____________________________________________________________________________________
CONSULTANT REPORT

Final Version
December 17, 2021
____________________________________________________________________________________

ALTERNATIVE DISPUTE RESOLUTION
IN AGENCY ADMINISTRATIVE PROGRAMS
Kristen Blankley
Professor of Law
University of Nebraska
Kathleen Claussen
Associate Professor of Law
University of Miami School of Law
Judith Starr
Principal
Starr ADR, LLC

This report was prepared for the Office of the Chairman of the Administrative Conference of the United
States. It does not necessarily reflect the views of the Office of the Chairman or the Conference (including
the Conference’s Council, committees, or members).

Recommended Citation
Kristen Blankley, Kathleen Claussen & Judith Starr, Alternative Dispute Resolution in Agency
Administrative Programs (Dec. 17, 2021) (report to the Admin. Conf. of the U.S.).

ALTERNATIVE DISPUTE RESOLUTION
IN AGENCY ADMINISTRATIVE PROGRAMS
Kristen Blankley,* Kathleen Claussen† & Judith Starr‡
TABLE OF CONTENTS
I.

BACKGROUND ON ADR IN FEDERAL AGENCIES ..................................................................... 5
A.

Brief History of ADR Among Federal Agencies .............................................................................. 6

B.

Modalities of ADR ............................................................................................................................ 9

II.

1.

ADR Modalities in the 1990 ADRA ............................................................................................. 9

2.

ADR Modalities in the 1996 ADRA ........................................................................................... 13

3.

Additional ADR Modalities to Consider Not Currently in the ADRA ....................................... 13

METHODOLOGY ............................................................................................................................. 14

III. AGENCY ADR PROGRAMS AND EXPERIENCES ...................................................................... 15
A.

Selection and Implementation of ADR ........................................................................................... 15
1.

Background ................................................................................................................................. 16

2.

Agency Practices ......................................................................................................................... 19

3.

Recommendations ....................................................................................................................... 24

B.

Qualifications and Selection of Personnel to Conduct and Manage ADR ...................................... 26
1.

Background ................................................................................................................................. 26

2.

Agency Practices ......................................................................................................................... 28

3.

Recommendations ....................................................................................................................... 36

C.

Training Procedures for ADR Personnel ........................................................................................ 37
1.

Background ................................................................................................................................. 37

2.

Agency Practices ......................................................................................................................... 42

3.

Recommendations ....................................................................................................................... 45

D.

Ethics and Confidentiality Requirements for ADR Personnel ........................................................ 47
1.

Background ................................................................................................................................. 48

*

Professor of Law and Director, Robert J. Kutak Center for the Teaching and Study of Applied Ethics, University of
Nebraska.
†
Associate Professor of Law, University of Miami School of Law.
‡
Principal, Starr ADR, LLC; Co-founder, Director and Secretary, Suncoast Community Mediation, Inc.; former
General Counsel, Pension Benefit Guaranty Corporation, 2005-2019. Several additional contributors made this report
possible. Two student research assistants at the University of Miami School of Law provided excellent research and
organizational assistance: Nicholas Ritornato (UM Class of 2022) and Ryan Greenberg (UM Class of 2023). Jeremy
Graboyes and Danielle Schulkin provided assistance in innumerable ways throughout the project. Finally, this report
would not have been possible without the contributions of former and current agency officials who shared their
expertise and experience.

2

2.

Agency Practices ......................................................................................................................... 54

3.

Recommendations ....................................................................................................................... 57

E.

ADR Case Management Processes ................................................................................................. 57
1.

Background ................................................................................................................................. 58

2.

Agency Practices ......................................................................................................................... 60

3.

Recommendations ....................................................................................................................... 62

F.

Interagency Mechanisms to Facilitate ADR and Provide Support ................................................. 63
1.

Agency Practices ......................................................................................................................... 63

2.

Recommendations ....................................................................................................................... 73

IV. Issues for Further Study ...................................................................................................................... 75
V.

Conclusion .......................................................................................................................................... 76

Table of Acronyms ..................................................................................................................................... 77
Appendix A: Agency Websites with ADR Information ............................................................................. 78
Appendix B: Survey of Agency Officials ................................................................................................... 81
Appendix C: Interviews with Agency Officials .......................................................................................... 82
Appendix D: Overview of Types of ADR .................................................................................................. 83

INTRODUCTION
The use of alternative dispute resolution (ADR) by the executive branch of the federal
government to resolve disputes with or among private actors has deep historical roots.1 ADR
related to managerial agency matters such as employment or procurement is well-established
across the government and performed under a uniform set of laws.2 Much less is known,
however, about the scope and reach of ADR in the execution of government programs entrusted
to agencies by Congress, including regulatory enforcement, adjudication of claims, and
1

Thomas Jefferson (as Secretary of State) and Theodore Roosevelt (as President) each mediated critical disputes such
as the location of the nation’s capital and the anthracite coal strike of 1902, respectively. See JEROME BARRETT &
JOSEPH BARRETT, A HISTORY OF ALTERNATIVE DISPUTE RESOLUTION: THE STORY OF A POLITICAL, CULTURAL AND
SOCIAL MOVEMENT (published in affiliation with the Association for Conflict Resolution, John Wiley & Sons 2004).
2
Some of these laws are administered by the Equal Employment Opportunity Commission (EEOC). The Federal
Service Labor Management Relationship Statute (FSLMRS) is administered by the Federal Labor Relations Authority
(FLRA). As of 2000, the EEOC has required all agencies to have an ADR program available at both the pre-complaint
and formal stages of the EEO process, see 29 C.F.R. § 1614.102(b)(2). Section 7121 of the FSLMRS requires all
federal collective bargaining agreements to have grievance procedures, which are subject to arbitration. See U.S. FED.
LAB. RELS. AUTH., GUIDE TO ARBITRATION UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE
(2016),
https://www.flra.gov/system/files/webfm/Authority/AR%20Forms,%20Guide,%20Other/Arbitration%20Guide%20
9.30.16.pdf. Guidance on Federal workplace ADR has been readily available through the Office of Personnel
Management’s Alternate Dispute Resolution Handbook, https://www.opm.gov/policy-data-oversight/employeerelations/employee-rights-appeals/alternative-dispute-resolution/handbook.pdf. Federal contracting is governed by
the Federal Acquisition Regulation (FAR).

3

administering benefits or reimbursing services such as provider fees. This report uses the term
“administrative program ADR” to refer to this category of ADR. The U.S. Code defines an
“administrative program” in the context of ADR carried out by agencies as including “a Federal
function which involves protection of the public interest and the determination of rights,
privileges, and obligations of private persons through rulemaking, adjudication, licensing, or
investigation.”3
In 1987, the Administrative Conference of the United States (ACUS) developed a guide
(the “Sourcebook”) on federal agency ADR that reviewed some of this type of ADR work and
provided guidance on its selection and use.4 Since then, agency practices have changed, and new
agencies developed innovative ADR programs not captured by any prior work. This study seeks
to fill that gap.
Today, at least three dozen federal agencies publicly promote the use of ADR for their
administrative programs. Agency ADR activities contribute in important ways to the work of the
U.S. government. Although there is no government-wide data on the effectiveness of agency
ADR, several agencies report that ADR has been a faster, cost-effective, and satisfactory form of
dispute resolution for their programs.5
This report studies how federal agencies use and might better use different types of ADR
—including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use
of ombuds—in the programs Congress has entrusted them to administer. It also addresses the use
of ADR to resolve disputes before the initiation of a formal agency adjudicative proceeding or
litigation involving the agency’s enforcement authority. The project considers topics such as the
selection and implementation of the appropriate type of ADR and associated procedures; the
qualifications, selection, and training of agency ADR personnel; ethics and confidentiality
requirements for agency ADR personnel; ADR case management practices; and interagency
mechanisms to facilitate ADR and support agency ADR personnel.
The report has three objectives. First, it provides background on the scope of
administrative-program ADR in federal agencies, along with some historical comparisons.
Second, it describes agency ADR practices. Third, it develops conclusions and recommendations
surrounding the uses of ADR across the executive branch.
Part I provides some important background and history on the framework for
administrative-program ADR, the terminology used in this report, and a synthesis of prior
3

5 U.S.C. § 571.
MARGUERITE S. MILLHAUSER & CHARLES POU, JR., SOURCEBOOK: FEDERAL AGENCY USE OF ALTERNATIVE MEANS
OF DISPUTE RESOLUTION (1987) (prepared for Office of the Chairman Administrative Conference of the United
States).
5
See, e.g., Studies of the Mediation Program, U.S. EQUAL EMP. OPPORTUNITY COMM’N,
https://www.eeoc.gov/studies-mediation-program (last visited Aug. 22, 2021); UDALL FOUND., ENVIRONMENTAL
COLLABORATION AND CONFLICT RESOLUTION (ECCR) IN THE FEDERAL GOVERNMENT: SYNTHESIS OF FISCAL YEAR
2019
REPORTS
8
(2019),
https://udall.gov/documents/ECRReports/2019/FY19%20ECCR%20Synthesis%20Report_Final.pdf;
CONSENSUS
BUILDING INSTITUTE, USING DISPUTE RESOLUTION TECHNIQUES TO ADDRESS ENVIRONMENTAL JUSTICE CONCERNS:
CASE STUDIES (2003).
4

4

research completed on these issues. Part II describes our methodology. Part III draws on new
information sources to develop an empirically grounded perspective of the recent and historical
scope of ADR in agency work. Using a survey of agency officials, interviews with experts, and
research on agency websites and other publicly available information, among other sources, it
summarizes agency ADR practices and provides some examples of the ways agencies have
successfully deployed ADR as well as trends that are notable across the branch. It also includes
recommendations for each topic covered. Part IV turns to limitations of the study and areas for
further research.
Four preliminary notes are in order. First, this report does not serve as a comprehensive
catalogue of all government ADR programs. Second, while this report discusses forms of ADR
generally, this project does not explore legal questions about ADR, the forms it should take in
specific circumstances, or the limitations on its use. Third, this project is not intended to examine
comprehensively the benefits and costs of using ADR in agency administrative programs.
Fourth, because of the sensitivity of the agency equities involved, the report does not identify the
agencies connected to survey respondents and interviewees apart from where the report refers to
publicly available information or where agency staff consented to be named.
I.

BACKGROUND ON ADR IN FEDERAL AGENCIES

This Part briefly describes the key statutory provisions and elements of the ADR systems
across the federal government, as well as the history that led to the present landscape.
There are at least two distinct origins of the programs studied here: those that were an
outgrowth of ordinary agency adjudication to address agency needs such as efficiency and
burgeoning caseloads, and those that agencies created as stand-alone programs. Some agencies
have administered ADR programs for several decades, especially where policymakers saw ADR
as an opportunity to execute the agency’s mission. Congress tasked many of those agencies with
creating ADR initiatives as part of their core mandate.6 Statutes dating back to the early part of
the twentieth century empowered agencies to use ADR as a means of achieving their primary
purposes. More recently, agencies adopted ADR as a means of alleviating backlog or eliminating
the need for agency adjudication as interest in alternative processes grew both inside the federal
government and outside of it.7 We treat these differing underlying motivations for agency ADR
the same in this study and in some instances their edges blend. That is, for some agencies, what
may have been an alternative to ordinary adjudication became a broader tool once those agencies
realized its potential.
As noted above, this report does not review ADR programs designed to address employee
grievances, procurement, freedom of information act requests, or similar programs. Rather, this
report focuses on ADR programs that manifest the administrative and enforcement authorities
6
See, e.g., Civil Rights Act of 1964, 42 U.S.C. §§ 1001–02 (creating the Community Relations Service as part of the
Department of Justice).
7
See, e.g., Michael Z. Green, Proposing a New Paradigm for EEOC Enforcement After 35 Years: Outsourcing Charge
Processing by Mandatory Mediation, 105 DICKENSON L. REV. 331–32 (2001) (discussing the use of mediation by the
EEOC to reduce docket backlogs).

5

granted by Congress. These are programs available to actors outside of the agency that serve the
agency’s programming mandates. We will abbreviate our references to federal program ADR
with the understanding that the study is limited to this type of ADR.
A.

Brief History of ADR Among Federal Agencies

This section provides a brief history of federal program ADR. To provide additional
context, this section also provides information on major milestones in ADR generally, including
both public and private ADR.
Congress first expressly authorized agency use of ADR to deal with labor unrest. In 1913,
Congress empowered the Secretary of Labor to mediate and appoint commissioners of
conciliation in labor disputes.8 In its first year, the Department of Labor mediated 33 labor
disputes.9 The U.S. Conciliation Service within the Department carried out this function until
1947, when its functions were transferred to a new entity created by the 1947 LaborManagement Relations Act (the Taft-Hartley Act).
The Taft-Hartley Act created the Federal Mediation and Conciliation Service (FMCS), an
independent agency charged with preventing or minimizing the impact of labor-management
disputes on the free flow of commerce.10 The FMCS seeks to preserve and promote labormanagement peace and cooperation by serving communities, industries, and other agencies.11
This move toward ADR in labor-management disputes complemented the use of ADR by private
actors to resolve commercial disputes under the principles of the 1925 Federal Arbitration Act,12
and the creation of the American Arbitration Association (AAA), which is today the largest nonprofit global provider of ADR services, particularly arbitration services.13
Beginning in the 1970s, agencies used ADR experimentally to combat court backlogs and
resolve environmental and natural resource disputes.14 For example, Congress gave the
Department of Health, Education, and Welfare the authority to act as the administrator of the
Age Discrimination Act of 1975 to resolve claims of age discrimination in federal workplaces.15
The Department obtained assistance from FMCS to mediate complaints under the new act to
8

Act of Mar. 4, 1913, ch. 141, § 8, 37 Stat. 736 (providing that “the Secretary of Labor shall have power to act as
mediator and to appoint commissioners of conciliation in labor rower and authority disputes whenever in his judgment
the interests of industrial peace may require it to be done”).
9
BARRETT & BARRETT, supra note 1, at 4.
10
Labor Management Relations Act of 1947, 29 U.S.C. § 141 et seq.
11
About Us, FED. MEDIATION & CONCILIATION SERV., https://www.fmcs.gov/aboutus/ (last visited June 10, 2021).
12
9 U.S.C. §§ 1–16; 9 U.S.C. §§ 201–08; 9 U.S.C. §§ 301–07.
13
AM. ARB. ASS’N, The American Arbitration Association: A Long History of Working with Government, available
at https://www.adr.org/sites/default/files/document_repository/AAA%20Government%20Services.pdf. The AAA
maintains rosters of arbitrators and mediators and conducts case management for parties. In many ways, the AAA
operates similar to a clerking function in court—maintaining dockets, appointing neutrals, and ensuring the timely
resolution of the cases.
14
U.S. OFF. OF PERS. MGMT., ALTERNATE DISPUTE RESOLUTION HANDBOOK 1, available at
https://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/alternative-disputeresolution/handbook.pdf (last visited June 10, 2021).
15
Michael McManus & Brianna Silverstein, Brief History of Alternative Dispute Resolution in the United States,
CADMUS J., Oct. 2011, at 102.

6

facilitate speedy resolutions. By 1979, this process became routine for the Department and began
to gain interest on a larger scale. At this same time in the private sphere, retired Judge Warren
Knight of California started the Judicial Arbitration and Mediation Service (JAMS), which
provides law firms, businesses, and individuals with access to judges open to serving in ADR
capacities.16 Today, AAA and JAMS are two of the country’s largest private ADR provider
organizations.
The 1980s brought a significant increase in interest from legal experts and academics in
the use of ADR across several different fields.17 Interest grew so quickly that universities and
law schools nationwide began introducing courses and degrees in ADR topics. ACUS issued a
series of recommendations related to agency use of ADR.18 In 1985, the U.S. Attorney General
issued an order recognizing the potential of ADR to reduce the time and expense of civil
litigation.19
In 1986, ACUS issued a series of recommendations aimed at promoting the increased and
thoughtful use of ADR methods by federal agencies.20 They included a framework for
determining when ADR is appropriate, and recommendations for congressional action to grant
agencies authority to employ the full range of ADR techniques with the parties’ agreement. The
recommendations were intended as a first step to be supplemented by further empirical research,
consultation with experts and interested parties, and more specific proposals. These
recommendations came around the same time that the concept of “reg-neg” grew in popularity.21
“Reg-neg” refers to the administrative practice of negotiated rulemaking. Across the
administrative state, systems were changing to accommodate the growth of regulation and
regulatory functions.
By that time, federal agencies were deciding far more cases annually than federal courts,
and costs and delays had steadily increased.22 Noting that traditional administrative proceedings
had become “increasingly formal, costly, and lengthy,” Congress passed the Administrative
Dispute Resolution Act of 1990 (ADRA).23 The ADRA authorized and encouraged federal
agencies to use alternative means of dispute resolution to resolve controversies. According to the
ADRA, “alternative means” included settlement negotiations, conciliation, facilitation,
mediation, factfinding, minitrials, and arbitration, either together or in combination.
16

The JAMS Story, JUD. ARB. & MEDIATION SERV., https://www.jamsadr.com/history (last visited Aug. 22, 2021).
Id.
18
See, e.g., Admin. Conf. of the U.S., Recommendation 1982-2, Resolving Disputes Under Federal Grant
Programs, 47 Fed. Reg. 30704 (July 15, 1982); Admin. Conf. of the U.S., Recommendation 1982-4, Procedures for
Negotiating Proposed Regulations, 47 Fed. Reg. 30708 (July 15, 1982).
19
ALTERNATE DISPUTE RESOLUTION HANDBOOK, supra note 14, at 1.
20
See, e.g., Recommendation 82-2, supra note 18; Recommendation 82-4, supra note 18; Admin. Conf. of the U.S.,
Recommendation 1986-3, Agencies’ Use of Alternative Dispute Resolution, 51 Fed. Reg. 25643 (July 16, 1986);
David M. Pritzker, The Administrative Conference and the Development of Federal ADR, ADMIN. CONF. OF THE
U.S.: ADMIN. FIX (Oct. 29, 2014, 8:05 AM), https://www.acus.gov/newsroom/administrative-fixblog/administrative-conference-and-development-federal-adr.
21
See, e.g., Negotiated Rulemaking Act, Pub. L. No. 101-648, codified at 5 U.S.C. §§ 561–70.
22
ALTERNATE DISPUTE RESOLUTION HANDBOOK, supra note 14, at 1.
23
ADR Act, Pub. L. No. 101–552, 104 Stat. 2736. Congress also amended the Administrative Procedure Act, the
statute that principally governs the administrative adjudication work of agencies, to promote the use of ADR in lieu
of agency adjudication. See 5 U.S.C. § 571 et seq.
17

7

The ADRA required all federal agencies to appoint senior officials as dispute resolution
specialists.24 These specialists were tasked with training ADR personnel; assessing programs
with ADR potential; educating relevant stakeholders about ADR and its benefits; and most
crucially, adopting agency-specific policies addressing the use of ADR and case management.
Congress sought to encourage agencies to use ADR to enhance executive branch operations and
better serve the public.
The ADRA also reflected numerous ACUS recommendations and instructed agencies to
consult with ACUS and the FMCS to develop their ADR policies.25 All ADR processes required
voluntary participation. Importantly, binding arbitration was authorized only with all parties’
consent, although agencies had the ability to reject an arbitrator’s award at will.26 The statute was
time-limited and terminated on October 1, 1995.27
Congress renewed the ADRA in 1996, removing its sunset provision and enhancing its
confidentiality protections.28 The 1996 ADRA, like its predecessor, reflected numerous ACUS
recommendations. ACUS staff initially prepared the legislation.29 The 1996 ADRA removed
“settlement negotiation” from the definition of alternative means of dispute resolution due to its
potential overbreadth.30 It also added ombuds practice to the definition of alternative means of
dispute resolution, which was gaining momentum within government and private organizations
at the time.31 The 1996 ADRA also removed agencies’ ability to reject an arbitration decision.
President Clinton implemented ADRA by way of a Presidential Memorandum dated May
1, 1998, which created the Interagency ADR Working Group.32 The Memorandum
commissioned the Interagency ADR Working Group, convened by the Attorney General, to
assist agencies in their ADR training and stakeholder education.33

24

Id.
ADMIN. CONF. OF THE U.S., Administrative Dispute Resolution Act, in FEDERAL ADMINISTRATIVE PROCEDURE
SOURCEBOOK, https://sourcebook.acus.gov/wiki/Administrative_Dispute_Resolution_Act/view (last visited Mar. 4,
2021).
26
See Margaret Ward, Public Fuss in a Private Forum, 2 HARV. NEGOT. L. REV. 217, 218–19 (1997).
27
Interagency Alt. Disp. Resol. Working Grp., Key ADR Statutes, https://www.adr.gov/adrguide/04-statutes.html (last
visited Aug. 22, 2021).
28
Travis McDade, Administrative Dispute Resolution Act (1990), ENCYCLOPEDIA.COM (last visited June 10, 2021).
29
ADMIN. CONF. OF THE U.S., supra note 25.
30
Ward, supra note 26, at 223 (“This change sends a clear message to administrative agencies that informal
negotiations with private disputants, while a legitimate method of dispute resolution, do not fall within the mandate
of ADRA, which speaks directly to Congress’ desire to increase the availability of more formal alternative dispute
resolution mechanisms.”).
31
5 U.S.C. § 571(3). See Eric S. Adcock, Federal Privilege in the Ombudsman’s Office, 8 CHARLESTON L. REV. 1,
10–15 (2013) (discussing the historical roots of the ombuds office as it moved from Scandinavia to the United States
and grew in popularity).
32
See Memorandum from President William J. Clinton on Designation of Interagency Committees to Facilitate and
Encourage Agency Use of Alternate Means of Dispute Resolution and Negotiated Rulemaking to the Heads of
Executive
Departments
and
Agencies
(May
1,
1998),
https://www.justice.gov/sites/default/files/olp/docs/1998.05.01CLINTON.pdf (implementing ADRA and establishing
an interagency committee to facilitate and encourage agency use of dispute resolution); see also 5 U.S.C. § 573(c).
33
Memorandum from President William J. Clinton, supra note 32.
25

8

The Alternative Dispute Resolution Act of 1998 again expanded the use of ADR in the
federal government, requiring federal trial courts to designate officers to implement, administer,
oversee, and evaluate the courts’ ADR programs.34 The Environmental Policy and Conflict
Resolution Act of 1998 (EPCRA) also created the National Center for Environmental Conflict
Resolution (the “National Center”) to facilitate the use of ADR across agencies with
environmental law responsibilities.35
As the above history shows, since the late 1990s, ADR has become an accepted part of
agency practice. Groups began to publish updated directories and resources regarding ADR
practitioners, their firms, and areas of practice, opening greater access to ADR and facilitating
their use by agencies.36 These developments both contributed to and benefitted from increased
interest in legal services more generally. The turn of the twenty-first century saw a majority of
law schools providing ADR-related programs and courses, including clinical opportunities, as
well as school organizations and extracurricular competitions.37 Law firms regularly employ
retired judges and certified attorneys with ADR experience and expertise to offer mediation,
negotiation, and arbitration services.38 Bar association ADR groups, like the American Bar
Association (ABA) Dispute Resolution Section with nearly 11,000 members, have established a
professional community of ADR practitioners across the public and private sectors.39 The growth
in federal agency ADR is part of this larger trend.
B.

Modalities of ADR

Today, the term “ADR” encompasses many different processes. In the preparation of this
report, it became clear that agencies are using many tools that could be considered ADR even if
not so labeled. This section will introduce and define the different types of ADR under review as
part of this study. Appendix D contains a chart detailing the essential functions of each of the
modalities discussed in this section.
1.

ADR Modalities in the 1990 ADRA

In 1986, ACUS defined seven modalities of ADR for federal agencies as part of a
recommendation that agencies use ADR in their work.40 This recommendation was a precursor to
the ACUS Sourcebook the following year and to the ADRA that would follow four years later.
That “lexicon,” as it was called, included: arbitration, factfinding, minitrial, mediation,
facilitation, convening, and negotiation.41 Our study adopts a modernized vernacular and
considers the following processes identified in the 1996 Act: conciliation, facilitation,
factfinding, minitrials, arbitration, and mediation. This study also considers the use of ombuds,
34

ADRA of 1998, Pub. L. No. 105-315, 112 Stat. 2993; ADMIN. CONF. OF THE U.S., supra note 25.
Pub. L. No. 105-156 (1998).
36
See, e.g., MEDIATE.COM, https://mediate.com/ (last visited Aug. 22, 2021) (leading website for promotion of
mediator practice, as well as education for new and current mediators).
37
McManus & Silverstein, supra note 15, at 102.
38
Id.
39
Section of Dispute Resolution: Section Membership, AM. BAR ASS’N: ABA GROUPS,
https://www.americanbar.org/groups/dispute_resolution/membership/ (last visited Aug. 22, 2021).
40
Recommendation 86-3, supra note 20.
41
Id.
35

9

added to the ADRA in 1996.42 Although not mentioned in the ADRA, we also define the terms
“restorative justice” and “conflict coaching,” used in some of the recommendations below.
Prior to turning to the various processes, a word on the term “neutral” may be helpful.
The ADRA defines “neutral” as “an individual who, with respect to an issue in controversy,
functions specifically to aid the parties in resolving the controversy.”43 In the statutory section
titled “Neutrals,” ADRA notes that a neutral (no matter the type of ADR involved) may be a
federal employee or any other person acceptable to the parties.44 For neutrals serving as
mediators, facilitators, or conciliators, the neutral serves at the “will of the parties.”45 In other
words, neutrals serving an adjudicative role (i.e., arbitrator or fact-finder) serve on the case until
the case’s completion. Neutrals in consensual processes, such as mediation and facilitation, serve
in the role either until the case’s completion or until the parties revoke consent to the neutral.
The meaning of “conciliation” has changed over time. In past decades, the term was used to
depict a reconciliation process led by a third party to the dispute.46 Today, however, conciliation
is often used to refer broadly to any process in which a confidential third-party resolves a
dispute.47 The lack of a shared understanding of conciliation is in part the result of the fact that it
remains undefined in many areas of the law, such as in civil rights legislation and subsequent
implementing regulations.48 For one agency, conciliation involves an impartial board of inquiry
that investigates relevant issues and makes recommendations for settling the dispute.49 Some
programs use the term “conciliation” interchangeably with “mediation,” while other programs
distinguish between the two. When a program involves both mediation and conciliation, the
conciliator often takes a more hands-on and potentially evaluative role than a mediator.50
Facilitation “helps parties reach a decision or a satisfactory resolution of the matter to be
addressed.”51 A facilitator usually conducts meetings but may not become deeply involved in the
discussion or issue. Facilitation often refers to a process during which a group engages in

42

5 U.S.C. § 571(3) (defining “alternative means of dispute resolution”).
Id. § 571(9).
44
Id. § 573(a).
45
Id. § 573(b).
46
The term “conciliation” has some roots in religious as well as family, disputes, often with a focus on reconciliation.
See, e.g., Glenn G. Waddle & Judith Keegen, Christian Conciliation: An Alternative to “Ordinary” ADR, 29 CUMB.
L. REV. 583, 585 (1999) (describing the use of conciliation in disputes seeking religious reconciliation). Many family
courts have “conciliation” programs. See Cal. Fam. Code § 1820 (Joint family conciliation court services). These
definitions of conciliation sometimes muddy the expectations of the parties.
47
See, e.g., Katherine Lynch, Private Conciliation of Discrimination Disputes: Confidentiality, Informalism, and
Power, 22 WILLAMETTE J. INT’L DISP. RESOL. 49, 66 (2014) (“Conciliation can be broadly defined as a structured
process involving a third party who is impartial as between the parties and who strives to remain as neutral as
possible.”).
48
See, e.g., Stephanie Greene & Christine Neylon O’Brien, Judicial Review of the EEOC’s Duty to Conciliate, 119
PENN. ST. L. REV. 837, 845 (2015) (“The EEOC has not developed any regulations to define its duties to conciliate,
except that it must ‘notify the respondent in writing’ when it determines that conciliation will not resolve the charge.”).
49
See 29 U.S.C. § 183 (authorizing Federal Mediation and Conciliation Service to take such steps to resolve labor
disputes in the health care industry).
50
Thomas J. Stipanowich & Veronique Fraser, The International Task Force on Mixed Mode Dispute Resolution:
Exploring the Interplay Between Mediation, Evaluation and Arbitration in Commercial Cases, 40 FORDHAM INT’L
L.J. 839, 848 (2017) (describing the role of the conciliator as more evaluative than a true mediator).
51
Recommendation 86-3, supra note 20.
43

10

collaborative discussion with the help of a third party.52 Like conciliation, some people and
programs use the term interchangeably with “mediation,” but facilitation usually refers to a
process that is more party-driven and may involve dozens of stakeholders.53 Facilitation need not
involve a concrete dispute but may address problems with communications among individuals
and groups. Facilitated processes may include both large group and small group meetings to
accomplish the goals of the project. Facilitation might be best known for its use in public policy
discussions, regardless of whether those discussions involve an element of decision-making. For
example, a facilitator may work with a large group to draft a new policy, convening relevant
stakeholders from within and outside the organization or agency.
A “factfinding proceeding” entails the “appointment of a person or group with the
technical expertise in the subject matter to evaluate the matter presented and file a report
establishing the facts.”54 Factfinding is a quasi-adjudicative process during which the parties,
usually through their attorneys, present evidence and arguments to a neutral party, and the
neutral makes a determination of likely outcomes at trial.55 The evaluation can take many forms
but one common form is findings of fact and conclusions of law. In this context, factfinding is
the functional equivalent of early neutral evaluation (often abbreviated “ENE”). The evaluation
is made for settlement purposes only; if the parties do not settle after the determination, the
dispute resolution process continues as if the factfinding had not occurred.
A “minitrial” is “a structured settlement process in which each side presents a highly
abbreviated summary of its case before senior officials.”56 The ACUS Sourcebook does not
define the term “senior official,” but this term appears to be shorthand for any person with
authority to bind the agency for the specific case. The minitrial is structurally similar to the
factfinding proceeding, involving the presentation of evidence and argument by lawyers for the
parties. A third-party neutral’s role is limited to guiding the presentations because the purpose of
the minitrial is not to persuade the neutral third party but rather the principal decision-makers.57
The principals may have the opportunity to ask questions to the lawyers presenting the cases
during or after the process.58 The purpose of the minitrial is to expose the strengths and
weaknesses of each side’s claims and provide information necessary to aid in settlement
discussions. Once the presentations conclude, the senior officials have the opportunity to discuss
settlement options with the parties behind closed doors and without any attorneys or third-party

52

SAM KANER, FACILITATOR’S GUIDE TO PARTICIPATORY DECISION-MAKING xx (2014) (“A facilitator is an individual
who enables groups and organizations to work effectively; to collaborate and achieve synergy.”).
53
See, e.g., Janice M. Fletcher, One Size Does Not Fit All: Differentiating ADR Processes, 49 S. TEX. L. REV. 1039,
1043–44 (2008) (noting that in the author’s own practice as a facilitator does not fit neatly into any given label or
box).
54
Recommendation 86-3, supra note 20.
55
The Maryland Courts have a particularly good definition of factfinding: “‘Neutral fact-finding’ means a process in
which (1) the parties, their attorneys, or both appear before an impartial individual and present the evidence and
arguments to support their respective positions as to disputed factual issues, and (2) the individual makes findings of
fact as to those issues that are not binding unless the parties agree otherwise in writing.” Md. Rules, R. 17-102(k)
(2013).
56
Recommendation 86-3, supra note 20.
57
KRISTEN M. BLANKLEY & MAUREEN WESTON, UNDERSTANDING ALTERNATIVE DISPUTE RESOLUTION 241 (2017)
(describing the minitrial process).
58
Id.

