level
agency attention and credibility, advancing these processes throughout the
government, and addressing statutory, resource, or other useful improvements
Identify capacity-building, statutory authority, and other specific needs, and possible
joint action
Explore resources that would be needed for possible ACUS ADR initiatives, and
potential sources thereof
Consider how ACUS, DOJ, US IECR, and other entities might work together to good
effect, as well as possible next steps for ACUS
ACUS‟s approach to planning such a conference, and to most decision-making in this area,
should occur in as open, collaborative, and communicative a fashion as possible. Existing
ADR entities seem pleased to explore co-sponsoring these efforts with ACUS.
Possible research. A review of ACUS research and recommendations on ADR topics
between 1982 and 1995 suggests that, while several issues previously examined may
warrant a closer look, few or none need fundamental rethinking. While research decisions
will depend on priorities and resources, I have set forth some possibilities in rough priority
order, as follows:
The rise of “collaborative governance”: Implications for federal agencies. Consensus
processes like negotiated rulemaking emerged in the 1980‟s as an alternative to traditional
procedures for developing environmental and other public policies and proposed agency
regulations. The essence of these processes – which are at their core nothing more or less
than large scale, multi-party mediations – is that in certain situations it is possible to bring
together representatives of an agency and the various affected interest groups to negotiate
the actual text of a proposed rule or policy. However, as Jeffrey Lubbers and others have
written, reg-neg use per se has waned since an initial flourishing in the late 1980's and
1990's.10 A recent, related development is the rise at all levels of government in what has
come to be called “collaborative governance”: approaches to developing solutions that seek
to involve the public and affected government entities at all levels earlier, more
continuously, and more effectively than traditional “one-way” methods.

10

Achieving Policymaking Consensus: The (Unfortunate) Waning of Negotiated Rulemaking, 49 So. Texas L. Rev. 987
(2008).
9

It appears that collaborative governance (CG) has achieved a certain cachet. It is less clear
just what activities and goals collaborative governance encompasses; how well these
processes are typically employed; and what legitimacy, accountability, quality and other
concerns they may give rise to. The very term “collaborative governance” is much used, but
is defined differently by those who use it; some fear that it too broad and misunderstood a
notion to coalesce around or study effectively. However, most experts see a very close
connection between ADR and collaborative governance, with the latter representing in many
respects a creative expansion and application of the ADR sensibility and techniques to issuebased, multi-party disputes involving organizations. (One interviewee observed informally,
“Take ADR, throw in a bit of systems theory and a bit of organizational development theory
and practice, and you have collaborative governance.”)
Jody Freeman, in her influential 1997 article,11 was an early advocate of collaborative
governance, which “seeks to respond to the litany of criticisms about the quality,
implementability, and legitimacy of rulemaking by reorienting the regulatory enterprise
around joint problem solving and away from controlling discretion.”12 CG approaches –
whether or not all are technically “ADR” – employ the same structured communication and
consensus-building methods to incorporate the interests and perspectives of a variety of
stakeholders, foster exchange of knowledge, adduce improved information, and yield better,
more acceptable outcomes.13
In their 2008 article Collaborative Governance in Theory and Practice,14 Chris Ansell and
Alison Gash document the expanding use of CG approaches:
Over the last two decades, a new strategy of governing called „„collaborative
governance‟‟ has developed. This mode of governance brings multiple stakeholders
together in common forums with public agencies to engage in consensus-oriented
11

Collaborative Governance in the Administrative State, 45 UCLA L. Rev. 1 (1997).
Id. at 22.
13
Freeman summarized the characteristic components of these CG processes as follows:
“1. A problem-solving orientation. The focus is on solving regulatory problems. This requires information sharing
and deliberation among parties with the knowledge most relevant to devising and implementing creative solutions.
“2. Participation by interested and affected parties in all stages of the decision-making process. Broad participation
has an independent democratic value and may facilitate effective problem solving. It may take different forms in
different contexts.
“3. Provisional solutions. Rules are viewed as temporary and subject to revision. This requires a willingness to move
forward under conditions of uncertainty. It also demands a willingness to devise solutions to regulatory problems
without foreclosing a rethinking of both solutions and goals. To this end, continuous monitoring and evaluation are
crucial.
“4. Accountability that transcends traditional public and private roles in governance. Parties are interdependent and
accountable to each other. New arrangements, networks, institutions, or allocations of authority may replace or
supplement traditional oversight mechanisms. These might include self-monitoring and disclosure, community
oversight, and third-party certification. In these arrangements, traditional roles and functions are open to question.
“5. A flexible, engaged agency. The agency is a convenor and facilitator of multi-stakeholder negotiations. It provides
incentives for broader participation, information sharing, and deliberation. It acts as a capacity builder of parties and
institutions by providing technical resources, funding, and organizational support when needed. While the agency may
set floors and ceilings and act as the ultimate decisionmaker, it views regulatory success as contingent on the
contributions of other participants.” Id.
14
Collaborative Governance in Theory and Practice, 18 J. Pub. Admin. Res. & Theory 543 (2008).
10
12

