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Tables of Contents for Federal Administrative Dispute Resolution Deskbook
Chapter/Section Title
Page #
Page Count
Preface
i
About the Contributors
iii
Federal Administrative Dispute Resolution: An Overview
vii
Section I - Administrative Dispute Resolution
The Administrative Dispute Resolution Act of 1996 and the Private Practitioner
1
34
The 1990 Act
1
5
Institutionalization of ADR
2
1
Agency Authority to Use ADR
2
1
When Agencies Will Not Use ADR
2
1
Arbitration
3
1
Confidentiality
4
1
Contracts
5
1
Tort Claims
5
1
The 1996 Act
6
4
Scope
6
1
Enhanced Confidentiality Protections
7
2
Binding Arbitration
9
1
Contract Claims
9
1
Implementation
10
11
Agencies
10
1
The Administration
11
1
Executive Orders
12
2
Department of Justice
14
2
Procurement of Neutrals
16
1
The Use of Public Sector Neutrals
16
2
Agency Contracting of Private Neutrals
18
3
Conclusion
21
14
The Administrative Dispute Resolution Act of 1996: Text and Section-by-Section Commentary
35
40
Overview
35
4
Definition
35
1
Statute
35
1
Coverage
36
1
Confidentiality
37
1
Binding Arbitration
38
1
Federal Consulting and Coordinating
38
1
Expedited Acquisition of Neutrals
38
1
Legislative History
39
2
Statute and Section-by-Section Commentary
41
34
No Fear: Confidentiality Day-to-Day in Federal Dispute Resolution
75
20
The Act's Goal: Candor without Fear
75
2
Implementation of the Act's Confidentiality Provisions
77
7
Recent Uncertainties: The Fifth Circuit's Decision in Texas Agricultural Mediation Case
84
6
Fifth Circuit Decision Breaching Confidentiality
85
1
ADR Act's Applicability: The Details
86
3
Striking the Balance
89
1
Conclusion
90
5
Labor Arbitration Services Provided by the Federal Mediation and Conciliation Service
95
16
The FMCS Arbitration Procedures
98
2
Who Are the Arbitrators?
100
4
How Arbitrators Are Selected for the FMCS Roster
100
2
Removal of Arbitrators from the Roster
102
2
Procedures for Requesting Arbitrators and Arbitration
104
2
FMCS Expedited Procedures
106
1
FMCS Efforts for Improvement
106
5
Section II - Negotiated Rulemaking
Using Negotiated Rulemaking Effectively
111
24
Introduction
111
1
A Brief Overview of Negotiated Rulemaking
111
2
Potential Benefits of Negotiated Rulemaking
113
1
Relevant Legislative Guidance and Policy Initiatives
114
2
Using Reg-Neg: Identifying Regulations That Are Good Candidates
116
4
Using Reg-Neg: The Negotiating Process
120
5
Developing Ground Rules for the Negotiating Committee
120
1
Role of the Facilitator or Mediator
121
1
Defining Participation in the Negotiating Process
122
2
Memorializing Negotiating Sessions
124
1
Defining Consensus: When Has an ``Agreement'' Been Reached?
124
1
Roles for Parties in Regulatory Negotiations
125
5
Selecting a Neutral
125
2
What an Agency Should Expect to Do in a Reg-Neg
127
1
Shape Public Expectations
127
1
Participate Appropriately
127
1
Define the Issues on the Table
128
1
Provide for an Appropriate Agency Representative at the Table
129
1
What Other Participants Should Expect to Do in a Reg-Neg
129
1
Participate Effectively
129
1
Represent Constituents
130
1
Practical Advice on Making Reg-Negs Successful
130
5
Define Procedures and Expectations in Advance
130
1
Undertake a Thorough Convening before Deciding to Negotiate
131
1
Define the Rules of Engagement
132
1
Define Expectations as to Any ``Consensus'' Result
132
1
The Importance of Advance Preparation
133
2
Negotiated Rulemaking Changes EPA Culture
135
20
EPA Negotiated Rulemaking Efforts
135
11
Small Non-Road Engines Emissions Controls
135
1
Revision of the Hazardous Waste Manifest
136
1
Wood Furniture Manufacturing Industry VOC Emission Controls
137
1
Architectural and Industrial Maintenance Coatings
138
1
Disinfection By-Products
138
1
National Emission Standards for Coke Oven Batteries
139
1
Oxygenated and Reformulated Fuels
140
1
Recycling of Lead Acid Batteries
141
1
Fugitive Emissions from Equipment Leaks
141
1
Asbestos in Schools
142
1
Underground Injections
142
1
RCRA Minor Permit Modifications
143
1
Woodburning Stoves
143
1
Farmworker Protection Standards
144
1
Emergency Pesticide Exemptions
145
1
Nonconformance Penalties for Heavy-Duty Trucks
145
1
The Impetus for Negotiated Rules
146
4
Negotiated Rulemaking Evolves
150
5
Section III - Where the Federal Government Uses ADR
United States Department of Agriculture, Farm Service Agency, Agricultural Mediation Program
155
18
Introduction
155
1
History of the USDA Mediation Program
156
2
Certification of State Mediation Programs
157
1
Matching State Grants
157
1
What Is Mediation?