11

assistance. As with factfinding, if the minitrial does not result in a settlement, the parties proceed
as if the minitrial had not happened.
In “arbitration,” a third-party neutral decides the submitted issue after reviewing the
evidence and hearing argument from the parties. Arbitration involves the presentation of
evidence and witnesses to a neutral third party. Compared to litigation, arbitration is typically a
private process occurring outside of public view.59 Decisions by arbitrators are considered
binding because federal law only provides for the most limited review of arbitrator awards.60
Although the idea of arbitration has held much promise to advocates for its time- and costefficiency, modern arbitration practice tends to look similar to litigation, but private and with a
decision-maker of the parties’ choosing.61
By contrast, “mediation” involves a neutral third party to assist the parties in negotiating
an agreement. The mediator has no independent authority and does not render a decision; the
parties themselves must reach a decision.62 Like facilitators, mediators guide a discussion
between the parties, but mediation is usually limited to solving discrete problems,63 while
facilitators may work with parties to simply increase communication or run a meeting. Mediators
use a wide variety of strategies to solve problems, such as listening actively, managing impasse
and heightened emotion, and working with parties to create and evaluate settlement proposals,
among others. While some mediators focus on enabling conversation among the parties, other
mediators may direct the process, provide advice, and give informal recommendations to resolve
the dispute.64 When a mediation is successful, the parties formalize their agreements into a
contract. If unsuccessful, the parties proceed in litigation, adjudication, or another process.

59

See Kristen M. Blankley, The Ethics and Practice of Drafting Pre-Dispute Resolution Clauses, 49 CREIGHTON L.
REV. 743, 770 (2016) (“Arbitration is a private method of dispute resolution, where the parties can choose their
decision-maker, and the arbitrator makes a binding decision on the merits of the dispute.”).
60
9 U.S.C. § 10(a) (providing review of an arbitrator’s award for ethical misconduct, arbitrator bias, serious flaws in
the process, and arbitrators exceeding the powers given to them by contract). A less common practice of “non-binding
arbitration” resembles binding arbitration but may permit one or more parties for further review following the issuance
of an arbitral decision. See Ward, supra note 26, at 218–20 (providing context for the change from the agency “escape
clause” to a binding form of arbitration for all parties).
61
See Thomas J. Stipanowich, Arbitration: The “New Litigation”, 2010 ILL. L. REV. 1, 8–9 (2010) (noting that by the
turn of the millennium, arbitration process largely mirrored litigation processes, including the delays and expenses
associated with prolonged discovery).
62
BLANKLEY & WESTON, supra note 57, at 51 (describing decision-making autonomy in mediation).
63
The Uniform Mediation Act defines mediation as “a process in which a mediator facilitates communication and
negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” Uniform
Mediation Act § 2(1) (2003) (definition of mediation).
64
Mediation literature and training since the 1990s focused on a divide between “facilitative” and “evaluative”
mediators. Although those labels are less and less applicable as mediators utilize the best techniques to fit the given
situation, this dichotomy still has value. For more information about these styles, see Leonard Riskin, Decisionmaking
in Mediation: The New Old Grid and the New New Grid System, 79 NOTRE DAME L. REV. 1 (2003); Leonard Riskin,
Mediator Orientations, Strategies, and Techniques, 12 ALTS. TO THE HIGH COST OF LITIG. 111 (1994). For a discussion
of the third type of mediation—transformative mediation—see ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE
PROMISE OF MEDIATION: THE TRANSFORMATIVE APPROACH TO CONFLICT (Joseph Bass, rev’d ed. 2005).

12

2.

ADR Modalities in the 1996 ADRA

The 1996 revisions to ADRA removed negotiation from the list but added “ombudsman”
programs. Ombuds offices may vary in the services provided, making this modality difficult to
define with any precision. As a general matter, an ombuds is usually an employee of an
organization with multiple powers of investigation and dispute resolution.65 Despite being
organizational employees, ombuds have great independence, resulting in flexibility to resolve
issues from stakeholders. Ombuds usually follow standards of practice focusing around four
principles: (1) independence, (2) neutrality, (3) confidentiality, and (4) informality.66 Ombuds
provide many services, including, depending on the situation, listening to problems, providing
information, investigating complaints, resolving conflicts, advocating for changes within the
organization, and writing reports, among other functions.67 Ombuds most often work one-on-one
with a stakeholder who reports a problem or frustration, but some ombuds provide mediation
services to multiple parties to a dispute.
3.

Additional ADR Modalities to Consider Not Currently in the ADRA

Although not currently addressed in the ADRA, we define two additional types of ADR:
“conflict coaching” and “restorative justice.” Some neutrals working on federal ADR may
already be using the coaching model, particularly facilitators and ombuds. Second, we mention
restorative justice as a model of ADR that agencies may consider using in the future. Neither of
these processes is defined by the ADRA, so we provide definitions from the literature.
Conflict coaching is an activity that grew out of executive coaching. It involves one-onone discussions with a person in conflict for the purpose of developing an understanding of the
conflict and skills for the client to work through the conflict. From the coach’s perspective, this
approach does not require the participation of all parties in the conflict but rather only those who
wish for additional insight and strategy. Mediators, facilitators, and ombuds may also use the
skills of coaching in their work, particularly when working with one party.68
Restorative justice is an umbrella term that describes a philosophy for resolving problems
that involve harm by one side against another side. It is not a particular process. In the criminal
law context, the U.S. Code defines “restorative justice” as a “program that emphasizes the moral
accountability of an offender toward the victim and the affected community.”69 Restorative
practices seek to hold accountable an individual who caused harm, focus on the needs of the
65

See Harold J. Krent, Federal Agency Ombuds: The Costs, Benefits, and Countenance of Confidentiality, 52 ADMIN.
L. REV. 17, 20–21 (2000) (discussing history and structure of ombuds offices).
66
International Ombudsman Association, IOA Standards of Practice (2005); see also ACUS, A Reappraisal—The
Nature and Value of Ombudsmen in the Federal Agencies, Part 1, 13–15 (2016) (discussing standards of practice
among federal agency ombuds) [hereinafter ACUS Ombuds Report].
67
See ACUS Ombuds Report, supra note 66, at 286 (discussing actions taken by programmatic ombuds programs).
68
See Cindy Fazzi, Book Review: Introducing the One-on-One Dispute Resolution Process Conflict Coaching:
Conflict Management Strategies and Skills for the Individual, 64 DISP. RESOL. J. 90, (Oct. 2009) (defining conflict
coaching). Conflict coaching is often used as a tool to address communications problems among parties. See
International
Ombudsman
Association,
Ombuds
Frequently
Asked
Questions,
https://www.ombudsassociation.org/ombuds-faq (last visited Dec. 6, 2021).
69
34 U.S.C. § 10401. Note that this statute involves juvenile justice, currently one of the areas in which restorative
justice is most widely available.

13

harmed party, and work to reintegrate all parties back into the community.70 Restorative justice
uses many modalities, ranging from the conciliatory processes of mediation and facilitation to
the adjudicative processes of specialized courts and commissions (such as the Truth and
Reconciliation Commission in South Africa).71 Although most restorative practices today in the
United States largely focus on youth, some are also used in communities and workplaces.72
Restorative practice in the federal government currently appears to be limited to the Department
of Justice Community Relations Service, which works with community groups to resolve
community conflicts and prevent and respond to hate crimes.73 In 2019, the Department of
Justice established the National Center on Restorative Justice to study mechanisms to advance
restorative justice principles and practice in criminal justice (both youth and adult offenders) and
other conflicts. This body partners with law schools to assess education, training, and research
resources in the field.74 Restorative justice also holds promise in other areas of the law, such as
in areas involving civil rights or environmental issues, to repair harms.
II.

METHODOLOGY

To prepare this report, we gathered information about agency practices from government
and non-government sources. First, we asked agency officials to respond to a survey we prepared
covering the areas of inquiry noted in the Introduction to this report, and which are discussed in
detail at Section III below. We began by approaching ACUS Government Members to help
identify appropriate individuals within each agency. Ultimately, representatives from ten
agencies completed the survey, and another two agencies provided partial responses. A copy of
the survey is appended to this Report after the appendices. We also conducted interviews with
agency employees involved in ADR. We conducted telephone or video conference interviews
with representatives from sixteen different agencies. There are nine agencies for which we both
received a completed survey and interviewed personnel.
To ensure agency participation wherever possible, we worked with ACUS and our own
professional contacts to make connections with the appropriate ADR personnel. We met with the
Interagency ADR Working Group and the Coalition of Federal Ombudsman (COFO). Many
agencies requested that we not disclose their information. To the extent that the same
information is publicly available, we cite to those sources rather than the interviewees. Some
agencies gave us permission to cite their surveys or their interviews, and we refer to those
sources as appropriate. Appendix D identifies sources except for individuals where
confidentiality was requested.
In addition to working with agency personnel, we researched publicly available
information for all seventeen cabinet agencies and an additional seventeen independent agencies.
70

See Kristen M. Blankley & Alisha Caldwell Jimenez, Restorative Justice and Youth Offenders in Nebraska, 98 NEB.
L. REV. 1, 6–11 (2019).
71
Id. at 12–15.
72
See TED WACHTEL, TERRY O’CONNELL & BEN WACHTEL, RESTORATIVE JUSTICE CONFERENCING (Piper’s Press
2010).
73
Community Relations Service, U.S. DEP’T OF JUST., https://www.justice.gov/crs (last visited Aug. 22, 2021).
74
National Center on Restorative Justice, U.S. DEP’T OF JUST., https://bja.ojp.gov/program/national-centerrestorative-justice/overview (last visited Aug. 22, 2021).

14

We attempted to identify all programs on agency websites that use ADR to resolve conflicts
related to the determination of rights, privileges, or obligations of private persons. We also
reviewed pertinent reports, studies, and articles about federal agency use of ADR.
III.

AGENCY ADR PROGRAMS AND EXPERIENCES

This Part addresses agency practices involving administrative program ADR. It covers
the following research areas: (A) selection and implementation of ADR; (B) qualifications and
selection of ADR personnel; (C) training procedures for ADR personnel; (D) ethics and
confidentiality of ADR personnel; (E) case management procedures; and, (F) interagency
mechanisms to facilitate ADR.
A.

Selection and Implementation of ADR

Agencies typically select and make one ADR modality, such as mediation or arbitration,
available to participants. Few agencies offer participants a menu of options.75 The following
table shows the number of agency programs reported by modality.
Table of ADR Modalities*
Mediation Arbitration Facilitation Conciliation
25

4

11

4

Factfinding
1

Ombuds
13

*Based on review of 36 agencies, including as separate agencies those that are within a cabinet
department and have their own programs. Numbers do not total to 36 as some agencies have multiple
modalities.

Although participation in ADR is mandatory in some programs, primarily in the area of
labor relations,76 it is voluntary at most agencies. That is, agencies that provide ADR as an
alternative to traditional adjudication generally give parties the choice of using ADR rather than
mandating it. Likewise, where ADR is offered as a program apart from traditional agency
adjudication, private parties are not required to participate.
This section outlines the ADR modalities agencies are using and how they have
operationalized those choices (i.e., whether the modality is mandated by statute or whether
agencies have discretion to select among the ADR modalities). It also explores agency evaluation
of their programs and whether those evaluations have precipitated changes to their programs
when permitted under law.

75.
An example of an agency that does provide a menu of modalities is the Federal Maritime Commission, which offers
both adjudicative and non-adjudicative forms of ADR at the parties’ election. See Alternative Dispute Resolution
Services, FED. MAR. COMM’N, https://www.fmc.gov/databases-services/alternative-dispute-resolution-services/ (last
visited Aug. 22, 2021).
76
See, e.g., Railway Labor Act, 41 U.S.C. § 151 et seq. (mandatory arbitration) and National Labor Relations Act, 29
U.S.C. § 183 (mandatory conciliation).

15

1.

Background

Prior to discussing the types of ADR agencies currently use, this section gives
background, including historical context, regarding how organizations, including governmental
organizations, determine which ADR modalities to implement. This section then briefly
discusses legal authority for implementing dispute resolution programs.
Theories of Process Design
In 1976, Harvard Law Professor Frank Sander delivered the keynote address at the
historic ADR Pound Conference, imagining a “multi-door courthouse” in which litigants could
be triaged into the most appropriate process for their dispute, such as mediation, arbitration, or
litigation, by a court clerk or other program manager.77 This conference served as a catalyst for
the increased use of ADR within the courts, including federal courts.78 Former Attorney General
Griffin Bell and the Department of Justice began creating ways to implement the ideas of the
Pound Conference into the federal government.79 In addition, “multi-door courthouses” popped
up across the country, offering a menu of processes to resolve disputes.80
Congress passed the 1990 version of the ADRA at this time, appearing to draw on the
concept of the multi-door courthouse. Similar to the trend of ADR programs at the time, the
ADRA included a menu of dispute resolution options, including conciliation, facilitation,
mediation, factfinding, minitrials, and arbitration.81 As noted above, the use of ombuds services
was added in 1996.82 Congress gave agencies broad authority to use dispute resolution
proceedings when parties voluntarily agree to participate.83 The reason for a broad selection of
options was to preserve the ability to “fit the forum to the fuss,”84 and be able to match a dispute
with the most appropriate process, taking into account party needs and interests. Key interests
that may determine the appropriate process choice include accessibility (including lack of
formality), time and cost efficiencies, and preservation of relationships, among other factors.85
The 1990s were a high point for the sheer number of types of ADR processes, both consensual
and adjudicative, and even some hybrid processes. This time period also ushered in a host of
77

Frank Sander, Varieties of Dispute Processing, Address Before the National Conference on the Causes of Popular
Dissatisfaction with the Administration of Justice (Apr. 7-9, 1976), in 70 F.R.D. 79, 111 (1976); see also Lara Traum
& Brian Farkas, The History and Legacy of the Pound Conferences, 18 CARDOZO J. CONFLICT RESOL. 677, 685–86
(2017) (discussing Professor Sander’s keynote address); Lisa Blomgren Amsler, Dispute System Design and the
Global Pound Conference, 18 CARDOZO J. CONFLICT RESOL. 621, 621 (2017) (“Frank Sander’s speech at the 1976
Pound Conference marked a turning point in the field’s growth and development within the United States”).
78
Louise Phipps Sendt & Cynthia A. Savage, ADR in the Courts: Progress, Problems, and Possibilities, 108 PENN.
ST. L. REV. 327, 327–28 (2003) (discussing the history of the Pound Conference).
79
A Dialog Between Professors Frank Sander and Mariana Hernandez Crespo: Exploring the Evolution of the MultiDoor Courthouse, 5 U. ST. THOMAS L. REV. 665, 671 (2008) (discussing the interest of the attorney general).
80
See id. (describing multi-door courthouse programs arising in the 1990s).
81
5 U.S.C. § 571 (1990).
82
Id. § 571 (1996).
83
Id. § 572.
84
Frank E.A. Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an
ADR Procedure, 10 NEGOT. J. 49 (1994).
85
See Hon. Gladys Kessler & Linda J. Finkelstein, The Evolution of a Multi-Door Courthouse, 37 CATH. U.L. REV.
577, 580–85 (discussing case needs and how the programs move cases into dispute resolution processes in the D.C.
courts).

16

ADR-related laws and, a few years later,86 the promulgation of process-specific standards of
ethics and practice.
Over time, the truest vision of the multi-door courthouse with a plethora of processes did
not materialize. Rather, three processes emerged dominant, depending on the situation:
arbitration, mediation (and, to a lesser extent, facilitation), and ombuds practice. Systems
historically using arbitration (i.e., prior to the reforms of the 1960s through 1990s) continue to
use arbitration to this day. In particular, private cases involving labor relations are often resolved
by arbitration due to language in specific collective bargaining agreements.87 Within the courts,
mediation rose to prominence as the preferred method of dispute resolutions by court systems,
attorneys, and parties.88 Finally, both private and public organizations have increasingly used
ombuds services.89 The use of trained third-party facilitators is a smaller, but growing practice to
structure discussions regarding public policy—including conversations about environmental
concerns or policing, as two examples. Other types of processes, such as minitrials, factfinding,
and conciliation, have diminished in frequency or been used on a limited case-by-case or
program-by-program basis.90
Although the multi-door courthouse ideal that existed at the time of the passage of ADRA
did not materialize as originally thought, now the growing field of “dispute system design”
(DSD) is used to plan for and implement new ADR processes.91 DSD is the “applied art and
science of designing the means to prevent, manage, learn from, and resolve streams of
conflict.”92 Central principles of DSD include thoughtful consideration of process values and of
process flexibility, seeking and incorporating valuable feedback from stakeholders, and engaging
in periodic evaluation of the process to determine successes and shortcomings.93 DSD principles
are now widely considered best practices for many types of institutions.94
86

See Jacqueline Nolan-Haley, International Dispute Resolution and Access to Justice: Comparative Law
Perspectives, 2020 J. DISP. RESOL. 391, 399 (2020) (discussing federal efforts in the 1990s regarding ADR).
87
See Epic Systems v. Lewis, 138 S. Ct. 1612 (2018) (consolidating two cases before the NLRB and one case from
the realm of employment regarding arbitration issues).
88
See, e.g., Roselle L. Wissler, Court-Connected Settlement Procedures: Mediation and Judicial Settlement
Conferences, 26 OHIO ST. J. DISP. RESOL. 298–99 (2011) (noting the preference for mediation); Donna Shestowsky,
Procedural Preferences in Alternative Dispute Resolution: A Closer, Modern Look at an Old Idea, 10 PSYCHOL. PUB.
POL’Y & L. 211, 211 (2004) (discussing an empirical preference for mediation, particularly facilitative mediation).
89
See Timothy Hedeen, Ombuds as Nomads? The Intersection of Dispute System Design and Identity, 13 U. ST.
THOMAS L.J. 233, 235–37 (2017) (discussing history of ombuds practice).
90
See Nancy A. Welsh, I Could Have Been a Contender: Summary Jury Trial as a Means to Overcome Iqbal’s
Negative Effect Upon Pre-Litigation Communication, Negotiation, and Early, Consensual Dispute Resolution, 114
PENN. ST. L. REV. 1149, 1185–88 (2010) (urging more use of summary jury trials).
91
See Andrea Kupfer Schneider, How Does DSD Help Us Teach About Community Conflict (And How Can
Community Conflict Help Illustrate DSD)?, 13 U. ST. THOMAS L.J. 370, 371 (2017) (describing DSD as a sub-field
drawing on conflict theory, organizational behavior, and alternative dispute resolution).
92
Victor D. Quintanilla, Human-Centered Civil Justice Design, 121 PENN. ST. L. REV. 745, 758 (2017).
93
Id. at 758–59 (summarizing key elements of dispute system design); see also Kupfer Schneider, supra note 91, at
372 (“DSD theorists outline the qualities that usually distinguish effective systems: stakeholders have participated in
designing them, the systems are fluid and flexible, and the system is transparent and accountable.”).
94
Thomas B. Metzloff, Control Over Dispute-System Design and Mandatory Commercial Arbitration, 67 LAW &
CONTEMP. PROBS. 221, 222 (2004) (discussing some of the origins of dispute resolution design); Lisa Blomgren
Amsler, The Dispute Resolver’s Role Within a Dispute System Design: Justice, Accountability, and Impact, 13 U. ST.
THOMAS L.J. 168, 175 (2017).

17

This summary of considerations for implementing ADR programs highlights a few
widely accepted views in the academic literature: first, that the design of any ADR program
should be intentional; the choice of modality for a program should be based on the interests of
the participants and the goals of the program. Second, when programs are designed, stakeholders
should be consulted to give input. The relevant stakeholder groups should include not only the
participants from within the agency but also those from outside the agency who might later be a
party to the process.95 Third, all programs should be reviewed periodically for success, and
should be flexible to adjust over time.
Agency Authority to Institute ADR Programs
Agencies have broad authority to choose ADR processes for their programs. Under the
ADRA: “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.”96
Although the ADRA lists certain ADR modalities, the law does not limit agencies to the
modalities within the list nor does it dictate which process any one agency should adopt.97
Further, the ADRA supplements any other agency authority to implement ADR programs under
other law.98
The ADRA, however, directs agencies to consider not using ADR in six instances, all of
which implicate public policy issues such as the need for precedent, the need for a record, the
absence of needed third parties, and the need for continuing jurisdiction on the part of the
agency.99 To date, no court has reached the question of whether an agency acted outside of its
authority in creating a dispute resolution program. Only a handful of cases involve federal
agency ADR at all. In one case, a court found no error in an environmental dispute resolution
process,100 and in another, the court found that an agency had the authority to agree to binding
arbitration with a stakeholder, as opposed to non-binding arbitration under the ADRA.101
As a matter of policy, agencies may decide not to employ ADR programs even where
there is a perceived need in certain circumstances. For example, ADR may not be appropriate
where an agency seeks to establish authoritative precedent, particularly in new or emerging areas
of law. Similarly, ADR may not be the right choice for an agency where a full, public record
would be important to the agency or the public. ADR processes involving confidentiality would
not meet that need; confidentiality is discussed in greater detail below. As a matter of law,
agencies are guided to consider not using ADR where these and other considerations come into
95

See Recommendation 86-3, supra note 20.
5 U.S.C. § 572(a); see also Michael Asimow, Best Practices for Administrative Hearings Outside the Administrative
Procedures Act, 26 GEO. MASON L. REV. 923, 954 (2019) (discussing the use of ADR as an agency best practice).
97
5 U.S.C. § 571(3) (defining ADR as “any procedure that is used to resolve issues in controversy, including, but not
limited to . . .”).
98
Id. § 572(c) (“Alternative means of dispute resolution authorized under this subchapter are voluntary procedures
which supplement rather than limit other available agency dispute resolution techniques.”).
99
Id. § 572(b) (listing six exceptions to the general rule regarding ADR authority).
100
See Miccosukee Tribe of Indians of Fla. v. United States, 420 F. Supp. 2d 1324, 1339 (S.D. Fla. 2006) (finding no
error in use of Institute of Environmental Conflict Resolution program).
101
College Blvd. Nat. Bank v. Credit Systems, Inc., 1994 WL 242670, *2 (D. Kan. 1994) (finding that the ADRA is
not the only authority that the FDIC may have to enter into a dispute resolution contract).
96

18

play.102 Likewise, some academics have recognized these interests and others such as balances in
power or the potential role of the courts.103 The relative dearth of judicial decisions and scholarly
discussion on the authority of agencies to implement ADR programs suggests that their legal
foundations are widely considered to be sound.
2. Agency Practices
To investigate agency motivations and decisions regarding their choices of ADR
programs, we first asked each of the targeted agencies what modalities of ADR they are using
and provided a closed set of options: conciliation, facilitation, factfinding, minitrials, arbitration,
mediation, and ombuds practice. We also reviewed publicly available information on agency
websites to gain a fuller picture to supplement agency responses to our inquiries. This section
provides information not only on the types of ADR performed by agencies but also feedback and
measures of success. Appendix A provides links to the websites of agencies using the modalities
of ADR reviewed by this study.
ADR Programs Offered by Agencies
Mediation is the most commonly used modality of ADR. At least 25 agencies indicated
using some form of mediation in their ADR programs. The following agencies report using
mediation on their websites: the Environmental Protection Agency,104 the Nuclear Regulatory
Commission,105 the International Trade Commission,106 the Department of Education,107 three
agencies of the Department of Agriculture,108 the Department of the Interior (DOI),109 the

102

5 U.S.C. § 572(b). The six instances are: (1) when binding precedent is needed; (2) the area involves a significant
question of unresolved government policy; (3) the government has a need to maintain consistency across cases; (4)
when the outcome of the situation would involve third parties; (5) when a full public record is necessary; and (6) when
dispute resolution would interfere with an agency’s continuing monitoring of a situation.
103
See Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073 (1984). See also Jack B. Weinstein, Comments on Owen
M. Fiss, Against Settlement, 78 FORDHAM L. REV. 1265, 1267 (2009).
104
Conflict Prevention and Resolution Center (CPRC), U.S. ENV’T PROT. AGENCY, https://www.epa.gov/adr (last
visited Aug. 22, 2021).
105
Alternative Dispute Resolution in the NRC’s Enforcement Program, U.S. NUCLEAR REGUL. COMM’N,
https://www.nrc.gov/about-nrc/regulatory/enforcement/adr.html (last visited Oct. 18, 2021).
106
Mediation Program, U.S. INT’L TRADE COMM’N, https://www.usitc.gov/intellectual_property/mediation.htm (last
visited Aug. 22, 2021).
107
Alternative Dispute Resolution (ADR), U.S. DEP’T OF EDUC.: OFF. OF THE GEN. COUNS.,
https://www2.ed.gov/about/offices/list/ogc/adr-page.html (last visited Oct. 18, 2021).
108
U.S. DEP’T OF AGRIC., FARM SERVICE ADMINISTRATION AGRICULTURAL MEDIATION PROGRAM: FACT SHEET
(2021),
available
at
https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/FactSheets/agriculturalmediation-program-factssheet.pdf; U.S. DEP’T OF AGRIC., Risk Management Agency Mediation Program,
https://www.rma.usda.gov/en/About-RMA/Laws-and-Regulations/Mediation; U.S. DEP’T OF AGRIC., Natural
Resources Conservation Service Mediation Program, https://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/
programs/alphabetical/?cid=nrcs143_008444;
Rural
Development
Agency
Mediation,
available
at
https://www.rd.usda.gov/files/RD-SFH-MediationNotes.pdf (last visited Oct. 24, 2021).
109
Office of Collaborative Action and Dispute Resolution, U.S. DEP’T OF THE INTERIOR,
https://www.doi.gov/pmb/cadr (last visited Aug. 22, 2021).

19

Internal Revenue Service (IRS),110 Health and Human Services,111 the Federal Energy
Regulatory Commission (FERC),112 the Department of Justice Community Relations Service,113
the Department of Transportation,114 the Department of Commerce,115 the Pension Benefit
Guaranty Corporation,116 the National Mediation Board (NMB),117 FMCS,118 the Federal
Maritime Commission,119 the Office of Special Counsel (OSC),120 the National Labor Relations
Board,121 the National Archives and Records Administration,122 the National Center,123 the
Federal Labor Relations Authority,124 the Federal Communications Commission,125 the Federal
Election Commission,126 and the Equal Employment Opportunity Commission (EEOC).127
Most of the agencies surveyed use facilitative mediation in which a professional mediator
attempts to facilitate negotiation between the parties in conflict without providing a substantive
assessment of the merits of the case. The mediator encourages the parties to reach a voluntary

110
IRS Appeals Mediation Program, https://www.irs.gov/appeals/appeals-mediation-programs (last visited Oct. 17,
2021).
111
Mediation, U.S. DEP’T OF HEALTH & HUM. SERVS., https://www.hhs.gov/about/agencies/dab/adrservices/mediation/index.html (last visited Oct. 17, 2021).
112
Alternative Dispute Resolution, FED. ENERGY REGUL. COMM’N, https://www.ferc.gov/enforcementlegal/legal/alternative-dispute-resolution (last visited Oct. 17, 2021).
113
Community Relations Service, U.S. DEP’T OF JUST., https://www.justice.gov/crs/our-focus (last visited Oct. 24,
2021).
114
Mediation,
Facilitation
and
Consulting
Services,
U.S.
DEP’T
OF
TRANSP.,
https://www.transportation.gov/CADR/mediation-facilitation-and-consulting (last visited Oct. 17, 2021).
115
Coastal Zone Management Act Mediation, U.S. DEP’T OF COMMERCE, available at
https://coast.noaa.gov/data/czm/consistency/media/CZMA-mediations.pdf (last visited Aug. 22, 2021).
116
PBGC Mediation Program, PENSION BENEFIT GUAR. CORP., https://www.pbgc.gov/prac/other-guidance/pbgcmediation-program (last visited Oct. 17, 2021)).
117
Mission & Organization, NAT’L MEDIATION BD., https://nmb.gov/NMB_Application/index.php/missionorganization/ (last visited Aug. 22, 2021).
118
Alternative Bargaining Processes, FED. MEDIATION & CONCILIATION SERV., https://www.fmcs.gov/services/
resolving-labor-management-disputes/alternative-bargaining-processes/ (last visited Aug. 22, 2021).
119
Alternative Dispute Resolution Services, FED. MAR. COMM’N, https://www.fmc.gov/databases-services/alternativedispute-resolution-services/ (last visited Aug. 22, 2021).
120
Alternative Dispute Resolution Overview, U.S. OFF. OF SPECIAL COUNS., https://osc.gov/Services/Pages/ADR.aspx
(last visited Aug. 22, 2021).
121
NLRB Contracts with FMCS to Provide Mediators in Board Alternative Dispute Resolution Program, NAT’L LAB.
RELS. BD.: OFF. OF PUB. AFFS. (Oct. 23, 2012), https://www.nlrb.gov/news-outreach/news-story/nlrb-contracts-withfmcs-to-provide-mediators-in-board-alternative-dispute.
122
Mediation Program, U.S. NAT’L ARCHIVES & RECS. ADMIN.: OFF. OF GOV’T INFO. SERVS.,
https://www.archives.gov/ogis/mediation-program (last visited Aug. 2, 2021).
123
John S. McCain III National Center for Environmental Conflict Resolution, UDALL FOUND.,
https://www.udall.gov/ourprograms/institute/institute.aspx (last visited Aug. 22, 2021).
124
Negotiation Impasse, U.S. FED. LAB. RELS. AUTH., https://www.flra.gov/cases/negotiation-impasse (last visited
Aug. 22, 2021).
125
EB—Market Disputes Resolution Division, FED. COMMC’NS COMM’N, https://www.fcc.gov/general/eb-marketdisputes-resolution-division (last visited Aug. 22, 2021).
126
Alternative
Dispute
Resolution,
FED.
ELECTION
COMM’N,
https://www.fec.gov/legalresources/enforcement/alternative-dispute-resolution (last visited Oct. 1, 2021).
127
Questions And Answers About Mediation, U.S. EQUAL EMP. OPPORTUNITY COMM’N,
https://www.eeoc.gov/questions-and-answers-about-mediation (last visited Aug. 22, 2021).