decision making. In this article, we conduct a meta-analytical study of the existing
literature on collaborative governance with the goal of elaborating a general model
of collaborative governance. The ultimate goal is to develop a contingency
approach to collaboration that can highlight conditions under which collaborative
governance will be more or less effective as an approach to policy making and
public management....
Although collaborative governance may now have a fashionable management
caché, the untidy character of the literature on collaboration reflects the way it has
bubbled up from many local experiments, often in reaction to previous governance
failures. Collaborative governance has emerged as a response to the failures of
downstream implementation and to the high cost and politicization of regulation. It
has developed as an alternative to the adversarialism of interest group pluralism and
to the accountability failures of managerialism (especially as the authority of
experts is challenged).15
Lisa Bingham defines CG broadly: “Collaborative governance can take many forms,
including many experiments in deliberative democracy, collaborative public or network
management, and appropriate dispute resolution in the policy process; these processes all
share a related role by providing ways for people to exercise voice and to work together in
governance.”16 Philip Harter, on the other hand, notes an “ongoing debate as to whether the
term „collaborative governance‟ includes simply the process of parties with varying interests
working together or whether it requires an actual decision that will be implemented – the
„governance‟ side of things.”17 In Harter‟s view, it is the effort actually to work out a
specific, mutually acceptable decision that gives collaborative processes their greatest
potential value.
Whatever the precise definition, many proponents18 and users have found CG a term that
describes a range of useful public involvement activities that goes beyond “old wine, new
bottles” to include innovative civic engagement processes, e rulemaking, and a variety of
online conflict management and other inclusive technology-enabled innovations. In large
15

Id.
Lisa Bingham, Collaborative Governance: Emerging Practices and the Incomplete Legal Framework for Public and
Stakeholder Voice, 2009 Jnl. Dis. Res. 269.
17
Philip J. Harter, Collaboration: The Future of Governance, 2009 Jnl. Dis. Res. 411, 445.
18
Among the most active promoters of CG are the Policy Consensus Initiative and the National Policy Consensus
Center. PCI seeks to work with state leaders to bring about better governance via joint efforts to address complex
problems through involvement from all sectors. PCI:
Provides workshops and materials to help build the capacities of leaders, citizens and centers to employ
collaborative governance practices,
Designs systems and models of collaborative governance for particular issues and contexts and tests and
disseminates them,
Carries out research and recommends steps for overcoming barriers to the use of systems for coordination and
collaboration across sectors and levels of government, and
Provides informational materials, case studies and tools, and consultation and design services for state leaders
and others.
11
16