158
3
Rights and Responsibilities
159
1
Decisions That Can Be Mediated
159
1
Decisions That Cannot Be Mediated
160
1
Requesting Mediation
161
1
Mediation Process
161
8
Location and Facilities for Mediation
162
1
Mediator's Role
162
1
Participants' Duties
163
1
Developing Ideas and Solutions
164
1
Steps in Mediation
165
1
Step I-Getting an Agreement to Mediate a Dispute
165
1
Step II-Gathering Facts for a Mediation Meeting
166
1
Step III-Evaluating Mediation Information
167
1
Step IV-Writing a Mediation Agreement
168
1
Step V-Implementation of a Mediation Agreement
169
1
Mediation Results
169
2
National Performance
171
2
ADR and the Federal Aviation Administration
173
20
Overview of FAA Administrative Actions
174
1
FAA Enforcement Procedures
174
4
Administrative Actions
174
1
Reexamination
175
1
Certificate Action
175
1
Civil Penalty
176
1
Criminal Action
177
1
ADR and the FAA
178
4
The Need for ADR in This Process
182
11
Attachment A: FAA: Sample Reply to Notice of Proposed Civil Penalty
185
6
Attachment B: FAA: Sample Certificate Holder Reply
191
1
FAA: Sample Receipt for Certificate and Waiver of Appeal Rights
192
1
Private Perspectives on ADR in Federal Contract Disputes
193
92
Introduction
193
2
The Use of ADR
195
6
Suitability of Cases for ADR
195
1
Suitability of Particular ADR Modes
196
1
Partnering
197
1
Neutral Evaluation
198
1
Mediation
198
1
Settlement Judge
199
1
Minitrial/Summary Trials
199
1
Arbitration
199
1
Ombudsmen
200
1
The Continuum
200
1
A Caution for Claims Involving Criminal Matters
200
1
The Court of Claims and Armed Services Board of Contract Appeals
201
1
Practical ADR Clauses
202
11
Confidentiality
203
1
Settlement Discussion
203
1
Discovery
204
1
Work Product
204
1
Nondisclosure
204
1
Mediation
205
1
Participants in the Mediation process
205
1
Mediator
206
1
Negotiating Sessions
206
1
Confidentiality and the Use of Information
206
2
Minitrial
208
1
Process
208
1
Neutral ASBCA Judge
209
2
Participants
211
1
Posthearing Procedures
211
1
Safeguards for the Parties
212
1
Termination of Agreement
212
1
Conclusion
213
30
Attachment A: Amended General Order No. 13
217
2
Notice to Counsel
219
6
Attachment B: Notice Regarding Alternative Methods of Dispute Resolution
225
4
Attachment C: 14 December 1993 (Sample Agreement)
229
4
14 May 1994 (Sample Agreement)
233
4
25 October 1996 (Sample Agreement)
237
6
Alternative Means of Dispute Resolution in Federal Contract Disputes
Contract Claims and Appeals
243
9
The Need for Change in Government Contract Disputes
243
2
ADR Amendments to the Contract Disputes Act of 1978
245
5
Executive Branch Commitment to ADR
250
1
The Federal Acquisition Regulation (FAR)
251
1
Bid Protests
252
2
ADR Continuum for Contract Disputes
254
2
Individual Methods
256
1
Positional Negotiation
256
1
Interest-based Bargaining
256
1
Third-Party Assisted Methods
257
6
Mediation
257
1
Fact-Finding
257
1
Minitrial
258
2
Nonbinding Arbitration
260
1
Evaluative Mediation
261
1
Disputes Review Board
261
1
Early Neutral Evaluation
262
1
Adjudicative Methods
263
8
Summary Jury Trial
263
1
Boards of Contract Appeals ADR Procedures
264
1
Background
264
1
Settlement Judge
265
1
Minitrial
266
1
Summary Trial with Binding Decision
267
1
Other Agreed Methods
267
1
Boards of Contract Appeals ADR Sharing Arrangement
268
1
The United States Court of Federal Claims
268
1
Background
268
1
Settlement Judge
269
1
Minitrial
269
1
Third-Party Neutrals
269
1
Arbitration
270
1
Deciding to Use ADR
271
4
The Dilemma for the Disputing Parties
271
1
Guidance for Making the Decision
272
1
Board, Court, or Private Neutral