20

solution by probing their interests.128 Four agencies use evaluative mediation, which is a process
modeled on settlement conferences held by judges. An evaluative mediator assists the parties in
reaching resolution by pointing out the strengths and weaknesses of their cases and predicting
what a judge or jury would be likely to do.129 Two agencies use transformative mediation, which,
in contrast with the other forms of mediation that focus on problem-solving, is focused on
fostering the parties’ “empowerment” to participate and “recognition” of the other party.130 The
theoretical underpinnings of transformative mediation assume that people in conflict are more
self-absorbed and unable to see the conflict partner clearly. This model attempts to shift the
mindsets of the participants by first building up the participants (“empowerment”) to give them
the ability to understand the conflict from the other perspective and repair the relationship
(“recognition”). The goal of transformative mediation is first to move the relationship forward
and less to resolve the underlying dispute.131 Six agencies leave the choice of style to the
mediator.
FMCS, the NMB, and the Federal Maritime Commission use arbitration in addition to
mediation.132 The Federal Labor Relations Authority is notable in that it also uses “med-arb” in
which if any issues are unresolved after mediation, the mediator serves as arbitrator.133
A dozen agencies we considered have ombuds services. Some of these and other
agencies, such as the Federal Deposit Insurance Corporation, use ombuds services for both
program ADR and internal ADR.
Finally, seven agencies deploy facilitation: the DOI, the Department of Education, and
the Department of Transportation, as well as the Environmental Protection Agency (EPA),
FMCS, the National Center, FERC and the U.S. Army Corps of Engineers.134 The Office of
Inspector General at the Department of Defense offers mediation and facilitation in a program

128
Katie Shonk, Types of Mediation: Choose the Type Best Suited to Your Conflict, Harvard L. Sch.: Program on
Negot. (Aug. 9, 2021), https://www.pon.harvard.edu/daily/mediation/types-mediation-choose-type-best-suitedconflict/.
129
Diane Cohen, Evaluative Mediation, MEDIATE.COM (Mar. 2011), https://www.mediate.com/articles/
CohenDbl20110321.cfm.
130
Brad Spangler, Transformative Mediation, BEYOND INTRACTABILITY, https://www.beyondintractability.org/
essay/transformative_mediation (2003).
131
Id.
132
Arbitration and the Arbitrator Roster, FED. MEDIATION & CONCILIATION SERV., https://www.fmcs.gov/services/
arbitration/ (last visited Aug. 23, 2021); Arbitration Overview, NAT’L MEDIATION BD., https://nmb.gov/
NMB_Application/index.php/arbitration-overview/ (last visited Aug. 23, 2021); Alternative Dispute Resolution
Services, supra note 75.
133
Mediation-Arbitration (“Med-Arb”), U.S. FED. LAB. RELS. AUTH., https://www.flra.gov/fsip_drpg_4c (last visited
Aug. 23, 2021).
134
CPRC Services, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/adr/cprc-services (last visited Aug. 23, 2021);
Facilitation, FED. MEDIATION & CONCILIATION SERV., https://www.fmcs.gov/services/alternative-dispute-resolutionfor-government/facilitation/ (last visited Aug. 23, 2021); Office of Collaborative Action and Dispute Resolution, supra
note 112; Alternative Dispute Resolution, supra note 115; Mediation, Facilitation and Consulting Services, supra note
109; John S. McCain III National Center for Environmental Conflict Resolution, supra note 123; Collaboration and
Public
Participation
Center
of
Excellence,
U.S.
ARMY
CORPS
OF
ENGINEERS,
https://www.iwr.usace.army.mil/About/Technical-Centers/CPCX-Collaboration-Public-Participation/ (last visited
Oct. 27, 2021).

21

that is unique in the Federal Government: helping to resolve whistleblower reprisal cases against
DOD components.135
At least a handful of agencies including the DOI, Department of Education, Department
of Justice, as well as the Nuclear Regulatory Commission (NRC), the EPA, and the National
Labor Relations Board (NLRB) offer still other forms of ADR.136 Some use multiple modalities
in combination, and a few offer a menu of modalities from which either participants or agency
staff then select. For instance, the Federal Communications Commission (FCC) offers mediation
at three different stages of its adjudicative process: in addition to offering mediation for the
resolution of complaints, it has an informal pre-complaint mediation process offered to parties
who initially contact the FCC about potentially filing a complaint and an informal complaint
mediation process for those in the process of filing a complaint, which tolls the limitations period
for six months.137 The EPA Environmental Appeals Board (EAB) employs a process in which all
parties to a case first receive a confidential evaluation by an off-panel EAB Judge of the
strengths and weaknesses of their respective positions through a process best described as ENE;
once the parties have the benefit of those evaluations, then the process shifts to mediation or
facilitation in an effort to resolve the issues identified by the parties.138 FERC also offers ENE.139
FMCS uses several modalities and also offers to tailor an ADR process to the parties’ needs.
As noted above, DSD is an important emerging part of the field of dispute resolution.
FMCS has expertise to provide design services to other agencies. According to the FMCS
website, “FMCS can assist your organization to design and develop a new alternative dispute
resolution system or to refresh your current system so that it can manage both internal and
external conflict sources.”140 In addition to assisting with the design of a program, FMCS can
also consult with federal agencies to design a process for a specific case.
Several agencies provide ADR-specific annual reports and make them available to the
public,141 but most do not. Some agencies noted that their organic statutes or the supplemental
statutes on which they rely for authority to conduct ADR do not define the scope of their chosen
modality, such as “mediation,” and the phrase “ADR” does not appear in the statutory language.
In fact, when some agencies began this work, those terms were not in common usage. Agencies

135

ADR Program for Whistleblower Reprisal Complaints, https://www.dodig.mil/Components/AdministrativeInvestigations/Alternative-Dispute-Resolution-ADR-Program-for-Whistleblower-Reprisal-Complaints/. The ADR
program has resolved nearly 200 cases since it began in 2017. Survey response from DOD OIG Whistleblower
Reprisal Investigations Directorate, Oct. 2021.
136
See, e.g., Alternative Dispute Resolution (ADR), supra note 110; Office of Collaborative Action and Dispute
Resolution, supra note 112; CPRC Services, supra note 137.
137
Interview with Rosemary McEnery, ADR Division Chief, Enforcement Bureau, FCC (Feb. 21, 2021).
138
Interview with David Hecker, Staff Attorney, EPA Environmental Appeals Board (June 8, 2021).
139
Dispute Resolution Service, FED. ENERGY REGUL. COMM’N, https://www.ferc.gov/enforcementlegal/legal/alternative-dispute-resolution/dispute-resolution-service (last visited Oct. 28, 2021).
140
Dispute
Resolution
Systems
Design,
FED.
MEDIATION
&
CONCILIATION
SERV.,
https://www.fmcs.gov/services/alternative-dispute-resolution-for-government/dispute-resolution-systems-design/
(last visited Aug. 23, 2021).
141
See, e.g., U.S. ENV’T PROT. AGENCY, ENVIRONMENTAL COLLABORATION AND CONFLICT RESOLUTION FY 2019
ANNUAL
REPORT
(2019),
https://www.epa.gov/sites/default/files/202008/documents/fy_2019_epa_eccr_annual_report_final.pdf.

22

have developed complex ADR programs and used loose fitting statutory language as the hook for
their doing so.142
Feedback and Measures of Success
Most agencies surveyed had a means for receiving feedback to measure the success of
their ADR programs. Some agencies have contracts with private parties that collect feedback
about their ADR program. Other agencies gather their own feedback.143 For example, the
ombuds at the Office of Federal Contract Compliance Programs of the Department of Labor,
provides a feedback form on its website and at the end of the fiscal year sends it to all parties that
brought a matter to the ombuds office.144 Of particular note is the National Center, which uses
various feedback forms for its facilitation participants. It will either deploy a short survey (nine
questions, each on a sliding scale)145 or a longer questionnaire with answers on sliding scales and
free-response questions.146 After the National Center conducts a mediation, it deploys its
Mediator Participant Evaluation, asking questions about the process and the neutral.147
Additionally, the Internal Revenue Manual includes a requirement that following appellate
mediation, the mediator provides the customer with a voluntary satisfaction survey with a request
to complete the survey within 30 days. The IRS additionally provides a self-addressed stamped
envelope for the customer’s convenience.148
One agency observed that after the 1996 ADRA specifically noted evaluation of ADR
programs, it began evaluating its program and sought independent academic and other
researchers to help assess the ADR program and make changes.149 Another agency commented
that it meets regularly with practitioners that appear before it and that they provide informal
feedback. In general, according to the agency, most practitioners have been very satisfied with
the program. Several agencies commented that they interpret that their programs or individual
cases are “successful” if they do not hear back from participants after the conclusion of the
mediation or other engagement. Agency comments confirmed that where an agency does not
provide an easy, readily available format to parties for giving feedback at the close of the
process, those parties are unlikely to give such feedback voluntarily.150

142

Congress can require an agency to adopt a particular variant of ADR. For example, the Affordable Care Act
mandated that HHS create a binding ADR program for claims between health care providers and manufacturers that
participate in what is known as the “340B program” which establishes price ceilings for certain covered outpatient
drugs. HHS issued the final rule establishing the binding ADR program, which resembles arbitration by a panel of
HHS officials, in December 2020. See 85 Fed. Reg. 80632 (Dec. 14, 2020).
143
Surveys deployed by or on behalf of agencies aimed at more than nine members of the public must, of course,
comply with the Paperwork Reduction Act, 44 U.S.C. § 3501 et seq.
144
Interview with Marcus Stergio, Ombuds, Office of Federal Contract Compliance Programs (June 23, 2021).
145
National Center, Meeting Facilitation Form, OMB Number: 2010-0042, 2434.54.
146
National Center, Long Term Group Facilitation Participant Questionnaire, OMB Number: 2010-0042, 2434.54.
147
National Center, Mediation Participant Evaluation, OMB Number: 3320-0004.
148
Internal Revenue Manual 8.23.3.10 (2017), https://www.irs.gov/irm/part8/irm_08-026-003 (last visited, Oct. 1,
2021).
149
Interview with Stephen Ichniowski, National ADR Coordinator, EEOC (Apr. 21, 2021).
150
Defaults (doing nothing) are sticky and people tend to stick with that, absent some kind of a nudge. See generally
RICHARD THALER AND CASS SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH AND HAPPINESS
(Penguin updated ed. 2021).

23

3. Recommendations
In this section, we provide three recommendations regarding the general practice of
selection and implementation of agency ADR.
Application of DSD principles. Agencies should apply DSD principles to be thoughtful
about their ADR modalities in light of the goals and objectives of the program. As noted above,
the different modalities are based on differing goals and philosophies. Program administrators
and designers should think carefully about whether the modality is intended to reach consensual
outcomes (such as mediation, in which the parties hold the power to accept or reject settlement
offers) or provide information and guidance to the participants (such as in factfinding, ENE,
minitrials, or even ombuds practice), to name just two. ADR programs with a goal of reducing
delay might find arbitration particularly attractive since arbitration promotes finality in ways not
provided by other processes. Elaborating on these considerations is beyond the scope of this
data-gathering study but the academic and practice literatures provide such guidance.
Fitting “the forum to the fuss” requires understanding the problem to be addressed,
designing an ADR process that addresses it, and then reviewing the results from the perspective
of stakeholders and the agency. For example, after years of a burgeoning caseload leading to a
significant backlog, in 1991, the EEOC launched a pilot mediation program in four of its
regional offices. The program was designed to capture one category of case that EEOC saw as
being both best suited for ADR and also yielding the most benefits: cases in which the charges
had possible merit but final findings were conditioned on the results of an investigation.151 At the
end of the first year, the EEOC hired a consultant to conduct a survey of participant satisfaction,
which was found to be high. Resolution rates and processing time also significantly improved.
The agency then expanded the program to all of its regions. In the ensuing years, the EEOC
conducted three studies of the expanded program: one of participant satisfaction, one of mediator
feedback, and a third survey of employers who did not use the mediation program to determine
the reason and what actions might be available to induce them to try it.152 Some of the factors
present in this example—namely a large caseload of potentially meritorious cases—likely exist
within other agencies, so this model could be piloted at other agencies and also evaluated for
success.
More recently, after a U.S. Government Accountability Office report specifically noted
the need to increase transparency and enhance communications with outside stakeholders at the
Office of Federal Contractor Compliance Programs,153 that agency began holding a series of
annual town halls during which agency stakeholders reiterated the needs for increased
transparency and enhanced communication.154 The agency response to the GAO report and the
town hall feedback was the hiring of an ombuds who could help the agency accomplish these
151

EEOC excluded from the program its two other categories of cases: those that clearly have merit at the outset, and
those that clearly do not. Studies of the Mediation Program, U.S. EQUAL EMP. OPPORTUNITY COMM’N,
https://www.eeoc.gov/studies-mediation-program (last visited Aug. 22, 2021).
152
See Studies of the Mediation Program, U.S. EQUAL EMP. OPPORTUNITY COMM’N, https://www.eeoc.gov/studiesmediation-program (last visited Aug. 23, 2021).
153
Equal Employment Opportunity: Strengthening Oversight Could Improve Federal Contractor Nondiscrimination
Compliance, GAO 16-750 (Sept. 22, 2016), https://www.gao.gov/products/gao-16-750.
154
Interview with Marcus Stergio, Ombuds, Office of Federal Contract Compliance Programs (June 23, 2021).

24

two goals while facilitating the resolution of individual disputes between the agency and
stakeholders in the short term and improving agency-stakeholder relations in the long term.
There had been such a program which had been popular at the time but was discontinued with a
change of presidential administrations. The ombuds program was created by a directive from the
agency head in 2018, and an experienced ADR professional was hired.155 The ombuds
assiduously seeks feedback from stakeholders which, so far, has been high.156
Program visibility. The visibility and ease of access to information about agency ADR
programs vary widely. Some agencies prominently display ADR program information on their
websites, have codified their ADR programs in either regulations or guidance, and have issued
press releases about their programs or otherwise publicized them.157 Other ADR programs can be
found only by targeted internet search. Some agencies have incorporated ADR into their
adjudication and/or enforcement procedures; for example, offering ADR as an option within a
notice that a complaint has been filed with the agency.158 Other agencies that offer ADR deploy
an ad hoc approach. In some instances, not only do members of the public not know about the
ADR options available to them, but some officials at some agencies did not know about available
ADR programs in other agency components.
Although some agencies remarked on how it is difficult to let participants know about
their ADR programs, others expressed concern that if interest in their ADR programs greatly
increased, they would not have enough staff to accommodate so many new cases.159 Several
agencies discussed the limitations of their programs either due to legal or personnel constraints.
Those constraints could be addressed through more reliable funding and codification of their
programs, or, if resources are limited, through interagency agreements discussed in later sections
of this report.
Accordingly, we recommend that agencies make their ADR programs readily accessible
on their websites and push information to their constituents to publicize the programs (e.g., press
releases, speeches, brochures). Even where resources are limited, these are low-cost means by
which to enhance the ADR experience. In addition, information about the option to use ADR
should be incorporated into the relevant agency processes, whether by regulation, guidance or
other vehicle that ensures that parties have consistent access to ADR.
Program evaluation and feedback. Another area for improvement is that of feedback and
evaluation. Not all agencies actively measure feedback from participants in their ADR programs.
155

Id.
U.S DEP’T OF LAB.: OFF. OF FED. CONT. COMPLIANCE PROGRAMS, 2020 ANNUAL REPORT OFCCP OMBUDS
SERVICE (2020), https://www.dol.gov/sites/dolgov/files/OFCCP/OMBUDS/ofccp-ombuds-2020-ar-508.pdf.
157
E.g., Office of Collaborative Action and Dispute Resolution, supra note 2; CFPB Ombudsman, CONSUMER FIN.
PROT. BUREAU, https://www.consumerfinance.gov/cfpb-ombudsman/ (last visited Aug. 23, 2021); FCC ADR
regulations at 47 C.F.R. 1.737; ITC Section 337 Mediation Program, Publication Number 4387 (Nov. 2018); Press
Release, Pension Benefit Guar. Corp., PBGC to Launch Pilot Mediation Project to Resolve Certain Termination
Liability
Collection
and
Early
Warning
Program
Cases
(Oct.
16,
2017),
https://www.pbgc.gov/news/press/releases/pr17-07.
158
See, e.g., 47 C.F.R. § 1.737 (FCC).
159
This particular concern is not new. Ward noted funding problems and staffing issues in her 1997 article on the 1996
enactment of ADRA. See Ward, supra note 26, at 224 (discussing funding and staffing issues).
156

25

Detailed surveys following the conclusion of ADR services would help provide additional
information to an agency as to how it could improve accessibility and outcomes. Feedback from
participants has the potential to alert agencies to both the good and the bad of a program.
Feedback is also useful for neutrals. We recommend that agencies create participant feedback
mechanisms, deploy them consistently (in compliance with the Paperwork Reduction Act), and
review the feedback periodically to improve the practice of the neutrals and the program.
Agencies should also monitor whether their feedback mechanisms are actually collecting the
information sought and modify the feedback system, if necessary.
B.

Qualifications and Selection of Personnel to Conduct and Manage ADR

None of the general umbrella statutes governing agency ADR programs elucidates
requirements with respect to personnel. This omission provides agencies with considerable
discretion as evidenced in the variety of tactics these agencies have adopted. Prior to discussing
the qualifications and selection of personnel agencies currently use, we provide some
background on possible approaches in use today.
1.

Background

This section reviews various models for selecting personnel engaged in ADR services in
communities, in state courts, and the private sector, to inform the choices available for federal
agencies.
Highly distinct models for staffing ADR services have evolved over the past few decades.
One example is that of community mediation centers, which began in the 1960s as an outgrowth
of the civil rights movement to provide neighborhoods with localized and affordable conflict
resolution services. These community mediation centers use trained community volunteers as
providers of mediation services; the practice of mediation is open to all persons.160 Professional
and educational credentials are not generally required, and the centers provide continuous
training and mentoring by more experienced mediators.161
Many states and the District of Columbia offer ADR programs through their court
systems, and all federal courts have ADR programs.162 The methods for delivery of ADR
services to the courts span a wide continuum. On one end of this continuum lie courts that
establish ADR programs within the court structure and have court staff provide ADR services. In
the middle of the spectrum are courts that develop and maintain a roster of neutrals from which
160

See 9 Hallmarks of Community Mediation Centers, NAT’L ASS’N FOR CMTY. MEDIATION,
https://www.nafcm.org/page/9Hallmarks (last visited Aug. 23, 2021).
161
See Timothy Heeden, The Evolution and Evaluation of Community Mediation: Limited Research Suggests
Unlimited Progress, 22 CONFLICT RESOL. Q. 101, 117–18 (2004). The ABA Section of Dispute Resolution outlines
additional resources for ADR programs through the lens of access to justice in a white paper. ABA SECTION OF DISP.
RESOL., ACCESS TO JUSTICE THROUGH ALTERNATIVE DISPUTE RESOLUTION WHITE PAPER,
https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/access-to-justice-project-whitepaper.pdf.
162
The Alternative Dispute Resolution Act of 1998, 28 U.S.C. § 651, requires each federal district court to offer ADR
to litigants by local rule. For a summary of each district’s ADR local rule, see
https://www.justice.gov/archives/olp/file/827536/download.

26

neutrals are appointed by the court. Finally, on the opposite end of the spectrum are programs
that are outside the court system. For these types of programs, the court contracts with an outside
entity to administer the ADR program and provide services on the court’s behalf.163 As an
examination of this rich subject area is beyond the scope of this report, we briefly review two
well-regarded programs from different points on the continuum.
Connecticut’s highly successful Foreclosure Mediation Program is one example of an
ADR program staffed by full-time government employees. The program was founded in 2008 in
the wake of a tsunami of foreclosures from the recession. The state legislature provided
dedicated funding for the program, which enabled the hiring of an experienced housing mediator
to run it and mediator staff who are all lawyers in each judicial district in the state. The program
provides extensive training on both mediation and relevant aspects of federal and state housing
law.164
The District of Columbia’s Multi-Door Dispute Resolution Division, by contrast, is
staffed by volunteers. The Multi-Door program has two avenues for recruiting neutrals. New
mediators must apply and be selected for one of the programs (family, child protection, small
claims, landlord/tenant, or civil), complete a specialized training class and then complete a
mentorship. There are no professional qualifications except for civil, tax, and probate, which
require bar membership. After 40 hours of training, new mediators then must mediate three to six
cases, depending on the program, without a stipend.165 After that, the new mediators undergo a
one-year probationary period during which they can receive a stipend. The other avenue for
recruitment, open enrollment, is an application process for people who have previously
completed a basic training of at least 40 hours and have significant experience mediating cases
relevant to the court.166
In the private sphere, parties hire neutrals either by using a provider organization, such as
AAA or JAMS, or by appointing the neutral on an “ad hoc” (or one-time) basis. Membership on
AAA rosters requires significant experience,167 and parties pick neutrals who work as
independent contractors.168 JAMS also uses a panel system—the use of a standing roster of
qualified individuals—to appoint arbitrators and mediators for service in individual cases.169

163

How Do Courts Use ADR?, RESOL. SYS. INST., https://www.aboutrsi.org/resource-center/how-do-courts-use-adr
(last visited Aug. 23, 2021).
164
Interview with Hon. Douglas C. Mintz (ret.), Judge, Connecticut Superior Court (June 18, 2021).
165
Stipends may be per case or per hour depending on the program and range from $50 to $200 per case, and from
$25.00 to $40.00 per hour, with set rates for certain types of proceedings.
166
SUPER. CT. OF THE D.C.: MULTI-DOOR DISP. RESOL. DIV., 2019 PROGRAM SUMMARY 6 (2019),
https://www.dccourts.gov/sites/default/files/MultiDoor-PDFs/MultiDoor-2019-Program-Summary.pdf.
167
American
Arbitration
Association,
AAA
Panel
of
Mediators
Qualification
Criteria,
https://adr.org/sites/default/files/document_repository/AAA%20National%20Roster%20of%20Mediators%20Qualif
ication%20Criteria.pdf (“A minimum of 10 years of senior-level experience in business, industry or a profession”)
(last visited Aug. 23, 2021).
168
See Arbitrator Selection, AM. ARB. ASS’N, https://www.adr.org/ArbitratorSelection (last visited Aug. 23, 2021);
Mediation, AM. ARB. ASS’N, at https://www.adr.org/Mediation (last visited Aug. 23, 2021).
169
JAMS Comprehensive Arbitration Rules and Processes, Rule 15, at https://www.jamsadr.com/rulescomprehensive-arbitration/#Rule-15.

27

Ombuds offices generally fall within one of three categories, and the type of ombuds
office determines the staffing. The “classic” ombuds offices are those that respond to citizen
complaints and consist of governmental employees, and these offices are most commonly found
within state governments.170 Many classic ombuds offices take issues, complaints, or concerns
across government agencies.171 Classic ombuds offices may take complaints on a wide variety of
topics, such as prison conditions, denials of statutory benefits, or claims of delays in responding
to individuals. An “advocacy” ombuds office is often a governmental agency usually tasked with
receiving complaints from and helping consumers within an industry, such as health care.172 For
example, a long-term care ombuds takes complaints on behalf of residents and attempts to
resolve them. Finally, “organizational” ombuds are usually employees of the organization tasked
to handle conflict management issues relevant to the organization.173 Organizational ombuds
offices may resolve issues internal to the organization, such as personnel matters, or external to
the organization, such as customer complaints. All of the ombuds offices discussed in this report
fall into the category of organizational ombuds, and this report only covers the programs that are
external facing.
2.

Agency Practices

This section describes how ADR programs have organized their staff, particularly their
neutrals, and what they require of them.
Qualifications of Neutrals and ADR Staff
Although there are no specific federal requirements for qualifications of ADR staff, the
Interagency ADR Working Group has developed guidance on Criteria for Mediator and Quality
Control.174 While the information collected (in 2002) is somewhat dated, the considerations for
hiring neutrals remain useful today. For example, the guidance reviews levels of credentialing,
such as a tiered approach with basic and advanced levels of knowledge, skills and abilities. It
describes training requirements focused on classroom preparation and assessment, education
requirements at college level or above, and experience measured in a minimum number of cases
and/or number of hours in mediation. Other categories include monitoring or supervision prior to
credentialing and using a mock mediation as part of a skills assessment for candidates. Although
agencies differ in which of these requirements make sense for their programs given their size,
funding level, and technical knowledge requirements, the elements described in the guidance are
useful considerations in creating a staffing plan.
170

See,
e.g.,
Public
Counsel
(Ombudsman’s
Office),
NEB.
OFF.
OF
PUB.
COUNS.,
https://nebraskalegislature.gov/divisions/ombud.php (last visited Aug. 23, 2021) (outlining duties of the
Ombudsman’s Office).
171
Id.
172
See, e.g., Office of the State Long-Term Care Ombudsman, IOWA DEP’T OF AGING, https://iowaaging.gov/statelong-term-care-ombudsman (last visited Aug. 23, 2021) (describing services provided to Iowans who have complaints
or concerns about long-term care services provided in the state).
173
See, e.g., University Ombuds Office, OR. STATE UNIV., https://ombuds.oregonstate.edu/ (last visited Aug. 23, 2021)
(describing services provided to the campus community).
174
Interagency Alt. Disp. Resol. Working Grp., Criteria for Mediator Credentials and Quality Control,
https://www.adr.gov/criteria-mediator-credentials.html (last visited Aug. 23, 2021). The guidance was prepared using
the ABA Section of Dispute Resolution Task Force on Credentialing “Report on Mediator Credentialing and Quality
Assurance” (2002), which looked at a group of five federal and seven state/local mediation programs.

28

Otherwise, agencies generally have been left to their own devices to develop position
descriptions for neutrals. We identified only a sampling of those descriptions from which it is
difficult to generalize. For example, we found three neutral position descriptions in the Office of
Personnel Management library based on a mediator position in labor relations specifically
limited to use by the FMCS and the NMB.175 The minimum qualifications for the position
include full-time experience utilizing the concepts and theories of collective bargaining
alternative dispute resolution, negotiation and/or conflict resolution, while serving in the role of
lead or second chair spokesperson, benefits expert, mediator, consultant or trainer. The three
positions reflect different levels of experience qualify for progressively higher pay levels. More
recently, the EEOC posted a position for an “ADR Mediator,” at the GS-12 level. The posting
does not require any specific type of educational background but does require at least one year of
experience in employment-related ADR.176
The COFO’s Unified Model for Developing an Ombudsman Program provides an
example of an ombuds staff position description, from the Department of Education’s Federal
Student Aid Office of the Ombudsman.177 The requirements focus on knowledge such as in the
application of qualitative and quantitative methods for assessment of program effectiveness, and
skills such as ability to negotiate effectively with management to accept and implement
recommendations, and ability to maintain confidentiality and neutrality.178 A recent posting for
an associate ombuds at the Department of Energy was advertised at the GS-15 level, requiring at
least one year of ADR experience. The posting did not include any specific educational
requirements.179
Thus, agencies largely have tailored their standards for the qualifications of neutrals to
their particular needs.

175

U.S. OFF. OF PERS. MGMT., POSITION CLASSIFICATION STANDARD FOR MEDIATION SERIES, GS-0241 2-3,
https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-general-schedulepositions/standards/0200/gs0241.pdf (last visited Nov. 3, 2021).
176
ADR Mediator, USAJOBS, https://www.usajobs.gov/GetJob/ViewDetails/607025300 (last visited Aug. 23, 2021).
177
The Coalition of Federal Ombudsman (COFO) is the principal interagency forum that provides collaboration,
advice and guidance on professional ombuds standards, skills development, program development, and effectiveness.
See Charter, COAL. OF FED. OMBUDSMAN, https://federalombuds.ed.gov/s/charter (Sept. 30, 2013). The Unified
Model is an extensive guidebook developed by COFO in 2006 to assist agencies in creating and developing ombuds
office.
It
is
available
at
https://fsaocts.my.salesforce.com/sfc/p/#t0000000Gyiq/a/t0000000Y8Go/n_VK.eEGPgM4n26w.H7mi4ue8j496DE
PLGV9TOg0vS0.
178
Section 141 of the 1998 Amendments to the Higher Education Act of 1965 created a new organization to manage
the delivery of federal student financial assistance, which included within it a Student Loan ombudsman appointed by
the Chief Operating Officer in consultation with the Secretary of Education. The role of the ombuds is to attempt to
resolve complaints from borrowers including with the Department of Education and with institutions of higher
education, lenders, guaranty agencies, loan servicers and other participants. The office is staffed solely by federal
employees. Employees participate in training on conflict resolution, managing challenging customers interactions,
student loan eligibility and participation requirements.
179
Associate Ombudsman, USAJOBS, https://www.usajobs.gov/GetJob/ViewDetails/606860000 (last visited Aug. 23,
2021).