part, CG represents a fresh approach to thinking about a broad array of consensus and nonconsensus options for involving members of the public that, compared to “old fashioned
consensus,” may increase comfort levels among political leaders and offer a bit more
intellectual currency and acceptability among public administration academics. CG also
reflects many experts‟ belief that “single agency decider” models are increasingly unrealistic
and a growing number of planning and regulatory activities require decisions affecting
multiple agencies or sectors.
CG processes generally have not yet received the scholarly attention they warrant. This
stems in part from the fact that, rather than having been employed consistently or
systematically, they have tended to “bubble up” – often in non-federal settings – where a
state or local leader decides to play the role of convener who brings together organizations,
businesses, citizens and government to address a specific, pressing public problem. A
systematic ACUS examination and assessment of how some of these processes have been
employed in various situations to address or avoid conflicts involving federal entities could
aid our understanding: e.g., when to consider various kinds of collaborative approaches to
involving members of the public in policymaking and other governmental settings; what
kind of framework would enable government leaders to best use these processes; available
group management, remote conferencing, feedback, online, and other options that have been
used to effectuate participation; their theoretical and practical strengths and weaknesses;
what factors have affected outcomes and acceptability when these processes have been
employed; effective executive oversight; potential impact of developing best practices
statements; and any practices that might be encouraged, discouraged, or improved on. A
useful – though potentially difficult – goal of such a study might also be to begin to assess
(impressionistically, not as a quantitative evaluation) the quality, implementation, and
acceptability of the outcomes of those CG processes that seek consensus compared to
outcomes of processes that seek more limited agreements (e.g., agreement in principle,
generalized policy advice) or other goals.
The study could also examine both the organizational and the interaction phases of several
large-scale CG processes that addressed complex, contentious issues to see how the sponsor
designed the process. A successful collaborative process often requires a pre-negotiation
assessment that involves conferring in confidence with many or most identifiable interests to
identify reasonable goals and issues, find affected interests whose stake initially may not be
immediately apparent, recommend whether collaboration is appropriate and timely, and if
so, advise on such things as representation, the "shape of the table," and other process
specifics. Since this assessment and related advance preparations are likely to be important
to a successful outcome, ACUS‟s examination of, and advice on, considerations in
structuring, preparing for, and participating in CG processes could promote sound usage.
FACA and other legal issues affecting ADR and collaborative governance. A closely related
area that many experts recommended for study is the sometimes uncomfortable fit between
CG processes and other statutes, especially the Federal Advisory Committee Act (FACA)
that structures governmental consultation with non-federal entities.
12

Whereas negotiated rulemaking and some other consensus processes provide advice or
recommendations to agencies and clearly fall under FACA, not all CG processes do so.
Moreover, most federal advisory committees are established as a framework for obtaining
various experts‟ opinions, rather than for consensus-building purposes; as a result many
agency and other FACA experts do not fully understand the structure or operation of those
groups that are established to reach consensus. As a result:
Neutrals and agency personnel often complain that, given the novelty and diversity of
many new planning or other collaborative processes, agency attorneys too often
provide policy makers and potential participants with confused or needlessly
restrictive FACA advice.
Federally sponsored public-private groups can end up offering “proposals” or advice
to agency contractors, who then forward them to the agency, all in an effort to reduce
FACA concerns.
Excessive committee approval and other reviews involving FACA delay, or obviate,
the start of time-constrained processes.
Artificial time limits impinge harmfully.
Several practitioners and agency ADR managers whom I interviewed saw utility in a
“classic ACUS study” leading to useful recommendations on FACA‟s practical impact all
along the “collaborative governance spectrum,” what roles GSA or others should be playing,
and ways to offer clearer guidance that improves understanding and assures compliance.
Related, though less pressing, is what some scholars see as a need to re-examine our
framework for policy-making, implementation, and enforcement to encompass explicitly
these new collaborative governance activities. Lisa Bingham writes, “[W]e are in the „let
the thousand flowers bloom‟ stage of collaborative governance, in which new processes for
citizen dialogue and deliberation in the policy process are emerging daily. Legal
infrastructure should not inhibit this experimentation; instead, it should authorize and
legitimize it.”19 She has suggested legislation, modeled on the federal ADR Act, specifically
authorizing collaborative public management and collaborative governance.20 Others
19

Lisa Bingham, Collaborative Governance: Emerging Practices and the Incomplete Legal Framework for Public and
Stakeholder Voice, 2009 Jnl. Dis. Res. 269.
20
Id. at 323-4. Bingham suggests examining these questions:
How can we empower agencies to participate in networks that can take action consistent with notions of
delegated authority constrained by legislative standards that courts can use in judicial review?
How do we facilitate collaborative public management in a way that is consistent with transparency in
government?
How do we foster effective participation in collaborative governance by citizens and stakeholders to provide
greater transparency?
How do we foster broader civic engagement in public management networks?
What forms and methods of accountability are appropriate in collaboration?
13

