[Federal Register: June 12, 2002 (Volume 67, Number 113)]
[Notices]
[Page 40367-40371]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jn02-146]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
[Docket No. OST-2000-7800]
RIN 2105-AC94
Statement of Policy on Alternative Dispute Resolution
AGENCY: Office of the Secretary, DOT.
ACTION: Statement of policy.
-----------------------------------------------------------------------
SUMMARY: The Department of Transportation publishes this Statement of
Policy to further its commitment to using alternative dispute
resolution (ADR) to advance national transportation goals by
preventing, minimizing, and resolving disputes among our employees and
with external parties, in a mutually acceptable and cost-effective
manner. This policy statement announces the Department's continuing
interest in collaborative problem-solving.
DATES: This notice is effective June 12, 2002.
FOR FURTHER INFORMATION CONTACT: Judith S. Kaleta, Senior Counsel for
Dispute Resolution and Dispute Resolution Specialist, Room 10428, 400
Seventh Street, SW., Washington, DC 20590. 202-493-0992.
judy.Kaleta@ost.dot.gov
SUPPLEMENTARY INFORMATION:
Statement of Policy on Alternative Dispute Resolution (ADR)
ADR is a collaborative, consensual dispute resolution approach. It
describes a variety of problem-solving processes that are used in lieu
of litigation or other adversarial proceedings to resolve
disagreements. ADR encompasses mediation, facilitation, conciliation,
factfinding, mini-trials, negotiation, negotiated rulemaking, neutral
evaluation, policy dialogues, use of ombuds, arbitration, and other
processes that usually involve a neutral third party who assists the
parties in preventing, minimizing the escalation of, and resolving
disputes. The efficient and effective use of ADR will help us resolve
disputes at an early stage, in an expeditious, cost-effective, and
mutually acceptable manner.
The Department of Transportation is committed to advancing our
national transportation goals though alternative dispute resolution. We
will consider using ADR in all areas including workplace issues, formal
and informal adjudication, issuance of regulations, enforcement and
compliance, issuing and revoking licenses and permits, contract and
grant award and administration, litigation brought by or against the
Department, and other interactions with the public and the regulated
community.
We will ensure that neutrals disclose any actual or potential
conflicts of interest.
We will provide learning and development opportunities for our
employees so that they will be able to use conflict resolution skills,
understand the theory and practice of ADR, and apply ADR appropriately.
We will use a variety of evaluation and assessment strategies to
measure and improve our processes and our use of ADR.
We will allocate resources to support the use of ADR.
We will provide confidentiality consistent with the provisions of
the Administrative Dispute Resolution Act and other applicable Federal
laws.
The Department will attempt to incorporate ADR in its dispute
resolution, or as appropriate, rulemaking processes. In addition,
either on our own initiative or in response to a request, the
Department will examine the appropriateness of using ADR on a case-by-
case basis. ADR is voluntary and the Department will
[[Page 40368]]
not impose its use on parties. The decision-making on when to use ADR
should reflect sound judgment that ADR offers the best opportunity to
resolve the dispute. In appropriate disputes, the Department will use
ADR in a good-faith effort to achieve consensual resolution. However,
if necessary, we will litigate or participate in some other process to
resolve a dispute.
We will work together, internally and with external stakeholders
and experts, to further ADR use across the Department. However,
decision-making on incorporating ADR into dispute resolution processes,
using ADR to resolve a particular dispute, and allocating resources
rests with the Department's operating administrations, secretarial
offices, or Office of the Inspector General.
We are committed to eliminating all barriers to equal opportunity
for all employees and persons who participate in our programs. A
disability on the part of one or more parties otherwise willing to use
ADR will not act as a bar to its use.
All employees and persons who interact with the Department are
encouraged to identify opportunities for collaborative, consensual
approaches to dispute resolution or rulemaking.
Background
As the Department of Transportation strives to meet national
transportation goals, we recognize the need to collaborate, to work
together in the spirit of cooperation, and to form partnerships,
internally and externally. Experience at the Department, in other
Federal agencies, and in the private sector shows that alternative
means of dispute resolution can achieve mutually acceptable solutions
more effectively than traditional, non-collaborative processes.
Mediation, facilitation, conciliation, factfinding, mini-trials,
negotiation, negotiated rulemaking, early neutral evaluation, policy
dialogues, use of ombuds, arbitration, and other processes that usually
involve a neutral third party who assists the parties in preventing and
resolving disputes, when used effectively, will help us resolve
potential conflicts and disputes at an early stage and in an
expeditious, cost-effective manner. These approaches to problem-solving
are not just ``alternatives,'' but an integral part of the way we do
business at the Department. We are issuing this statement of policy on
the use of alternative dispute resolution to further our commitment to
its use.