29

Employment Status and Contractual Systems for ADR Staff
We discovered four different approaches for staffing and managing the ADR function at
federal agencies, as well as several combinations of them. They include: using the agency’s own
federal employees, contracting with another federal agency to use its employees, contracting
with the private sector, and maintaining a roster of pre-qualified neutrals from which the parties
can make their own selection. Some agencies use combinations of the approaches; we found a
few agencies using all of them.
(a) Agencies Using Full Time Federal Employees
Many agencies employ full time federal employees as neutrals. In some agencies, the
neutrals are all attorneys. They are experts in the agency’s laws and regulations and have
mediation experience and training or obtain experience while employed as agency counsel. For
example, by regulation, the FCC provides for mediation for the pre-complaint, informal
complaint, and formal complaint stages of common carrier and pole attachment disputes under
the Communications Act of 1934.180 The mediation function is located in the FCC Market
Disputes Resolution Division of the Enforcement Bureau, which is also ultimately responsible
for adjudication of such complaints. The ten mediators are all experienced lawyers who also
handle FCC adjudications.181 All have been trained in conflict resolution. Similarly, the NLRB’s
Office of the Executive Secretary has five attorney-mediators who handle mediation for cases
that are pending on appeal to the Board.182
In a few agencies, administrative law judges sometimes serve as neutrals. The NLRB’s
Office of Administrative Law Judges has a program in which an administrative law judge (ALJ)
not assigned to the case serves as “settlement judge.” ALJs serve as settlement judges depending
on their availability. The EPA Environmental Appeals Board similarly assigns a non-presiding
Appeals Board Member as a “settlement judge” and pairs that neutral with a staff attorney who
acts as a second neutral for the case.
In several agencies, neutrals come from many different fields. They are required to have a
certain level of ADR experience and knowledge of the agency’s governing law and practice. The
EPA’s Conflict Prevention and Resolution Center is located in the agency’s Office of General
Counsel but works with environmental collaboration and conflict resolution specialists located in
all ten EPA regions to help deliver services in support of regional programs. While many of
these specialists are attorneys, some come from other EPA areas of expertise including public
involvement, environmental justice, and enforcement.183 The EEOC requires particular
professional credentials but has tailored the mediator position description to include
requirements relevant to EEOC practice, i.e., five years of EEO- and EEOC-related experience
and two years of EEOC-specific experience.184

180

57 C.F.R. § 1.737.
Interview with Rosemary McEnery, ADR Branch Chief, Enforcement Bureau, FCC (Feb. 21, 2021).
182
Survey response from NLRB, Dec. 2020.
183
See Conflict Prevention and Resolution Center, supra note 104.
184
Interview with Stephen Ichniowski, National ADR Coordinator, EEOC (Apr. 23, 2021).
181

30

Agencies in this group tend to seek a combination of ADR experience, training, and
education when hiring neutrals. This flexibility enables agencies to hire neutrals at different
levels, which enhances succession planning, as does the existence of basic neutral training,
which is discussed in the next section of this report. One interesting example of a flexible
approach is the Office of Collaborative Action and Dispute Resolution at the DOI, which houses
both environmental and workplace neutrals and enables them to cross-train with one another.185
Another is the OSC, which permits its attorneys in other units to be trained in mediation and
serve as collateral duty mediators when needed.186
Minimum competency levels may be achieved through careful crafting of neutral
qualifications. FMCS, for instance, has rigorous requirements to be on its arbitration roster,
including the submission of five letters of reference and five recently drafted arbitration
awards.187 To become an FMCS “shared neutral,” the prospective mediator must provide
documentation of mediation training, two letters of recommendation, and complete an
application form describing the mediator’s training and experience.188 Other agencies reported
backgrounds in conflict resolution or other training to be a neutral. The ACUS Ombuds Report
recommended that the federal ombuds be purposeful in crafting job descriptions and
qualifications in part, to ensure the quality of the program.189
As might be expected, agencies with a primary mission relating to ADR have the most
developed ADR personnel practices since neutrals make up much of their labor force. There are
three federal agencies with primary missions relating to ADR: the NMB, FMCS, and the
National Center.
NMB’s mission is to support labor peace in the airline and railway industries by
providing representation, mediation, and arbitration services for labor/management disputes.
NMB has separate offices for mediation and arbitration. Its mediation office is staffed by federal
employees. It recently expanded its mission to include the provision of other ADR training and
education to its constituents. NMB includes information about its mediators on its website.190 All
are experienced labor relations professionals from the airline or railway industries; of the ten
neutrals, only two are lawyers. NMB does not employ its own arbitrators but contracts for them,
discussed in more detail below.
FMCS has organized its delivery of ADR services in four offices. The Office of
Arbitration and Shared Neutrals oversees its arbitration program, which is not staffed by federal
employees but by a roster of outside professionals, discussed in more detail below. Mediation is
the agency’s core program. FMCS’s approximately 150 mediators work within the three offices
185

See Office of Collaborative Action and Dispute Resolution, supra note 109.
Survey response from OSC, Dec. 2020.
187
Information on Joining the Arbitration Roster, FED. MEDIATION & CONCILIATION SERV.,
https://www.fmcs.gov/services/arbitration/information-joining-arbitrator-roster/ (last visited Aug. 23, 2021).
188
Mediator Profile/Application, FED. MEDIATION & CONCILIATION SERV., https://www.fmcs.gov/wpcontent/uploads/2018/11/SN-Mediator-Profile.pdf (last visited Aug. 23, 2021).
189
ACUS Ombuds Report, supra note 66, Part 4, at 12 (while not recommending a single job qualification, the Report
noted the importance of things such as job descriptions and qualifications).
190
The Mediators, NAT’L MEDIATION BD., https://nmb.gov/NMB_Application/index.php/the-mediators/ (last visited
Aug. 23, 2021).
186

31

of the Division of Agency Initiatives: the Office of Conflict Resolution, the Center for Conflict
Resolution Education, and the Office of Strategy Development.191 All mediators have extensive
experience in both dispute resolution and, usually, labor relations. Once hired, they participate in
a five-week training program on FMCS services followed by extensive monitoring on the job.
The National Center serves as an ADR resource for Environmental Collaboration and
Conflict Resolution (ECCR) cases. Its eleven employees conduct mediations, facilitations, and
training. They are experienced neutrals, who are hired based on a combination of experience and
education in conflict resolution and environmental issues. Biographies of all the staff are on the
agency website.192 To leverage its resources, the National Center recently issued a call for
proposals for a training contract. The National Center also maintains a roster for self-referrals,
discussed below.
(b) Interagency Agreements
Some agencies enter into agreements with other agencies to provide neutrals and/or ADR
training either through a standing program or through orders for a service on a case-by-case
basis. In general, the interagency agreement function is overseen at the requesting agency by a
program manager who acts as the gatekeeper to the ADR process and contacts the supplying
agency when a neutral is needed. Due to federal budgeting and contracting requirements,
interagency agreements usually are renewed each year and the annual renewal process includes a
review of performance. Quality control is maintained through various feedback mechanisms such
as debriefing of participating staff and surveys to outside participants.
Interagency agreements to obtain the services of external neutrals have been used to
avoid conflicts of interest (or appearances of conflict) when an agency has an interest in a dispute
or is a party to a dispute. For example, in environmental disputes, agencies can have a conflict or
appearance of a conflict if they are potentially financially responsible for damage resulting from
their activities or can have claims that compete with those of private entities that require them to
step out of the ADR process. There also can be interagency cross-jurisdictional issues, that is,
where more than one agency has jurisdiction to decide an issue arising in a matter, such as
permitting. Also in such cases, there may be a need for specific expertise that another agency
has.193
Another reason agencies obtain the services of external neutrals through interagency
agreements is to assure neutrality. Outside parties in conflict with an agency may feel that the
agency’s personnel cannot be genuinely neutral. Outside parties also may be concerned about
agency contractors whose continued relationship with the agency depends on a good evaluation
of their performance.

191
See
Division
of
Agency
Initiatives,
FED.
MEDIATION
&
CONCILIATION
SERV.,
https://www.fmcs.gov/aboutus/agency-departments/division-of-agency-initiatives/ (last visited Aug. 23, 2021).
192
See About Us: Meet Our Staff, UDALL FOUND., https://www.udall.gov/AboutUs/MeetOurStaff.aspx (last visited
Aug. 23, 2021).
193
Interview with Stephanie Kavanaugh, Deputy Director, National Center (Dec. 21, 2020).

32

Small agencies and those with a relatively small demand for ADR have reported that
interagency agreements to obtain the services of external neutrals or training have been useful
because they are less expensive and easier to administer than private sector contracts and create
few, if any, conflict issues. Moreover, the receiving agency can often arrange for training for
program staff from trainers that understand how federal agencies function. For example, one
agency with a relatively new administrative enforcement ADR program contracted with FMCS
to provide it with mediators and to train program staff who would be participating in the
mediations on the agency’s behalf.194 Interagency agreements also sometimes supplement inhouse mediators when caseloads fluctuate. FMCS mediators supplement ADR personnel from
the Department of Education’s Office of Hearings and Appeals, for example.195 FMCS mediators
also supplement ADR staff that mediate federal sector employee discrimination complaints
within its Office of Hearings and Appeals, when needed.196
In some instances, agencies have preferred not to use interagency agreements where, for
example, neutrals need subject-matter expertise, including the expertise to know that a particular
case is not suitable for ADR. Other agencies have preferred to develop in-house ADR expertise.
(c) Private Contractors
We found two general types of contracts used by agencies to obtain private neutrals. The
first is what is basically an on-call service contract under which services can be ordered during
the contract period. The second type of contract is a standalone and separate contract with an
individual neutral or neutrals.
An Indefinite Delivery Indefinite Quantity contract (IDIQ) is the vehicle used for on-call
services. Awards are usually for a specified number of base years with renewal options
(generally limited to five years in total). The government places task orders against a basic
contract for individual requirements. Exact dollar amounts for minimums must be named when
the contract is awarded. An IDIQ can be awarded to multiple vendors.197
IDIQs are efficient vehicles for larger programs. The EEOC ADR program is quite large;
according to EEOC’s 2020 Annual Report, 9,036 mediations were conducted during fiscal year
2020.198 EEOC also uses an IDIQ contract methodology for placement on its contractor roster
and the field offices have authority to decide who qualifies and how many people to keep on the
roster. There is a maximum of 31 mediations any one contact mediator can be assigned and an
annual cap on compensation.199 DOI and EPA both use IDIQ contracts to supplement their
federal staff neutrals. The contracts are overseen by full time contracting officer representatives
and thus subject to the record-keeping, reporting, and evaluative requirements of federal
acquisition regulations.200
194

Interview with Kartar Khalsa, Deputy General Counsel, PBGC (Apr. 12, 2021).
See Survey response from Department of Education, Dec. 2021.
196
Interview with Stephen Ichniowski, National ADR Coordinator, EEOC (Apr. 21, 2021).
197
See Federal Acquisition Regulation, 48 C.F.R. § 16.505.
198
See U.S. EQUAL EMP. OPPORTUNITY COMM’N, FISCAL YEAR 2020 AGENCY FINANCIAL REPORT (2020),
https://www.eeoc.gov/fiscal-year-2020-agency-financial-report-us-equal-employment-opportunity-commission.
199
Interview with Stephen Ichniowski, National ADR Coordinator, EEOC (Apr. 21, 2021).
200
See Federal Acquisition Regulation, supra note 197.
195

33

When the agency has a role in selecting the neutral for a particular case, it may choose to
contract directly with individuals. This is the approach taken by the NMB for arbitrators in
railroad labor disputes involving what are termed “minor grievances” where arbitration is
compulsory and the NMB is required to fund arbitrator services. The NMB maintains a
prequalified roster of arbitrators. To qualify for the roster, an arbitrator must have issued at least
five awards in labor-management disputes; have ten years of substantive experience in labormanagement disputes in the airline or railway industry; and ten years of experience in relevant
matters arising in dispute resolution in these industries. The arbitrator must also be a member in
good standing of the American Academy of Arbitrators. The NMB reviews the status of
arbitrators on the roster annually. When parties to a covered dispute request an arbitrator, the
NMB furnishes a panel from which to choose, and ultimately issues a certificate of appointment
and a compensation letter to the selected arbitrator, explaining their status as an independent
contractor, and setting the rate of compensation and expenses.201 Biographies of all roster
members are on the NMB website.202
For these agencies, contracting with ADR professionals has been an effective way to
obtain the services of skilled and experienced neutrals on as-needed basis. They have been
shown to be useful because they can be scaled up and down in response to demand and the
budgetary environment. One difficulty with contracts, however, that agencies have noted is the
need to competently oversee the contracts and maintain sufficient knowledgeable personnel to
make decisions about suitability of cases for ADR. Management of the contractual system, a role
that typically remains with agency staff, has required leadership and expertise.
(d) Rosters
Some agencies have leveraged their resources to expand access to ADR by creating
rosters of neutrals. These are listings of pre-qualified individuals from outside the agency that
parties can choose to serve in their case. They may be independent contractors with the agency,
or contract directly with the parties.
Agencies have used rosters in highly creative ways. For example, some agencies have
used rosters to extend their reach, employing individuals outside the agency to help address
burgeoning caseloads. FMCS maintains a roster of about 1,000 arbitrators for labor-management
disputes. Admission to the roster requires an application that demonstrates experience,
competence, and acceptability in decision-making roles in labor relations disputes or extensive
and recent experience in relevant collective bargaining positions. Roster candidates also must
demonstrate capability for conducting an orderly hearing and preparing clear and concise awards
within reasonable time limits. Applications are reviewed by the agency’s Arbitrator Review
Board, which makes recommendations to the agency director.203
201

See U.S. GOV’T ACCOUNTABILITY OFF., GAO-B-305484, NATIONAL MEDIATION BOARD—COMPENSATING
NEUTRAL ARBITRATORS APPOINTED TO GRIEVANCE ADJUSTMENT BOARDS UNDER THE RAILWAY LABOR ACT, (2006).
202
See Arbitrator Resumes, NAT’L MEDIATION BD., https://nmb.gov/NMB_Application/index.php/arbitrator-resumes/
(last visited Aug. 23, 2021).
203
See Information on Joining the Arbitrator Roster, FED. MEDIATION & CONCILIATION SERV.,
https://www.fmcs.gov/services/arbitration/information-joining-arbitrator-roster/ (last visited Aug. 23, 2021).

34

FMCS oversees the roster to ensure compliance with FMCS policies and its Code of
Professional Responsibility for Arbitrators of Labor-Management Disputes.204 Upon request, the
agency provides panels of arbitrators experienced in labor relations the parties can select, and
can accommodate requirements such as expertise, fees, and geographic location.205 FMCS
typically receives more than 10,000 requests for arbitrator panels each year from parties to labormanagement disputes.
The International Trade Commission (ITC) has a unique roster of mediators for unfair
import investigations under section 337 of the 1930 Tariff Act. These cases usually involve
patent or registered trademark infringement and can be highly technical. The ITC maintains a
roster of pre-screened mediators who have agreed to provide a single pro bono session for these
investigations. According to the ITC, many of these mediators have served in a similar capacity
for the U.S. Court of Appeals for the Federal Circuit, as well as other federal and state court
mediator panels. Applicants must demonstrate both intellectual property and mediation expertise.
To guard against conflicts, to join the roster a mediator must not be in active practice as counsel
or amicus in any matter before the ITC.206 The Secretary of the ITC helps the parties in
mediation selection. Parties may select a mediator from the roster and before approving a
mediator, the Secretary inquires into conflicts of interest. Confidentiality is strictly enforced
through a standing protective order issued by the ITC, as well as nondisclosure agreements for
mediators, parties, and counsel. The mediation is expected to take one day, at no expense to the
parties. If the parties require additional days, they negotiate compensation with the mediator.
The EEOC also has a small number of cases (5 percent of its caseload) mediated by pro
bono mediators.207 It recruits volunteers from mediators who want to keep their skills current,
and therefore the program has a waiting list.208
The National Center maintains an online searchable database of over 300 environmental
conflict resolution professionals. Applicants must have 200 hours of experience as a neutral in a
collaborative or conflict resolution process in environmental, natural resource, and/or public
lands issue. There are also requirements for case experience, training, substantive background,
and education.209

204
See Arbitration Policies and Procedures, https://www.fmcs.gov/services/arbitration/arbitration-policies-andprocedures/ (last visited Oct. 23, 2021).
205
See id. Fees are set by the arbitrators and paid by the parties to the arbitrators; FMCS charges $35 to service online panel requests; $70 for manual processing.
206
See U.S. INT’L TRADE COMM’N, SECTION 337 MEDIATION PROGRAM: TENTH UPDATE 10 (2019),
https://www.usitc.gov/publications/337/pub4990.pdf.
207
In total, about 90 percent of EEOC mediations are done by staff, 5 percent by contractors and 5 percent by pro
bono volunteers. Interview with Stephen Ichniowski, National ADR Coordinator, EEOC (Apr. 21, 2021).
208
Id. Some attorneys mediate pro bono to meet ethical expectations to the profession See Model Rule of Professional
Conduct R. 6.1 (recommending each lawyer provide 50 hours of pro bono service each year).
209
See National Roster of ECR Professionals – Apply for Roster Membership, UDALL FOUND.,
https://udall.gov/OurPrograms/Institute/BecomeRosterMember.aspx (last visited Aug. 23, 2021). The National Center
has reported that roster searches have not met its goal for the past several years, and it is looking into ways to improve
it, including plans to migrate administrative management to a third party. (2020 PAR at 21).

35

The NMB is also frequently asked to furnish panels of arbitrators from its roster from which the
parties select a neutral for airline industry boards of adjustment.210 These boards are local bodies
that adjudicate “minor grievances” involving contract interpretation disputes between labor and
management in the airline industry. These arbitrators are paid by the parties.
3. Recommendations
This section makes four recommendations on the topic of ADR participant qualifications
for agencies considering or developing ADR programs.
Executive leadership structure. An agency’s ADR programs should be placed within the
agency’s reporting structure under committed leadership. Without support from agency
leadership, some programs have struggled to retain staff, maintain morale, and otherwise
improve their practices. Generally, agencies have structured their ADR administrative programs
in different ways that appear to work well for them. But to ensure that a program is visible both
to agency officials to promote and use, as well as to agency constituents, a program should be
placed in a reporting line to committed leadership. Having senior leadership accountable for the
program through performance measures and strategic planning goals ensures that it gets the
oversight it needs to be successful. Such leadership is also necessary to ensure the program has a
place at the table in agency budget decisions. For example, FERC moved its program to the
general counsel’s office in 2019 to enhance its visibility and accessibility.211 Given the
fundamental duty of independence central to ombuds practice, those programs may be well
suited to run outside of traditional reporting lines.212
Collection/sharing of position descriptions across agencies. Agencies would benefit from
being able to share best practices in the creation of position descriptions for their neutrals.
Having a central repository, such as the Interagency ADR Working Group, where the examples
of the various position descriptions could be housed, would likely be useful. This would give
agencies additional tools to tailor their recruiting efforts to the appropriate audience and ensure
that they are asking for the right types of talents and expertise. Such a library should include
different levels from junior to senior neutrals, to enhance employee retention and promote
succession planning.
Enhanced use of interagency agreements. Agencies that are considering “dipping their
toes” into administrative program ADR but are concerned about resources (either staffing or
contractor dollars) might consider using interagency agreements to test the concept with their
constituents. As noted above, interagency agreements are sometimes useful such as where
subject-matter expertise is not a pre-requisite for neutrals. Whether and how much to use
210

See Arbitrator Resumes, supra note 202.
See News Release, Fed. Energy Regul. Comm’n, FERC’s Dispute Resolution Service Gets New Home (June 18,
2019), https://www.ferc.gov/news-events/news/fercs-dispute-resolution-service-gets-new-home (last visited Oct. 23,
2021).
212
For example, the CFPB ombuds office maintains independence and autonomy separate from the remainder of the
agency. The CFPB Ombuds Charter specifies: “The Ombudsman’s Office is a separate office, outside of the CFPB
business lines, that will report directly to the CFPB Deputy Director with access to the Director.” Ombudsman
Charter, CONSUMER FIN. PROT. BUREAU, https://www.consumerfinance.gov/cfpb-ombudsman/ombudsman-charter/
(last visited Aug. 23, 2021). The Office of Contractor Compliance Programs ombuds reports to the agency director.
211

36

interagency agreements really depends on the types of cases an ADR program would handle,
budget and staff at the agency, and the demand for ADR. Interagency agreements may be a good
way for an agency to begin to use ADR within its programs. Pilot programs could be staffed
through interagency agreements, but those programs could be expanded with agency staff if the
size and complexity of the program warrants. Interagency agreements sometimes also function
well as a supplement to in-house staff.
Creation of rosters. Agencies that do not have rosters might evaluate whether their
programs could benefit from adding a roster of neutrals or replacing their current system with a
roster system in light of some of the unique benefits associated with them as discussed above.
Rosters also may be useful to supplement established ADR programs staffed by agency
employees. Rosters can involve pro bono obligations in appropriate circumstances.213 Sometimes
rosters function purely as a referral mechanism for ADR conducted outside the agency’s aegis.
In other instances, rosters are contractors. The variety of approaches that has worked for agencies
shows that a roster can be a flexible tool for dealing with the ADR caseload and, by seeding
more ADR professionals into administrative program disputes, can help normalize ADR as the
resort of first instance. The same caveats with respect to interagency agreements and contracting
(e.g., maintaining in-house ADR expertise), though, remain applicable for agencies considering
rosters.
C. Training Procedures for ADR Personnel
Training procedures, like other components of ADR programs across the executive
branch, vary considerably. Some agencies provide no training and instead rely on the expertise of
the individuals that serve as ADR neutrals. Other agencies require extensive training. We asked
each agency to tell us about the training it has in place, how often that training is conducted and
for whom, what types of topics are covered and by whom, and how such trainings are evaluated.
We also reviewed the publicly available reports filed by the environmental agencies214 reporting
on multiple metrics of their ADR program, including training.
1. Background
The academic and policy literature varies as to the nature and extent of training for ADR
professionals that it recommends. In the 1990s, some advocates sought to require licensure,
minimum qualifications, and specific educational standards,215 yet with the exception of basic
training in ADR processes and on-the-ground experience for neutrals that handle state court
213

In general, unless it has express statutory authorization, an agency may accept voluntary services only pursuant to
an advance written agreement stating the services are offered without expectation of payment and expressly waiving
any future pay claims against the federal government. See U.S. GOV’T ACCOUNTABILITY OFF., GAO-B-324214,
DEPARTMENT OF TREASURY – VOLUNTARY SERVICES (2014).
214
Environmental agencies are uniquely situated due to the public reporting requirement that we describe below.
ECCR casework has been most concentrated at four of the reporting agencies: EPA, DOI, FERC, and the US Army
Corps of Engineers, as well as at the National Center.
215
See, e.g., Bobby Marzine Harges, Mediator Qualifications: The Trend Toward Professionalization, 1997 B.Y.U
LAW REV. 687, 714 (1997) (recommending continuing the conversation towards minimum qualifications for
mediators); Theodore A. Levine & Peter R. Cella, Arbitrator Training and Selection, 63 FORDHAM L. REV. 1679,
1681 (1995) (discussing current trends in arbitration training).

37

cases, that push appears to have slowed. This change in direction occurred largely to ensure
flexibility for specific programs (particularly pro bono programs, such as small claims programs)
and diversity among conflict resolvers across not only racial and socioeconomic backgrounds,
but also among professional backgrounds (legal, social science, mental health, human resources,
etc.).216 To further complicate the question, little research exists on the effectiveness of training,
and the research that does exist does not lead to clear answers.217
Despite the lack of clear consensus,218 some trends have evolved over the last 30 to 50
years regarding training for ADR professionals. These standards draw upon requirements from
court programs, state statutes, and professional organizations.219 The remainder of this section
considers those private and public sector trends in the areas of arbitration, mediation, and
ombuds practice.
Arbitration
Historically, arbitration relied more on arbitrator qualifications in areas such as
experience as a trial judge or magistrate to ensure quality as an arbitrator.220 This trend has
largely continued to this day, with arbitration programs focusing more on qualifications than
training, except the Financial Industry Regulatory Authority (FINRA) arbitration roster handling
securities disputes.221
FINRA has the least stringent arbitrator requirements, which is intentional to maintain a
public roster of arbitrators with no professional connections to the securities industry.222 FINRA
suggests that applicants have “five years of paid business and/or professional experience—inside

216

Stephanie A. Henning, A Framework for Developing Mediator Certification Programs, 4 HARV. NEGOT. L. REV.
189, 199-200 (1999) (discussing the role of diversity as it relates to minimum standards and qualifications for
mediators).
217
See Art Hinshaw & Roselle Wissler, How Do We Know that Mediation Training Works?, 12 No. 1 DISP. RESOL.
MAG. 21, 21-22 (ABA Publishing 2005) (discussing the scant available information on effectiveness of training for
mediators).
218
In the mid-2000s, the Association for Conflict Resolution (“ACR”) attempted to set forth a uniform standard of
mediator qualifications and competencies. After an unsuccessful attempt, the ACR shifted its focus and instead
published standards on how to certify mediation programs. ASS’N FOR CONFLICT RESOL., MODEL STANDARDS FOR
MEDIATOR
CERTIFICATION
PROGRAMS
(2011),
https://cdn.ymaws.com/acrnet.org/resource/resmgr/docs/ModelStandardsCertification.pdf.
219
The nonprofit Mediator Certification Consortium of California launched a voluntary certification program in 2019.
Certification requirements include experience, adherence to ethical standards and model rules, and continuing
education. See Southern California Mediation Association, Mediator Certification – MC3,
https://scmediation.org/page/mediator-certification-program (last visited Oct. 1, 2021).
220
Joseph B. Stulberg, Training Interveners and Processes, 81 KY. L. REV. 977, 980 (1993) (“The presumption was
that all arbitrators possessing the requisite professional training and experience would be familiar with trial court
processes and relevant legal guidelines, as well as know how to research and analyze relevant legal materials.”).
221
We note that FINRA is a private corporation, not a government agency, but given its regulatory role and its arbitral
experience, we discuss its practices for reference.
222
For the purposes of this Report, we consider FINRA’s ADR activities to provide useful background information.
Although the SEC must give final approval to all FINRA rules, see FINRA Rulemaking Process, FIN. INDUS. REGUL.
AUTH., https://www.finra.org/rules-guidance/rulemaking-process (last visited Aug. 23, 2021), FINRA is a selfregulatory organization registered with the SEC as a national securities association.

38

or outside of the securities industry—and at least two years of college-level credits.”223 After
selection to the FINRA roster, arbitrators must complete a mandatory training session, and
additional voluntary training opportunities are also available.224
By contrast, most private rosters of arbitrators rely heavily on qualifications and
secondarily on in-house training. The AAA has extensive requirements to serve on its rosters,
including 10 years of “senior level legal, business or professional experience,” among other
qualifications.225 AAA also requires in-service training for new arbitrators.226 The arbitration
requirements of other major providers, including JAMS, are not publicly available, and those
organizations ask prospective arbitrators to contact their local offices to obtain more information
about addition to the roster.
People who wish to become arbitrators can also look to the private marketplace to receive
training in arbitration. For example, the ABA Section of Dispute Resolution offers an Arbitration
Institute, usually a multi-day training event covering important topics in arbitration practice, such
as managing discovery, running hearings, drafting awards, and case management.227 The AAA
makes its extensive training library open to both AAA panelists and the public.228 These types of
programs can also be used to train arbitrators in state or federal programs.
Mediation
The greatest amount of literature regarding training exists in the area of mediation,
although even the mediation training literature is sparse and inconsistent.229 Few mediation
programs require specific educational backgrounds, but many programs target mediators with
degrees in law, conflict resolution, education, or social sciences.230 Despite this lack of research,
the clearest trend in mediation training is the requirement for some sort of mediation training
class, usually around 40 hours, although the hour requirement differs from program to

223

Become an Arbitrator Frequently Asked Questions (FAQ), FIN. INDUS. REGUL. AUTH.,
https://www.finra.org/arbitration-mediation/become-arbitrator-frequently-asked-questions-faq (last visited Aug. 23,
2021).
224
Id.
225
Qualification Criteria for Admittance to the AAA National Roster of Arbitrators, AM. ARB. ASS’N 1,
https://www.adr.org/sites/default/files/document_repository/Qualification_Criteria_for_Admittance_to_the_AAA_N
ational_Roster_of_Arbitrators.pdf (last visited Aug. 23, 2021) (discussing requirements for inclusion on the roster).
226
AAA Offers New Training for Arbitrators, DISP. RESOL., Jan. 2001, 5 (2001) (noting training requirements for AAA
arbitrators). The AAA Consumer Due Process Protocol Statement of Principles discusses the importance of neutral
competency and training. AAA, Consumer Due Process Protocol Statement of Principles, at 16 (1998),
https://www.adr.org/sites/default/files/document_repository/Consumer%20Due%20Process%20Protocol%20%281
%29.pdf.
227
See, e.g., 2021 Dispute Resolution Arbitration Training Institute, AM. BAR ASS’N SECTION OF DISP. RESOL.,
https://web.cvent.com/event/285fd4a2-ae29-48f0-840f-0642f77f25ce/summary (last visited Aug. 23, 2021) (outlining
2021 training program).
228
Education Services, AM. ARB. ASS’N, https://www.aaaeducation.org/courses/ (last visited Aug. 23, 2021).
229
Susan Raines et al., Best Practices for Mediation Training and Regulation: Preliminary Findings, 48 FAM. CT.
REV. 541, 541-43 (2010) (summarizing the literature on mediator training and qualities of successful mediators).
230
See, e.g., How to Become a Florida Supreme Court Certified Mediator: A Step-by-Step Guide, at
https://www.flcourts.org/content/download/526739/file/HowToBecomeAMediatorGuideJuly2021.pdf.

