Difference between revisions of "Administrative Dispute Resolution Act"
|Line 192:||Line 192:|
Administrative Dispute Resolution Act
Administrative Dispute Resolution Act
Title 5 U.S. Code,
Title 5 U.S. Code
§§ 556(c), 581– 593 (2012);
§§ 556(c), 581– 593 (2012);
Revision as of 12:13, 24 August 2018
5 U.S.C. §§ 571–584 (2012) (general provisions, confidentiality, administrative arbitration); 5 U.S.C. § 556(c) (2012) (ALJ authority); 9 U.S.C. § 10 (2012) (arbitration, judicial review); 41 U.S.C. §§ 604–607 (contract disputes); 29 U.S.C. § 173 (2012) (FMCS authority); 28 U.S.C. § 2672 (2012) (tort claims); and 31 U.S.C. § 3711(a)(2) (2012) (government claims); enacted November 15, 1990, by Pub. L. No. 101-552, 104 Stat. 2736; significantly amended August 6, 1992, by Pub. L. No. 102-354, 106 Stat. 944, and October 19, 1996, by Pub. L. No. 104-320, 110 Stat. 3870.
U.S. Department of Justice, Office of Alternative Dispute Resolution, Office of the Associate Attorney General
- 1 Overview
- 1.1 Background of the Act
- 1.2 Agency Implementation
- 1.3 ADR Methods
- 1.4 ADR Definitions and Authority
- 1.5 Administrative Arbitration
- 1.6 Confidentiality
- 1.7 Neutrals
- 1.8 Amendments to Existing Legislation
- 1.9 Administrative Procedure Technical Amendments Act
- 2 Legislative History
- 3 Bibliography
- 4 Statutory Provisions
Background of the Act
The Administrative Dispute Resolution Act of 1990 established a statutory framework for federal agency use of ADR. Based largely on reforms advocated by many observers, including the Administrative Conference of the U.S. in numerous formal recommendations to Congress and agencies, the Act recognized the value of, and encouraged federal agencies to employ, alternative means of dispute resolution. These methods—which have been used increasingly by states, courts, and private entities in recent years—enable parties to bring to bear their experience to foster creative, acceptable solutions and to produce expeditious decisions requiring fewer resources than litigation and adjudicative processes. Mediation, conciliation, arbitration, minitrials, fact-finding, early neutral evaluation, settlement judges, ombuds, and similar methods have begun to prove increasingly useful in resolving administrative disputes.
It became evident to many experts that legislation was needed to resolve legal questions regarding agency authority to employ ADR, to define procedural safeguards, and to prompt agencies to experiment. The 1990 Act was the response. It authorized and encouraged all federal agencies to use consensual processes to enhance the possibility of reaching agreements expeditiously within the confines of agency authority. It was premised on Congress’s findings that ADR can lead to more creative, efficient, stable, and sensible outcomes. In 1996, Congress amended and permanently reauthorized the Act. By eliminating further sunset dates and special reporting requirements, Congress recognized the permanent place of ADR methods in agency decisionmaking activities.
Section 3 of the Administrative Dispute Resolution Act of 1990 provides for agency action to put the legislation’s provisions into effect. The Act calls for agencies to conduct an internal review process to consider whether, and under what circumstances, ADR techniques may benefit the public and help it to fulfill statutory duties more effectively.
An agency is required to consider if ADR can be useful to each of its “administrative programs.” Section 571 of this subchapter defines an agency’s “administrative program” broadly to include all activities involving “protection of the public interest and the determination of rights. . . .” Agency review is directed to all manner of agency actions, including actions involving entitlement programs, grants, contracts, insurance, loans, guarantees, licensing, inspections, taxes, fees, enforcement, postal services, economic regulation, management, claims, or private-party complaints. Following review of its administrative programs, an agency is directed to adopt policies on its use of ADR. Section 572(b) lists factors an agency should use to determine if a dispute lends itself to ADR, especially binding arbitration.
Section 3 assigns responsibility to implement the provisions of the Act. Each agency head is expected to designate a senior official to be the agency’s dispute resolution specialist (DRS). The DRS generally works at a departmental or comparable level to oversee the implementation of ADR activities and development of the agency policy on ADR. Ideally, the DRS or a designee would also seek to interact with counsel and program officers in helping them make full and effective use of the wide range of available dispute resolution options and in keeping them apprised of relevant developments in the public and private sectors. Each agency is expected to make training available to its DRS and other employees involved in implementing the Act. The DRS, in turn, is expected to recommend to the agency head a list of other employees for similar training to be conducted by the DRS within the agency.
Section 3(d)(1) provides that each agency with significant grant or contract functions review its standard contract or assistance agreements to determine if a need exists for amendments to those agreements to authorize or encourage ADR use. Section 3(d)(2) provides that the Federal Acquisition Regulation (FAR) be amended to reflect the amendments made by the Act, and FAR amendments became effective on December 29, 1998. 63 Fed. Reg. 58,594 (Oct. 30, 1998).