273
2
ADR Agreements for Contract Disputes
275
3
Useful Sources
275
1
Considerations
276
2
ADR and Partnering
278
1
Future Changes in the Contract Disputes Act
279
6
Using ADR to Resolve Contract Disputes Between Government Contractors and the Air Force
285
62
Introduction
285
1
Background
286
13
Initial Legal and Regulatory Authority for Federal Agency ADR
286
2
DOD and Air Force Implementation of the ADR Act of 1990
288
2
Ramifications of the ADR Act of 1996
290
3
Executive Orders and Regulatory Developments
293
1
Air Force ADR Developments through April 1999
294
5
Recent Air Force ADR Initiatives
299
5
Is This the Right Case for ADR?
304
9
Factors Favoring the Use of ADR
305
5
Factors Weighing Against the Use of ADR
310
3
Selecting an ADR Method
313
8
Mediation
314
2
Fact-Finding
316
1
Settlement Judge
316
2
Minitrial
318
1
Arbitration
319
1
Summary Trial with Binding Decision
319
2
Implementing ADR
321
11
Drafting the ADR Agreement
323
1
Agreeing Upon and Obtaining a Neutral
323
3
Scheduling
326
1
Outstanding Discovery
326
1
Exchange of Information
327
1
Confidentiality
327
2
Conducting the Actual ADR
329
1
Be Prepared
329
1
How It Works
329
2
Follow-up
331
1
Conclusion
332
15
Acquisition ADR at the Federal Aviation Administration
347
22
Background
347
2
The ODRA Dispute Resolution Process
349
1
ADR Resources of the ODRA
350
2
ADR Techniques Available
352
2
Mediation
352
1
Arbitration
352
1
Neutral Evaluation
353
1
Use of Experts
353
1
Conferences
353
1
Examples of ADR Settlement Outcomes
354
3
Bid Protests
354
2
Contract Disputes
356
1
Procedural Matters
356
1
Conclusion
357
12
Attachment A: ODRA Case Management Statistics
359
4
Attachment B: ODRA ADR Success Stories
363
6
ADR at the Environmental Protection Agency
369
20
Introduction
369
1
Environmental ADR
370
3
Statutes and Policies Promoting Environmental Enforcement ADR
373
3
The 1987 Guidance Memo
374
1
Federal Statutes and Policies Encouraging the Use of ADR
374
1
Other Federal Government Policies Promoting ADR
375
1
The EPA's Environmental Enforcement ADR Program
376
1
The Enforcement Program
376
1
Current Uses of Environmental ADR
376
1
CERCLA Enforcement Mediation
377
8
The Importance of Mediation in CERCLA Cases
377
2
Pilot Projects and CERCLA ADR Initiatives
379
1
CERCLA Enforcement Mediation Today
379
3
The CERCLA Enforcement ADR Process
382
3
Conclusion
385
4
Use of Consensus Building at the Department of the Interior: Applications of Informal Administrative Consensus Building
389
16
Wild Horse and Burro Act Mediation
390
3
Facilitating a Solution for National Park Air Tour Flights
393
4
Resource Advisory Councils: Institutionalized Use of Consensus Building
397
4
Conclusion
401
4
ADR in the Federal Workplace: Why It is Needed, How It Can Help, and Some Cautions to Observe
405
14
Factors That Underlie the Need for ADR
406
3
A Complex, Lengthy, and Adversarial Process
406
1
Increasing Numbers of Complaints
407
2
Many Cases Do Not Involve Discrimination
409
1
Some Agencies' Experiences with ADR
409
5
U.S. Postal Service
410
2
U.S. Air Force
412
1
U.S. Navy's San Diego Regional Dispute Resolution Center
413
1
Walter Reed Army Medical Center
413
1
Some Cautions
414
3
Conclusion
417
2
Mediation of Federal Employment Discrimination Charges
419
14
Introduction
419
1
History of Mediation at EEOC
419
1
EEOC Principles of Mediation
420
1
The Mediation Process
421
8
How Cases Are Selected for Mediation
421
1
To Mediate or Not to Mediate
422
1
Participants in the Mediation Process
423
1
The Mediators
423
1
The Parties
423
1
How Is the Mediation Kept Confidential?