39

program.231 For mediators who work in specific areas of law, some researchers suggested a core
24 hours of mediation training, followed by 20 hours of training in a specialized area (such as
court mediation or family mediation, etc.).232 These programs are considerably shorter than other
types of professional training – and well short of any training required for most professional
licenses.233
Mediation training usually focuses on learning the mediation process as well as the skills
necessary to navigate the process. Programs may also include modules on mediation theory, as
well as background in law specific to the program. The use of role play exercises is required in
most mediation training programs.234 Role play exercises give new mediators the chance to
practice new skills in a low-risk environment. In addition, role play exercises give new mediators
the chance to debrief in small mediation groups, as well as large groups as instructors debrief
with the entire class. Ethics is also an important training component required in most mediation
training programs.235
Mediation programs usually require training prior to inclusion on a roster. FINRA, for
example, seeks neutrals with multi-day training (including role play experience) and experience
as a mediator among its mediator qualifications.236 Most court-connected mediation programs
involve training requirements.237 Finally, many mediation programs require continuing
education, sometimes called “continuing mediator education.”238
Ombuds Practice
Compared to arbitrators and mediators, many ombuds receive their first training after
being hired for the position. While mediators and arbitrators in the private sector often serve as
independent contractors, ombuds are overwhelmingly employees of the organization they serve.
Like other ADR professionals, ombuds come from a variety of professional backgrounds,

231

The State of Florida has the most comprehensive set of mediation qualification and training standards in the United
States. The educational requirement for court mediators ranges at a low of 20 hours of training for county court to a
maximum of 40 hours of training for most other types of mediation. Supreme Court of Florida, No. AOSC17-25,
Mediation Training Standards and Procedures Including Appointments to the Mediation Training Review Board,
Standard 2.01 (2011) (governing length of training); see also Sheila Purcell & Janet Martinez, Mediators in the Field:
Experiences from Around the Globe, DISP. RESOL. MAG., Mar. 2014, 27, 28 (2014) (reporting training hours for
mediation across the globe, reporting on whether the trainings were more than or less than 40 hours). Online training
courses are often around 40 hours, as well.
232
Raines, supra note 229, at 545 (describing the recommendation as the “core plus” model).
233
Donald T. Weckstein, Mediator Certification: Why and How, 30 U.S.F. LAW REV. 757, 760 (1996) (noting that
mediation certification is different from mediator licensing and cautioning against using the words interchangeably).
234
Id. (discussing the prevalence of role-play activities).
235
Id. at 548 (recommending ethics training in mediation programs).
236
Qualifications & Need per Location, FIN. INDUS. REGUL. AUTH., https://www.finra.org/arbitrationmediation/qualifications-need-location (last visited Aug. 23, 2021).
237
For example, to maintain good status, Florida Supreme Court-certified mediators must report 16 hours of continuing
education every two years. See supra note 233 (discussing Florida requirements).
238
CME Requirements for Florida Supreme Court Certified County, Family, Circuit, Dependency and Appellate
Mediators, FLA. DISP. RESOL. CTR. (2019), https://www.flcourts.org/content/download/402722/file/cme-reportingform.pdf.

40

including law, conflict resolution, human resources, labor relations, social sciences, and other
fields.239
The ACUS Ombuds Report provides a good framework for best practices in ombuds
training. It suggests:
(a) To promote accountability and professionalism, agencies should provide
training to ombuds with regard to standards and practice, whether offered by one
of the ombuds professional organizations or working groups, or from within the
government.
(b) ombuds should identify steps to build general competency and confidence
within the office and to provide specific support to ombuds when cases become
highly emotional or complex. More generally, as a regular practice to support and
improve their skills, federal ombuds should participate in relevant professional
working groups or ombuds association training programs.
(c) ombuds offices should consider the use of developmental assignments via
details to other agencies or offices, as appropriate, supplemented by mentoring,
which can be helpful as part of their training program.240
The ACUS Ombuds Report recommends that ombuds be trained and allows flexibility for
training either in-house or by a national ombuds organization, such as the International
Ombudsman Association (IOA).241 The report ties ombuds training to quality and competency,
and recommends continuing education, as well as mentoring and learning from one another.
The IOA offers a popular training for new ombuds. Although the IOA previously offered
this course primarily in person, now the training is also available online in synchronous
instruction.242 When the class is in person, it lasts three days. The online version lasts five halfdays. The training includes the following elements: understanding the role of an ombuds, active
listening skills, trust building, ethics, conflict resolution, and working within organizations to
effectuate change.243

239

Brian Clauss, Protecting Civilian Employment and Providing Healthcare to the Citizen Soldier in the National
Guard and Reserve Components, 45 U. MEMPHIS L. REV. 915, 932 (2015) (noting professional backgrounds
particularly useful to ombuds work).
240
ACUS Ombuds Report supra note 66, at 64.
241
The International Ombudsman Association offers a three-day training for new ombuds, focusing on professional
standards. See The Foundations Course, INT’L OMBUDSMAN ASS’N, https://www.ombudsassociation.org/thefoundations-course (last visited Aug. 23, 2021).
242
Events
and
Training,
INT’L
OMBUDSMAN
ASS’N,
https://www.ombudsassociation.org/index.php?option=com_jevents&task=icalrepeat.detail&evid=169&Itemid=115
&year=2021&month=09&day=27&title=sold-out--virtual-foundations-course--september2021&uid=cd39e275aecdf8915e60b731a11c3b66 (last visited Oct. 1, 2021).
243
The Foundations Course, INT’L OMBUDSMAN ASS’N, supra note 241.

41

Many ombuds have training in mediation, as well as training in the role of an ombuds.244
In some instances, ombuds will mediate disputes, and ombuds with mediation training can
provide that service to the individuals in conflict.
2. Agency Practices
About half the agencies interviewed or surveyed (and nearly all of the environmental
agencies) have specific training programs and procedures for ADR personnel. Of those, most
stated that they hold regularly-scheduled training programs whether biennial, annual or more
frequently. Some also include ad hoc training as needed or for new personnel. Among those that
do not presently offer any training, at least one noted that it is interested in creating a training
program should it receive approval to do so in its next program review.
Agencies involved in environmental collaboration and conflict resolution are required to
report on training undertaken for neutrals and the number of people trained to the Chair of the
Council on Environmental Quality and Director of the Office of Management and Budget
annually, using a prescribed template.245 The most recent reports, for 2019, contain detailed
descriptions of ADR training given by agencies or taken by their employees at another agency.
DOI’s report characterizes training as a cornerstone of its effort to build capacity for effective
conflict management and collaborative problem solving and describes 39 training sessions
delivered by the Office of Collaborative Action and Dispute Resolution and its in-house trainers
of its foundational course “Getting to the CORE of Conflict and Communication.” It also
convened a webinar on the use of situation and conflict assessments for ECCR staff.246 EPA’s
report describes its training strategy to strengthen staff’s skills and promote the use of
environmental collaboration and conflict resolution throughout the agency. In total, 92.5 hours of
such training was delivered over the course of eighteen sessions at EPA headquarters and six
regional offices. Notably, EPA reported having conducted annual training evaluations for the
past twelve years, through both employees and contractors, although it also reported that its
activities in 2019 were limited by constrained agency appropriations.247
Environmental agencies also reported taking advantage of training offered by the
National Center. The National Center offers a certificate in ECCR that requires the completion of
five of its courses within a five-year period.248 Federal employees across the ECCR community
(as well as some nonfederal persons) have been certified under the program and feedback for the

244

See Lawrence D. Mankin, The Role of the Ombudsman in Higher Education, 51 DISP. RESOL. J. 46, 48 (Oct. 1996)
(discussing the usefulness of mediation training for ombuds).
245
Memorandum from the Off. of Mgmt. and Budget and the Council on Env’t Quality on Environmental
Collaboration and Conflict Resolution to All Executive Branch Agencies (Sept. 2012),
https://www.udall.gov/documents/Institute/OMB_CEQ_Memorandum_2012.pdf.
246
Department
of
Interior,
2019
ECCR
Report,
https://www.udall.gov/documents/ECRReports/2019/DOI%20CEQ%20ECR%20Policy%20Memo%20Report%20F
Y%202019%20Final%20for%20CEQ.pdf (last visited Aug. 23, 2021).
247
U.S. ENV’T PROT. AGENCY, supra note 141, at 6.
248
See Certificate in Environmental Collaboration and Conflict Resolution (ECCR), UDALL FOUND.,
https://www.udall.gov/OurPrograms/Institute/TrainingCertificate.aspx (last visited Aug. 23, 2021). DOI’s CADR
page states that all its trainers are CADR-certified.

42

program has been quite positive.249 For example, the 2019 ECCR Report by the U.S. Army
Corps of Engineers (USACE) notes:
Professional certifications are highly valued in an engineering organization like
USACE, and the increasing numbers of USACE staff earning the Udall certificate
in Environmental Collaboration reflects this importance. Through the annual
training, Public Involvement Specialists receive a minimum of one in-person
yearly training to build consistent expertise. As a result of strategic investments in
these training classes, many Public Involvement Specialists either have earned
their Udall certificate or will achieve certification this year.250
Outside the environmental area, there is much less transparency about training. Training
varies and appears to fluctuate with agency budgets. Some agencies rely on the staff to seek out
relevant training that is funded by the agency as the budget allows. The type and amount of
training offered may vary based on the size of the ADR program. Some agencies encourage and
expect ADR personnel to seek out training on their own to improve their skills. Others only hire
individuals with certain levels of training and expertise, such as those that demonstrate they have
been certified by a private or public certification program.251
Some agencies created in-house training programs. The OSC created its own forty-hour
program to train new mediators.252 The Department of Health and Human Services’
Departmental Appeals Board provides ADR training to groups across the departmental offices.253
Agencies use a mix of internal or private trainers. Some of the contracts described in the
prior section include requirements for training as well as the provision of neutrals. Some
agencies rely on the FMCS Center for Conflict Resolution Education for continuing education
for their neutrals. The OSC forty-hour program includes participation by some local law
professors. Agencies use both online and in-person (hybrid) training, although many
acknowledge that the availability of in-person training depends on funding and on conditions
such as the pandemic.
As noted in the previous section on selection of neutrals, FMCS has highly developed
training programs for its own staff. FMCS recently launched a two-year certification program for
existing mediators called the “Conflict Management Professional,” focusing on comprehensive

249

Email from Melanie Knapp, Training Program Manager, National Center, to Judith Starr (June 3, 2021).
U.S.
ACE
2019
ECCR
REPORT,
https://udall.gov/documents/ECRReports/2019/USACE_Use%20of%20ECCR%20in%20USACE%20FY2019%20
Report%20to%20OMB%20CEQ%20FINAL.pdf (last visited Oct. 22, 2021)
251
One agency representative noted that although that agency purports to hire individuals with prior training, many
staff enter the program with very little training. There is a significant range of backgrounds and those with little
training are not brought up to the level of others.
252
Interview with Jane Juliano, Melissa Liebman & Whitney Sisco, OSC (Feb. 8, 2021).
253
ADR Training, U.S. DEP’T OF HEALTH & HUM. SERVS., https://www.hhs.gov/about/agencies/dab/adrservices/training/index.html (last visited Aug. 23, 2021).
250

43

management and prevention services to enhance the ability to work on systemic conflict issues
and a larger universe of conflict types.254
Two agencies we spoke to use co-mediation, in which a novice mediator is paired with a
more experienced mediator which enables the novice to learn both from observing the more
experienced mediator and through feedback from the latter.255 In addition, mediators may be
teamed up to deal with more complex and/or multi-party cases. Co-mediation exposes
experienced mediators to other techniques and methods and can be a useful practice for
continuing mediator education.
The length of training programs also varies. Some are self-directed for mediators or other
actors to carry out independently and asynchronously. Others can be as long as one week inperson. There is also a difference in training programs between contract or volunteer
professionals and agency staff. Some agencies noted that the staff receive training, but
contractors work on their own or provide sufficient credentials.
Several agencies mentioned how funding has affected their ability to carry out trainings.
When the agency has the budget to do so, it will bring in external trainers for as many as three
different levels of specialized trainings. Those same agencies also vary the mode of training: in
some years if funding permits, they will bring staff to the agency headquarters for training
whereas in years with a tighter budget, video conferencing will suffice.
Some agencies try to update training to reflect agency needs as new issues arise.
Feedback from participants will inform types of training. These agencies have used survey data
from participants to “help us figure out where the needs were for training.”
Most agencies find ways to support staff in between trainings such as with monthly
phone calls to take up common issues. A minority of agencies noted that each individual ADR
staff person is on his or her own as agency management is not equipped to provide that level of
support. During the pandemic, many staff were trained on using virtual tools for dispute
resolution.
A handful of agencies conduct evaluations of their training programs and procedures after
staff complete them. They use different mechanisms to do so such as through summary reports,
employee surveys, and “internal, informal evaluations.” These sorts of strategies have been used
by some agencies to determine which offices were struggling with issues. Very few agencies
have formal review processes that provide a means for those evaluations to be converted into
changes in their training regimes. The EPA, as noted above, is one agency that does so. Notably,
the National Center incorporates into the goals of its annual Performance Accountability Report,

254
Survey response from FMCS, Feb. 2021; email from Peter Swanson, Director of Office of Conflict Management
and Prevention, FMCS, to Judith Starr (Aug. 25, 2021).
255
The federal Shared Neutrals program, a workplace program that relies on volunteers that serve as neutrals for
agencies other than their own, uses a co-mediation model; among other things, lead mediators evaluate the more junior
mediator’s readiness to serve as lead mediators in future cases.

44

metrics for measuring the success of its training, which is used for the agency’s strategic
planning.256
3. Recommendations
The training across the agencies surveyed tends to be tailored to the individual programs
that the agency administers. And, as we have seen, training is vulnerable to budget cuts that can
constrain the activities of even the most committed agencies. These factors can adversely affect
the quantity and quality of available training, creating a reputational risk not just for the agency
but also for perceptions of ADR from the public and from private actors involved in these
programs.
One agency director observed that although higher degrees in dispute resolution are
deemed sufficient from agency management, the quality of master degrees in ADR can itself
vary, leading to problems with adequate training of new staff. One way to provide a baseline to
avoid this haphazard landscape would be to direct more agencies to the interagency training
programs that are sustained through their own federal funding. As discussed below, that is part of
the reason those interagency centers exist. Therefore, we make the following five
recommendations, which are crafted with sensitivity toward resource constraints. We do not
make any recommendations for particular ADR modalities, apart from facilitation training across
multiple modalities, as such specific advice would exceed the scope of this project but we
recommend that such information be made available through an interagency mechanism.
Refresher/interagency continuing training. We recommend that agencies seek to add
refresher trainings to ensure all participants have the latest available resources or take advantage
of the robust training opportunities offered by FMCS and the National Center discussed in more
detail below.
Certification opportunities. Federal employee neutrals should have career development
paths through certification opportunities. States that have certification programs for mediators
generally require recertification on a regular basis which requires a certain number of hours of
continued mediator education.257 There can be multiple levels of certification that enable
mediators to handle more complex and/or larger cases as well.258 The ECCR certification
program from the National Center is an example of a well-regarded certification program.
The Conflict Management Professional certification that FMCS recently launched will be
a more generalized subject matter training, which can benefit neutrals in enabling them to take
on more challenging cases, and benefit agencies in getting better services and possibly helping
them retain experienced neutrals. Offering the FMCS certification program to other agencies as
256

UDALL FOUND., FY 2020 PERFORMANCE AND ACCOUNTABILITY REPORT 11–32 (2020),
https://udall.gov/documents/PDF/UdallFoundationPARFY2020.pdf.
257
See, e.g., Supreme Court of Florida, Administrative Order AOSC 19-26 (May 28, 2019),
https://www.floridasupremecourt.org/content/download/526133/file/AOSC19-26.pdf; JUD. COUNCIL OF VA.,
GUIDELINES FOR THE TRAINING AND CERTIFICATION OF COURT-REFERRED MEDIATORS (2020),
http://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/training/tom.pdf.
258
See, e.g., sources cited supra note 257.

45

part of the FMCS catalog of services could be a more affordable approach for those agencies
where resource constraints limited training opportunities.
Certification and specialized education are less prevalent among arbitrators, particularly
compared to mediators. Similar types of programs could be instituted for continuing education
for arbitrators, particularly as practice changes with the times. For example, agencies might
consider training to build competency in holding proceedings online.
Facilitation training. Many federal mediators and ombuds are asked to work, in essence,
as facilitators. Facilitation is similar to—but not the same as—mediation or ombuds work.
Facilitators work with large numbers of parties or representative stakeholder groups. Because of
the large number of parties, the facilitator may need to be more creative in meeting small groups
and finding various participation formats to encourage active participation. Agencies that use
neutrals to facilitate should invest in training specific to facilitation, including training offered by
FMCS or the National Center. Agencies may also consider training mediators and ombuds in
facilitative practice so they can switch roles, if necessary.
Ethics training. A specific recommendation is to ensure that training on ethics for
neutrals be conducted at regular intervals. Ethics training should be specific to the type of
neutral, i.e., arbitration ethics, mediation ethics, or ombuds ethics. It need not stand alone but
rather could be part of a larger training, provided that the neutrals in the program receive ethics
training in regular intervals.
Co-mediation and co-facilitation. Agencies may wish to consider having some cases comediated or co-facilitated to enable their mediators to learn from each other and enhance their
ability to reevaluate their own techniques. In some specialized cases, learning on the job with a
senior colleague may be more fruitful than in those sorts of proceedings where the topics vary
considerably or expert knowledge is not necessary. Likewise, in larger ADR proceedings
involving multiple actors or communities, shadowing senior colleagues could help junior
neutrals and facilitators build confidence. Co-mediation has benefits to parties as well. In large
and/or complex cases, a second mediator can ease the logistical burden and ensure that issues are
not overlooked and all parties get the attention they require. Agencies that use a co-mediation
model should encourage the co-mediators to debrief after each case to discuss their strengths and
opportunities for growth. Agencies should create a short list of guided questions to encourage
debriefing.
Reflective practice. One important learning technique we did not observe being used in
the federal ADR community is reflective practice. Reflective practice arose from research
showing a weak relationship between years of experience, reputation, and actual observed
mastery.259 It is a technique designed to enable practitioners to reflect on their assumptions and
motivations to move beyond “unconscious competence” to true mastery. Reflective practice
groups are composed of mediators who support one another in non-judgmentally exploring the
assumptions and motivations that underlie their interventions. A presenter discusses a moment of
uncertainty, surprise or discomfort in a mediation and is helped by questions from the group to
259

See Michael Lang & Rochelle Arms Almengor, Why Case Consultation/Reflective Practice Groups Matter for
Mediators, MEDIATE.COM (Aug. 2017), https://www.mediate.com/articles/langarmsreflective.cfm.

46

recognize the reasons for their reactions and methods for dealing with similar situations in the
future.
In the federal system, reflective practice groups can be created within an agency, or
through interagency groups. There is a substantial body of literature on reflective practice and
there are many examples on which programs can build.260 The State of Virginia’s Dispute
Resolution Center has published a handbook with helpful guidance and checklists for engaging
in reflective practice.261 The ABA Dispute Resolution Section’s Mediation Committee also runs
a monthly reflective practice session that is open to all members.
D. Ethics and Confidentiality Requirements for ADR Personnel
Ethics and confidentiality are the foundation of any ADR program. As neutral conflict
resolvers, ADR programs and processes only have credibility if they have integrity. Ethics and
confidentiality rely, in part, on the moment-to-moment responsibility of personnel to act
ethically. More important, however, are the foundational policies and training necessary to
ensure quality dispute resolution programs.
ADR scholars generally concur that “ethical behavior is a critical principle” in dispute
resolution.262 Scholars also agree, however, that ethics and standards of practice are the same
across different types of dispute resolution.263 While some rules of ethics may apply broadly—
such as the duties of neutrality and confidentiality264—other ethical standards may apply to one
type of dispute resolution that do not apply to another. For example, the ethics surrounding
mediation will rightly be different than the ethics surrounding arbitration, ombuds practice, or
factfinding processes. And even within a type of dispute resolution, the ethics and standards of
practice may vary based on the programmatic goals.265
This section begins with a discussion of ADR ethics both within the federal government
and more broadly. Following the general discussion, this section will detail the responses from
surveys and interviews, and it will conclude with recommendations for the future.

260

See Judith Starr, Author, Author! An Interview with Michael Lang, Author of The Guide to Reflective Practice in
Conflict
Resolution,
JUST
RESOLUTIONS
E-NEWS
(Mar.
22,
2019),
https://www.americanbar.org/groups/dispute_resolution/publications/JustResolutions/2019-march/.
261
See SUP. CT. OF VA. DIV. OF DISP. RESOL. SERVS., MEDIATOR SELF-REFLECTION 1 (2018),
http://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/resources/treasury.pdf.
262
Charles Pou, Jr., Embracing Limbo: Thinking About Rethinking Dispute Resolution Ethics, 108 PENN. ST. L. REV.
199, 200 (2003); see also Mary L. Walker & R. Philip Deavel, The Strategic Relationship Between Ethics and Dispute
Resolution: What Every CEO Should Know, 8 PEPP. DISP. RESOL. L.J. 355, 360 (2008) (noting that ethics and dispute
resolution should go hand-in-hand, including in program development and design).
263
Pou, supra note 262, at 200.
264
Carrie Menkel-Meadow, Ethics Issues in Arbitration and Related Dispute Resolution Processes: What’s
Happening and What’s Not, 56 U. MIAMI L. REV. 949, 956-63 (2002) (discussing the importance of conflicts of
interest and confidentiality not only in arbitration but also in dispute resolution more broadly).
265
See Pou, supra note 262, at 201 (“Different mediators will propose entirely different responses to fulfilling their
ethical commitments. Many think this is fine; others do not.”); see also ACUS Ombuds Report, supra note 66, at 7
(noting that most ombuds offices share at least three core principles of practice, while acknowledging that there is no
uniformity on this issue).

47

1. Background
“Ethics” is a broad subject, even within dispute resolution. In some instances, federal law
regulates ADR ethics as a whole, while other laws are specific to individual programs or
processes. In addition, all federal employees are subject to the Standards of Ethical Conduct for
Employees of the Executive Branch (“Federal Ethics”), which are organized around fourteen
general principles.266 Of these the following seven appear especially relevant to neutrals:
(1) Public service is a public trust, requiring employees to place loyalty to the Constitution,
the laws, and ethical principles above private gain.
(2) Employees shall not hold financial interests that conflict with the conscientious
performance of duty.
(3) Employees shall not engage in financial transactions using nonpublic Government
information or allow the improper use of such information to further any private interest.
(4) Employees shall not use public office for private gain.
(5) Employees shall act impartially and not give preferential treatment to any private
organization or individual.
(6) Employees shall not engage in outside employment or activities, including seeking or
negotiating for employment, that conflict with official Government duties and
responsibilities.
(7) Employees shall endeavor to avoid any actions creating the appearance that they are
violating the law or the ethical standards set forth in this part.
Prior ACUS recommendations may also be applicable. For instance, ACUS Recommendation
2016-4 regarding adjudicators states that these persons be free from bias, including personal and
financial biases.267 ACUS also adopted recommendations for Compliance Standards for
Government Contractor Employees-Personal Conflict of Interest and Use of Certain Non-Public
Information to prevent conflicts of interest.268
For ease of discussion, this section is divided into the following sub-sections: neutrality
and impartiality, confidentiality, and process-specific ADR ethics. Because most processes treat
neutrality, impartiality, and confidentiality similarly, those topics can be discussed across
processes; other ethical issues can be more process-specific.
Neutrality and Impartiality
Neutrality and impartiality, while familiar terms, can be difficult to define with precision.
The scholarly literature reveals debate over the nuances of these concepts and even their

266

5 C.F.R. § 2635.101(b).
Admin. Conf. of the U.S., Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative
Procedure Act, 81 Fed. Reg. 94314 (Dec. 23, 2016).
268
Admin. Conf. of the U.S., Recommendation 2011-3, Compliance Standards for Government Contractor
Employees-Personal Conflicts of Interest and Use of Certain Non-Public Information, 76 Fed. Reg. 48792 (Aug. 9 ,
2011).
267

48

importance.269 Although not a precise distinction, neutrality relates primarily to whether the
neutral is biased or has an interest in the outcome. For example, in a 2016 recommendation,
ACUS recognized the importance of neutrality for adjudicators, advising that adjudicators be
free from biases, such as financial or personal biases, and prejudgment of facts.270 Impartiality
relates to the neutral’s actions, such as running a process in a way that does not benefit one party
over another and following procedural protocols.271
At their core, both neutrality and impartiality are rooted in the ideal of party autonomy,
fairness, and freedom in decision-making. In adjudicative processes, neutrality and impartiality
help ensure that the third party decides the matter on the merits, as opposed to self-interest or
outside influence. In both adjudicative and consensual processes, neutrality and impartiality help
ensure that the process itself is fair and not skewed towards one party or another.
Given these important foundational principles of neutrality and impartiality, the ADRA
notes that a “neutral”:
may be a permanent or temporary officer or employee of the Federal Government
or any other individual who is acceptable to the parties to a dispute resolution
proceeding. A neutral shall have no official, financial, or personal conflict of
interest with respect to the issues in controversy, unless such interest is fully
disclosed in writing to all parties and all parties agree that the neutral may
serve.272
The ADRA’s definition of “neutral” is consistent with federal ethics rules regarding conflicts of
interest and financial disentanglements. Further, the ADRA notes that a neutral “who serves as a
conciliator, facilitator, or mediator serves at the will of the parties.273 Some agencies adopted
similar definitions within their own regulations, such as FMCS,274 the EPA,275 and the Federal
Maritime Commission.276
The ADRA definition of “neutral” guards against the appearance of bias by not only
requiring the neutral to be free from conflicts of interest but also to disclose conflicts. Neutrality
269

See, e.g., BERNARD S. MAYER, BEYOND NEUTRALITY: CONFRONTING THE CRISIS IN DISPUTE RESOLUTION (2004)
(arguing that the dispute resolution profession places too much emphasis on neutrality); Panel Discussion, Core Values
in Dispute Resolution: Is Neutrality Necessary, 95 MARQ. L. REV. 805 (2012) (transcribing a debate on this topic
among scholars Lawrence Susskind, Joseph Stulberg, and Bernard Mayer); Deseriee A. Kennedy, Predisposed with
Integrity: The Elusive Quest for Justice in Tripartite Arbitrations, 8 GEO. J. LEGAL ETHICS 749, 749 (1995) (discussing
litigation, and by extension other forms of dispute resolution, as upholding “neutrality and impartiality as fundamental
goals”).
270
Recommendation 2016-4, supra note 267.
271
Id. Many of the remaining recommendations for adjudicators meet the needs of impartiality, including
recommendations concerning notice of hearings, availability of counsel, argument format, and evidentiary rules.
272
5 U.S.C. § 573(a).
273
Id. § 573(b).
274
29 C.F.R. § 1440, Appx to Part 1440 – FIFRA Arbitration Rules § 8 (regarding disclosures for arbitrators).
275
40 C.F.R. § 791.29(f) (requiring disclosures of conflicts of interests for hearing officers appointed by the American
Arbitration Association for cases under the Toxic Substances Control Act); id. Part 85, Subpart V, App. II, § 6
(requiring disclosures of conflicts of interests in Air Program arbitrations).
276
46 C.F.R. § 502.404 (2021) (defining “neutral” and requiring disclosures).

49

and disclosure of conflicts of interests is also required for industry standards of ethics in
mediation,277 arbitration,278 and ombuds practices.279 The most robust law regarding conflicts of
interest can be found in California, requiring arbitrators to disclose personal, financial, or
business conflicts involving not only the arbitrator but also the arbitrator’s immediate family.280
One additional element of neutrality is freedom from the possibility of financial gain that
arises out of the dispute resolution process. Although not addressed specifically in the ADRA, as
noted above, this is one of the 14 ethical principles applicable to all federal employees, and
national standards in mediation,281 arbitration,282 and ombuds practice283 generally prohibit the
neutral from receiving a gain or incurring a loss as a direct result of the process. Neutrals who
are lawyers may have additional responsibilities to disclose conflicts of interest resulting from
work arising out of a former engagement as a neutral.284
FMCS maintains explicit rules prohibiting its neutrals using the position for private gain.
FMCS Directive 8101 on Ethics and Conduct prohibits “[u]sing FMCS employment for private
gain,”285 and the Code of Conduct for Labor Mediators states: “The mediator should not use his
[sic] position for private gain or advantage.”286 Research has not uncovered any specific ethical
rules based on the employment status of the neutral (i.e., employee vs. contractor), other than the
FMCS rule cited.
Confidentiality
Confidentiality is a bedrock principle underlying ADR processes. Confidentiality protects
the outside disclosure of both oral and written communications; confidentiality is not limited to
disclosure in court or before a tribunal. Confidentiality protections apply to nearly all processes,
whether they are based on consensual decision-making or adjudication. In consensual processes
such as mediation, the guarantee of confidentiality encourages frank discussion and disclosure of

277

MODEL STANDARDS OF CONFLICT FOR MEDIATORS, Standards II and III (regarding impartiality and disclosure of
conflicts of interest); UNIF. MEDIATION ACT § 9 (2003) (requiring mediators to make an inquiry into potential conflicts
and to disclose conflicts of interest).
278
CODE OF ETHICS FOR ARBITRATORS IN COMMERCIAL DISPUTES, Canon II (2004) (discussing disclosure
obligations); REVISED UNIF. ARB. ACT § 12 (2000) (defining the duties of an arbitration regarding disclosures). In
arbitration, the presence of conflicts may lead to vacatur of an arbitration award under 9 U.S.C. §10(a)(2) for “evident
partiality.”
279
IOA STANDARDS OF PRACTICE § 2.1 (“The ombudsman is neutral, impartial, and unaligned.”)
280
ETHICS STANDARDS FOR NEUTRAL ARBITRATORS IN CONTRACTUAL ARBITRATION §7 (2003) (listing mandatory
disclosures for neutral arbitrators).
281
MODEL STANDARDS OF CONFLICT FOR MEDIATORS, Standard III (f) (prohibiting mediators from establishing
relationships after mediation that would “raise questions about the integrity of the mediation”).
282
CODE OF ETHICS FOR ARBITRATORS IN COMMERCIAL DISPUTES, Canon VI (D) (prohibiting certain post-arbitration
relationships with the parties).
283
IOA STANDARDS OF PRACTICE, 2.1 (noting that the ombuds should have no “personal interest or stake in, and incur
no gain or loss from, the outcome of an issue”)
284
MODEL R. PROF. RESP. § 1.13 (2020) (discussing ethical obligations for lawyers creating a conflict of interest based
on prior work as a third-party neutral).
285
FMCS Directive 8101, §5 (2018).
286
29 C.F.R. Part 1400 app., § III (2019).