suggest that focusing on legislation is premature, and might even chill experimentation.
These observers see CG as less a pattern of governing than as occasional one-time initiatives
that leaders may employ when pressed to reach decisions that need to be accepted and get
implemented. They also wonder what particular changes would actually need legislation to
be effectuated, i.e., what would a Federal Collaborative Governance Act offer comparable to
the 1990 and 1996 ADR Acts‟ spelling out confidentiality, voluntariness, and party choice
protections and delineating arbitration and other process options.21 Nonetheless, an ACUS
look at the legal and advisory frameworks within which these CG activities might be
employed, and what experimentation or sound practice they may inhibit or affect, could
inform these discussions.
Best practices for protecting ADR confidentiality. The Federal Administrative Dispute
Resolution Act encourages federal agencies to employ alternative means of dispute
resolution, in part by providing broad, powerful protection (based largely on ACUS
Recommendation 88-11, “Encouraging Settlements by Protecting Mediator
22
Confidentiality”) for communications made in DR proceedings.
The ADR Act‟s
confidentiality section defined these protections in detail. In addition to forbidding neutrals
from disclosing or being “required to disclose” DR communications, with narrow
exceptions, the Act also prohibits party disclosure, subject to a broader set of exceptions.
The Act requires prior notice to parties in any case where arguably protected data are sought
and an opportunity for the parties or neutral to contest disclosure. Where disclosure is
contested, the decision maker is a federal judge, not an agency. The Act provides for “overrides” by which admittedly protected material can be revealed – to overcome a manifest
injustice or to protect the public health and safety – if a judge decides, based on a specific
balancing test that employs statutory criteria, that the particular need is more important than
protecting confidentiality.
During the 20 years since the Act's initial passage, a number of questions and concerns have
arisen involving its confidentiality protections.23 Several may merit ACUS attention. Some
21

Several CG processes have been mandated by state legislatures, so those statutes may be useful in addressing these
matters. Chris Carlson of PCI, in Policy Consensus Initiative’s Role in Building an Infrastructure for Collaborative
Governance, states that some of the questions that should be considered include:
Who gets to participate? How are collaborative groups chosen?
Do there need to be specifications about how representative or inclusive they are?
What authorities do these groups have? Are they advisory or decision-making?
Who has rights to be involved, to influence, to be heard, and to challenge the exercise of power?
What access do these groups have to resources – time, space, information, data, skills? Do they have access to
funds?
What procedures, if any, guide how they operate?
Who are they accountable to: the state, community, or other?
How and when do they need to be linked to traditional democratic mechanisms?
22
5 U.S.C. §574. The ADR Act's intentionally very broad coverage applies to any "dispute resolution proceeding" –
i.e., any process in which an "alternative means of dispute resolution" is used to resolve an "issue in controversy"
relating to a federal "administrative program" in which a "neutral" is appointed and specified parties participate.
23
An example of this involved the problematic interplay between the 1990 ADR Act‟s confidentiality provisions and the
Freedom of Information Act (“FOIA”). While the 1990 Act set forth in great detail provisions governing the
confidentiality of communications made in the course of a dispute resolution proceeding, it also provided, somewhat
14

concerns that have arisen include:
Confidentiality of new processes. Several recent trends in agency CM largely
postdate the ADR Act and involve activities that are not consistently protected by
ADRA‟s confidentiality protections. These include, for instance, many aspects of
workplace and external ombuds offices‟ operations and conflict coaching. Advice on
structuring these activities to provide maximum protection and avoid surprises could
be useful.
Party confidentiality. While the ADR Act generally prohibits a party's disclosure of
DR communications, Section 574(b)(7) excludes from this general protection
disclosure by a party of any "DR communication… provided to or… available to all
parties to the DR proceeding." Thus, unlike with most other ADR statutes,
documents provided and statements made in joint session appear not to be protected
by the ADR Act against disclosure by an agency or other party.
In-house neutrals. Many agencies now employ in-house neutrals and program
administrators for many ADR-related purposes in lieu of private sector contractor
mediators or neutrals; this can raise unique questions relating to how much
information received during convening, intake, mediation, and other ADR activities
is handled and protected or not. (See also, possible project on systems design,
below.)
Other statutes. A related issue that a few agencies have had to face involves conflicts
with other laws and policies that afford access to government information. While
ADR statutes‟ policies against disclosing dispute resolution communications tend to
be clear, occasionally situations have arisen when a party, an investigator, or other
entity has sought to compel disclosure of protected ADR communications under
claims that its request supersedes any restrictions on disclosure. On occasion, their
divergent priorities, and arguable conflicts with other laws and policy goals, have
produced unpredictability that has undermined parties‟ confidentiality expectations
and proved detrimental to long-term acceptance of government ADR.
Confidentiality concerns – in federal agency and other settings – have given rise to enough
uncertainty and worry to lead some authorities to seek to minimize future problems. Several
recent projects have sought to develop practice statements and advice on an array of
confidentiality issues agency ADR programs, neutrals, and parties may face. These recent
anomalously, that it did not exempt disclosure of these communications under FOIA. As a result, many feared that a
mediator or case intake manager who is a government employee (as is common in federal agencies‟ Equal Employment
Opportunity mediation programs and some other disputes) might be forced to reveal documents received from a party or
to disclose his or her notes. A 1995 Administrative Conference-sponsored study and recommendation, followed by a
coordinated public-private effort in which the ABA played a major role, produced amendments when the Act was
permanently reauthorized in 1996 that addressed this concern by creating a tightly drawn exception preventing
disclosure, under FOIA or otherwise, for communications between a party and the neutral.
15