Arbitration is closely akin to adjudication in that a neutral third party decides the submitted issue after reviewing evidence and hearing argument from the parties. It may be binding on the parties through either agreement or operation of law, or it may be nonbinding in that the decision is only advisory. Arbitration may be voluntary, where the parties agree to resolve the issues by means of arbitration, or it may be mandatory, where the process is the exclusive means provided. Under the Act, it must always be voluntary.
A minitrial is a structured settlement process in which each side presents a highly abbreviated summary of its case before senior officials of each party authorized to settle the case. A neutral adviser sometimes presides over the proceeding and will render an advisory opinion if asked to do so. Following the presentations, the officials seek to negotiate a settlement.
Mediation involves a neutral third party trained to assist the parties in negotiating an agreement. The mediator has no independent authority and does not render a decision; any decision must be reached by the parties themselves.
Facilitation helps parties reach a decision or a satisfactory resolution of the matter to be addressed. While often used interchangeably with “mediator,” a facilitator generally conducts meetings and coordinates discussions, but does not become as involved in the resolution of substantive issues as does a mediator.
Convening or Conflict Assessment
Convening helps identify issues in controversy and affected interests. The convenor is generally called upon to determine whether direct negotiations among the parties would be a suitable means of resolving the issues, and if so to bring the parties together for that purpose. Convening has proved valuable in negotiated rulemaking and environmental disputes.
This formal process (covered separately by the Negotiated Rulemaking Act) is initiated by an agency promulgating a regulation. If a convenor recommends negotiation, neutral-led discussions including interested parties seek to effect an acceptable solution. It is used when an agency issues or revises a rule, especially when controversy is expected. The result is a proposed rule.
Summary Jury Trial
Disputants present evidence at a brief mock trial with a mock jury. After an advisory verdict, the presiding official may assist disputants to negotiate.
Unbiased input on technical aspects of a dispute is provided by a subject matter specialist. These methods are apt where parties are willing to share pertinent data, desire perspective on strengths and weaknesses, or want prompt resolution by real decision makers. Following the findings, the parties may then negotiate a settlement, hold further proceedings, or conduct more research or discovery.
This process involves mediation or discussions by disputants before a neutral, generally a judge other than the presiding one. It is generally voluntary. The settlement judge may give an informal advisory opinion.
ADR Definitions and Authority
The Act, section 572(a), authorizes agencies to use any ADR method to resolve any controversy relating to an administrative program if the parties agree to such a proceeding. The term “alternative means of dispute resolution,” a key one in the legislation, is defined in section 571(3) as including “any procedure that is used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, fact-finding, minitrials, arbitration, and use of ombuds, or any combination thereof.”
The original version of the Act enacted in 1990 also referred to ADR as any procedure “used in lieu of an adjudication” as defined in section 551(7) of Title 5. Section 551(7) defines “adjudication” to include “agency process for the formulation of an order,” and an “order” under section 551(6) is the “final disposition . . . of an agency in a matter other than rule making . . . .” As the definitions of “order” and “rule” encompass almost everything agencies do, the term “alternative means of dispute resolution,” when used in the body of the legislation, was intended to include any procedure an agency may use to resolve any issue in controversy in any federal program activity. “Issue in controversy” and “administrative program” (sections 571(8) and (2)) are similarly inclusive.
The Act explicitly gives agencies broad discretion as to when and how to use ADR methods. Agency decisions on using or not using ADR are unreviewable (section 581(b)(1)). The sole exception allows any nonparty adversely affected by an arbitral award to seek review of an agency decision to arbitrate under the Act. In such an action, a United States district court would decide whether the agency’s decision to use arbitration was clearly inconsistent with section 572(b)’s criteria for appropriate use of ADR.
Recognizing that ADR may be inappropriate in certain settings, section 572(b) states that agencies should “consider not using” ADR when:
- 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;
- 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;
- 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;
- the matter significantly affects persons or organizations who are not parties to the proceeding;
- a full public record of the proceeding is important, and a dispute resolution proceeding cannot provide such a record; and
- 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.
This does not simply mean that the agency should not use ADR in a case involving public policy. A subtler balancing will be needed. The Act sets forth some situations in which an agency might decide not to employ ADR. In many cases, mediation, negotiated rulemaking, and similar methods will be very useful even if policy issues are implicated. On the other hand, agencies should not ordinarily use arbitration to decide a major policy issue. This approach was intended to afford agencies maximum discretion, reinforced by the general non-reviewability of almost all decisions on use of ADR. The voluntary use of ADR is never specifically forbidden. Section 572(b)’s structure indicates that ADR is generally presumed appropriate. (Note that the provision does not state that the agency “shall not consider,” and the conjunctive “and” is employed in this section.) In exercising their very broad discretion, agencies should take into account all factors and qualifiers as to when, and what kind, of ADR methods to use. In no case need a formal finding or justification accompany an agency decision on employing ADR.
