Use of Alternative Dispute Resolution (ADR)

DEPARTMENT OF THE INTERIOR

Office of the Secretary

RIN 1094-AA45

Use of Alternative Dispute Resolution (ADR)

AGENCY: Office of the Secretary.

ACTION: Notice of interim ADR policy and opportunity for comment.

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SUMMARY: The Department of the Interior (Department) has developed this

two-year interim policy to implement the requirements of the

Administrative Dispute Resolution Act (ADR Act), Public Law No. 101-

552. This interim policy also addresses the Negotiated Rulemaking Act,

Public Law No. 101-648. The Department is adopting this interim policy

to allow time to acquire data on the applicability of ADR techniques to

selected program disputes. During this interim period, the Department

through its bureaus and offices will implement ADR pilot programs and

other program initiatives in an effort to establish a baseline of

experience in the practical uses of ADR. At the conclusion of this

interim phase, the Department will assess the results of the ADR

initiatives in conjunction with both external and internal comments

received, develop a proposed final policy, allow for public comment,

and publish a final ADR policy in the Federal Register.

The Department seeks comments from the public, including, among

others, those persons whose activities the Department regulates, on any

aspect of this interim policy and its implementation, and those persons

who have engaged in or may in the future engage in ADR processes with

the Department. At the end of the 60 day comment period the Department

will consider issues raised by interested persons and may modify the

interim policy based on public comment.

DATES: Comments must be received on or before August 12, 1994.

ADDRESSES: Written comments should be mailed or delivered to Philip G.

Kiko, Deputy Director, Office of Hearings and Appeals (OHA), U.S.

Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia

22203.

FOR FURTHER INFORMATION CONTACT: Philip G. Kiko, Deputy Director and

the Alternate Dispute Resolution Specialist, OHA (703) 235-3810.

SUPPLEMENTARY INFORMATION:

I. Administrative Dispute Resolution Act

The Administrative Dispute Resolution Act (ADR Act), Public Law No.

101-552, 5 U.S.C. 581-583, enacted November 15, 1990, authorizes and

encourages federal agencies to employ consensual methods of dispute

resolution as alternatives to litigation. Under the ADR Act, a federal

agency is required: (1) To designate a senior official as a dispute

resolution specialist; (2) to establish training programs in the use of

dispute resolution methods; (3) to adopt a policy on the use of ADR

techniques; and (4) to review the standard language in agency

contracts, grants or other agreements, to determine whether to include

a provision on ADR. Federal agencies are also required to consult with

the Administrative Conference of the United States (ACUS) and the

Federal Mediation and Conciliation Service (FMCS) on the development of

their ADR policies.

Additionally, section 3(a) of the ADA Act requires the Department

to adopt a formal policy as to how it intends to implement the ADR Act

in each of the following areas: (a) Formal and informal adjudications;

(b) rulemakings; (c) enforcement actions; (d) issuing and revoking

licenses or permits; (e) contract administration; (f) litigation

brought by or against the Department; and (g) other departmental

action.

Congress enacted the ADR Act to reduce the time, cost,

inefficiencies and contentiousness that are too often associated with

litigation and other adversarial dispute mechanisms. Moreover,

experience at other federal agencies shows that ADR can help achieve

mutually acceptable solutions to disputes more effectively than either

litigation or administrative adjudication. In fact, Vice President Gore

recommended in September 1993 that federal agencies ``increase the use

of alternative means of dispute resolution.'' National Performance

Review, Recommendation REG06 (September 7, 1993).

While ADR techniques have proven to be useful in resolving serious

conflicts, the day-to-day operations of the Department's bureaus should

provide conflict avoidance methods, where possible. Moreover, the ADR

Act, 5 U.S.C. 582(b), specifically cautions that:

An agency shall consider not using a dispute resolution proceeding

if--

(1) a definitive or authoritative resolution of the matter is

required for precedential value, and such a proceeding is not likely

to be accepted generally as an authoritative precedent;

(2) the matter involves or may bear upon significant questions

of Government policy that require additional procedures before a

final resolution may be made, and such a proceeding would not likely

serve to develop a recommended policy for the agency;

(3) maintaining established policies is of special importance,

so that variations among individual decisions are not increased and

such a proceeding would not likely reach consistent results among

individual decisions;

(4) the matter significantly affects persons or organizations

who are not parties to the proceeding;

(5) a full public record of the proceeding is important, and a

dispute resolution proceeding cannot provide such a record; and

(6) the agency must maintain continuing jurisdiction over the

matter with authority to alter the disposition of the matter in the

light of changed circumstances, and a dispute resolution proceeding

would interfere with the agency's fulfilling that requirement.