423
1
How the Mediation Works
424
2
Advantages and Disadvantages of Mediation
426
3
Conclusion
429
4
Section IV - Federal Alternative Dispute Resolution Techniques
A Procedure for the Voluntary Mediation of Disputes Involving Government Administrative Agencies
433
12
Introduction
433
2
The Mediation Process Itself
435
8
Phase I: Retaining a Mediator to Resolve the Dispute
435
2
Phase II: Familiarizing the Mediator with the Facts of the Dispute
437
3
Phase III: The Mediator's Presentation of Settlement Terms and the Initial Reaction of the Parties
440
1
Phase IV: Shuttle Diplomacy
441
2
Conclusion
443
2
Mediation Bookends: Getting Into and Out of Mediation
445
32
Convening
445
7
Understand All the Major Issues of Your Side
446
1
Understand the Process
447
1
Identify the Participants for Your Side
447
1
Propose the Mediation
448
1
Work Out Details
449
1
Jointly Agree to the Mediator
450
1
Schedule the First Session
451
1
Prepare Your Side for the Mediation
451
1
Persuade the Other Side
452
1
Writting Durable Settlement Agreements
452
2
Samples of Agreements to Mediate
454
5
Sample Documents Used to Convene Workplace Mediations
459
18
Labor-Management Partnership: A 12-Step Program for Change
477
8
Labor and Management Do Strange Bedfellows Make
477
1
In the Ideal Sense
477
1
12 Steps to Successful Partnerships
478
7
Using Economic Evidence to Resolve Bargaining Impasses in the Federal Sector: Early Neutral Evaluation
485
10
Ground Rules That Support Fact-Based Collective-Bargaining Decision Making
486
1
Federal Sector ``Interest Arbitration'': As Good as It Gets
487
1
Effective Costing of Proposals
487
1
Selecting a Labor Economist
488
1
Procurement Choices
489
1
Timing the Presentation by the Labor Economist
490
1
Assistance Costing Data Affords to Decision Makers
491
1
Tools Created by Contract Proposal Costing
492
1
Summary
493
2
The Settlement Judge Process at the Federal Energy Regulatory Commission
495
12
Introduction
495
3
How the FERC Settlement Judge Process Works
498
4
When to Use a Settlement Judge
500
1
Profile of the Settlement Judge
501
1
Advantages of Using Settlement Judges
502
1
Can FERC's Success Be Replicated?
503
4
Employment Dispute Resolution and Workplace Culture: The REDRESS™ Program at the United States Postal Service
507
20
Introduction
507
1
Dispute Resolution and Cultural Change
508
2
The Antecedents for Workplace Culture: A Brief History of the USPS
510
1
Research on REDRESS and Workplace Culture
511
2
A Brief History of the REDRESS Program
513
4
How Mediation Might Affect Workplace Culture: Preliminary Evidence from the REDRESS Pilot Project
517
2
REDRESS and the Transformative Model of Mediation
519
2
Mediation as a Tool for Workplace Cultural Change
521
1
Comparing Transformative and Evaluative Mediation
522
2
Conclusion
524
3
Can a Federal Ombuds Help You?
527
36
What Is an Ombuds?
528
1
What Can You Expect If You Contact an Ombuds?
529
5
Be Advised!
530
1
Confidentiality
531
2
Disclosure of Agency Nonpublic Information
533
1
Statutes of Limitation
533
1
Advocacy
533
1
Inability to Mandate Change
534
1
Should I Seek the Ombuds' Assistance?