One ADR process—binding arbitration— has evoked significant controversy in the public sector. After Congress passed the U.S. Arbitration Act in 1925, binding arbitration in private-sector disputes became a widely accepted alternative to litigation. Shearson/American Express, Inc. v. McMahon, 484 U.S. 220 (1987), and numerous other Supreme Court decisions have been encouraging to arbitration. For nearly a century, however, the Comptroller General took the view that unless a federal agency had explicit statutory authorization, it was prohibited from using a private arbitrator to decide the validity of virtually any claim involving the government. The ADR Act underscores the growing modern acceptance of arbitration by reversing this presumption. Section 4, 5 U.S.C. §§ 575–581, now authorizes parties to administrative proceedings, including agencies, to agree to binding arbitration.
The Act stipulates, in section 579, that the arbitrator shall set a time and place for the hearing and that an arbitration proceeding shall be conducted expeditiously and in an informal manner. The parties may present evidence and cross-examine witnesses, but the arbitrator may exclude evidence that is irrelevant, immaterial, unduly repetitious, or privileged. The arbitrator may interpret and apply relevant statutory and regulatory requirements, legal precedents, and policy directives. The arbitrator shall make the award within 30 days of the hearing unless the parties agree to some other time limit or are bound by a rule providing otherwise. Arbitral awards generally have no precedential value and are subject to review under the U.S. Arbitration Act.
While the 1990 Act provided that the arbitral award did not become final and binding on an agency party for 30 days and allowed the agency head to vacate the arbitral award during that period, the 1996 amendments eliminated this one-sided “opt-out” provision. The amendments authorize, for the first time, “true” binding arbitration—or something very similar to it—for all federal agencies, though agency arbitration is still subject to some constraints. The Act now requires federal agencies entering into binding arbitration to specify a maximum award that may be issued in that case by the arbitrator. It also requires agency heads, prior to an agency’s initial use of arbitration under the 1996 Act, to issue guidance on the appropriate use of arbitration after consulting with the attorney general. Following the 1996 amendments, Phyllis Hanfling and Martha McClellan, on behalf of the federal Interagency Dispute Resolution Working Group, prepared a document with advice for agencies on implementing the Act’s arbitral procedures, Developing Guidance for Binding Arbitration: A Handbook for Federal Agencies (distributed by the Department of Justice 1999). Note that this interagency working group was authorized by President Clinton’s Memorandum on the Designation of Interagency Committees to Facilitate and Encourage Agency Use of Alternate Means of Dispute Resolution and Negotiated Rulemaking, May 1, 1998, 1 Pub. Papers of the Presidents 749, 1998 WL 214697.
Section 4, 5 U.S.C. § 574, fosters agency use of ADR by ensuring appropriate protection of parties’ and neutrals’ “dispute resolution communications.” In doing so, the Act seeks a balance between the openness required for legitimacy and the confidentiality that is critical if many sensitive negotiations are to yield agreements. In legislating, Congress defined these protections in detail. The Act forbids neutrals from disclosing such communications and also states that they shall not “be required to disclose” such communications. As the Senate report for the original Act stated, the Act’s confidentiality “protections are created to enable parties to ADR proceedings to be forthcoming and candid, without fear that frank statements may be used later against them. Thus, documents produced during an ADR proceeding, such as proposals to resolve the dispute, are immune to discovery unless certain specific conditions are met.” (S. Rep. No. 101-543, 101st Congress, 2d Sess., p. 11)
The legislation intends to provide a definite measure of confidentiality for neutrals and parties. In addition to Conference Recommendations 88-11, Encouraging Settlements by Protecting Mediator Confidentiality, and 95-6, ADR Confidentiality and the Freedom of Information Act, two other sources are important in determining the Act’s approach to confidentiality. These are the Federal Rules of Evidence and the Federal Rules of Civil Procedure. Both offer limited and, at times, contradictory protection to parties and neutrals in settlement negotiations. The protections of section 574 are generally consistent with case law under those authorities, but are clearer and surer in their application, especially regarding neutrals.
Section 574 generally prohibits disclosure of most settlement communications. Protected communications include the verbal exchange of information in caucus between a party and the neutral facilitator. They also include a “settlement document,” which is any written material that is provided in confidence to or generated by the neutral or generated by the parties for the purpose of a settlement proceeding, including memoranda, notes, and work product. Section 574 covers documents that are created specifically for the negotiations and that are furnished in confidence to the neutral by a participant in the negotiation.
Section 574(a) has a few narrow, clearly stated exceptions to confidentiality. Most notably, (a)(4) provides that when disclosures are sought for information that could prevent harm to the public health and welfare, prevent a manifest injustice, or reveal a violation of law, the Act requires prior notice to parties, an opportunity to contest disclosure, and judicial balancing subject to stated criteria. A judge who is asked to order disclosure of confidential communications would be expected to ensure that parties have been given a chance to object to disclosure and then undertake a careful balancing using the Act’s criteria. This would require some meaningful consideration of the evidence sought and an explicit weighing of competing needs (including those of future parties and mediators). Disclosure or testimony can be ordered in those situations when the court finds the magnitude of a particular case sufficient to outweigh the integrity of dispute resolution. The mere issuance of a subpoena would not be sufficient.