The decision whether to use ADR, however, remains within each

federal agency's discretion, and participation in ADR processes is by

mutual consent of the disputants.

The ADR Act fosters the use of ADR by ensuring appropriate

protection of parties' and neutrals' communication. The ADR Act,

however, is not a statute exempting disclosure under the Freedom of

Information Act (FOIA). To establish a baseline of understanding,

concerned parties should establish confidentiality guidelines

consistent with FOIA requirements before entering into negotiations.

Within the limitations set forth in the ADR Act, and elsewhere, the

Department plans to explore, over the next two years, whether and in

which contexts the use of ADR facilitates fairer, faster, or more

rational resolutions of disputes than present dispute resolution

methods provide. Additionally, the Department will conduct an

evaluation of the interim policy. On the basis of this evaluation, the

Department will consider modifying any of its current procedures or

rules, as appropriate, to allow for greater use of ADR.

II. Negotiated Rulemaking Act

In enacting the Negotiated Rulemaking Act, Public Law No. 101-648,

Congress indicated its concern that traditional notice and comment

rulemaking procedures may discourage agreement among the potentially

affected parties and the Federal Government. Congress addressed this

concern by purposefully designing the Negotiated Rulemaking Act's

procedures to facilitate the cooperative development of regulations by

interested persons and agencies. Moreover, Vice President Gore's report

recently recommended improving agencies' regulatory systems by

``[e]ncourag[ing] agencies to use negotiated rulemaking more frequently

in developing new rules.'' National Performance Review, Recommendation

REG03.

Negotiated Rulemaking (Reg-Neg) does not replace the traditional

notice and comment rulemaking. Rather, Reg-Neg supplements the more

traditional process by developing consensus around the candidate

proposed rule before an agency publishes it in the Federal Register.

Combining early consensus-building and information-gathering with an

opportunity for broad public consideration, the Reg-Neg process meets

the prescription of the Administrative Procedure Act, 5 U.S.C. 551 et

seq., and can facilitate more effective regulatory development and

regulations. Moreover, on September 30, 1993, President Clinton issued

a Memorandum in conjunction with the issuance of Executive Order 12866

on Regulatory Planning and Review. The Memorandum required each

department to identify to the Office of Information and Regulatory

Affairs at least one rulemaking within the upcoming year to be

developed through negotiated rulemaking or to explain why negotiated

rulemaking would not be feasible, 58 FR 52391 (Oct. 7, 1993).

Decisionmakers should view Reg-Neg as one of a variety of

information-gathering and consensus-building or consultative processes

used to achieve effective, efficient, rational, and fair agency policy.

Although the Negotiated Rulemaking Act does not address less formal

decisionmaking processes, including, among others, policy roundtables

and public meetings, such nonadversarial processes may help gather

information to assist the Department in policy development.

Participation in informal regulatory development processes can

require significant commitment of resources on the part of all

participants, including federal agencies. The Department's experience,

however, has shown that consensus-building techniques can result in

better policy, reduce the high rate of litigation, and lower the costs

of program implementation for the Department's bureaus and the

regulated community.

III. Interim Policy

A. Application of the Interim Policy

The Department encourages the effective use of ADR and Reg-Neg to

the fullest extent compatible with existing law, and the Department's

resources and missions. Based on almost one hundred and fifty years of

experience, the Department recognizes that the use of consensus-

building techniques and nonadversarial planning processes can increase

the wisdom, efficiency, equity, and long-term stability of departmental

decisions.

The interim policy is intended to govern both the programmatic side

of the Department's broad responsibility, as well as many of the human

resources aspects. With regard to human resources, this interim ADR

policy embraces the ADR policy of the Department's Office for Equal

Opportunity. The use of ADR is expected to be very useful in matters

involving equal employment opportunity. Workplace dispute issues

outside the jurisdiction of actions governed by regulations issued by

the Merit Systems Protection Board will also be governed by this

policy. Where the use of ADR would impede effective supervisory action

in routine matters of employee discipline or performance appraisal,

supervisors may elect not to use ADR.