50

information;287 in adjudicative processes, confidentiality protects the parties from intrusion by
the press or others.288 For all processes, confidentiality works to protect specific disclosures
while also protecting ADR processes as a whole.289 Whether all aspects of the ADR processes
are confidential even from requests made under the Freedom of Information Act is a complicated
question outside the scope of this project.290
Confidentiality also has some downsides such as its reduction of transparency in
government disputes.291 Some conflicts handled through ADR might be of great public
importance, and ADR processes take them out of the public view. In addition, ADR processes,
unlike traditional adjudicative or judicial processes, do not result in public law.292 They do not
create precedent, which may make outcomes more unpredictable and inconsistent by comparison
to ordinary government adjudication systems.
Privilege, by contrast, protects the disclosure of an ADR communication before a court or
tribunal, but does not necessarily protect disclosures to other third parties. The Uniform
Mediation Act (UMA) provides the clearest example of the distinctions between the two.
Although the UMA is not federal law and only adopted in about one-quarter of U.S. states, its
provisions are still instructive to this inquiry. Under UMA Section 8, mediation communications
are confidential only “to the extent agreed by the parties or provided by other law.”293 Unlike
other common privileges, such as the attorney/client privilege, the UMA treats mediation
communications as privileged even if they are not kept confidential.294
The ADRA provision entitled “confidentiality” covers both confidentiality and privilege.
The statute provides that neutrals and parties “shall not voluntarily disclose or through discovery
or compulsory process be required to disclose any dispute resolution communication.”295

287

Mark. H. Grunewald, Freedom of Information and Confidentiality Under the Administrative Dispute Resolution
Act, 9 ADMIN. L.J. AM. U. 985, 997 (1996) (noting the “importance of confidentiality to settlement effort”).
288
See Richard C. Reuben, Confidentiality in Arbitration: Beyond the Myth, 54 U. KAN. L. REV. 1255, 1284 (2006)
(discussing expectations of confidentiality for parties in arbitration).
289
See John E. Hartsell, The Sounds of Silence: Promoting Alternative Dispute Resolution in Air Force Procurement
by Putting Confidence into Confidentiality, 53 AIR FORCE L. REV. 183, 193 (2002) (“The importance of confidentiality
is an axiom of ADR because it protects the present disclosures and future successes of ADR.”).
290
See generally Grunewald, supra note 290 (discussing the interaction of the ADRA and the FOIA); INTERAGENCY
ADR WORKING GROUP STEERING COMM., PROTECTING THE CONFIDENTIALITY OF DISPUTE RESOLUTION
PROCEEDINGS: A GUIDE FOR FEDERAL WORKPLACE ADR PROGRAM ADMINISTRATORS (2006),
https://www.adr.gov/pdf/final_confid.pdf (ADRA specifically exempts certain dispute resolution communications
between a neutral and a party from disclosure under FOIA). However, other aspects of the process, such as outside
evaluations, may be subject to FOIA.
291
See, e.g., Aseem Metha, Resolving Environmental Disputes in the Hush-Hush World of Mediation: A Guideline for
Confidentiality, 10 GEO. J. LEGAL ETHICS 521, 528 (1997) (discussing issues of transparency in confidential dispute
resolution processes).
292
Amy J. Schmitz, Untangling the Privacy Paradox in Arbitration, 54 U. KAN. L. REV. 1211, 1211 (2006) (noting
the lack of creation of public law in arbitration).
293
UNIF. MEDIATION ACT § 8 (2003).
294
Id. § 4 (providing privilege for mediation parties, mediators, and third parties participating in a mediation).
295
5 U.S.C. § 574(a), (b).

51

Exceptions apply when the parties and the neutral agree to disclosure, when the
communication is already public, or in other limited circumstances.296 Further, written
agreements arising out of dispute resolution processes are not protected.297 The protections
available under the ADRA may be modified or waived by agreement of the parties and the
neutral.298 Similar to other privileges (such as the attorney/client privilege), evidence that is
“otherwise discoverable” does not become inadmissible “merely because the evidence was
presented in the course of a dispute resolution proceeding.”299
The confidentiality protections and privilege against disclosure in other proceedings
under the ADRA are broad, particularly because they apply to all forms of dispute resolution
under the Act. Conceptually, the ADRA provides the same level of privilege as the UMA and
includes a general law regarding confidentiality. The ADRA, however, provides significantly
more protection for arbitration proceedings than the Federal Arbitration Act provides.300 Most
court programs provide confidentiality (but not necessarily privilege) for summary jury trials and
minitrials, so the ADRA has broader protections than other types of programs. In addition to the
ADRA, specific programs provide for confidentiality through regulations. Some agencies have
promulgated regulations specifically addressing confidentiality and privilege, including the
Department of Agriculture,301 the FCC,302 and the Department of Transportation. 303
In addition to being a legal obligation, confidentiality is also an ethical obligation of
neutrals. National standards in mediation,304 arbitration,305 and ombuds practice306 stress the
importance of neutrals maintaining confidentiality. In a similar vein, FMCS Directive 8101
prohibits the misuse of nonpublic information in its standards of ethics and conduct.307 Further,
the Code of Professional Conduct for Labor Mediators also includes a duty of confidentiality.308
296

Id.
Id. § 574(g). Dispute resolution communications are similarly unprotected in a dispute between a party participant
and a neutral, such as a case for malpractice by the neutral. Id. § 574(i).
298
Id. §574(d).
299
Id. §574(f).
300
The Federal Arbitration Act does not have any provisions governing confidentiality or privilege.
301
See 7 C.F.R. § 780.9(e) (providing for confidentiality of Farm Services Agency mediations); id. § 614.11(g)
(“Mediation is a confidential process . . . [T[he participants . . . must agree to the confidentiality of the mediation
process. The mediator will not testify in administrative or judicial proceedings concerning the issues discussed in
mediation, nor submit any report or record of the mediation discussions, other than the mediation agreement or the
mediation report, except as required by law.”).
302
47 C.F.R. § 1.244 (providing for confidentiality for neutral settlement officers under the FCC’s general Practice
and Procedure regulations).
303
49 C.F.R. § 1109.3(d) (providing for confidentiality for mediations conducted under the rules of the Surface
Transportation Board).
304
MODEL STANDARDS OF CONDUCT FOR MEDIATORS, Standard V(a) (“A mediator shall maintain the confidentiality
of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by
applicable law.”).
305
CODE OF ETHICS FOR ARBITRATORS IN COMMERCIAL DISPUTES, Canon VI (“An arbitrator should be faithful to the
relationship of trust and confidentiality inherent in that office.”).
306
IOA STANDARDS OF PRACTICE, 3.1 (“The ombudsman holds all communications with those seeking assistance in
strict confidence and takes all reasonable steps to safeguard confidentiality.”).
307
FMCS Directive 8101, § 13 (outlining “Misuse of Information).
308
29 C.F.R. Part 1400 app., § V (discussing, among other things, confidentiality expectations of mediators inside and
outside of the legal system).
297

52

Process-Specific Ethics
While some aspects of ADR ethics may be identical or similar across different
modalities, other aspects of ethics may change. Adjudicative ADR processes, such as arbitration
and fact-finding, can benefit from ethical guidance regarding the process and decision-making.
Consensual processes can benefit from ethical guidance preserving party autonomy and party
decision-making. This subsection briefly outlines additional ethical considerations specific to
arbitration, mediation, and ombuds practice.
In many ways, arbitration proceeds as a private trial, complete with arguments and
evidence. National standards for arbitration ethics include prohibitions on ex parte
communication,309 notice and other due process considerations,310 and requirements to render an
award in a timely and independent manner.311 The ADRA addresses some of these issues in its
sections dealing with arbitrators, their powers, and the process.312 These elements do not exist in
mediation, conciliation, and ombuds practice, and so they would need to be covered within their
own programs.
In contrast, national mediation ethics focus more on party autonomy. Mediation codes of
conduct emphasize how the mediation process affects the parties and how the mediator fits into
that exercise. For example, the Model Standards of Conduct for Mediators emphasizes the right
of the parties to what it calls “self-determination” and voluntary participation, making clear that
the mediator has an ethical obligation not to coerce the parties.313 Compared to other ADR
processes, mediation participants have more flexibility to guide the process itself, and the
standards preserve process flexibility over rigidity.314 For instance, mediation is ultimately
governed by the interests of the parties in determining who may participate in addition to
themselves, which processes to follow and in what order, and whether to be in the same room or
different rooms.
For ombuds practice, independence may be the most distinctive element of ethics not
shared (in the same way) with the other ADR processes. Ombuds are most frequently employees
or otherwise financially aligned with the organization to whom they serve. Given the potential
conflict of interest, ombuds need independence to investigate, solve conflict, and make
recommendations that could be against the organization’s interest. Standards of practice for
ombuds place great importance not only on neutrality but also independence.315

309

CODE OF ETHICS FOR ARBITRATORS IN COMMERCIAL DISPUTES, Canon III (providing detailed instructions on how
an arbitrator should communicate with the parties and counsel).
310
Id., Canon IV.D (requiring notice prior to a hearing).
311
Id., Canon V.B (“An arbitrator should decide all matters justly, exercising independent judgment, and should not
permit outside pressure to affect the decision.”).
312
5 U.S.C. §§ 577–80.
313
MODEL STANDARDS OF CONDUCT FOR MEDIATORS, Standard I.A (self-determination).
314
See also 29 C.F.R. Part 1400 app., § I (preserving flexibility and party autonomy for labor mediators).
315
IOA STANDARDS OF PRACTICE §§ 1.1–1.5 (outlining the duties of independence necessary to perform the duties of
office effectively); see also ACUS Ombuds Report supra note 66, at 7 (describing independence as a shared standard
of practice across federal ombuds practice).

53

2. Agency Practices
The protections provided under the ADRA give all agency ADR programs baseline
ethical grounding for neutrality and confidentiality. Yet how the agencies document and
publicize these guarantees vary from program to program. This subsection will proceed topically,
rather than from program to program, discussing neutrality, confidentiality, competency, and
other issues.
Neutrality
Among the agencies surveyed, neutrality and disclosures of conflicts of interest appear to
be important considerations within the programs. Agencies use diverse tactics to ensure that
third-parties are neutral, depending on the needs of the program, the funding available, and other
considerations. Even agencies without specific policies and procedures relating to conflicts of
interests noted the importance of the issue and a general awareness of avoiding conflicts,
although some also noted that maintaining neutrality can be difficult where agencies are
expected to play multiple roles in disputes.
Some agencies specifically use outside contractors as neutrals to avoid conflicts of
interest. One agency noted that outside contractors are not only more likely to be neutral but also
give the appearance of neutrality, particularly to outside parties. This agency also noted,
however, that the agency needs funds to pay outside contractors and acknowledged that not
every program would have the financial means to do so. At least one agency gives the outside
participant the choice of using a third-party contractor or an agency ADR specialist as a measure
to increase neutrality.
In contrast to agencies that can use outside contractors as third parties, ombuds programs
are structured to use agency employees as conflict resolvers. As the ACUS Ombuds Report
noted, one way that federal agencies can ensure independence of the programs is through the
“reporting structure.”316 Ombuds offices that report directly to the head of the agency, as
opposed to compliance departments, human resource departments, or other channels, maintain
needed independence to investigate and report.
Within mediation, arbitration, and conciliation programs, agencies reported that neutrals
are expected to make disclosures as required by the ADRA. If a conflict of interest arises, a
different neutral would need to be assigned to protect the integrity of the process. At least one
agency reported that the neutral must make an affirmation that no conflicts exist prior to
beginning the process. Another agency reported that conflicts checks are carried out by the
general counsel’s office.
Confidentiality
Confidentiality is a bedrock principle of federal agency ADR. Survey responses and
interviews show that many agencies rely on the confidentiality and privilege protections
provided under the ADRA. In addition, some agencies indicated that they created specific
316

ACUS Ombuds Report, supra note 66, at 14.

54

policies governing confidentiality within their programs, though there are no clear trends
according to modality. Some agencies note the confidential nature of ADR processes on their
website, presumably to give assurances to stakeholders.317
Some agencies execute ADR agreements that include confidentiality clauses for each
ADR proceeding. On its website, the NRC makes public a short confidentiality agreement used
in enforcement actions.318 This particular agreement, while only six paragraphs long, covers all
the pertinent issues, written in plain language. It covers voluntariness, confidentiality and
privilege, the role of the agency “program manager” as it relates to confidentiality, the
prohibition of recording the sessions, the treatment of notes, and how an agreement arising from
the mediation would be handled.319
The Department of Education’s case processing manual also specifically requires
confidentiality agreements. It further instructs the facilitator to keep all notes from the process,
and documents shared by the parties in a separate file not available to enforcement personnel.320
The FMCS mediation agreement makes clear who will have access to mediation
information. Under its agreement, “[o]nly Parties may attend or have access to any part of the
mediation unless all Parties and the mediator agree, or as required by law.”321 The FMCS
agreement covers all aspects of the mediation process, while the NRC and Department of
Education agreements are specific to confidentiality.
Whether the confidentiality guarantees are in a standalone agreement or in a broader
ADR agreement (mediation agreement, facilitation agreement, etc.), these disclosures help
ensure that everyone understands whether and how statements made in ADR can be used after
the process. As discussed more below, having such agreements is a best practice that should be
considered by agencies not currently using them.
In addition to agreements, some agencies have rules or practices regarding access to ADR
processes and information as a means to protect the information disclosed. Multiple agencies
reported that only ADR practitioners and the participants have access to the records of individual
317

See, e.g., Office of Collaborative Action and Dispute Resolution, supra note 112 (“CADR provides a fair, impartial,
and confidential resource to discuss your concerns and explore different options to help you anticipate and resolve
conflicts and disputes, build stronger relationships and achieve more effective and lasting results.”); Natural Resources
and Environmental Conflict Resolution, DEP’T OF THE INTERIOR, https://www.doi.gov/pmb/cadr/programs/naturalresources#cadr (last visited Aug. 23, 2021) (“The Office of Collaborative Action and Dispute Resolution (CADR) has
more than two decades of experience providing DOI Bureaus and Offices and external stakeholders with independent,
confidential, and impartial collaborative problem-solving and alternative dispute resolution (ADR) expertise and
services.”); Chapter 3 Alternative Dispute Resolution for EEO Matters, U.S. EQUAL EMP. OPPORTUNITY COMM’N,
https://www.eeoc.gov/federal-sector/management-directive/chapter-3-alternative-dispute-resolution-eeo-matters
(last visited Aug. 23, 2021) (“Confidentiality is essential to the success of all EEO ADR proceedings.”).
318
ADR Pilot Program – Confidentiality Agreement, U.S. Nuclear Regul. Comm’n, https://www.nrc.gov/aboutnrc/regulatory/enforcement/adr_confidentiality_agreement_form.html (June 8, 2020).
319
Id.
320
See Case Processing Manual, Section 203, U.S. DEP’T OF ED. OFFICE OF CIVIL RIGHTS,
https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf (Aug. 2020).
321
Mediation Agreement, FED. MEDIATION & CONCILIATION SERV., https://www.fmcs.gov/wpcontent/uploads/2020/04/Mediation-Agreement_fillable.pdf (Apr. 2020).

55

cases. The NRC agreement also notes that while the program manager has access to ADR
records, that access is limited to management of the proceeding.
Confidentiality as discussed in this subsection refers to confidentiality of individual
cases, and any identifying case information. The ADRA specifically allows agencies to collect
data for reporting, as well as educational and research uses of aggregate data, provided “the
specific issues in controversy are not identifiable.”322 Many ADR programs and ombuds offices
compile reports that provide and make public valuable aggregate data regarding their services.
Annual reports often provide information, such as, but not limited to: 1) cases opened in the year,
2) cases closed in the year, 3) number or percent of cases that closed successfully, 4) and the
topic area of the case. Some also aggregate data from participant evaluations including
satisfaction with results, satisfaction with the process, and willingness to use the program
again.323
Competency
In addition to serving as a measure of quality control, credentials and training can be used
to meet the ethical duty of competency. These items are discussed in more detail above and will
not be repeated here.
Agencies also indicated other measures of competency outside of qualifications and
training. For instance, one agency reported using settlement rates as a measure of competency.
Settlement rates have long been considered a measure of success for mediation programs,
particularly pilot programs.324 Settlement rates are not always an indicator of competency,
however. Individual mediators or conciliators with extraordinarily high settlement rates may be
disguising coercive behaviors on the part of the neutral, thus decreasing party autonomy. On the
other end, a neutral’s low settlement rate may be attributable to parties’ unwillingness to settle,
no matter the skill level of the neutral.
Other Issues
Four agencies stated they have a hierarchy in place for neutrals to reach out to other
officials during cases to receive guidance on ethics issues. All four of those agencies mentioned
either their agency’s general counsel or a comparable connected attorney as a place to go to
receive guidance on ethics issues in a case. This type of structure helps neutrals find answers to
difficult questions and to solve issues before they escalate. Although these processes are
available, the agencies also noted that they are rarely needed.

322

5 U.S.C. § 574(h).
See, e.g., Enforcement, U.S. EQUAL EMP. OPPORTUNITY COMM’N, https://www.eeoc.gov/enforcement (last visited
Oct. 1, 2021) (citing 2019 aggregate mediation data and satisfaction rates).
324
See Naman J.L. Wood, Can Judges Increase Mediation Settlement Rates? Of “Coase” They Can, 26 OHIO ST. J.
DISP. RESOL. 683 (2011) (discussing factors outside of a mediator’s performance that impact case settlement rates);
Ignazio J. Ruvolo, Appellate Mediation – “Settling” the Last Frontier of ADR, 42 SAN DIEGO L. REV. 177, 190-91
(2005) (discussing settlement rates in pilot data of appellate mediation program).
323

56

Finally, at least one agency noted that its office also relies on national ethical codes of
conduct and standards of practice. That agency expects its neutrals to be familiar with standards
approved by organizations such as the AAA, ABA, and the Association for Conflict Resolution.
3. Recommendations
We recommend the following to enhance the ethical practice of dispute resolution across
agencies and across programs:
Increasing transparency regarding ethics and standards of practice. While many
agencies provide valuable information regarding their conflict resolution programs, few agencies
include information on ethics and standards of practice on their web pages. Including this
information on agency websites should provide additional information to participants, as well as
demonstrate the agency’s commitment to ethical practice.
Use of ADR agreements, including confidentiality agreements. The use of ADR
agreements that outline expectations—including expectations of confidentiality—should be used
for all ADR programs. Agencies not currently using these forms on a regular basis should
consider creating and adopting such forms.
Standards of practice for specific programs. Although the ADRA provides legal
standards for issues such as confidentiality and neutrality, the ADRA does not address a number
of ethical issues, particularly in mediation, conciliation, and ombuds practices. Agency programs
may consider adopting standards of practice for their programs or committing to follow national
standards, such as the Model Standards of Conduct for Mediators or the International
Ombudsman Association Standards of Practice.
Harmonizing ethics rules. As this section demonstrates, federal neutrals may be bound by
ethical considerations from multiple sources, including ethics due to federal employment, the
ADRA, and codes of ethics specific to a process or a program. Training on how these ethical
laws and guidelines work together might be particularly useful.
Creating lines of communication for neutrals. The agencies that created lines of
communication for neutrals to raise questions or issues related to ethics matters succeeded in
solving problems before they arose in a way that could have disrupted proceedings. Agencies
may wish to consider clearly identifying an office or individual within the agency that can serve
in this role to the extent they do not have such a resource at present.
E. ADR Case Management Processes
ADR case management is another underexplored area of study that our project sought to
unearth. While ACUS has conducted work on case management in agency adjudication, no
similar study has examined case management in the ADR context.325 We asked each agency to
address the present contours of its case management system, if any, and the level of robustness of
325

Admin. Conf. of the U.S., Recommendation 2018-3, Electronic Case Management in Federal Administrative
Adjudication, 83 Fed. Reg. 30686 (June 29, 2018).

57

that system. We sought information on the actors involved at the operational and leadership
levels of case management. We were also interested in the effectiveness and efficiency of the
case management process, especially with respect to any electronic platform in place, any
challenges and opportunities for improvement.
1. Background
Case management is an important, practical consideration for the orderly operation of any
ADR program. Important case management components include, among other things, issues of
personnel, software for records and case progression, the ability to conduct conflict checking,
and the possibility of use of records for educational and research purposes.
ADR programs employ personnel to manage the flow of cases. Outside of federal agency
practice, ADR organizations often deal with hundreds, if not thousands, of cases per year,
depending on the organization’s reach and community served. For many programs, case
managers are assigned and bear administrative responsibility for each individual case. At
FINRA, for example, all cases, whether arbitration or mediation, are initially assigned a “case
manager” at one of its regional offices.326 Whether the program is a court-connected program, a
government program, a program run by an ADR provider organization, or a community program,
case managers may have a wide variety of duties, such as appointing individual neutrals,
facilitating conflicts checking, docketing, site logistics, and transmitting agreements, awards, and
other types of close-out documents.327
Case managers may or may not also be ADR professionals. Although case managers have
at least a working understanding of the services provided through their office, they do not
necessarily engage in providing ADR services. In some instances, one of the biggest benefits of
using case managers may be to provide distance between the parties, the neutrals, and the
management of the case. The presence of independent case managers can be particularly useful
to handle ethical issues arising out of the conduct of the neutrals without the need to alert the
neutral in the first instance.328
In addition to good case management personnel, good case management software can be
instrumental in running a quality ADR program. Case management software can serve multiple
purposes. On the one hand, the software keeps an electronic file in one place for the case
manager. Secondarily, the software may also include a portal that allows ADR neutrals to follow
the progression of a case. FINRA has a particularly robust system for case management.329
326

Kristen M. Blankley, FINRA’s Dispute Resolution Pandemic Response, 125 PENN. ST. L. REV. __ (forthcoming
2021) (describing FINRA case management).
327
See e.g., Peter Leibold & Michael Schaff, Healthcare ADR, APR. N.J. LAW., Apr. 2011, at 67, 69 (discussing pros
and cons of using case management providers, such as the AAA or JAMS, for arbitration cases); Tracey S. Wiltgen,
Different Models of Mediation: Finding the Right Fit?, HAW. B.J., Feb. 2004, at 35, 36 (discussing duties of case
managers at community mediation centers).
328
See, e.g., Thomas Kinkade Co. v. White, 711 F.3d 719, 722 (6th Cir. 2013) (describing a situation in which a
challenge to an arbitrator was made to the AAA case manager and resolved without having to alert the arbitrator to
the potential challenge).
329
See Blankley, supra note 326 (describing the online docketing system for FINRA and the differences in the party
portals and the neutral portals).

58

FINRA’s arbitration cases have portals for both the neutrals and the parties, each with different
functionality due to the participants’ different roles.330 This software allows parties to submit
documents to the arbitrators, and arbitrators have the ability to upload orders, both of which
streamline the process by making it paperless. In recent years, there has been also some
commercial software for mediation case docketing.
An important aspect of case management is the detection and disclosure of conflicts of
interest. As discussed above, neutrality and disclosure of conflicts are bedrock ethical principles
that underpin all ADR programs. Case managers, and case management software systems may
serve a role in discovering conflicts of interest, either through electronic conflicts checking or by
making ADR professionals’ conflicts disclosures a standardized part of the case progression.
Records retention raises unique issues for federal agency ADR case management. In
mediation practice, it is typical to destroy notes nearly immediately following the conclusion of
the mediation to safeguard confidentiality. Agencies, however, must manage all their records
under federal records laws.331 The National Archives and Records Administration (NARA)
issues general records schedules to provide disposition authority for records common to multiple
agencies. These schedules authorize agencies after specified periods of time to either destroy
temporary records or transfer permanent records to NARA (only a narrow category of records is
permanent; ADR records, like case records, are generally treated as temporary). “Mission”
records (ADR records that are produced as part of an agency’s primary mission and thus unique
to the agency) are generally not covered in the general records schedules but must be separately
scheduled by the agency and approved by NARA. NARA is required by law to issue a notice in
the Federal Register of a schedule proposing the disposal of unscheduled series of records or a
reduction in the retention period of a series already approved by disposal. Members of the public
can review and comment on the proposed schedules and NARA considers the comments and
consults with the agency before approving them.332
Although some documents generated during an ADR proceeding may be federal records,
designation as a federal record does not affect confidentiality. In its 2006 publication, Protecting
the Confidentiality of Dispute Resolution Proceedings: A Guide to Federal Workplace Program
Administrators, the Interagency ADR Working Group discussed the interplay between federal
records law and confidentiality.333 While a federal record is being maintained, substantive law on
confidentiality still applies.
330

Id.
44 U.S.C. § 31.
332
See NARA Schedule Review and Approval Process, U.S. NAT’L ARCHIVES & RECS. ADMIN.,
https://www.archives.gov/records-mgmt/scheduling/nara-review (last visited Aug. 23, 2021). The creation of agency
records is also governed by the Privacy Act of 1974, as amended, 5 U.S.C. § 552a. The Privacy Act requires agencies
to public a notice in the Federal Register for each system of records they collect. A system of records is any group of
information about an individual that is retrievable by personal identifiers, such as name or social security number.
These notices, called SORNs, are available on agency websites. For an example of an SORN for an electronic system
of ADR records, see https://www.govinfo.gov/content/pkg/FR-2012-11-09/pdf/2012-27431.pdf.
333
See INTERAGENCY ALT. DISP. RESOL. WORKING GRP. STEERING COMM., PROTECTING THE CONFIDENTIALITY OF
DISPUTE RESOLUTION PROCEEDINGS: A GUIDE FOR FEDERAL WORKPLACE PROGRAM ADMINISTRATORS 38–43 (2006),
https://www.adr.gov/pdf/final_confid.pdf. Although the guide is addressed to workplace ADR, the legal and practical
points apply to ADR generally.
331

59

As discussed in other parts of this report, ADR programs often collect information and
data that may be useful for research and educational purposes. In fact, the ADRA specifically
exempts such data from its sweeping confidentiality requirements, and does “not prevent the
gathering of information” for such purposes.334 Some of the national ADR standards specifically
call for the study of such information to inform and better the practice and the field.335 Some
scholars have called for increased transparency regarding data collection and consistency of such
collection for research purposes, including comparative research.336 Many agencies currently
publish annual reports regarding their programs, including aggregate case information, although
such annual reporting does not appear to have requirements for consistency from agency to
agency or program to program.
2. Agency Practices
There is considerable variation in case management across the executive branch ADR
programs. Given the many levels of case management, we will take each in turn.
Intake
Some agencies assign a staff member to serve as a case manager. Not all have formal
case manager titles, and in some cases the staff member that oversees the ADR proceeding is
also the case manager within the agency’s adjudicative process. Other agencies have staff that
act as administrators that are quasi-case managers. Typically, among the smaller agencies or
programs with as few as three ADR staff, all the management is handled across those three staff
members. Still others have clerks that assign case numbers and handle docketing in a quasijudicial manner. Their roles differ but their primary task is the same: to acknowledge the dispute,
and to put the paperwork together to commence the proceedings. From that moment forward,
tasks diverge considerably in the way the case is handled.
Agencies apply different case management procedures depending on the type of dispute,
the form of dispute resolution, and whether the process is confidential. Some agencies categorize
their cases by distinct types whereas others have only a single track. Further, sometimes agency
counsel advises the parties on whether to proceed with ADR at all; occasionally, agency counsel
serves some other gatekeeping role such as pre-screening. Staff at certain agencies are trained in
the review process to determine whether ADR would be beneficial in the settling of a dispute.
Some staff noted that their advice may turn on agency resources rather than the facts of the
dispute, legal arguments, or the situation of the parties. Elsewhere, that determination is set out
in statute.

334

5 U.S.C. § 574(h).
See MODEL STANDARDS OF CONDUCT FOR MEDIATORS, Standard IX (recommending that a mediator participate
“in research when given the opportunity, including obtaining participant feedback when appropriate”); IOA
STANDARDS OF PRACTICE, Standard 3.7 (requiring confidentiality when gathering information for reporting purposes).
336
See, e.g., Nancy A. Welsh, Bringing Transparency and Accountability (With a Dash of Competition) to CourtConnected Dispute Resolution, 88 FORDHAM L. REV. 2449 (2020) (discussing information that court-connected ADR
programs should be collecting to promote transparency and accountability).
335

60

One agency noted a pre-filing process for its disputes where one of the attorneys in its
ADR office will meet with the parties to discuss their situation and to receive feedback. This
process allows the parties to have an assessment of their respective positions prior to the
commencement of the ADR proceedings.
Management means different things to different agencies. Some are very hands-off
following the commencement of the ADR proceedings. Others manage closely all the filings and
other materials as well as the needs of the third-party neutral. In most instances, agencies are the
keeper of the confidentiality and ethics materials to ensure the integrity of the proceedings. At
least one member of staff will carry out the conflicts check process.
Some agencies assign counsel and a neutral to the proceedings while others just take note
of the proceedings but allow the parties to identify their own neutral from a roster or suggested
list. There may be no engagement at all with the agency after the notification of the dispute.
For those that do involve agency staff as non-neutrals, their roles vary. Some serve
informational roles only while others are more involved assisting either parties, depending on
needs, or the neutral.
Records and platforms
Most agencies today use electronic records but at least one agency is still using paper
records. Among those with electronic records management software, most often they are licensed
from a contractor although some have developed their own in-house proprietary systems.
Firewalls are critical for ethical reasons. As noted above, agency case files are subject to federal
recordkeeping rules. In July 2019, NARA and the Office of Management and Budget (OMB)
jointly issued guidance on how to maintain and manage electronic records that also applies to
ADR programs.337
As the ADR Working Group has observed, the individual neutral’s notes generally are
not subject to disclosure pursuant to an exception in the ADRA.338 One ombuds explained that he
regularly destroys his personal notes quarterly unless a matter is still ongoing, while maintaining
basic tracking information in a database that is subject to records retention rules.339
Agencies maintain strict separation of case files from other files to protect confidentiality
and shield against conflicts of interest. For example, in the EPA Environmental Appeals Board
process, the settlement judge and the staff attorney assigned to the case must maintain strict
confidentiality within the office so that the remaining Board members do not receive information
that the parties intend to be confidential that may influence the decision-maker’s view of the
case.

337
Arian D. Ravanbakhsh, New OMB/NARA Memorandum on Transition to Electronic Records, RECORDS EXPRESS
(July 1, 2019), https://records-express.blogs.archives.gov/2019/07/01/new-omb-nara-memorandum-on-transition-toelectronic-records/.
338
5 U.S.C. § 574 (a) (discussing confidentiality afforded to neutrals).
339
Interview with Marcus Stergio, Ombuds, Office of Federal Contract Compliance Programs (June 23, 2021).