534
5
Case One
534
2
Case Two
536
1
Case Three
537
1
Case Four
538
1
When Is a Federal Ombuds Most Likely to Be Helpful?
539
1
Summary
540
23
Attachment A: Standards for the Establishment and Operation of Ombudsman Offices
543
20
Board of Contract Appeal Judges: Sharing a Common Vision
563
16
Introduction
563
3
Notice Regarding Alternative Methods of Dispute Resolution
566
3
Pre-Appeal ADR Programs
569
1
BCA-ADR Sharing Arrangement
569
1
Bid Protest ADR Services
570
1
Continuous Open Dialogue
571
1
ADR Terminology
571
2
ADR Training
573
1
Other Helpful Tips
574
1
Conclusion
575
4
Sharing Neutrals: A Federal Interagency Collaborative Effort
579
18
Overview
579
1
Origins
580
1
Evolution
581
2
How the Process Works
583
1
Program Review and Resulting Changes
583
2
Policy Issues
585
4
Summing Up
589
8
Attachment A: Mediator Profile
591
3
Attachment B: Co-Mediator Profile
594
3
Alternative Dispute Resolution at the General Services Board of Contract Appeals
597
26
Introduction
597
2
The Evolution of Alternative Dispute Resolution at the GSBCA
597
1
Expansion of ADR Services at the GSBCA
598
1
ADR for CDA Appeals and Other Disputes
599
1
ADR in Contract Dispute Act Appeals
599
1
ADR in Disputes Not Involving CDA Appeals
599
1
Initial Procedures
600
1
Initiation of ADR
600
1
Appointing the Board Neutral
601
1
ADR Procedures
601
12
Selection of Procedures
601
1
Neutral Case Evaluation
602
1
Mediation
603
1
Combined ADR Procedures
603
1
Minitrial
604
1
Binding Decision
605
1
Additional Procedures
606
1
Initial Conference with the Clients
606
1
ADR Prior to Issuance of a Contracting Officer's Final Decision
606
1
Limited Discovery Prior to ADR
607
1
Avoiding Discovery Disputes by Immediate Judicial Intervention
607
1
Confidentiality of Materials Submitted
608
1
Judicial Intervention
608
2
Motions for Summary Relief as a Basis for ADR
610
1
Using Discovery as a Prelude to a Neutral Case Evaluation
611
1
Telephonic Hearings
612
1
Standing Neutrals on Specified Projects
612
1
Interagency Agreement with the Federal Aviation Administration
612
1
Making ADR Work
613
3
The Reality of ADR
613
1
Why the Parties Choose ADR
613
1
Advantages of ADR
614
2
The Danger of Formalization
616
1
Conclusion
616
7
Attachement A: Rule 204 Alternative Dispute Resolution
619
4
Recruiting and Training Outside Neutrals
623
12
Background
623
1
Qualifications
624
1
Exclusions
625
1
Recruitment
625
1
Training
625
2
Roster Management
627
1
Cost
628
1
Program Evaluation
628
7
Attachment A: United States Postal Service ADR Provider Survey
631
4
GSA's Schedule of Private Sector Providers
635
Appendix A: Administrative Dispute Resolution Documents
Administrative Dispute Resolution Act of 1996
639
Alternative Means of Dispute Resolution, from Title 5, U.S. Code
649
Presidential Memorandum, Interagency Committees on Use of Alternate Means of Dispute Resolution and Negotiated Rulemaking, May 1, 1998
677
Department of Justice, Attorney General: Guidence on Implementation of Litigation Reforms of Executive Order 12988
681
Department of Justice, Policy on the Use of Alternative Dispute Resolution, and Case Identification Criteria for Alternative Dispute Resolution
689
Department of Justice, Authority to Compromise and Close Civil Claims
711
Negotiated Rulemaking Act
717
Executive Order on Civil Justice Reform
739
Environmental Policy and Conflict Resolution Act of 1998
747
Appendix B: Additional Readings and Resources
Administrative Dispute Resolution
755
Negotiated Rulemaking
755
Selected Federal ADR Policies
755
Bid Protests, Contract Disputes, Procurement
756
ADR In Workplace Disputes
757
Neutrals and Training
757
Additional Reference Resources: Internet
758
Additional Reference Resources: Publications
763