B. Purpose of the Interim Policy

The Department has developed a two-year ADR interim policy in

response to the requirements of the ADR Act. The policy encourages the

Department's bureaus to identify disputes amenable to ADR and to use

ADR, whenever practicable. After testing ADR methods in a variety of

contexts, the Department, through the Interior Dispute Resolution

Council, at the conclusion of the two-year interim phase, will assess

the appropriateness of the use of ADR and determine which program areas

could most benefit from the institutionalization of ADR processes.

Existing bureau ADR efforts should continue as this final policy is

developed.

The Department's interim ADR policy is also designed to disseminate

knowledge about ADR both within the Department and to those whom the

Department serves, as well as to introduce new ADR initiatives and to

provide guidelines for bureaus to apply in the implementation of ADR

pilot programs. These initiatives will produce a baseline of experience

that will be used in developing the Department's final ADR policy.

Without the full commitment and cooperation of all involved in the two-

year interim phase, the Department will lose a valuable opportunity to

learn what works, what does not, and how best to capture potential

benefits from ADR use.

C. Implementation of Interim Policy

1. Role of the Department's Dispute Resolution Specialist

Pursuant to the ADR Act, the Secretary appointed the Director,

Office of Hearings and Appeals (OHA) to serve as the Department's

Dispute Resolution Specialist (DRS). This high level, Department

official was appointed as the DRS in order: (1) To facilitate intra-

departmental coordination and communication; (2) to ensure consistent,

quality training; (3) to establish minimum qualifications for

mediators, arbitrators, and certain departmental employees with ADR

responsibilities; and (4) to reduce administrative redundancy. The DRS

will maintain an ``open door'' policy, welcoming inquiries from and

offering assistance to the bureaus and interested persons. During the

period that the interim policy is being implemented, ongoing input from

the public is encouraged. The DRS will also develop and make available

a roster of neutrals who are trained in ADR and who would be available

to participate in a dispute resolution proceeding. Despite this focal

point for ADR activity, the Department's interim ADR policy is to

encourage decentralized decisionmaking to the greatest extent possible.

2. Role of the Interior Department Resolution Council

In order to keep the Department's bureaus informed during the

implementation of the interim phase, the DRS shall, 30 days after

publication of the Department interim policy, convene the Interior

Dispute Resolution Council (IDRC). Composed of the Department's

Assistant Secretaries, Solicitor and the Director of the Office of

Regulatory Affairs (ORA), or their respective designees, and chaired by

the DRS, the IDRC shall monitor and evaluated the Department's use of

ADR and Reg-Neg and assist in intradepartmental policy and process

coordination. The IDRC shall act as an information clearinghouse,

recommend personnel training courses in ADR techniques and program

design, and act as the liaison between the ACUS and FMCS.

Additionally, the IDRC will consider the benefits of appointing a

departmental ombudsman and the benefits of appointing an ombudsman for

selected departmental bureaus. An ombudsman could serve the following

functions: (1) To address specific categories of workplace disputes

through the investigation of the circumstances giving rise to the

disputes and based on their findings to recommend corrective actions,

if appropriate; or (2) to investigate and propose the resolution, if

appropriate, of citizen complaints against the Department, including

recommendations for changes in agency structure or organization to

better address or avoid persistent problems. The IDRC will submit a

written report at the end of the Interim period on the use of an

ombudsman.

3. Training in ADR

The Department recognizes, consistent with the philosophy of the

National Performance Review, that bureaus can best evaluate and develop

specific ADR programs and initiatives to meet bureau needs. Therefore,

each Bureau Head shall appoint a Bureau Dispute Resolution Specialist

(BDRS). The BDRS shall receive training recommended by the DRS in ADR

consensus-building techniques, conflict resolution, and program design.

The DRS shall recommend appropriate BDRS training, such training to

be completed no later than 60 days following issuance of the interim

policy. Additionally, the DRS shall provide ADR training opportunities

for selected groups of senior managers of the Department, whose job

responsibilities include determining or influencing how disputes will

be managed. The DRS will also identify opportunities for advanced

training in facilitation and mediation for judges and attorneys within

OHA, as appropriate.