Section 574(j) provides that the Act is a statute specifically exempting disclosure under section 552(b)(3) of the Freedom of Information Act. Applicability of FOIA under the 1990 Act arose at the last minute and was not fully resolved. In a floor colloquy at the time of that Act’s Senate passage, Senators Grassley and Levin expressed concern that the Act’s current provisions did not adequately protect settlement communications. Senator Leahy, who chaired the Judiciary Subcommittee with jurisdiction over FOIA, pledged “to the sponsor of the bill, Senator Grassley, . . . to work with him next year on this issue and try to determine whether certain dispute resolution communications should be exempt from FOIA.” 136 Cong. Rec. S18088 (daily ed. Oct. 24, 1990). The Administrative Conference’s subsequent 1995 study and recommendation (see Bibliography) called on Congress to reverse the 1990 proviso by providing that a dispute resolution communication between a party and a neutral that is confidential under section 574 be exempt from disclosure under FOIA. The 1996 Act effectively accomplished this recommendation. Similarly, a dispute resolution communication originating with a neutral and provided to all parties (such as a neutral evaluation or a settlement proposal) is now protected from disclosure, including disclosure under FOIA.
Neutrals who are requested to disclose protected documents must make an effort to notify the parties of demands for disclosure, and a party that does not offer to defend a neutral’s refusal to disclose is considered to have waived any objection. The Act gives parties authority to vary the confidentiality provisions if all parties and the neutral agree to alternate provisions in advance, although that agreement cannot provide for less disclosure under FOIA than the Act’s basic provisions do.
The confidentiality provisions of the Act have been a subject of considerable attention and some controversy since the Act’s passage. An ABA Ad Hoc Confidentiality Committee completed a collaborative effort in 2005, publishing a Guide to Confidentiality under the Administrative Dispute Resolution Act. This volume offers analysis and tips to assist program administrators, neutrals, and others on dealing with federal ADR confidentiality. The Guide contains analyses, policy recommendations, and advice on dealing with day-to-day issues like intake, convening, confidentiality agreements, document handling, access requests, evaluation, and training. Recent advice has also been issued by interagency entities charged with overseeing federal ADR activities; this advice complements and elaborates on the ABA’s Guide. See Protecting the Confidentiality of Dispute Resolution Proceedings: A Guide for Federal Workplace ADR Program Administrators, posted on the IADRWG website at http://www.adr.gov/guidance.html; see also Federal ADR Council/U.S. Department of Justice, Confidentiality in Federal Alternative Dispute Resolution Programs, Questions & Answers on Confidentiality, 65 Fed. Reg. 83,085 (Dec. 29, 2000).
Section 4, adding 5 U.S.C. § 573, provides that any person acceptable to both parties may serve as an arbitrator, mediator, convenor, facilitator, settlement judge, or other ADR neutral under the Act. The “neutral” is defined as an individual who functions specifically in aiding the parties to resolve an issue in controversy. Services of a neutral may be obtained by such methods as purchase orders, contracts, basic ordering agreements, interagency agreements, and under some circumstances, via requirement contracts.
The 1996 Act sought to expedite agency acquisition of neutrals’ services. It amended the competitive bidding and award requirements generally applicable to federal agencies to authorize an agency to use less than full and open competition to acquire the services of a neutral or an expert in a negotiated rulemaking and any other ADR proceeding. In particular, 5 U.S.C. § 569(c) amended federal procurement statutes (including 41 U.S.C. § 3304(a)(3)(D) for civilian agencies and 10 U.S.C. § 2304(c)(3)(C) for defense agencies) to authorize agencies to use expedited procedures to acquire the services of experts and neutrals in connection with any part of any dispute.
Amendments to Existing Legislation
The Administrative Dispute Resolution Act was crafted to be “built into” existing agency processes. Section 4 amends the primary law governing federal agency administrative actions, the Administrative Procedure Act. The Act endeavors, through the APA amendments, to achieve its goals without disruption to any existing authority or dispute resolution system. Section 4 authorizes agencies and parties to administrative proceedings to use neutrals, including mediators, facilitators, and arbitrators. The Act authorizes agencies to use the full range of alternative means of dispute resolution for their programs. The Act removes any doubt an agency official may have had about the authority to use ADR techniques and expands arbitration authority. The only conditions are that the agreement to use an ADR technique be voluntary and—in the case of arbitration—not inappropriate under the standards set forth in section 572(b).