24

projects – undertaken largely in response to a widely criticized Fifth Circuit decision
nullifying ADR Act confidentiality under a USDA-sponsored farm mediation program –
produced considerable agreement. An ACUS look at confidentiality that addresses the
above questions and also looks at the following collaborative efforts could provide
considered recommendations to agencies and practitioners on good practices and methods of
protecting protected communications. The recent projects were:
The ABA Committee on Federal ADR Confidentiality developed a guide that offered
analysis and advice on data handling and confidentiality, and sought to promote a
consensus that might reduce future disagreements and uncertainty. Two dozen
Confidentiality Committee members reached unanimous agreement on a Guide to
25
Confidentiality under the Administrative Dispute Resolution Act that sought to aid
agencies in dealing with issues like intake, preliminary conflict assessments,
confidentiality agreement drafting, document handling, access requests, and training.
The Federal ADR Council – the group created by Executive Order whose members
are drawn from federal agencies active in ADR – issued (in conjunction with the U.S.
Department of Justice) a guidance document entitled Confidentiality in Federal
26
Alternative Dispute Resolution Programs. This document, whose development was
coordinated with the ABA Confidentiality Committee, noted that confidentiality is “a
critical component of a successful ADR process,” and suggested several practical
steps to minimize the likelihood of disclosure disputes.
The Federal Interagency ADR Working Group then followed up in 2006 with a
manual – Protecting the Confidentiality of Dispute Resolution Proceedings: A Guide
27
for Federal Workplace ADR Program Administrators – containing detailed advice
that was almost identical in substance to that in the ABA Guide.
An ACUS study examining confidentiality issues and recommendations on good practice
under the ADR Act could be valuable. That said, there are some unanswered – and, some
fear, potentially controversial – questions as to the relation of the ADR Act and a few other
statutes, notably the Inspector General Act. An ACUS study that focuses on whether most
agency confidentiality concerns can be addressed effectively within the current statutory
framework could improve day-to-day practice without opening fundamental questions. Any
decision to undertake a fresh look at the Act‟s confidentiality provisions or agency practice
under the Act probably should be done cautiously and after consultation with potentially
affected entities.
Design and practice issues for governmental entities. As agency dispute resolution activity
becomes increasingly institutionalized, the need will grow for those who administer ADR
24

In re Grand Jury Proceeding, 148 F.3d 487 (5th Cir. 1998), cert. denied sub nom. Moczygemba v. U.S., 526 U.S. 1040
(1999); see Charles Pou, Gandhi Meets Eliot Ness: 5th Circuit Ruling Raises Concerns about Confidentiality in Federal
Agency ADR, Dis. Res. 9 (Winter 1998); reprinted in Admin. L. & Reg. News 5 (Spring 1999).
25
http://meetings.abanet.org/webupload/commupload/DR030450/relatedresources/CopyofGuideFinalJul05.pdf
26
65 Fed. Reg. 83,085 (Dec. 29, 2000).
27
Available at http://www.adr.gov/guidance.html
16