4. Development of Bureau Alternative Dispute Resolution Plans

The BDRS shall develop and submit the Bureau's Alternate Dispute

Resolution Plan (ADRP) through the Bureau Head to the appropriate

Assistant Secretary no later than 60 days following the completion of

training. The ADRP shall include at least one category of disputes

amenable to ADR methods, and a discussion of how the bureau will

implement ADR to address such disputes. Additionally, to facilitate the

monitoring and evaluation of the bureau's initiative(s), the ADRP

should address, among other topics, the (1) Goals; (2) objectives; (3)

timetable; (4) implementation strategy; (5) monitoring criteria; and

(6) evaluation methodology. It is permissible if two or more bureaus

adopt the same plan or parts of a plan.

In selecting appropriate ADR pilot initiatives, a bureau can focus,

for example, on a particular category of dispute (e.g., contract

cases), on a variety of disputes involving a particular organizational

segment or region of the agency, or on a particular ADR process that

would be applied in a variety of disputes across the bureau. In

selecting a focus for an ADR pilot initiative, the Department

encourages bureaus to consider using some of the disputes that are

central to the Department's mission. While a bureau should not avoid

identifying personnel and small contract disputes, for example, as

candidates for a pilot initiative, a bureau should not focus

exclusively on these areas so that the effectiveness of ADR for a

bureau can be judged in a programmatic context.

Some offices of the Department, such as the Office of the

Solicitor, assist bureaus in carrying out their programs rather than

conducting programs of their own. For the purposes of this policy, such

offices should assist their client bureaus in implementing ADR in a

programmatic context. Nonetheless, such offices should develop an ADRP

for internal, human resource management purposes.

Consistent with the many activities and functions of the Department

and the Federal Acquisition Regulations' (FAR) recognition of the

usefulness of ADR in government contracts, each BDRS, or appointed

designees, should review categories of all proposed new and renewal

contracts, agreements, permits, memoranda of understanding, and other

documents, to determine whether to include ADR provisions. Moreover,

the Department encourages the use of ADR in contract disputes prior to

these disputes reaching the Interior Board of Contract Appeals. To

avoid duplication of effort by bureau personnel, the Office of the

Solicitor, working with the Department's Senior Procurement official,

will develop standardized ADR-related clauses that bureaus can use in

contracts and other documents.

The Department expects, as well, that those bureaus with

comparatively more dispute resolution experience will, on a voluntary

basis, assist bureaus less familiar with dispute resolution in the

development of the ADRP. The Department expects, as well, that inter-

bureau initiatives such as ``one stop permitting,'' for example, be

coordinated with the BDRSs. Each BDRS and others involved with the

implementation of the interim policy are encouraged to consult with

other federal agencies, and others in the dispute resolution field in

the development of their ADR initiatives. The DRS is available to

provide the names of contact persons within various federal agencies

who have effectively utilized ADR methods in resolving disputes.

Judges within all boards and divisions of OHA will be encouraged to

utilize, where appropriate, ADR methods, including, among others, the

use of settlement judges, minitrials, and the referral of litigants to

mediation or arbitration in advance of a judge's consideration of a

case on the merits. OHA will develop an internal policy for the

appointment of settlement judges and will refer litigants to a list of

approved mediators and arbitrators.

The appropriate Assistant Secretary or designee shall, upon receipt

of a bureau's ADRP, review and approve the ADRP in consultation with

the IDRC. Within 30 days after approval of an ADRP, a bureau shall

publish its ADRP in the Federal Register or otherwise make the ADRP

accessible to interested persons.

D. Monitoring and Evaluation

Each BDRS shall monitor the implementation of his or her bureau's

dispute resolution initiatives on an ongoing basis, using the criteria

developed in their ADRP. Each BDRS shall submit to the IDRC, through

the proper Bureau Head and Assistant Secretary, every 180 days, an

evaluation of the bureau's progress toward meeting the goals,

objectives, and timetables on the basis of the methodology outlined in

the ADRP. The evaluation should also discuss any unanticipated issues

that each bureau may have encountered and how those issues have been or

are being resolved.

The BDRSs in conjunction with the IDRC shall, at the conclusion of

the two-year interim phase, catalogue and evaluate the bureaus'

respective initiatives and experiences under their ADRPs in a report to

the Secretary. This evaluation, coordinated by the DRS, as chair of the

IDRC, will focus on the categories of dispute and types ADR methods

that were most helpful in achieving resolution of disputes.