Section 6 amends 41 U.S.C. §§ 604–607, the Contract Disputes Act, to make it clear that government contracting officers and boards of contract appeals are encouraged to resolve claims by ADR and have the authority to do so. This includes the authority to make use of arbitration in appropriate cases. Judicial review is available as in existing law. The amendments to the Contract Disputes Act are supplemental to existing arbitration authority in a few agencies.
Section 7 amends section 203 of the Labor Management Relations Act to authorize the Federal Mediation and Conciliation Service to make its mediators’ and trainers’ services available to other agencies.
Section 8 amends the Federal Tort Claims Act (28 U.S.C. § 2672) to grant the Attorney General the authority to delegate additional tort claim compromise or settlement authority to agency heads without the necessity of prior Attorney General approval. Such delegations have been fixed at $25,000 for almost all agencies since 1966. They now can be raised as high as, but cannot exceed, the dollar amount of delegated approval authority given to U.S. attorneys to settle claims against the United States (at present $500,000).
Section 8 amends 31 U.S.C. § 3711(a)(2) to raise agency claims compromise authority without prior Attorney General approval from $20,000 to $100,000, or even higher at the direction of the Attorney General.
Administrative Procedure Technical Amendments Act
When initially enacted, both the ADR Act and the Negotiated Rulemaking Act of 1990, Pub. L. No. 101-648, occupied sections in Title 5 of the U.S. Code numbered 581–590. The Technical Amendments Act remedied this situation in 1992. The post-amendment section numbers are used herein.
Administrative Dispute Resolution Act of 1990
The Act reflects numerous ACUS recommendations (see Bibliography for a complete list). Recommendation 86-3, Agencies’ Use of Alternative Means of Dispute Resolution, 1 C.F.R. § 305.86-3 (1992), urged Congress to authorize agencies to use ADR processes, including arbitration, to resolve matters that would otherwise be decided formally. This 1986 recommendation also set out other features that became part of the final legislation, including the criteria for appropriate use of ADR, judicial review, enforcement standards, and suggestions related to the general nature of congressional action designed to foster, rather than inhibit, the use of ADR. Other Conference recommendations incorporated into the legislation include 88-11, Encouraging Settlements by Protecting Mediator Confidentiality, 1 C.F.R. § 305.88-11 (1992); 86-8, Acquiring the Services of “Neutrals” for Alternative Means of Dispute Resolution, 1 C.F.R. § 305.86-8 (1992); and 87-5, Arbitration in Federal Programs, 1 C.F.R. § 305.87-5 (1992).
On April 12, 1988, S. 2274, the Administrative Dispute Resolution Act of 1988, was introduced in the Senate by Senator Charles Grassley and referred to the Committee on Governmental Affairs. Introductory information is found at 134 Cong. Rec. S3803 (daily ed. April 12, 1988). Hearings were held on May 25, 1988, before the Judiciary Subcommittee on Courts and Administrative Practice. A virtually identical bill was introduced in the House of Representatives by Representative Donald Pease on July 27, 1988. The House bill, H.R. 5101, was referred to the Subcommittee on Administrative Law and Governmental Relations of the House Committee on the Judiciary. Introductory information is found at 134 Cong. Rec. H5990 (daily ed. July 27, 1988). Hearings were held before the Subcommittee on June 16, 1988. Neither bill was reported to the floor for House or Senate action.
The bill that became the Administrative Dispute Resolution Act was again introduced by Senator Grassley on May 11, 1989, as S. 971 and referred to the Senate Committee on Governmental Affairs. 135 Cong. Rec. S5166 (daily ed. May 11, 1988). The bill was the subject of hearings by the Subcommittee on Oversight of Government Management on September 19, 1989. The Senate Committee on Governmental Affairs reported the bill to the floor of the Senate for action on October 19, 1990. S. Rep. No. 1005, 101st Cong., 2d Sess. (1990). The Senate passed the bill by voice vote on October 24, 1990. 136 Cong. Rec. S18082–18091 (daily ed. Oct. 24, 1990). Several of the Act’s provisions were discussed at that time, including the meaning of the confidentiality protections; their relation to FOIA disclosure provisions; and operation of the administrative arbitration attorneys fee section. The Senate bill was reported to the House on October 24, 1990.
On May 25, 1989, a comparable bill was introduced in the House by Representatives Glickman and Pease as H.R. 2497. The bill was referred to the House Committee on the Judiciary. 135 Cong. Rec. H2206 (daily ed. May 25, 1989). Hearings were held by the Subcommittee on Administrative Law and Governmental Relations on January 31, 1990. On April 25, 1990, Subcommittee markup was completed and the bill, as amended, was forwarded to the full Committee. Administrative Dispute Resolution Act, 1990: Hearings on H.R. 2497 Before the Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary, 101st Cong., 2d Sess. (1990). The Judiciary Committee completed consideration and markup on May 22, 1990, and the amended bill was reported to the House floor on June 1, 1990. See H.R. Rep. No. 101-513, 101st Cong., 2d Sess. (1990). The bill passed by voice vote on June 5, 1990. 136 Cong. Rec. H3152 (daily ed. June 5, 1990). Following Senate passage of H.R. 2497 in comparable form, the House passed the Senate version on October 26, 1990. The President signed the bill into law on November 15, 1990.