61

Post-dispute follow-up
Some agencies follow-up or continue to track dispute settlements after the conclusion of
the ADR proceeding but not all do. In fact, most consider a case to be successful only where they
do not hear from participants after a proceeding’s conclusion. In some instances, any follow-up
may involve adjudication that is handled by another part of the agency. Some agencies noted that
they have case follow-up programs in place but due to limited resources they have not reviewed
those, sometimes in several years.
Maintaining records of proceedings following their conclusion could help agencies
develop a fuller understanding of the long-term success of their programs and strategies that
create enduring solutions for parties. However, most agencies lack resources to maintain close
contact and it may be difficult to isolate the variables to draw conclusions from such tracking.
3. Recommendations
The variation among the agencies’ ADR programs is greatest when it comes to their case
management practices. There are also notable disparities in agency participants’ evaluations of
their case management experiences. Among survey respondents, about half were very satisfied
with the systems that their agencies use for case management. The other half were only mildly
satisfied or were neutral. About half of respondents believe that their agency’s present practices
are very effective for smooth operation of cases. Among those who feel differently, they have
commented that they are not able to identify particular weaknesses. It is difficult for individual
agency staff to identify the range of options for case management and how to implement them
given the competing demands on their time.
External audit. Across the agencies studied here, costs were a problem but with
additional funding, each agency would have several areas for improvement as highlighted above
(better electronic platforms, more staff, tracking proceedings following their conclusion). Among
those agencies that were able to identify problems, the report team identified still others. This
review suggests that most of the programs would benefit from an external audit by an outside
actor (whether a private consulting firm, a specialized agency, or a trained research team, among
others) that could advise them on case management amendments and opportunities. Such a
review as to case management could assess objectively how the program is administering its
ADR functions and could recommend best practices in an area that is presently underserved by
existing research. Further, case management tends to be highly targeted to individual programs.
A personalized review would help bridge any gaps in information-sharing across agencies
intended to improve case management techniques.
Software review. To the extent that agencies are using case-management software, those
programs should be periodically reviewed internally (or externally where possible) not only for
efficacy but also for security and ability to maintain confidentiality. Software should have
firewalls and encryption that are reasonable for the industry.
Ethics policies. Offices that offer both adjudicative services and settlement services
should have clear, written policies regarding the ethical walls between the adjudicative staff and
62

the settlement staff. For example, policies should outline (1) who has access to which materials
and (2) how passwords or other protocols ought to be implemented to ensure those walls are
constructed. The responses we received indicate that such ethical walls or separation is
occurring; we advise that these offices have written policies if none currently exists.
F. Interagency Mechanisms to Facilitate ADR and Provide Support
This section describes interagency arrangements in place to support and facilitate ADR.
In addition to those mentioned here, we are aware of several informal and formal arrangements
maintained by different groups of ADR practitioners in the federal government. Some of those
extend beyond the work of this study. Some also are difficult to capture in any documented way.
Thus, we focus here on programmatic interagency initiatives.
1. Agency Practices
There are four different organizations or groups with missions that include assisting
federal agencies with alternative dispute resolution programs: the Interagency Alternative
Dispute Resolution Working Group, FMCS, the National Center, and COFO. Each has a
different statutory basis, structure, and resource base.
The Interagency Alternative Dispute Resolution Working Group
In addition to authorizing agencies to use alternative dispute resolution to resolve issues
in controversy in administrative programs, the ADRA of 1996 directed the president to designate
an agency or designate or establish an interagency committee to facilitate and encourage agency
use of dispute resolution. The designee, in turn, was required to (1) encourage and facilitate
agency use of alternative means of dispute resolution, and (2) develop procedures that permit
agencies to obtain the services of neutrals on an expedited basis.340 On May 1, 1998, President
Clinton created an Alternative Dispute Resolution Working Group (the “ADR Working Group”)
comprised of Cabinet departments and other agencies with a significant interest in dispute
resolution to be convened by the Attorney General.341
The ADR Working Group’s mission is to facilitate, encourage and provide coordination
for agencies in such areas as: (1) development of programs that employ alternative means of
dispute resolution, (2) training of agency personnel to recognize when and how to use alternative
means of dispute resolution, (3) development of procedures that permit agencies to obtain the
services of neutrals on an expedited basis, and (4) recordkeeping to ascertain the benefits of
alternative means of dispute resolution.342 The ADR Working Group also periodically advises
the president, through the Director of the Office of Management and Budget, on its activities.343

340

Pub. L. No. 104-320, § 573.
See Memorandum, supra note 32. The Office of Dispute Resolution within the Justice Department’s Office of
Legal Policy originally represented the Attorney General in leadership of the ADR Working Group. See archived
content at www.doj.gov (last visited Oct. 22, 2021).
342
Id.
343
Id.
341

63

To staff its operations, the ADR Working Group established a Steering Committee
composed of staff-level ADR experts in various agencies.344 The Steering Committee’s role was
to staff the ADR Working Group and support the work of four sections, which include: (1)
workplace conflict management; (2) contracts and procurement; (3) administrative enforcement
and regulatory process; and (4) litigation. The Attorney General, on behalf of the ADR Working
Group, issued reports to the President for 2000, 2007 and 2016, discussed below.
Through its Steering Committee, the ADR Working Group originally actively engaged in
providing interagency assistance in the forms of outreach to agencies, publication of guidance,
provision of training, and the making of recommendations to further ADR. These achievements
were especially impressive because all members were volunteers and the ADR Working Group
lacked a dedicated source of funding. Over the past decade, however, the support provided by
and to the ADR Working Group has dwindled, and the source of its leadership and resources is
unclear.
For its first year of operation, the Working Group reported that it had created a website
and had held more than 50 training sessions, meetings and colloquia on all aspects of ADR with
more than 500 participants from across the federal government.345
The Civil Enforcement Section of the ADR Working Group346 reported that 26 federal
agencies with unique statutory and regulatory missions, requirements, and regulated
communities participated in its activities. These activities included holding section meetings to
share knowledge, educational sessions to develop skills necessary to support an ADR program,
and the development of a cadre of experts to serve as specialized consultation teams.347 One
example, according to the Report, was the provision of a consultation team to assist FERC staff
to move from a vision to fully established program.
The ADR Working Group also created a Federal ADR Manager’s Resource Manual, a
comprehensive guide to creating and operating an ADR program in the federal government, and
asked its members to complete surveys on its ADR activities, posting the results on its
website.348
Finally, the Report discussed plans for the future. It stated that the ADR Working Group
would coordinate with the newly created ADR Council, a group of senior executives who would
develop ADR policy guidance for the executive branch, to focus on issues that cut across ADR
programs at all agencies, such as confidentiality, best practices and procedures for the use of

344

See Interagency Alt. Disp. Resol. Working Grp., About the Interagency ADR Working Group, https://adr.gov/aboutadr.html. (last visited Oct. 22, 2021).
345
See INTERAGENCY ALT. DISP. RESOL. WORKING GRP., REPORT TO THE PRESIDENT ON THE INTERAGENCY ADR
WORKING GROUP (1999).
346
In 2002, the Civil Enforcement Section’s name was changed to the Civil Enforcement and Regulatory Section to
recognize the expansion of ADR to areas involving regulatory conflicts.
347
INTERAGENCY ALT. DISP. RESOL. WORKING GRP., supra note 345.
348
Id.

64

arbitration.349 The Civil Enforcement Section reported plans to create additional trainings and
manuals, as well as to offer periodic symposia on relevant issues.350
In 2007, the ADR Working Group reported that the Steering Committee had published an
updated governance document that identified the mission, authority, and structures of the
Working Group’s Sections and Steering Committee. It identified three new guides it had
published, including guides on mediation confidentiality in workplace disputes, ethical guidance
for federal employee mediators. It also published a survey of ADR operations at over 100
agencies and agency components.351
In looking at the future of ADR in the federal government, the 2007 Report observed:
While workplace dispute resolution – particularly in the EEO arena – still
represents a significant portion of ADR activity in the federal government, many
agencies have broadened their application of ADR into other areas. As more data
are collected and analyzed in these areas, it is becoming clear that ADR has met
and exceeded the challenge of providing parties a cost-effective and time-efficient
approach to resolving conflict.352
Finally, the 2007 Report contained recommendations for fulfilling the promise of ADR in
the coming years. They included: establishment of a Federal Council and annual conference for
agency dispute resolution specialists, a government-wide biennial ADR achievement awards
program, incorporating conflict management principles into agency performance management
structure, use of conflict management as a selection and performance appraisal criterion for
executive and management positions, programmatic review and evaluation that show measures
of progress in implementing ADR programs, external promotion and facilitation of ADR,
broadening the provision of ADR training, and interagency sharing of federal resources.
The next ADR Working Group report was issued nearly a decade later and contained
considerably less content and no recommendations for agencies. It reported that the Working
Group was meeting bi-monthly to share expertise and best practices in dispute resolution across
the executive branch and was facilitating ADR training and program development for agencies
seeking to initiate or expand existing programs (unlike the prior reports, it did not identify any
examples of the latter). Forty-seven agencies, fewer than half those responding in 2007,
responded to the Working Group and DOJ’s survey regarding their ADR activities.353

349

There is no mention in of the Council in the two subsequent ADR Working Group reports and it does not appear
on the ADR.gov website.
350
INTERAGENCY ALT. DISP. RESOL. WORKING GRP., supra note 345.
351
See LINDA A. CINCIOTTA ET AL., REPORT FOR THE PRESIDENT ON THE USE AND RESULTS OF ALTERNATIVE DISPUTE
RESOLUTION IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT 24–25 (2007),
https://www.adr.gov/pdf/iadrsc_press_report_final.pdf (last visited Oct. 22, 2021).
352
Id.
353
INTERAGENCY ALT. DISP. RESOL. WORKING GRP., 2016 REPORT ON SIGNIFICANT DEVELOPMENTS IN FEDERAL
ALTERNATIVE DISPUTE RESOLUTION 2 (2016), https://www.adr.gov/pdf/2016-adr-rpt.pdf (last visited Oct. 22, 2021).

65

The Department of Justice abolished the Office of Dispute Resolution in June 2018.354
This left the ADR Working Group without funding to update its website. The last newsletter of
the ADR Working Group was issued in June 2018. Throughout 2019, the committee offered
quarterly seminars on workplace ADR issues through the Department of Energy but there are no
seminars listed on the website currently. Little new content has been added to the website over
the past decade.355
In 2020, responsibility for the website was transferred to FMCS, which received funding
to perform an update. FMCS currently is working on updating the website to make it a resource
center with model forms, guidance and training materials.356
It is unclear who is responsible for the Working Group since the termination of the
Attorney General’s leadership designee with no replacement. As it is an all-volunteer group with
no committed resources either as a freestanding entity or as a responsibility of an agency with
budget resources granted to it by Congress (except for some funding to FMCS for the website),
support for its functions has been, and continues to be, uneven.
The Federal Mediation and Conciliation Service
Although originally created to provide mediation services to private sector labor disputes,
FMCS has grown in both statutory authority and programmatic offerings to play a major role in
promoting and supporting the use of ADR across the federal government.
The Taft-Hartley Act created the FMCS to promote labor-management peace and
cooperation and to provide neutrals to assist in the resolution of private sector labor disputes.357
In 1978, Congress expanded the FMCS mission to provide ADR to federal agencies and unions
that reach impasse in labor negotiations,358 and in 1980, extended this authority to encompass
labor disputes within the U.S. Postal Service.359 The ADRA of 1996 expanded FMCS’s role in
federal ADR, authorizing FMCS to assist agencies with their ADR programs, provide neutrals
and training, and consult with the Interagency ADR Working Group on a roster of neutrals.360
Today FMCS provides mediation and conflict resolution services to industry, government

354
Memorandum from Att’y Gen. Jeffrey B. Sessions III on Eliminating the Office of Dispute Resolution to Beth Ann
Williams,
Assistant
Att’y
Gen.
Office
of
Legal
Policy
(June
25,
2018),
https://www.justice.gov/olp/page/file/1324721/download (last visited Oct. 22, 2021). Congress approved this action
in the spring of 2019.
355
See Interagency Alt. Disp. Resol. Working Grp., ADR Resources and Guidance,
https://www.adr.gov/guidance.html (last visited Aug. 23, 2021).
356
Interview with David Moora, Commissioner, FMCS (Feb. 8, 2021).
357
Pub. L. No. 80-10, § 203 (1947).
358
Pub. L. No. 95-454, codified at 5 U.S.C. § 7119(a).
359
Pub. L. No. 96-326 (1980).
360
Section 7 of the 1996 ADRA, amending Section 203 of the Labor-Management Act of 1947 (29 U.S.C. § 173). For
a discussion of the ADR work of FMCS in the early years of its expanded mandate, see Jerome T. Barrett, The FMCS
Contribution
to
Nonlabor
Dispute
Resolution,
MONTHLY
LAB.
REV.,
Aug.
1995,
https://www.bls.gov/opub/mlr/1985/08/art4full.pdf.

66

agencies and communities.361 It is the nation’s largest independent public agency dedicated
solely to ADR and conflict management.362
FMCS provides a wide range of conflict resolution services to other agencies for both
workplace and administrative program disputes, maintaining separate programs for each.363 The
services FMCS makes available for interagency administrative program disputes include
assessments and system design, the provision of neutrals, training, and the sharing of best
practices through education and outreach.364 As FMCS does not receive appropriated funding for
this program, it provides these services through interagency agreements that reimburse it solely
for staff time.
Support for administrative program disputes resides in the Office of Conflict
Management and Prevention,365 to which six mediators are assigned.366 FMCS provides
mediators to agencies pursuant to interagency agreements. It currently has over 60 interagency
agreements.367 FMCS also performs a “procedures audit” where requested to study how issues
and problems are currently resolved within an organization. After reviewing available
improvement paths, it creates a detailed plan for the implementation, maintenance and evaluation
of an improved dispute resolution system.368
Among the services FMCS offers to other agencies is dispute resolution system design.
FMCS performs a “procedures audit” to study how issues and problems are currently resolved
within an organization. After reviewing available improvement paths, it creates a detailed plan
for the implementation, maintenance and evaluation of an improved dispute resolution system.369
The FMCS Institute for Conflict Management provides centralized classroom training,
both live and web-based, in mediation, negotiation, arbitration, workplace violence prevention
and organizational development. It is an approved recertification provider by the Society for
Human Resource Management (one of the largest human resources membership associations
focused on professional development and certification of competencies) and many of its courses
are approved for continuing legal education for attorneys.370 Core programs include a 40-hour
Basic Mediation Skills course, an Advanced Mediation Skills course, a Mediation Skills
Refresher course, and Facilitation and Advanced Facilitation Skills courses. Other courses
361

About Us, FED. MEDIATION & CONCILIATION SERV., https://www.fmcs.gov/aboutus/ (last visited Aug. 23, 2021).
Mark Fotohabadi, What is the Federal Mediation and Conciliation Service?, ADR TIMES (Dec. 4, 2020),
https://www.adrtimes.com/federal-mediation-and-conciliation-service/.
363
FAQs, FED. MEDIATION & CONCILIATION SERV., https://www.fmcs.gov/resources/faqs/ (last visited Aug. 23,
2021).
364
Alternative Dispute Resolution for Government, FED. MEDIATION & CONCILIATION SERV.,
https://www.fmcs.gov/services/alternative-dispute-resolution-for-government/ (last visited Aug 23, 2021).
365
Conflict
Management
&
Prevention,
FED.
MEDIATION
&
CONCILIATION
SERV.,
https://www.fmcs.gov/aboutus/agency-departments/division-of-agency-initiatives/ocmp/ (last visited Aug. 23, 2021).
366
Survey response from FMCS, Feb. 2021. In addition, to meet the needs of a requesting agency, CM&P has the
ability to draw on FMCS mediators.
367
Interview with Peter Swanson, Director of Office of Conflict Management and Prevention, FMCS (May 7, 2021).
368
See FAQs, supra note 365.
369
Id.
370
Providing Practical, Customized Conflict Training, FED. MEDIATION & CONCILIATION SERV.,
https://www.fmcs.gov/wp-content/uploads/2017/03/FMCS-InstituteV3.pdf (last visited Aug. 23, 2021).
362

67

include an Essential Conflict Resolution Skills series and workshops targeted at specific skills
such as mindfulness and trust-building.371 The Institute also offers customized conflict resolution
training to meet an agency’s special needs. This includes mediator coaching and mentoring in
which FMCS mediators co-mediate cases, observe mediations, and provide one-on-one coaching
to enhance the development and competence of new mediators.372
FMCS also participates in and promotes conferences and workshops and provides
customized training modules.373 Its website features multimedia presentations featuring summits
and symposia that highlight lessons learned from ADR successes and discussions of its potential
for problem-solving in various areas.374
The National Center
The 1998 EPCRA375 created the U.S. Institute for Environmental Conflict Resolution
(which Congress renamed in 2019 as the John S. McCain III National Center) to assist the
executive branch in implementing the National Environmental Policy Act of 1969 by providing
assessment, mediation or related services for conflicts dealing with the environment, public
lands, or natural resources. The National Center is part of the Udall Foundation, an independent
federal agency established in 1992 to honor Morris Udall’s impact on the nation’s environment,
public lands, natural resources and support for the rights and self-governance of Native
Americans.376
The National Center is a small organization, with a staff of eleven federal employees, all
of whom are neutrals and case managers. It leverages its annual appropriation through cost
recovery from services fees and the use of contracted private sector providers to augment service
capacity.
Services offered by the National Center include consultations, assessments, process
design, convening, mediation, facilitation, stakeholder engagement, Tribal consultation, and
other related collaboration and conflict resolution activities. As part of this work, the National
Center provides a training program to develop skills and build workforce capacity in
collaboration, communication, problem solving, and conflict resolution. It specializes in
providing assistance in the following areas:
x
x
x
x

Nationally and regionally important environmental challenges;
Multi-party high-conflict cases where an independent Federal neutral is needed;
Collaborative efforts involving Tribes and Native people;
Interagency and interdepartmental collaborations;

371

ADR Conflict Resolution Training Courses, Workshops, and Webinars, FED. MEDIATION & CONCILIATION SERV.,
https://www.fmcs.gov/wp-content/uploads/2016/10/ADR-Training-Brochure-2015.pdf (last visited Aug. 23, 2021).
372
See id.
373
Conferences and Workshops, FED. MEDIATION & CONCILIATION SERV., https://www.fmcs.gov/services/educationand-outreach/conferences-and-workshops/ (last visited Aug. 23, 2021).
374
Documents and Data, FED. MEDIATION & CONCILIATION SERV., https://www.fmcs.gov/resources/documents-anddata/ (last visited Aug. 23, 2021).
375
Pub. L. No. 105-156 (1998).
376
See UDALL FOUND., https://udall.gov/ (last visited Aug. 23, 2021).

68

x
x
x
x

Issues involving multiple levels of government (Federal, State, Local, Tribal) and the
public;
Issues that require substantive expertise (e.g., National Environmental Policy Act,
transportation infrastructure, endangered species, cultural resources)
Training and capacity-building in ECCR for individuals and groups; and
Projects that require funding from multiple agencies and/or private organizations.

In general, environmental agencies request assistance from the National Center when impartiality
and process expertise are needed to lead complex conflict resolution and collaborative problemsolving efforts, especially for interagency cross-jurisdictional issues.
Much of the National Center’s work is to support ECCR, a high-water mark for multiagency collaboration in the field of ADR. ECCR refers to third-party-assisted environmental
collaboration as well as environmental conflict resolution to resolve problems and conflicts that
arise in the context of environmental, public lands, or natural resources issues, including matters
related to energy, transportation, and water and land management.377 We characterize the federal
ECCR community as a high-water mark in inter-agency collaboration in the ADR field because
of its sharing of knowledge and resources, and its use of common metrics and reporting, which
enables comparisons across agencies of the effectiveness of various approaches. This successful
interagency collaboration owes much to the fact that the ECCR community shares a common
statutory framework for conflict resolution, leadership from the White House through the
Council on Environmental Quality (CEQ), and the dedicated resources of the National Center.
The federal ECCR community regularly assesses and reports on the value of ADR using both
quantitative and qualitative metrics that is it continually refining. ECCR has a relatively long
history both inside and outside the federal government, which one official observed has enabled
those agencies involved in it to embed its principles into their cultures.378
EPCRA established procedures for federal agencies to access these resources and
provided funding for them. The law reflected the congressional goal to provide a neutral place
inside the federal government but “outside the Beltway” where public and private interests can
reach common ground.379 Specific objectives include:
x
x
x

Resolving federal environmental, natural resources and public lands disputes in a timely
and constructive manner through assisted negotiation and mediation;
Increasing appropriate use of ECCR and its effectiveness; and
Engaging in and promote collaborative problem-solving and consensus building during
the design and implementation of federal environmental policies.

In 2005, the Chair of the Council on Environmental Quality and the Director of OMB
jointly issued a Memorandum on Environmental Conflict Resolution directing agencies to
377
Memorandum from the Off. of Mgmt. and Budget and the Council on Env’t Quality on Environmental Conflict
Resolution
to
Executive
Branch
Agencies
(Nov.
28,
2005),
https://www.udall.gov/documents/Institute/OMB_CEQ_Memorandum_2005.pdf.
378
Interview with Michael Wolf, Director of Collaboration and Alternative Dispute Resolution, Federal Labor
Relations Authority (Sept. 3, 2021).
379
UDALL FOUND., supra note 256, at 6.

69

increase the effective use of ECCR, which was updated by a Memorandum on Environmental
Collaboration and Conflict Resolution in 2012. The 2012 Memorandum requires agencies to
leverage all environmental collaboration and conflict management techniques to improve
environmental governance.
The 2012 Memorandum set forth the following basic principles for agency engagement in
ECCR that demonstrate the values underlying the process. They include: (1) informed
commitment, (2) balanced, voluntary representation, (3) group autonomy, (4) informed process,
(5) accountability, (6) openness, (7) timeliness and (8) implementation. These principles make it
clear that ECCR is not just a docket-clearing exercise, but a way to engage all stakeholders in
environmental disputes in a collaborative process to achieve implementable solutions. They
provided a good starting point for dispute system design, which is not present in the 1998
Presidential Memorandum.
The 2012 Memorandum further provides for the OMB Director and CEQ Chair to
convene periodic leadership meetings of agencies. It requires the National Center to convene a
quarterly interagency forum of senior department and agency staff (the “Federal Forum”) to
provide advice and guidance and facilitate interagency exchange on ECCR. Agencies are
required to report to the Director and Chair at least every year on their use of ECCR and on the
estimated cost savings and benefits realized through it.380
The National Center provides training in ECCR mainly through federal staff; although it
is in the process of obtaining contractor-provided training as well.381 Current offerings include a
two-part series in the Fundamentals of ECCR. Course 1 of this series, Understanding Conflict
and Planning for Successful Collaboration, addresses the many facets of ECCR using interestbased negotiation to develop a collaborative process and collaborative communication skills.
Course 2, Crafting Collaborative Solutions to Environmental Conflicts, focuses on designing
collaborative processes and helping multi-party groups use interest-based negotiation and leading
groups through the process to find creative solutions to complex environmental and public policy
issues. Another offering is Collaboration with Native Nations and Tribal Consultation, designed
to improve intergovernmental relations through exposure to a broad array of concepts and skills
including history, law, policy, sovereignty, protocol, collaboration, communication skills, and
resources available.382
The National Center also provides on-site training for groups to develop skills critical to
successful collaboration, multiparty problem solving and communication. Its clients have
included federal agencies, state agencies and inter-governmental project groups. It also assists
individuals in obtaining a certificate in ECCR.

380
Since 2005, the National Center has collected individual agency reports and developed an annual synthesis report
of ECCR in the Federal Government. The synthesis and individual reports are available at UDALL FOUND., supra note
256.
381
Interview with Stephanie Kavanaugh, Deputy Director of the National Center (Feb. 17, 2021).
382
Detailed syllabi for courses are available at Available Trainings, UDALL FOUND.,
https://www.udall.gov/OurPrograms/Institute/OpenTrainings.aspx (last visited Aug. 23, 2021).

70

The National Center assesses its training program both on quantitative metrics (i.e.,
number of trainings provided) as well as qualitative metrics (trainee evaluations on the impact of
the training on their effectiveness). For example, in FY 2020 the Center reported providing
twelve training courses (exceeding its goal of nine) and achieving a 97 percent rate of positive
responses on the training impact question. It also convened five forums/conferences to promote
further awareness and use of ECCR within the federal government.383
The National Center provides a broad range of dispute resolution services for any
environmental conflict involving the federal government. Its most basic service is case
consultation, which it provides free of charge to help federal agencies and other stakeholders
explore the potential benefits of ECCR. If ECCR is selected, the Center provides fee-based
assessment, mediation and facilitation services to address environmental, public lands and
natural resources conflicts involving federal agencies and affected stakeholders, as well as
Native Nations or Tribal Issues.384 Generally, the National Center provides direct facilitation and
mediation services when: (1) agencies or stakeholders want help selecting a neutral third party,
(2) agencies or stakeholders need help to agree on whether they can work together to reach a
common goal, (3) agencies request the Center staff to address intra-agency disagreements or
challenges that interfere with the agency’s ability to participate effectively in larger collaborative
processes, (4) an agency prefers to use “federal family” neutral services or (5) agencies or
stakeholders specifically request Center staff.
The National Center measures the success of these services both quantitatively (number
of such services provided) and through feedback from stakeholders on whether the Center helped
them determine how best to proceed to resolve their conflict, well as whether progress was made
toward resolution. For FY 2020, the National Center reported 59 case consultations, and 32
assessments/facilitations/ mediations for environmental matters. It reported fifteen
assessments/facilitations/mediations for issues that concern Native Nations or Tribal issues. User
satisfaction, as measured by the percentage of cases where the majority of participants responded
positively to the above questions, was reported at 100% for both programs.
The National Center maintains an ECCR Roster, which contains information on neutrals
that meet its standards for expertise in ECCR. According to the Udall Foundation’s 2020
Performance and Accountability Report (“ PAR”), the Center is currently assessing the Roster’s
value and options to improve it, including plans to migrate administrative management of the
Roster to an external third party.385 The Center also maintains a Native Dispute Resolution
Network, the only national network of dispute resolvers with expertise in culturally appropriate
collaboration and conflict resolution across tribal, federal and state governments.

383

UDALL FOUND., supra note 256.
The Center defines conflict assessment as helping to identify issues in controversy, the affected interest, and the
appropriate form of handling the conflict. It defines facilitation as a collaborative process in which an impartial
professional seeks to assist a group of individuals or parties to discuss constructively a number of complex, potentially
controversial issues. It defines mediation as a process in which a skilled, impartial third party seeks to enhance
negotiations between parties to a conflict by improving communication, identifying interests, and exploring
possibilities for a mutually agreeable resolution
385
UDALL FOUND., supra note 256.
384

71

The National Center’s web site contains a number of summaries of cases in which it
successfully assisted resolving complex multi-party disputes using ECCR.386 Parties in these
cases have included federal agencies, state agencies, environmental groups, and local residents.
Issues have included environmental cleanup, endangered species protection, impact on residents
from federal and state development projects, and land use issues arising from Tribal
developments. The website contains multiple resources for persons who may be considering
ECCR. For example, during 2021, the National Center hosted a free webinar entitled
“Environmental Collaboration for Federal Agencies,” providing an overview of ECCR processes
and approaches for those who navigate multiparty environmental issues.387 The site also contains
a helpful glossary of ECCR and ADR terminology.388
As noted above, the CEQ/OMB Memo requires agencies engaged in ECCR to provide
annual reports of their activities and associated cost savings and benefits. The National Center
coordinates the submission of agency ECCR reports and prepares an overview and synthesis.
The most recent set of reports389 contains data from 12 agencies reporting a total of 451 active
ECCR cases.390 The DOI reported the highest number of ECCR cases, followed by FERC and
EPA. These three agencies together accounted for all but 70 of the reported cases, which the
Center stated may in part be explained by their well-established ECCR centers and programs,
which provide critical infrastructure, funding mechanisms and personnel for ECCR initiatives.
Benefits cited from ECCR by reporting agencies include savings of time and money
through reduction of staff workload, production of faster resolutions and avoidance of litigation.
Reported benefits further included improved relationships among Federal agencies and between
the agencies and a variety of stakeholders. Many agencies also cited better outcomes, facilitating
creative and durable solutions to complex, longstanding environmental issues. These statements
are illustrated by case summaries from a variety of agencies.
In 2018, the Federal Forum prepared a report, “Environmental Collaboration and Conflict
Resolution: Enhancing Agency Efficiency and Making Government More Accountable to the
People.”391 Based on more than a decade of experience and research, the report identified
quantifiable benefits of federal government ECCR use, including cost reduction, improved
relationships and better outcomes that avoided litigation. The report discussed the methodology
used to capture the costs and benefits of ECCR, including the use of comprehensive survey tools.
It also recommended steps that government leaders could take to improve and increase the use of
386

Project
Case
Summaries,
UDALL
FOUND.,
https://www.udall.gov/OurPrograms/Institute/ProjectCaseSummaries.aspx (last visited Aug. 23, 2021).
387
A
recording
of
the
presentation
and
the
slides
are
available
at
https://www.udall.gov/News/NewsAndEvents.aspx?Item=12170.
388
National
Roster
of
ECR
Professionals
–
Glossary,
Udall
Found.,
https://www.udall.gov/OurPrograms/Institute/Glossary.aspx (last visited Aug. 23, 2021).
389
UDALL FOUND., supra note 256.
390
They are: Department of Energy, Department of the Interior, Department of Labor, Department of Transportation,
Department of Veterans Affairs, Environmental Protection Agency, Federal Energy Regulatory Commission, National
Oceanic and Atmospheric Administration, National Guard Bureau, U.S. Air Force, U.S. Army, and U.S. Army Corps
of Engineers.
391
Environmental Collaboration and Conflict Resolution, NAT’L ENV’T POL’Y ACT, https://ceq.doe.gov/nepapractice/environmental-collaboration-and-conflict-resolution.html (last visited Aug. 23, 2021).