Moreover, because the usefulness of ADR to the Department is

dependent on the processes' ability to facilitate rational, fair,

efficient, and stable solutions among the Department's bureaus, the

regulated community and the public, evaluation of the interim policy

should receive the benefit of public public comment and participation.

A concluding section of the evaluation should explain how dispute

resolution will be integrated on a permanent basis into each bureau's

program offices. This process of review, evaluation, and modification

will allow each bureau to systematically and regularly improve its ADR

programs.

E. Development of Final ADR Policy

The IDRC in conjunction with the BDRSs, and with the benefit of

public comment and participation, will develop a permanent Department

ADR policy on the basis of the Department's two-year interim policy

experience. The DRS will be responsible for the coordination of the

development of the Department's final policy, and shall ensure issuance

of that policy no later than 90 days after the conclusion of the

interim policy. During the time between conclusion of the interim

policy and issuance of the final policy, the interim policy shall

remain in effect, as appropriate.

F. Negotiated Rulemaking

Pursuant to Executive Order 12866 and the Presidential Memorandum

on Negotiated Rulemaking, issued September 30, 1993, the Department

will use, where appropriate, negotiated rulemaking or other consensus-

building techniques to develop rules that are fair, technically

accurate, and clear. Each bureau will evaluate, prior to drafting or

amending any regulation, whether negotiated rulemaking is appropriate

for developing or amending that regulation and will explain, on the

Regulatory Alert Form submitted to the ORA, the basis for determining

whether or not the regulation will be developed or amended using

negotiated rulemaking.

In explaining whether negotiated rulemaking should be used for a

particular rulemaking, each bureau should address at least the

following:

(1) Whether there exists a small and identifiable group of

constituents (the ``parties'') with significant interests in the

rulemaking, so that all reasonably foreseeable significant interests

can be represented by individuals in the negotiation;

(2) Whether the parties believe it to be in their best interest to

enter into a negotiated rulemaking;

(3) Whether the parties are willing and able to enter into

negotiated rulemaking in good faith;

(4) Whether any single party has, or is perceived to have, the

ability to dominate negotiations, thereby making a compromise solution

unlikely;

(5) Whether there are clear and identifiable issues that are agreed

to be ripe for a negotiated solution;

(6) Whether a negotiated solution would require one or more parties

to compromise a fundamental value;

(7) Whether the use of negotiated rulemaking is reasonably likely

to result in an agreement or course of action satisfactory to all

parties; and

(8) Whether there are legal deadlines or other legal issues that

either mitigate against negotiation or provide incentives to reach a

negotiated solution.

If a bureau has decided to enter into a negotiated rulemaking, it

will prepare a brief report describing the goals, objectives,

anticipated parties, and projected timetables of the negotiation.

Throughout the negotiation, the bureau will prepare brief periodic

reports discussing the progress toward achieving the goals, objectives,

and timetables of the negotiation, and highlighting any successes and

unanticipated events or issues encountered during the negotiation.

These reports shall be submitted to ORA and the IDRC.

At the end of the two-year interim policy, ORA, the DRS, and IDRC

shall prepare a report to the Secretary evaluating the Department's

experiences with negotiated rulemaking. This report will focus upon the

types of policies, categories of rulemakings, and methods of

negotiation that were most successful in achieving customer

satisfaction and the cost-effective implementation of mutually

agreeable rulemakings. This report will be based upon evaluations

conducted by the bureaus and submitted to ORA, IDRC, and the DRS for

review and assimilation into the report to the Secretary.

IV. Executive Order 12866

This interim policy was not subject to Office of Management and

Budget review under Executive Order 12866.

Dated: June 2, 1994.

Bonnie R. Cohen,

Assistant Secretary, Policy, Management and Budgets.

Appendix I--Glossary of ADR Terms

Appendix II--Examples of ADR Initiatives

Appendix I--Glossary of ADR Terms

The following terms are commonly associated with ADR and negotiated

rulemaking and contain many recognized forms of ADR. They are provided

for the reader's convenience and have been adapted from the ADR Act,

the Negotiated Rulemaking Act, and other sources.