Several changes were made to resolve differences in the House and Senate bills and to deal with concerns raised, including those mentioned. One major change made to both bills prior to passage involved arbitration awards. At the instigation of the respective House and Senate Committees, the Department of Justice, the Administrative Conference, and the American Bar Association developed amendments to permit arbitration in federal programs under a unique 30-day delayed finality provision that required payment of attorneys’ fees in most cases for which an award was vacated by the agency head.
Administrative Dispute Resolution Act of 1996
The 1996 Act amended and permanently reauthorized the 1990 Act. It reflected numerous suggestions made in the Administrative Conference’s 1995 reports to Congress on implementation of the ADR Act and the Negotiated Rulemaking Act, as well as post-1990 Conference recommendations. A valuable commentary on the 1996 Act’s legislative history, intent, and effect has been prepared by Diane R. Liff, Special Counsel at the Federal Highway Administration. (It can be obtained by requesting Pub. Law 104-320, Administrative Dispute Resolution Act and Negotiated Rulemaking Act of 1996: Text and Commentary from the Federal Mediation and Conciliation Service Resource Center.) The Administrative Dispute Resolution Act of 1995, S. 1224, was initially prepared by staff at the Administrative Conference and was introduced in the Senate by Senator Grassley on September 5, 1995. It was referred to the Committee on Governmental Affairs, where hearings were held on November 29, 1995, before the Subcommittee on Oversight of Government Management and the District of Columbia. The full committee marked up the bill on December 12, 1995, and subsequently reported it to the Senate floor along with a March 27, 1996, report, S. Rep. No. 104-245.
The House Judiciary Subcommittee on Commercial and Administrative Law held oversight hearings on December 12, 1995, on federal agencies’ use of ADR. On February 27, 1996, a bill similar to the Grassley bill—H.R. 2977, titled the Administrative Dispute Resolution Act of 1996—was introduced to the Judiciary Committee. The Subcommittee on Commercial and Administrative Law marked up this bill on February 29, 1996; the full Committee did so on March 12, 1996, and then ordered it reported to the House floor. The House report, H. Rep. No. 104-597, was filed on May 26, 1996. The Act was approved by the House on June 4, 1996. 142 Cong. Rec. H5786-5789 (daily ed. June 4, 1996). The Senate considered the House bill, incorporated H.R. 2977 into S. 1224 with some amendments, and passed the bill on June 12, 1996. 142 Cong. Rec. S6155-6163 (daily ed. June 12, 1996). A conference committee negotiated differences between the two chambers’ bills, which dealt primarily with binding arbitration, confidentiality provisions, and permanent reauthorization of the Negotiated Rulemaking Act. The Conference Report resolving these differences, H. Rep. 104-841, was filed on September 25, 1996 (142 Cong. Rec. H11108-11111 (daily ed. Sept. 25, 1996)). The House approved a substitute bill embodying the conferees’ agreement, H.R.4194, on September 27, 1996. 142 Cong. Rec. H11446-11452 (daily ed. May 11, 1988). The Senate further amended the bill and approved it on September 30, 1996. The House accepted these amendments on October 4, 1996. 142 Cong. Rec. H12276-12281 (daily ed. Oct. 4, 1996). The 1996 amendments were signed by President Clinton on October 19, 1996.
Literature on ADR is immense and growing, and this Bibliography focuses on a small selection of items dealing specifically with issues raised by the ADR Act for federal agencies. In addition, in recent years numerous federal agencies have developed brochures, training materials, videos, and other materials on using ADR methods. Much of this material is available from agencies’ dispute resolution specialists.
Several sources regularly publish useful short news articles relevant to federal agencies. These include “Dispute Resolution” (published by the ABA Section of Dispute Resolution) and “Alternatives to the High Cost of Litigation” (published by the CPR Institute for Dispute Resolution). Administrative Conference recommendations are available at www.acus.gov. The background reports are available by request from ACUS, and are also available from HeinOnline and many federal depository libraries. Other potential resources include the Ohio State Journal of Dispute Resolution, which publishes an annual bibliography of articles relating to ADR. The U.S. Air Force maintains a very useful ADR website, http://www.adr.af.mil. That site, among other things, provides links to other sites relating to government agency ADR, including the site of the Interagency Alternative Dispute Resolution Working Group, http://adr.gov.
- Memorandum for Heads of Executive Departments and Agencies, Designation of Interagency Committees to Facilitate and Encourage Agency Use of Alternative Means of Dispute Resolution, May 1, 1998.