programs to act effectively, fairly and appropriately.28 If ADR initiatives are to prosper,
non-federal users must trust them and see potential value. This will require that agency
administrators and neutrals understand and adhere to quality, ethical, and fairness precepts.
While these entities‟ operations have stimulated little objective scrutiny or systematic
commentary, knowledgeable professionals have begun to address quality issues relating to
the administration of ADR programs: intake, matching, quality, selection, administration,
access, oversight, data handling, advice-giving, and design issues that converge when public
and private entities provide parties with ADR services. Recognizing that program
administrators‟ actions can affect the long term credibility and viability of ADR methods,
several entities – e.g., the CPR-Georgetown Commission on Ethics a decade ago – have
recommended approaches to addressing administrative fairness and acceptability issues.29
Helping agencies carry out these activities well may warrant systematic attention and selfexamination – whether cast as recommendations, practice guidance, or just “things to think
about.” Some tentative steps have been taken to promote a growing sense that federal
program administrators are professionals, and engage in worthy activity that they can
perform well or poorly. An ACUS project or seminar series with experts and administrators
converging to discuss how to do these jobs ably may be valuable. Also, ACUS may be able
to assist agency provider organizations themselves to do more to share information and
experiences, think through matters of effective design and evaluation, and focus explicit
attention on “best practices” much as other groups have begun to do. The U.S. IECR has
begun to assist development of evaluation tools for cases in that area, and the National
Association For Community Mediation recently completed a successful effort to develop an
assessment tool for community mediation programs; these examples of how providers are
beginning to work together to address and improve ability to assess and inculcate ADR
quality may be worth highlighting.
“Can we all get along?” Openness and transparency meet public involvement and conflict
management. Over time, advocates for involving members of the public in agency
decisionmaking have taken a variety of approaches. Initially this gave rise to public
involvement offices within agencies. In the past decade or so, some agencies ADR or CM
programs have sought to offer their own approach to involving affected interests in certain
agency decisions, and many did so with relatively little concern for sharing with, or building
on the experiences of, their public involvement colleagues.
On his first full day in office, President Barack Obama committed to create “an
unprecedented level of openness in Government” and “a system of transparency, public
participation, and collaboration” to strengthen democracy, ensure the public trust, and

28

See, e.g., the CPR-Georgetown Commission on Ethics, Principles for ADR Provider Organizations (2001), advising
ADR provider organizations on the delivery of fair, impartial, and quality ADR services. The document also includes a
taxonomy suggesting the breadth and diversity of ADR provider organizations. http://www.cpradr.org
29
Id. at 7-13.
17

“promote efficiency and effectiveness in Government.”30 The process by which this
commitment to public participation and collaboration was implemented has left many
federal public involvement and ADR personnel feeling marginalized at the expense of
technology experts more interested and expert in “Web 2.0” issues.
This appears to be a classic case of government “siloing.” It is likely that each set of
specialists can offer major contributions to agencies on effectively expanding public
involvement, and each group is likely to be able to learn from the experiences of the others‟
efforts to promote open government via innovative uses of technology and process. In
particular, ACUS appears a natural place to assist agencies to think more intelligently and
strategically about when and how to deploy these resources.
An ACUS-sponsored examination of these “schools” of involvement, and each one‟s
strengths, weaknesses, and potential contributions, could help general understanding,
enhance coordination of effort, and assist agency managers faced with real-time process
decisions. There are already some examples of collaboration that may merit study – one is
the NMB‟s joint effort with the Center for Information Technology and Dispute Resolution
at the University of Massachusetts (aided by NSF grants) that is developing new online
systems for mediating labor conflicts. An ACUS study could also allow ACUS to begin to
get a handle on legal, administrative, access, and openness issues raised as agencies adapt
decisionmaking and involvement processes to the new online technologies and move to
draw on crowd-sourcing, user participation, and similar trends.
Assessing ADR and CM processes. Several people saw great value in having ACUS focus
some early priority efforts on seeking to document (or aid in developing methodologies that
could promote and ease assessment of) the value of ADR and other CM processes. They
noted that ACUS should not be praising, and promoting growth of, ADR and collaborative
processes in a simplistic manner without also furthering substantial evaluative assessments
of what does and doesn‟t work. These assessment activities might examine selected
practices and programs with attention to analyzing their operation and impact and
identifying areas in which improvement is needed. One person saw potential in focusing on
developing measures of success that might be used with OMB and other managerial and
budgeting entities. While IECR has taken steps to develop such measurement tools in
environmental settings, most observers see considerable room for developing or improving
on efforts elsewhere.
Managing federal workplace conflict. ACUS might study the experience of workplace
ombuds offices and other ADR-based innovations aimed at “giving voice” to agency
personnel and raising significant line issues to higher levels. A 2001 GAO study examined
several federal organizational ombuds entities,31 which were relatively few at the time of
30

Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed.
Reg. 4685 (Jan. 26, 2009).
31
The Role of the Ombudsman in Dispute Resolution (2001). One of the final ACUS-sponsored studies completed just
before its 1995 closure was Leah Meltzer‟s The Federal Workplace Ombuds, 13 Ohio State Jnl. Dis. Res. 570 (1998).
18

ACUS‟s demise but have grown in number since. Some agencies‟ organizational ombuds,32
like the one at the National Institutes of Health, appear to be innovative and well-regarded,
while others are assessed as less successful. For example, a DHS OIG report33 on the TSA
Ombudsman in 2008 found that many employees "lack trust and confidence in the
Ombudsman‟s functions" and identified a number of shortcomings.
The same DHS OIG report, conversely, found TSA‟s Integrated Conflict Management
System (ICMS) to be a potentially valuable tool in encouraging transportation safety
officers‟ involvement in significant agency decisions. ICMS seeks to embed a set of core
principles into the fabric of the organization (fairness, inclusiveness, open communication
and collaborative decision-making) and promote an environment where issues, ideas and
concerns can be raised with confidence that they will be respectfully received and
responsibly addressed. The TSA ICMS is designed to provide TSA employees with skills,
structures, and support mechanisms to enhance communication, cooperative problem
solving, and conflict management and prevention.
TSA management worked
collaboratively to design the ICMS with representatives from key groups and various sized
airports.
An ACUS-sponsored study of selected programs that seek to enhance the managerial and
administrative functioning of the federal government by offering workers feedback loops
and conflict resolution options, and of issues affecting their implementation and
effectiveness, might prove edifying.
Public ombudsmen. In 1990 ACUS commissioned a study of public (as opposed to
organizational, or workplace) ombuds in federal agencies; it included case studies on six
ombuds offices and an overview of the ombuds movement in the U.S.34 The report
supported an ACUS recommendation (90-2, “The Ombudsman in Federal Agencies”) that
encouraged, and offered some rudimentary standards for, establishing ombuds offices in
federal “agencies that administer programs with major responsibilities involving significant
interactions with members of the general public.”
Jeffrey Lubbers‟ report35 to the National Taxpayer Advocate examined approximately two
dozen of these offices in 2003. He found an increasing number of ombuds, discussed
standards of conduct for them, and described some of their variances in jurisdiction,
resources, and independence. Another recent study by the Congressional Research Service
has sought to take an ever broader look at these entities.36 Moreover, in 2004, the ABA
32

“Organizational” ombuds have a mandate to facilitate fair and equitable resolutions of concerns within an entity and
act as an early warning mechanism for broad and systemic problems. Organizational ombuds typically are confidential,
independent and neutral.
33
Transportation Security Administration’s Efforts to Proactively Address Employee Concerns (May 2008).
34
David Anderson and Diane Stockton, Ombudsmen in Federal Agencies: The Theory and Practice, 5 Admin. L.J. 271
(1991).
35
Jeffrey Lubbers, Independent Advocacy Agencies within Agencies: A Survey of Federal Agency External Ombudsmen,
Report to the National Taxpayers Advocate (2000, updated 2003).
36
Wendy Ginsberg and Frederick Kaiser, Federal Complaint-Handling, Ombudsman, and Advocacy Offices (2009).
19