Alternative means of dispute resolution--An inclusive term used to

describe a variety of problem-solving processes that are used in lieu

of litigation or administrative adjudication to resolve issues in

controversy, including but not limited to, settlement negotiations,

conciliation, facilitation, mediation, fact-finding, minitrials, and

arbitration, or any combination thereof.

Arbitration--A process, quasi-judicial in nature, whereby a dispute

is submitted to an impartial and neutral third party who considers the

facts and merits of a case and decides the matter. To be revised

consistent with 5 U.S.C. 588, et. seq.

Conciliation--Procedures intended to help establish trust and

openness between the parties to a dispute.

Dispute--An issue which is material to a decision concerning an

administrative or mission-related program of an agency and with which

there is disagreement between the agency and a person or persons who

would be substantially affected by the decision.

Dispute resolution communication--Any oral or written communication

prepared for the purposes of a dispute resolution proceeding, including

any memoranda, notes, or work product of the neutral, parties, or

nonparty participants. A written agreement to enter into a dispute

resolution proceeding, or a final written agreement or arbitration

award reached as a result of a dispute resolution proceeding, is not a

dispute resolution communication.

Dispute resolution proceeding--Any process in which an alternative

means of dispute resolution is used to resolve an issue in controversy

in which a neutral is appointed and specified parties participate.

Facilitation--Involves the assistance of a third party who is

impartial toward the issues under discussion and who works with all

participants in a whole group session providing procedural directions

on how the group can effectively move through the problem-solving steps

of the meeting and arrive at the jointly agreed upon goal.

Fact-finding--Involves the use of neutrals acceptable to all

parties to determine disputed facts. This can be particularly useful

where disagreements about the need for or the meaning of data are

impeding resolution of a dispute, or where the disputed facts are

highly technical and would be better resolved by experts. Fact-finding

usually involves an informal presentation of its case by each party.

The neutral(s) then provide an advisory opinion on the disputed facts,

which can be used by the parties as a basis for further negotiation.

Litigation--A dispute brought in a court of law to enforce a

statute, right, or legally created cause of action that will be decided

based upon legal principles or evidence presented.

Mediation--Involves the intervention into a dispute of an impartial

and neutral third party, who has no decisionmaking authority but who

will procedurally assist the parties to reach voluntarily an acceptable

settlement of issues in dispute.

Minitrial--A structured settlement process in which the disputants

agree on a procedure for presenting their cases in highly abbreviated

versions (usually no more than a few hours or a few days) to senior

officials for each side with authority to settle the dispute. This

process allows those in senior positions to see firsthand the relative

strengths and weaknesses of their cases and can serve as a basis for

more fruitful negotiations. Often, a neutral presides over the hearing,

and may, subsequently, mediate the dispute or help parties evaluate

their cases.

Negotiated rulemaking--Rulemaking accomplished through the use of a

negotiated rulemaking committee.

Negotiated rulemaking committee--An advisory committee established

by an agency in accordance with the Negotiated Rulemaking Act and the

Federal Advisory Committee Act to consider and discuss issues for the

purpose of reaching a consensus in the development of a proposed rule.

Negotiation--Involves a bargaining relationship between two or more

parties who have either perceived or actual conflicts of interest. The

participants join voluntarily in a temporary relationship to educate

each other about their needs and interests and exchange specific

resources or promises that will resolve on or more issues. Almost all

of the ADR procedures, in which the parties maintain control over the

outcome of the conflict, are variations upon or elaborations of the

negotiation process.

Neutral--An individual, who with respect to an issue in

controversy, functions specifically to aid the parties in resolving the

controversy. The individual 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 dispute, unless such interest is fully disclosed in

writing to all parties and all parties agree that the neutral may

serve.

Ombudsman--A person designated to address selected categories of

disputes by investigating the circumstances that gave rise to the

matter; and based upon the investigative findings, recommending

corrective action, as appropriate.

Roster--A list of persons qualified to provide services as neutrals

that is maintained by the agency.

Appendix II--Examples of ADR Initiatives

Various bureaus and offices within the Department have been

involved in implementing ADR processes. Some of the more prominent

examples of ADR initiatives that reflect the Department's commitment to

ADR include:

In 1990, the Department disseminated to each of the Department's

bureaus and offices an ADR survey designed to identify program areas

that could be amenable to ADR techniques. Among the questions asked

were: (1) The categories of disputes in which the organization is

typically involved; (2) the number of cases during the prior 2 fiscal

years that were (a) docketed, (b) settled, and (c) litigated, and the

approximate cost involved; and (3) the organization's experience to

date in utilizing ADR techniques.