For purposes of this initiative, ``the Department'' or ``we''
refers to the Office of the Secretary, the operating administrations
(the United States Coast Guard, the Federal Aviation Administration,
the Federal Highway Administration, the Federal Motor Carrier Safety
Administration, the Federal Railroad Administration, the National
Highway Traffic Safety Administration, the Federal Transit
Administration, the Maritime Administration, the Saint Lawrence Seaway
Development Corporation, the Research and Special Programs
Administration, the Transportation Security Administration, the Bureau
of Transportation Statistics, and the Transportation Administrative
Services Center), and the Office of Inspector General.
On November 15, 2000, the Department published an interim policy
statement on the use of alternative dispute resolution (65 FR 69121).
The Department requested comment on the statement, on how to
incorporate ADR into our processes, and how to encourage its use in
appropriate circumstances. The Department also requested input on areas
of agency activity that would benefit from a dispute resolution process
that incorporates ADR techniques. The Department noted the following
areas for consideration: workplace issues, formal and informal
adjudication, issuance of regulations, enforcement and compliance,
issuing and revoking licenses and permits, contract and grant award and
administration, litigation brought by or against the Department, and
other interactions with the public and the regulated community.
Response to Request for Comments
In response to the request, the Department received seven comments.
Commenters included private neutrals; an attorney representing clients
in various motor carrier related activities; a State department of
transportation; and the American Bar Association, Commission on Mental
and Physical Disability Law, Subcommittee on Disability Dispute
Resolution and Mediation.
None of the commenters objected to the initiative and some were
very supportive of the Department's efforts. For example, one commenter
noted that ``once tried, ADR proves to be a valuable method to resolve
difficult issues, disputes, discrepancies and squabbles.'' Another
stated that ADR ``can often conserve all the participants'' time,
energy, and resources (and costs associated with them), speed the time
for resolution of matters, and smooth over some of the rougher edges
created by the adversarial nature of many of the matters in which DOT
is involved.''
Some commenters offered suggestions and recommendations for
clarifying and strengthening the policy. Their comments and the
Department's response follow.
ADR Is Voluntary
One commenter suggested that the Department add to the section on
``No Creation of Rights'' that the Department ``would not require or
impose the use of ADR on an unwilling private sector entity or
employee.''
The Department agrees that ADR is voluntary and there must be
mutual agreement to use it. ADR cannot work unless the users of it want
it to work and want to use it. Therefore, the Department has included a
statement on the voluntary nature of ADR in its policy statement and in
the section on ``No Creation of Rights.''
Litigation
One commenter noted that the Interim Statement of Policy said that
the Department will use ADR to resolve litigation. The commenter
suggested that we clarify whether the Department has the ability or the
authority to use ADR to resolve a matter in litigation or whether the
Department of Justice makes that decision.
The Department of Transportation works closely with the Department
of Justice to ensure that the interests of the United States are fully
and properly represented. Together, we determine whether litigation
should be initiated and whether adverse decisions should be appealed.
Likewise, we determine whether ADR would be appropriate in particular
cases. Furthermore, with the passage of the Alternative Dispute
Resolution Act of 1998, in which Congress directed all Federal courts
to establish ADR programs, continued growth in ADR usage by the Federal
government in litigation matters is highly likely. The Department of
Justice estimates that its use of ADR has quadrupled from 5 years ago
to more than 2000 cases in FY 2000.
Administrative Enforcement Proceedings
An attorney representing clients in various motor carrier related
activities recommended that the Department consider using ADR in motor
carrier enforcement proceedings. He provided three reasons in support
of this position. First, he noted that ADR results in cost savings.
Second, he stated that ``to the extent the resolution of enforcement
matters may be speeded up by ADR, this has the benefit of a quick
response to a perceived safety problem.'' Third, he said that ``ADR can
frequently take the
[[Page 40369]]
rough edges off of adversarial proceedings * * * When one is engaged in
a bitter dispute, one may lose sight of the greater purpose.''
Referring to the FMCSA enforcement decisions as reported on the
Department's Docket Management System, he noted that ``the tenor of the
pleadings on both sides often appears to be bitter, going well beyond
the mere assertion of different, conflicting arguments about what the
law requires and what penalty, if any, should be imposed.''