72

ECCR, including improving integration of the programs into agency operations and
institutionalizing its funding.
Coalition of Federal Ombudsman
COFO is an interagency forum created to support the work of ombuds. Unlike the
IADRWG, FMCS, and National Center, COFO is not established by Congress or other law, but
it is a voluntary trade organization.392 COFO was established in July 1996 by interested ombuds
who wanted to support one another, grow the profession, and establish best practices.393 In 2013,
its members adopted a Charter, stating that the purpose of the organization is to be the “principal
interagency forum that provides collaboration, advice, and guidance on professional Ombuds
standards, skills development, program development, and effectiveness.”394 COFO’s purposes
include sharing ideas and experiences, working together to create standards applicable to ombuds
practice, and generally increase the visibility of the work of ombuds.395 Membership in COFO is
afforded to any ombuds (or other ADR practitioner), but voting members are limited to ombuds
who work for federal agencies.396
COFO has regular meetings, usually monthly, at various locations, including online
meetings. COFO also holds an annual conference, which was presented in a virtual format in
2020.397 COFO events provide education on ombuds practice, skill building for ombuds, as well
as topics such as outreach and public education. The organization appears to prioritize ombuds
offices learning from other ombuds offices, which is similar to the concept of reflective practice,
described above. The COFO website archives past meeting minutes and conference agendas as a
resource to ombuds and the public.398
The ACUS Ombuds Report noted that the federal ombuds community received a great
deal of value from participation within the organization.399 The authors noted that as they
gathered information from federal ombuds, “COFO was mentioned repeatedly as an essential
source of inspiration, innovation, best practices, tough-minded guidance, and reliable support, as
well as a forum to which federal ombuds bring their professional concerns.”400
2. Recommendations
The ADRA of 1996 and the 1998 Presidential Memorandum implementing it envisioned
an interagency mechanism to encourage and facilitate the use of agency ADR programs. Indeed,
the statute requires agencies, in developing their ADR policy, to consult with the committee or
392

See ACUS Ombuds Report, supra note 66, at 226.
Coalition History, COAL. OF FED. OMBUDSMAN https://federalombuds.ed.gov/s/history (last visited Oct. 1, 2021).
394
Charter, supra note 176.
395
Id.
396
Id.
397
COFO
Annual
Conference
Attendee
Packet,
available
at
https://drive.google.com/file/d/1y3U97Nr4D9eIB6FdMH7p6kpaneZFmhmY/view.
398
Prior Conferences and Meetings, COAL. OF FED. OMBUDSMAN, https://federalombuds.ed.gov/s/prior-conferencesand-meeting-minutes (Sept. 25, 2018).
399
See ACUS Ombuds Report, supra note 66, at 226.
400
Id.
393

73

agency designated by the president for this role, and the 1998 Presidential Memorandum created
the ADR Working Group to do so. Although it had some early successes, the ADR Working
Group is no longer fulfilling that role. Our research supports the view that the federal
government should not abandon this vision. There is value to agencies in having a centralized
hub to pool knowledge and resources, help agencies create ADR programs where warranted,
create consistency and transparency in measuring and reporting for those that have programs,
and analyze data to make recommendations to improve the effectiveness of agency ADR
programs. It is also a more efficient use of federal resources to share basic program building
blocks rather than requiring each agency to reinvent the wheel. There are still many programs
throughout federal agencies that do not use ADR whose constituents could benefit from it but
may never do so without encouragement and assistance.401
The ECCR community has had success in these areas, and provides some important
lessons learned for other federal agencies. Specifically, the EPCRA of 1998 and implementing
executive memoranda together ensured that there was high level leadership, dedicated funding,
expert staffing and clear guidance for the development of ECCR ADR programs. Congress
created the National Center, authorizing appropriations as well as its ability to charge for its
services. The CEQ/OMB Memoranda, most recently that of 2012, laid out policy guidance, a
series of principles for agencies to follow, required the development of metrics to measure the
benefits of ADR, periodic meetings convened by the head of CEQ and OMB, and required
quarterly meetings of senior agency officials under the aegis of the National Center and annual
reporting by agencies participating in ECCR.
Federal ADR at the general level does not have the “belt and suspenders” of ECCR,
which explains why interagency support there has lagged. The ADRA of 1996 did not create,
much less fund, a resource for agencies to draw on in developing ADR administrative dispute
resolution programs. Rather, it directed the president to designate an agency or designate or
establish an interagency committee to facilitate and encourage agency use of dispute resolution
under its authority. President Clinton created an interagency ADR Working Group to consist of
representatives of the heads of all participating agencies to accomplish the goals set forth in the
statute, to be convened by the Attorney General. The presidential memorandum is quite short and
does not set guiding principles or provide a structure of the Working Group’s activities.
Participation is a collateral duty for those involved. There is no funding for the Working Group
and no real way for it to influence agencies whose staff are not already participating in its work.
Much can be done within the executive branch to strengthen the framework using ECCR
as a model. The president could issue a new Memorandum designating an expert agency to
advocate for and support ADR in administrative disputes. The obvious candidate would be the
FMCS, since FMCS already has a role in supporting interagency ADR in the ADRA. To bring in
executive leadership, a White House office, such as the OMB, could convene agency head
meetings on an annual basis and require reports on the progress of ADR in each agency’s
administrative programs.
401

One official observed that a common understanding of dispute resolution principles, use of consistent terminology,
and more education and training across the government is needed to realize the potential of ADR as an integral part
of conflict management. Interview with Michael Wolf, Director of Collaboration and Alternative Dispute Resolution,
Federal Labor Relations Authority (Sept. 3, 2021).

74

Another important lesson from the ECCR Community comes from its use of regular and
consistent reporting for the collective assessment of the value of the ADR programs, giving
agency officials access to broader data and the ability to evaluate different approaches. Although
the 1998 Presidential Memorandum envisioned periodic reporting by the ADR Working Group
on its activities, it did not dictate a timeframe and only three sets of reports issued in the ensuing
twenty-eight years. In addition, the 1998 Presidential Memorandum did not provide any
guidance for the content of the reports or authorize the development of any metrics. The ECCR
agencies are subject to an annual reporting requirement, with established metrics, and the
National Center collates their information to summarize the savings and benefits from the
agencies’ standpoints. This reporting has been a valuable feedback tool through which the ECCR
agencies monitor and assess their results and was used by the senior officials constituting the
Federal Forum to develop the 2018 recommendations noted above. As agency strategic planning
is tied directly to the Federal budget process, having objective metrics that are consistently
applied is critical to gaining support for ADR. Whatever form the Interagency ADR Working
Group takes in the future, helping agencies develop and implement metrics to measure success
should be a priority.
Finally, we have one recommendation for FMCS. FMCS has an impressive array of
services and the strongest training program for neutrals we have seen in the federal government.
Nonetheless, because of its mission as a labor relations agency, some agencies with very
different statutory missions may not be as familiar with it and may have concerns about its
understanding of their mission areas. Cross-agency details (FMCS employees going to other
agencies and employees of the other agencies going to FMCS) could help build the necessary
understanding across agency cultures. In addition, placing oversight of the Interagency ADR
Working Group under FMCS would raise its profile and give it more insight into issues across
the federal ADR community.
IV.

Issues for Further Study

This study covers the major aspects of federal agency ADR, but much work remains to be
done beyond the six research areas selected for this report. For one, this report does not address
some of the major issues facing agency ADR programs at present as highlighted to the research
team by several agency leaders including employee/participant wellness and diversity, equity,
and inclusion.
Further, the COVID-19 pandemic has changed ADR programs and the federal workplace
in yet unknown ways. Several agencies noted the challenges of in-person ADR that they had
faced since the inception of their programs. While some agencies have regional and local offices,
many work only in Washington, DC. This limitation has created difficulty where ADR program
participants may be located elsewhere in the United States. The lack of geographic reach has
discouraged if not prohibited some participants from taking part. Given the need to convert their
programs to videoconference engagements, some agencies are now wrestling with decisions—
legal and practical—about whether to maintain virtual ADR programs or to enhance their prior
offerings with that option and what that might mean for the financial and human capital. In
75

nearly every interview and survey, interviewees and respondents highlighted the impact of the
pandemic as potentially transformative to their agency’s work and the life of the ADR program.
Additional work to assist agencies in that exercise would be welcome from ACUS.
Apart from these important internal conversations within the ADR programs surveyed,
there was a general question that came to light among interviewees and survey respondents
concerning the purpose and future direction of their programs. While space does not permit a
deep investigation of those issues, we recommend that ACUS and the interagency centers do
more to facilitate conversation among agency programs that will allow them to share best
practices and to compare notes on their purpose and strategies. It was not clear that all agencies
had a clear vision for their programs, what those programs were intended to achieve, and what
would enable success within them. For example, although many ADR staff have strong feelings
about their programs, they are relatively siloed within their individual program or a smaller
community of staff with similar roles. This study has not examined the possible inclusion of
restorative practices in the federal ADR toolkit but such an examination may be useful to some
agencies and may build on the research the Department of Justice has started in this area.
Finally, although this question was outside of our original scope of research, we highlight
the need for diversity among neutrals. Given the sometimes long list of qualifications required or
perceived to be required, neutrals in private sector arbitration tend to be disproportionally older,
white males.402 As recent national conversations have brought to the forefront, many ADR
programs continue to suffer from a lack of neutrals from historically underrepresented groups.403
While federal hiring and contracting principles generally recognize the need for diversity,
agencies ought to consider diversity, equity, and inclusion in every aspect of their ADR
programs.
V.

Conclusion

This study has reviewed six topics concerning agency ADR programs across the federal
government. It has made more than two dozen recommendations both for agencies with ADR
programs and for those that may wish to explore the possibility of developing ADR programs in
the future. In making these recommendations, we have been mindful of the many challenges
agencies face in creating or enhancing existing ADR programs—from budgetary and hiring
constraints to workload demands. By showcasing effective practices at individual agencies, and
describing the interagency resources available for assistance, we hope this report makes it easier
for agencies to do their work. There remains potential for ADR to enhance agency work
throughout the federal government, subject to careful thought and design considerations such as
those we have highlighted in this report.

402
See
ABA
Resolution
105
–
Diversity
in
ADR,
Summary
and
Action
Steps,
https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/leadership/aba-resolution-105summary-and-action-steps.pdf (“The available data and materials outlined in the report show starkly that diversity in
dispute resolution significantly lags the legal profession as a whole.”).
403
Jonathan Stempel, Jay-Z Wins Fight for African-American Arbitrators in Trademark Case, REUTERS (Jan. 30,
2019), https://www.reuters.com/article/us-people-jayz-lawsuit-idINKCN1PO32T.

76

Appendices
Table of Acronyms

AAA
ABA
ACUS
ADR
ADRA
ALJ
CEQ
COFO
DOI
DSD
ECCR
EEOC
ENE
EPA
EPCRA
FCC
FERC
FINRA
FMCS
IDIQ
IOA
ITC
JAMS
NARA
National Center
NLRB
NMB
NRC
OMB
OSC
PBGC
UMA
USACE

American Arbitration Association
American Bar Association
Administrative Conference of the United States
Alternative dispute resolution
Administrative Dispute Resolution Act of 1990
Administrative law judge
Council on Environmental Quality
Coalition of Federal Ombudsman
Department of the Interior
Dispute system design
Environmental Collaboration and Conflict Resolution
Equal Employment Opportunity Commission
Early neutral evaluation
Environmental Protection Agency
Environmental Policy and Conflict Resolution Act of 1998
Federal Communications Commission
Federal Energy Regulatory Commission
Financial Industry Regulatory Authority
Federal Mediation and Conciliation Service
Indefinite Delivery Indefinite Quantity contract
International Ombudsman Association
International Trade Commission
Judicial Arbitration and Mediation Service
National Archives and Records Administration
National Center for Environmental Conflict Resolution of the Udall
Foundation
National Labor Relations Board
National Mediation Board
Nuclear Regulatory Commission
Office of Management and Budget
Office of Special Counsel
Pension Benefit Guaranty Corporation
Uniform Mediation Act
U.S. Army Corps of Engineers

77

Appendix A: Agency Websites with ADR Information
Agency
Dept. of Agriculture

URL

Farm Services Agency
Agricultural Mediation
Program Fact Sheet

https://www.fsa.usda.gov/Assets/USDA-FSAPublic/usdafiles/FactSheets/certified-mediation-programfactssheet.pdf

Risk Management Agency
Mediation Program

https://www.rma.usda.gov/en/About-RMA/Laws-andRegulations/Mediation

Natural Resources
Conservation Service
Mediation Program

https://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/p
rograms/alphabetical/?cid=nrcs143_008444
https://www.rd.usda.gov/files/RD-SFH-MediationNotes.pdf

Rural Development Mediation
Program
https://www.ars.usda.gov/docs/ombudsman/
Agricultural Research Service
Animal Welfare Ombudsman
Dept. of Commerce,
Coastal Zone Management Act
Mediation
Dept. of Defense

https://coast.noaa.gov/data/czm/consistency/media/CZMAmediations.pdf

Office of Inspector General
Whistleblower Reprisal ADR
Program

https://www.dodig.mil/Components/AdministrativeInvestigations/Alternative-Dispute-Resolution-ADRProgram-for-Whistleblower-Reprisal-Complaints/

U.S. Army Corps of Engineers
Collaboration Center
Dept. of Education Student
Loan Ombudsman
EPA Conflict Prevention and
Resolution Center (CPRC)
Dept. of Health & Human
Services, Departmental Appeals
Board ADR Program
Dept. of Homeland Security,
Office of Citizenship and
Immigration Services
Ombudsman

https://www.iwr.usace.army.mil/About/TechnicalCenters/CPCX-Collaboration-Public-Participation/
https://studentaid.gov/feedbackombudsman/disputes/prepare
https://www.epa.gov/adr
https://www.hhs.gov/about/agencies/dab/adrservices/mediation/index.html
https://www.dhs.gov/topic/cis-ombudsman

78

Dept. of Interior, Office of
Collaborative Action and
Dispute Resolution
Dept. of Justice

https://www.doi.gov/pmb/cadr

Community Relations Service

https://www.justice.gov/crs/our-focus

Victims’ Rights Ombudsman

https://www.justice.gov/usao-edar/office-crime-victimsrights-ombudsman

Dept. of Labor, Office of
Federal Contract Compliance
Programs Ombuds
Dept. of the Treasury

https://www.dol.gov/agencies/ofccp/ombuds

IRS Appeals Mediation
Program

https://www.irs.gov/appeals/appeals-mediation-programs

Office of the Comptroller of
the Currency Ombudsman

https://www.occ.gov/about/who-weare/organizations/office-of-enterprise-governance-and-theombudsman/index-office-of-enterprise-governance-and-theombudsman.html
https://www.transportation.gov/CADR/mediationfacilitation-and-consulting
https://www.consumerfinance.gov/cfpb-ombudsman/

Dept. of Transportation
Consumer Financial Protection
Bureau Ombudsman
Equal Employment Opportunity
Commission Mediation
Federal Communications
Commission Mediation
Federal Deposit Insurance
Corporation Office of the
Ombudsman
Federal Election Commission
Mediation
Federal Energy Regulatory
Commission Dispute Resolution
Federal Labor Relations
Authority
Collaboration and ADR Office
Federal Maritime Commission
ADR Services

https://www.eeoc.gov/questions-and-answers-aboutmediation
https://www.fcc.gov/general/eb-market-disputes-resolutiondivision
https://www.fdic.gov/about/ombudsman/
https://www.fec.gov/legalresources/enforcement/alternative-dispute-resolution/
https://ferc.gov/enforcement-legal/legal/alternative-disputeresolution/dispute-resolution-service
https://www.flra.gov/componentsoffices/offices/collaboration-and-alternative-disputeresolution-office-cadro
https://www.fmc.gov/databases-services/alternativedispute-resolution-services/

Federal Mediation and
https://www.fmcs.gov/services/resolving-laborConciliation Service
management-disputes/alternative-bargaining-processes/
International Trade Commission https://www.usitc.gov/intellectual_property/mediation.htm

79

John S. McCain III National
Center for Environmental
Conflict Resolution, Udall
Foundation
National Archives & Records
Administration Office of
Government Information
Services
National Labor Relations Board
National Mediation Board
Nuclear Regulatory
Commission Enforcement
Alternative Dispute Resolution
Office of the Special Counsel
Pension Benefit Guaranty
Corporation

https://www.udall.gov/ourprograms/institute/institute.aspx

https://www.archives.gov/ogis/mediation-program

https://www.nlrb.gov/news-outreach/news-story/nlrblaunches-pilot-of-proactive-alternative-dispute-resolutionprogram
https://nmb.gov/NMB_Application/index.php/missionorganization/
https://www.nrc.gov/aboutnrc/regulatory/enforcement/adr.html
https://osc.gov/Services/Pages/ADR.aspx
https://www.pbgc.gov/prac/other-guidance/pbgc-mediationprogram

80

Appendix B: Survey of Agency Officials
Beginning in December 2020, we reached out to 24 agencies to identify an ADR official
willing to complete a Qualtrics survey that we designed on ADR in federal agencies. Most of the
emails were addressed to the agency’s official representative to ACUS; the remainder were
addressed to other ADR or legal contacts that our team could locate. Of the 24 agencies, 12 were
cabinet departments and the other 12 were independent agencies.
Fourteen agencies agreed to complete the survey and were provided a link to the survey.
Twelve agencies completed the survey in whole or in part. We followed up with those agencies
that did not complete the survey on multiple occasions, encouraging submission. Several
agencies informed us that they could not complete it due to a lack of time or political personnel
to approval their responses (the survey was deployed during a presidential transition), even
though respondents were promised that answers would not be tied to their particular agencies.
A PDF version of the online survey instrument is attached to the end of this report.

81

Appendix C: Interviews with Agency Officials
In the survey sent to agency officials, we asked respondents if they might be willing to
speak with us by telephone or via Zoom. We also reached out to agency officials directly about
the prospect of conducting an interview, particularly when it was not possible for the official to
complete the survey. We also invited officials to meet with us when we presented the project to
different organized groups of ADR professionals.
We then reached out to most of the willing respondents and asked to schedule an
interview. We conducted sixteen interviews, each of which ranged from 30 to 90 minutes,
between January and August 2021. The interviewees came from a range of agencies: six were
officials in cabinet departments; the remaining nine came from independent agencies. All of the
interviewees were engaged in some form of ADR at their respective agencies (the additional
interview was with a retired state court judge). We promised that we would not identify the
interviewees or their agencies unless they gave us permission to do so.
These interviews focused on the use of ADR and the research areas highlighted above.
We asked all interviewees about best practices from their agencies as well as about criticisms or
concerns they had.

82

Appendix D: Overview of Types of ADR

Process

Uses
Neutral?

Negotiation
Facilitation
Mediation

No
Yes
Yes

Conciliation

Yes

FactFinding

Yes

Minitrials

Yes

Arbitration

Yes

Ombuds

Yes

Coaching

Yes

Restorative
Justice

Yes

Role of Neutral?

Who Decides
Outcome?

N/A
Lead Conversation
Lead Conversation to
Reach Agreement
Lead Conversation and
Makes Recommendations
Listens to Arguments and
Determines Findings of
Fact/Conclusions of Law
Listens to Arguments, but
No Recommendations
Runs Hearing and Issues
Award
Services, including
Coaching, Providing
Information, Conflict
Resolution
One-on-One Discussions
to Create Plan
Different Processes to
Take Accountability,
Repair Harm, and Restore
Relationships

83

Ideal for One
Participant?

Parties
Parties
Parties

Ideal for
Multi-Party
Disputes?
No
Yes
No

Parties

No

No

Parties, with NonBinding
Recommendation
Parties

No

No

No

No

Arbitrator

Yes

No

Parties

Yes

Yes

Parties

No

Yes

Not Usually

No

Depends on
Process

No
No
No

ACUS ADR PROJECT SURVEY

December 2020

Which of the following, if any, forms of dispute resolution does the agency use to resolve
disputes relating to the agency core statutory mission? Please do not include dispute resolution
for negotiated rulemaking, federal cases, customer service complaints, Freedom of Information
Act disputes, agency personnel disputes, or procurement disputes.
Mediation
Conciliation
Facilitation
Factfinding
Minitrials
Arbitration
Ombuds Services
Other
None of the Above

Please describe who within the agency chooses whether a given case will occur through an
alternative dispute resolution (ADR) process and the type of ADR process to be used if the
agency has access to multiple ADR processes.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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ACUS ADR PROJECT SURVEY

December 2020

For agencies with mediation programs, what type of mediation do you use (please check all
applicable boxes)?
Facilitative
Evaluative
Transformational
Choice is left to the mediator

What agency authority governs the ADR process(es)? Please provide any relevant citation(s).
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Does the agency evaluate the success of each individual ADR case? If so, please describe
how you assess whether a case is successful.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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ACUS ADR PROJECT SURVEY

December 2020

Does the agency solicit feedback from the participants in the ADR process?

o Yes
o No
If the agency solicits feedback, please upload a copy of the agency feedback form, if any. If you
prefer to provide a link to the requested documents, please skip to the next question.

If your agency has a link to the feedback document, feel free to post it here.
________________________________________________________________

If the agency solicits feedback on its ADR processes, please describe (a) how frequently that
feedback is reviewed internally, if at all, and (b) how the agency works with that feedback to
make changes in its ADR operations.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Does your agency produce an annual report on its ADR program? If so, please indicate whether
it is publicly available and provide a link to any internet copy. If not, please indicate whether the
agency is willing to share the most recent annual report with us on a confidential basis.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
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ACUS ADR PROJECT SURVEY

December 2020

________________________________________________________________

Overall, how satisfied are you with your ADR program?

o Very satisfied
o Satisfied
o Neither satisfied nor dissatisfied
o Dissatisfied
o Very dissatisfied
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ACUS ADR PROJECT SURVEY

December 2020

End of Block: Research Area 1. The selection and implementation of the appropriate type
of ADR
Start of Block: Research Area 2. The qualifications and selection of personnel to conduct
and ma
Please indicate the employment status of ADR personnel within the agency.

o Agency Employees
o Federal Employees from Another Agency
o Contract Personnel
o Hybrid
End of Block: Research Area 2. The qualifications and selection of personnel to conduct
and ma
If you answered “Agency Employees” above:
In what unit or department of the agency is the ADR function located and what official (i.e., what
is his/her/their title) or officials is/are responsible for it?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

How many agency employees (full- and part-time) are engaged in administering the ADR
process?
________________________________________________________________

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ACUS ADR PROJECT SURVEY

December 2020

What qualifications, if any, are required for employees to serve as ADR specialists?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

What training, if any, does the agency provide for its ADR specialists?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

What metrics, if any, does the agency use to monitor the quality of its ADR services?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

If you answered “Federal Employees from Another Agency” above:
Do you have an interagency agreement? If so, please provide a link or indicate whether you are
able to provide it.
________________________________________________________________

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ACUS ADR PROJECT SURVEY

December 2020

________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

How are responsibilities allocated between the agencies?
________________________________________________________________

Where within the contracting agency is oversight maintained in the contracting agency and what
resources (i.e., financial resources and FTEs) are dedicated to it?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

How is quality control of the program maintained?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

If you answered “Contract Personnel” above:

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ACUS ADR PROJECT SURVEY

December 2020

What form of contract do you use (e.g., IDIQ)?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

If you're willing to share your contract, please upload it here.

How are responsibilities allocated for selection/training/oversight of personnel?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

What resources are devoted to contract oversight (e.g., full or part-time contracting officer’s
representative program officials)?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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ACUS ADR PROJECT SURVEY

December 2020

How is quality control of the program maintained?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
If you answered “Hybrid” above:
Does your hybrid model involve:
Agency personnel?
Other federal agency employees?
Contractors?

Please describe what factors led to that mix.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Start of Block: Research Area 2 SPLIT II

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ACUS ADR PROJECT SURVEY

December 2020

How satisfied are you with the quality of the personnel staffing your ADR program?

o Very satisfied
o Satisfied
o Neither satisfied nor dissatisfied
o Dissatisfied
o Very dissatisfied
How satisfied are you with the availabile resources for your ADR program?

o Very satisfied
o Satisfied
o Neither satisfied nor dissatisfied
o Dissatisfied
o Very dissatisfied
Start of Block: Research Area 3. The ethics and confidentiality requirements of ADR
personnel.
Does your agency have ethics standards or standards of practice governing its ADR processes?
If so, please indicate whether those standards are publicly available (include a link to any web
information or otherwise indicate whether you can provide them separately).
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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ACUS ADR PROJECT SURVEY

December 2020

If there are no ethics standards or standards of practice governing the agency's ADR
processes, does the agency have other guiding principles regarding ethics?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Does the agency have standards of ethics or practice relating to the following topics (please
select all that apply)?
Impartiality
Conflicts of Interest?
Required Disclosures by Neutral?
Neutral Competency?
Compensation?

Does the agency provide a mechanism for neutrals to obtain guidance on ethical issues that
arise during a case? If so, please describe that mechanism.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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ACUS ADR PROJECT SURVEY

December 2020

Does the agency maintain an ongoing disclosure of certification process to prevent conflicts of
interest that may arise? If so, please describe that process.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

How satisfied are you with the agency standards of ethics or standards of practice as applied in
its ADR processes?

o Very satisfied
o Satisfied
o Neither satisfied nor dissatisfied
o Dissatisfied
o Very dissatisfied
Are the agency's ADR processes confidential? If yes, how does the confidentiality obligation
arise (by statute, by regulation, and/or by contract, e.g.)?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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ACUS ADR PROJECT SURVEY

December 2020

Does the agency require confidentiality agreements with the participants in the ADR process? If
so, please provide a copy of the standard confidentiality agreement. If you prefer to provide a
link to the document, please skip to the next question.

Please provide a link to your confidentiality agreement.
________________________________________________________________

Does your agency have a grievance procedure regarding its ADR process? If so, please
describe the process or provide a link to additional information. If you prefer to upload a
document, skip to the next question.
________________________________________________________________

Please upload any files regarding a grievance procedure here.

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ACUS ADR PROJECT SURVEY

December 2020

End of Block: Research Area 3. The ethics and confidentiality requirements of ADR
personnel.
Start of Block: Research Area 4. Interagency mechanisms to facilitate ADR and provide
support an
What kind of training, if any, is in place for ADR personnel? Please comment regarding both
initial training and continuing training.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Which ADR participants receive training (e.g., neutrals, case management staff, others)?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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ACUS ADR PROJECT SURVEY

December 2020

How often is training conducted for returning neutrals?

o Yearly
o Twice yearly
o More than twice yearly
o Less than twice yearly
o As needed
Who conducts the training? (check all that apply)
Internal trainers
Private trainers (if so, please name the firm/organization and approximate cost, if
any, of training) ________________________________________________
Other government actors

Please describe the content of the training in general terms and its typical duration. If you prefer
to upload a document, please skip to the next question.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Please upload any documents regarding training here.

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ACUS ADR PROJECT SURVEY

December 2020

How is training conducted?

o In Person
o Online
o Hybrid
Does the agency conduct evaluations of the training it provides? If so, please share any
summary evaluations that may be available.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Has the agency considered changing or adding training in response to issues raised in the ADR
process? If so, please describe.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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ACUS ADR PROJECT SURVEY

December 2020

End of Block: Research Area 4. Interagency mechanisms to facilitate ADR and provide
support an
Start of Block: Research Area 5. ADR case management practices.
Who are the actors (titles) involved in administering and managing the ADR process at the
operational level in your agency?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Who are the actors (titles) involved in administering and managing the ADR process at the
decision-making or leadership level in your agency?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

What is your procedure for case intake. If you prefer to upload a document, skip to the next
question.
________________________________________________________________

Please upload any files you would like to share regarding the intake process.

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December 2020

What are the typical steps in case management after intake?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Is a case manager assigned? If so, is that a standing role or is that a role played by an
individual who plays another role apart from ADR case management?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

How are case records kept and how long are they kept? (Electronic, paper, on a separate
network or limited access area, e.g.? Using what platforms, databases or document trackers?)
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Are these tools regularly evaluated or renewed through licenses?
________________________________________________________________

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December 2020

________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Who within the agency has access to case records?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

What happens to case records at the conclusion of the case?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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ACUS ADR PROJECT SURVEY

December 2020

How satisfied are you as to the system the agency uses for case management?

o Very satisfied
o Satisfied
o Neither satisfied nor dissatisfied
o Unsatisfied
o Very unsatisfied
How effective and efficient do you feel the present agency practices are for smooth operation of
cases?

o Very effective
o Effective
o Neither effective nor ineffective
o Ineffective
o Very ineffective
Are there any weaknesses in your agency case management practices that you or others have
identified and seek or have sought to remedy? Please describe in detail.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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December 2020

If additional financial support were available, are there improvements or changes you would like
to see made to the agency's practices? Please describe in detail.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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December 2020

End of Block: Research Area 5. ADR case management practices.
Start of Block: Research Area 6. Interagency mechanisms to facilitate ADR and provide
support an
In what areas do you provide support relating to ADR functions to other agencies? (check all
that apply)
ADR services, such as neutrals
Advice/guidance on ADR programs and/or standards
Training of program officials and/or neutrals
Provision of sample documents
Ongoing sharing of best practices

Are there model forms, handbooks and/or training materials that you share with other agencies
on request? Please share some samples here. If you would prefer to upload a link, please skip
to the next question.

If you would like to provide a link to the training materials, please provide it here.
________________________________________________________________

Where is the inter-agency support function located (i.e., a department/other federal
employees/contractors) and what resources does it have?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
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December 2020

________________________________________________________________

Do you have interagency agreements to support other agencies' ADR functions? Please
provide a sample copy here.

What sources do you draw upon for models in advising other agencies on ADR matters (e.g.,
American Bar Association models or guidelines)?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

How do other agencies learn about the support you provide in the area of ADR?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

How could ACUS better promote the support your organization can give to other agencies?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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December 2020

________________________________________________________________

Which agency practices, if any, pertaining to ADR would you recommend to other agencies and
why do you think they are desirable?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

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December 2020

Is there anything else you would like to share?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Who else should we contact, whether or not at your agency, to learn more about ADR within
your agency? If you can, please provide email address(es) or telephone number(s). Can we use
your name in contacting any of these people?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

Your name:
________________________________________________________________

Your contact information (phone and email):
________________________________________________________________

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December 2020

Would you be willing to talk in more detail, either on or off the record?

o Yes
o Maybe
o No
Are you willing to have your responses tied to your agency in the report? The default is that your
responses will not be connected to your agency, but we will use the information in the
aggregate.

o Yes
o Maybe
o No
Thank you for your help with this important survey!

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