The Department conducted an orientation program on ADR. Included in

the orientation program was Senator Charles Grassley, one of the

sponsors of the ADR Act, together with representatives of the

Administrative Conference of the United States (ACUS) and the Federal

Mediation and Conciliation Service (FMCS).

The Department conducted a one day training program on ADR. The

training focused on the various methods of ADR and included

representatives from the U.S. Army Corps of Engineers, the

Environmental Protection Agency, the Department of Health and Human

Services, and the Department of Transportation, each of whom shared

their experiences in developing successful ADR programs.

The Department's Office for Equal Opportunity (OEO) provided

training in basic and advanced mediation skills for OEO and personnel

program officials and Equal Employment Opportunity (EEO) counselors.

OEO also issued a directive to bureaus and offices providing guidance

on the development and implementation of ADR pilot programs consistent

with 29 CFR part 1614. Under this directive each bureau and office is

to submit an ADR pilot program plan delineating specific actions to be

taken to incorporate ADR techniques into the EEO complaints process.

The Department recently made consideration of the use of ADR in the

resolution of discrimination complaints mandatory and has designated a

Departmental EEO/ADR Coordinator and directed each bureau to designate

a Bureau EEO/ADR Coordinator.

The Department designated the Bureau of Reclamation as a pilot

bureau in FY-93 for the purpose of testing the effectiveness of

mediation in the resolution of EEO complaints and administrative

grievances. The Bureau has relied exclusively on contract neutrals to

serve as mediators for all dispute referred for ADR. Mediation has also

been utilized by Reclamation in other program areas, including resource

management and contract administration. Reclamation is assessing the

results of its mediation program to determine whether to expand its

usage to other program areas.

The Department's Office of Hearings and Appeals has implemented ADR

as an alternative to administrative litigation. The Board of Indian

Appeals and the administrative law judges vested with authority for

adjudicating Indian probate cases have encouraged the use of settlement

agreements to resolve these matters. Under 43 CFR 4.207, administrative

law judges have been authorized to effect compromise settlements in

probate actions where the parties concerned agree to compromise and

where the judge establishes that all necessary conditions have been

met. The Board of Contract Appeals has been effectively implementing

ADR processes over the last 2 years in its cases. At the time a case is

docketed, the Board issues an order notifying the parties to the

dispute of the availability and benefits of ADR. Through actively

promoting ADR as a viable alternative, the Board has settled a majority

of its cases without the need to conduct a hearing.

The Bureau of Land Management (BLM) has recognized the benefits of

ADR techniques, and a presentation on the topic was made at the

Bureau's Solid Minerals Conference in Albuquerque, New Mexico, in April

1993. The BLM, in partnership with the Bowie State University's Center

for Alternative Dispute Resolution, has provided basic Conflict

Management ADR training to Personnelists and EEO practitioners, as well

as to key management officials. The BLM will continue to work with the

Center for ADR and other outside resources to provide training during

Fiscal Year 1994.

The Minerals Management Service (MMS) has a rich history of ADR.

The MMS's examples include (1) a process targeted at settling

outstanding and contentious mineral royalty claims which has reduced

appeals and litigation and increased royalty collections, and (2) more

than a decade of conflict resolution training for offshore minerals

management personnel and establishment and conduct of a joint review

panel for constituent review of environmental documents.

The Bureau of Mines (USBM) has recognized the benefits of ADR

techniques and has provided training to principal officials in the use

of ADR techniques. Training was provided by a contractor for the

Directorates of the Bureau on orientation to ADR techniques;

Information and Analysis on September 28, 1993; Finance and Management,

December 8, 1993; and Research on January 11, 1994. Training will also

be provided to EEO Counselors by the EEO Staff and the Federal

Mediation and Conciliation Service in June 1994. The Bureau plan to

continue the use of ADR for EEO complaints and to expand it to other

types of disputes. The EEO Office has used mediation and negotiation

for EEO complaints in the precomplaint stage and also the formal

complaint stage.

[FR Doc. 94-14288 Filed 6-10-94; 8:45 am]

BILLING CODE 4310-79-M