Administrative Conference Recommendations
- 82-2, Resolving Disputes Under Federal Grant Programs
- 84-4, Negotiated Cleanup of Hazardous Waste Sites Under CERCLA
- 84-7, Administrative Settlement of Tort and Other Monetary Claims Against the Government
- 86-1, Nonlawyer Assistance and Representation
- 86-3, Agencies’ Use of Alternative Means of Dispute Resolution
- 86-8, Acquiring the Services of “Neutrals” for Alternative Means of Dispute Resolution
- 87-5, Arbitration in Federal Programs
- 87-9, Dispute Procedures in Federal Debt Collection
- 87-11, Alternatives for Resolving Government Contract Disputes
- 86-7, Case Management as a Tool for Improving Agency Adjudication
- 88-5, Agency Use of Settlement Judges
- 88-11, Encouraging Settlements by Protecting Mediator Confidentiality
- 89-2, Contracting Officers’ Management of Disputes
- 90-2, The Ombudsman in Federal Agencies
- 95-6, The Freedom of Information Act and Confidentiality under the Administrative Dispute Resolution Act
- 2016-5, The Use of Ombuds in Federal Agencies
Administrative Conference and Other Publications
- ABA Ad Hoc Committee on Federal Government Confidentiality, Guide to Confidentiality under the Federal Administrative Dispute Resolution Act (2005), available at http://cdm16064.contentdm.oclc.org/cdm/ref/ collection/p266901coll4/id/725.
- Jane R. Adams, Using ADR Principles to Resolve Environmental Disputes: How Mediated Settlements have Helped Struggling CERCLA Survive, 8 Pepp. Disp. Resol. L.J. 331 (2008).
- Admin. Conf. of the U.S., Agency Arbitration (1988).
- Admin. Conf. of the U.S., Implementing the ADR Act: Guidance for Agency Dispute Resolution Specialists (1992).
- Admin. Conf. of the U.S., Mediation: A Primer for Federal Agencies (1993).
- Admin. Conf. of the U.S., The Ombudsman: A Primer for Federal Agencies (1991).
- Admin. Conf. of the U.S., Sourcebook: Federal Agency Use of Alternative Means of Dispute Resolution (Marguerite Millhauser and Charles Pou, eds.) (Office of the Chairman, 1987).
- Admin. Conf. of the U.S., Symposium on Federal Alternative Dispute Resolution Programs: Successes and Challenges (March 19, 2012), http://www.acus.gov/sites/default/files/documents/A-WebsitePresentation-Links-3-19-12.pdf.
- Admin. Conf. of the U.S., Toward Improved Agency Dispute Resolution: Implementing the ADR Act, Report to the Congress (1995).
- David Anderson & Diane Stockton, Ombudsmen in Federal Agencies: The Theory and the Practice, Report to the Administrative Conference of the U.S., 1990 ACUS 105, reprinted in 5 Admin. L. J. 275 (1991).
- Frederick R. Anderson, Negotiation and Informal Agency Action: The Case of Superfund, Report to the Administrative Conference of the U.S., 1984 ACUS 263, reprinted in 1985 Duke L. J. 261.
- Richard J Bednar, Government Contracting Officers Should Make Greater Use of ADR Techniques in Resolving Contract Disputes, Report to the Administrative Conference of the U.S., 1989 ACUS 149.
- George A. Bermann, Administrative Handling of Monetary Claims: Tort Claims at the Agency Level, Report to the Administrative Conference of the U.S., 1984 ACUS 639, portions reprinted in Federal Tort Claims at the Agency Level: The FTCA Administrative Process, 35 Case W. Res. L. Rev. 509 (1984–85).
- Lisa Blomgren Bingham et al., Dispute Resolution and the Vanishing Trial: Comparing Federal Government Litigation and ADR Outcomes, 24 Ohio St. J. on Disp. Resol. 225 (2009).
- Marshall Breger (ed.), Federal Administrative Dispute Resolution Deskbook (ABA Section of Administrative Law & Regulatory Practice, 2001).
- Harold Bruff, Public Decisions, Private Deciders: The Constitutionality of Arbitration in Federal Programs, Report to the Administrative Conference of the U.S., 1987 ACUS 533, reprinted in 67 Tex. L. Rev. 441 (1989).
- Matthew Patrick Clagett, Environmental ADR and Negotiated Rule and Policy Making: Criticisms of the Institute for Environmental Conflict Resolution and the U.S. Environmental Protection Agency, 15 Tul. Envtl. L. J. 409 (2002).
- Eldon Crowell & Charles Pou, Appealing Government Contract Decisions: Reducing the Cost and Delay of Procurement Litigation, Report to the Administrative Conference of the U.S., 1987 ACUS 1139 (Vol. II), reprinted in 49 Md. L. Rev. 183 (1989).
- Federal ADR Council/U.S. Department of Justice, Confidentiality in Federal Alternative Dispute Resolution Programs, Questions & Answers on Confidentiality, 65 Fed. Reg. 83,085 (Dec. 29, 2000).
- Federal Interagency ADR Working Group Steering Committee,Protecting the Confidentiality of Dispute Resolution Proceedings: A Guide for Federal Workplace ADR Program Administrators (2006), available at http://www.adr.gov/guidance.html.