adopted Standards for the Establishment and Operation of Ombuds Offices. These
standards go well beyond the substance of ACUS‟s 1990 recommendation to address
ombuds who are appointed to handle complaints within government, academia, and the
private sector; they set forth detailed advice as to essential characteristics of all effective
ombuds, including independence, impartiality in conducting inquiries and investigations,
and confidentiality.
Given all these developments since 1995, it may be timely to take another look at these
complaint-handling entities and consider revising or expanding the 1990 recommendation to
take into account the numerous developments since it was approved.
Reconsidering voluntariness: presumptions, commitments, and assessments. Given broad
consensus that ADR has been underused at many agencies, does it make sense to revisit the
ADR Act‟s voluntariness requirement,37 i.e., that all parties must agree in advance to employ
ADR? Such an inquiry might examine how departures from voluntariness in federal or
other settings may have affected processes‟ usage, quality, or legitimacy, neutrals‟ and
parties‟ behavior, and settlement rates. These could include looks at partial measures
intended to encourage ADR use, such as agency pre-commitments to agree to ADR (USPS
REDRESS mediation, EEOC-mandated mediation of complaints at many federal agencies),
required explanations for declining an ADR offer (federal contracting ADR), mandatory
attendance at a scoping/convening session (FERC), congressional mandates for an agency to
engage in negotiated rulemaking (Education higher education rules, HHS health care
implementation),38 or others.
Settlement judges. ACUS‟s 1988 recommendation encouraged use of settlement judges and
offered basic advice on setting up a settlement judge program, then relatively new. We now
have an added 25 years‟ experience to draw on, and some ALJs and Chief ALJs have proven
quite effective as dispute resolution program managers and as settlers of adjudications
before their own offices or conflicts involving other parts of their agencies. An ACUS study
might yield additional lessons.

37

“An agency may use a dispute resolution proceeding for the resolution of an issue in controversy that relates to an
administrative program, if the parties agree to such proceeding.” 5 U.S.C. §574(a).
38
One person I interviewed noted, as regards the issue of voluntariness, some statutorily mandatory processes in recent
years for negotiation between tribes and federal entities over the implementation of education statutes. These resulted
in part from tribes negotiating insertion of a mandate in the legislation itself as a way of insuring that they would have a
strong voice in the regulations that eventuated. Such strategic uses of mandated participation could prove interesting to
study.
20

APPENDIX A

ACUS CONFLICT MANAGEMENT REPORT
PERSONS INTERVIEWED
Federal Sources
Rachel Barbour, ADR Office, National Mediation Board (formerly)
David Batson, Center for the Prevention and Resolution of Conflict, OGC, U.S. EPA
Deborah Dalton, Center for the Prevention and Resolution of Conflict, OGC, U.S. EPA
Howard Gadlin, Ombudsman, National Institutes of Health, DHHS
Deirdre Gallagher, Manager, Dispute Resolution Service, FERC
Elena Gonzalez, Director, Office of Collaborative Action and Dispute Resolution,
Department of the Interior
Joanna Jacobs, Acting Director, Office of Dispute Resolution, U.S. Department of Justice
Deborah Katz, Director, Office of Collaborative Strategies, Transportation Security
Administration, Department of Homeland Security
Leah Meltzer, Deputy Dispute Resolution Specialist, OGC, U.S. Securities and Exchange
Commission
Richard Miles, Director, Office of Administrative Litigation, and former Director, Dispute
Resolution Service, FERC (retired)
Suzanne Orenstein, Director of Washington Office, U.S. Institute for Environmental
Conflict Resolution, Tucson, AZ
Deborah Osborne, Director, Dispute Resolution Service, FERC
Daniel Rainey, Director, Alternative Dispute Resolution, National Mediation Board
21

State and Private Sources
Francis X. Cameron, former Dispute Resolution Specialist, Assistant General Counsel for
Rulemaking and Fuel Cycle, and General Counsel for Litigation and Enforcement, Nuclear
Regulatory Commission
Christine Carlson, former Director, Policy Consensus Initiative and National Policy
Consensus Center, Portland, OR
Philip J. Harter, Vermont Law School and former ACUS ADR consultant
Robert Jones, Director, Florida Conflict Management Consortium, Tallahassee, FL
David B. Lipsky, Professor of Dispute Resolution and Director, Scheinman Institute on
Conflict Resolution, ILR School, Cornell University
Suzanne Marshall, Settlement Judge, State Office of Administrative Hearings, Austin, TX
Jeffrey Stockholm, Director, Office of Hearings and ADR, New York Department of Public
Service, Albany, NY
Micheal Thompson, Director, Iowa Mediation Service, Des Moines, IA

22