- Robert J. Gomez, Mediating Government Contract Claims: How It Is Different, 32 Pub. Contract L. J. 63 (2002).
- Mark Grunewald, The Freedom of Information Act and Confidentiality under the Administrative Dispute Resolution Act, Report to the Administrative Conference of the U.S., 1994-95 ACUS 557, reprinted in 9 Admin. L. J. 985 (1996).
- Phyllis Hanfling & Martha McClellan, Developing Guidance for Binding Arbitration: A Handbook for Federal Agencies (distributed by the Department of Justice 1999).
- Philip J. Harter, Neither Cop nor Collection Agent: Encouraging Administrative Settlements by Ensuring Mediator Confidentiality, Report to the Administrative Conference of the U.S., 1988 ACUS 839, reprinted in 1 Admin. L. J. 315 (1989).
- Philip J. Harter, Points on a Continuum: Dispute Resolution Procedures and the Administrative Process, Report to the Administrative Conference of the U.S., 1986 ACUS 165, reprinted in 1 Admin. L. J. 141 (1987).
- Daniel Joseph & Michelle Gilbert, Breaking the Settlement Ice: The Use of Settlement Judges in Administrative Proceedings, Report to the Administrative Conference of the U.S., 1988 ACUS 281, reprinted in 3 Admin. L. J. 571 (1990).
- D. Aaron Lacy, Alternative Dispute Resolution or Appropriate Dispute Resolution: Will ADR Help or Hurt the EEO Complaint Process?, 80 U. Det. Mercy L. Rev. 31 (2002).
- Diane R. Liff, Pub. L. 104-320 (1996), The Administrative Dispute Resolution Act of 1996/Negotiated Rulemaking Act of 1996: Text and Commentary (FMCS 1997).
- Peter Marksteiner, How Confidential Are Federal Employment-Related Dispute Mediations?, 14 Ohio St. J. Dis. Res. 89 (1998).
- Gregory P. Mathews, Using Negotiation, Mediation, and Arbitration to Resolve IRS-Taxpayer Disputes, 19 Ohio St. J. Dis. Res. 709 (2004).
- Leah Meltzer, The Federal Workplace Ombuds, Report to the Administrative Conference of the U.S., reprinted in 13(2) Ohio St. J. Dis. Res. 549 (1998).
- Jon Niermann, Alternative Dispute Resolution in CERCLA Settlement, 17 J. Envtl. L. & Litig. 389 (2002).
- Charles Pou, Federal Agency ADR: Turning Square Corners to Meet Real Challenges, S. Tex. L. Rev. 1019 (2008).
- Charles Pou, Gandhi Meets Elliott Ness: 5th Circuit Ruling Raises Concerns about Confidentiality in Federal Agency ADR, Dispute Resolution 9 (Winter 1998); reprinted in Admin. L. & Reg. News 5 (Spring 1999).
- Susan Raines, Evaluating the Use of Alternative Dispute Resolution Techniques and Processes in U.S. Environmental Protection Agency Enforcement Cases: Views of Agency Attorneys, 18 Pace Envtl. L. Rev. 119 (2000).
- George D. Ruttinger, Acquiring the Services of Neutrals for Alternative Means of Dispute Resolution and Negotiated Rulemaking, Report to the Administrative Conference of the U.S., 1986 ACUS 863.
- Jeffrey M. Senger, Federal Dispute Resolution: Using ADR with the United States Government (Jossey-Bass 2004).
- Robert E. Talbot, A Practical Guide to Representing Parties in EEOC Mediations, 37 U.S.F. L. Rev. 627 (2003).
- Joseph A. Siegel, Alternative Dispute Resolution in Environmental Enforcement Cases: A Call for Enhanced Assessment and Greater Use, 24 Pace Envtl. L. Rev. 187 (2007).
- Statistical Summary: Use and Benefits of Alternative Dispute Resolution by the Department of Justice, U.S. Dep’t of Justice, http:// www.justice.gov/olp/adr/doj-statistics.htm (last updated Feb. 2013).
- Symposium, Dispute Resolution in Action: Examining the Reality of Employment Discrimination Cases: Proceedings of the 2007 Annual Meeting, Association of American Law Schools, Sections on Employment Discrimination and Alternative Dispute Resolution, 11 Emp. Rts. & Emp. Pol’y J. 139 (2007).
Administrative Dispute Resolution Act
Title 5 U.S. Code
Chapter 5, Subchapter IV—Alternative Means of Dispute Resolution in the Administrative Process
- § 571. Definitions
§§ 556(c), 581– 593 (2012);
Other Provisions 9 U.S.C. § 10 (2012); 41 U.S.C. §§ 604–608 (2012); 29 U.S.C. § 173 (2012); 28 U.S.C. § 2672 (2012); 31 U.S.C. § 3711(a)(2) (2012).