While the commenter referred to the FMCSA enforcement program, the
Department considered the appropriateness of ADR for all its
administrative enforcement proceedings. The Department is committed to
concluding its administrative enforcement proceedings as fairly,
effectively, efficiently, and expeditiously as possible. The Department
will use ADR as an opportunity to further develop and refine its
processes to achieve less costly, less contentious, and more timely
decisions when appropriate. Parties to any enforcement proceeding, both
Departmental personnel and regulated entities, are encouraged to
identify cases that are appropriate for a variety of ADR techniques,
including mediation, early neutral evaluation, and arbitration. The
interim statement of policy included a list of ADR considerations. For
the ease of those wishing to determine whether ADR may be appropriate,
these considerations are included in the Appendix. As noted below, a
party may want to explore the possibility of using ADR without talking
with their immediate adversary. Therefore a list of ADR contacts is
available on the Department's ADR web site: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.dot.gov/adr. However,
ADR is voluntary and there must be mutual agreement to use it.
Evaluation
One commenter suggested that the evaluation of ADR should include a
comparison of the traditional processes. The commenter noted that ``if
ADR were evaluated alone, it might look pretty terrible since no one in
particular likes conflict and ADR is both that and requires the
expenditure of resources that people would just as soon not spend; but,
as compared to litigation and traditional rulemaking, it is highly
likely that it will be viewed quite positively.''
Evaluation is an important component of an ADR program. The
Department will use a variety of evaluation and assessment strategies
to provide valid and reliable information for measuring and improving
performance. Depending on the ADR program, we may look at the number of
attempts to use ADR, the number of resolutions, customer satisfaction
with the process, the neutral, and /or the resolutions, estimated cost-
and/or time-savings, or whether the program is meeting its stated
goals. The Department agrees that evaluating ADR without evaluating
traditional processes may lead to a distorted and inaccurate picture.
In FY 2001, the Department's Dispute Resolution Council conducted a
program evaluation of the Department's use of mediation to resolve
complaints of discrimination. As a result of this effort, the
evaluation found that the costs associated with traditional processes
are not usually readily available. We will attempt to estimate those
costs when evaluating ADR use, even if based on anecdotal information
and non-quantifiable data.
Confidentiality
One commenter complimented the Department on the way
confidentiality was addressed.
The Department recognizes the importance of confidentiality. In
some instances, many of the benefits of ADR can be realized only
through confidential proceedings. Confidentiality ensures that the
parties may speak freely with a neutral who will not disclose their
confidences to other parties or to the outside world. Without that
assurance, the parties may be unwilling to freely discuss their
interests and possible settlements with the neutral. Confidentiality
also allows the parties to raise sensitive issues and discuss creative
ideas and solutions that they would be unwilling to discuss publicly.
Although negotiated rulemaking is a process conducted under the
Federal Advisory Committee Act at public meetings that have been
announced in the Federal Register, confidentiality may also be a
consideration for the participants. For example, a convenor who
impartially assists an agency in determining whether establishment of a
negotiated rulemaking committee is feasible and appropriate may agree
not to disclose the identity of a party who raises a particular concern
about an agency. Information shared in caucuses may also be
confidential.
The Administrative Dispute Resolution Act generally provides that
communications (including a neutral's notes and documents prepared for
the proceedings) between a neutral and the parties must be kept
confidential by the neutral and the parties, unless certain specific
exceptions exist. A court may require disclosure of such information if
it is necessary to prevent a manifest injustice, help establish a
violation of law, or prevent harm to the public health or safety. The
injustice, violation, or harm must be of a sufficient magnitude in the
particular case to outweigh the integrity of the dispute resolution
proceedings. In addition, other Federal laws may impact the
confidentiality of information in specific cases.
Working Together
One commenter questioned the meaning of the statement in the
Interim Statement of Policy on ADR: ``We will work together to further
ADR.'' The commenter requested that the Department clarify whether the
statement was intended to apply to the Department and its employees or
whether it referred to the Department working with affected interests
on the outside. The commenter suggested that an inclusion of outside
interests, both stakeholders and experts, be made explicit.
The Department has adopted this suggestion and the statement of
policy reads accordingly.
Persons With Disabilities
The American Bar Association, Commission on Mental and Physical
Disability Law, Subcommittee on Disability Dispute Resolution and
Mediation, suggested that the Department incorporate the provisions of
the ADA Mediation Guidelines (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cardozo.yu.edu/cojcr/guidelines) or adopt some modifications of the Guidelines to meet the
Department's needs. Under the Guidelines, ``ADA mediation'' means
programs mediating claims arising under the Americans with Disabilities
Act and other disability civil rights statutes. The Guidelines address
issues in the areas of program and case administration, process,
training, and ethics.
The Department is committed to eliminating all barriers to equal
opportunity for all employees of the Department, for all applicants for
jobs in the Department, and for the persons who participate in the
Department's programs, services, and activities. The Department will
comply with Section 504 of the Rehabilitation Act of 1973, which
prohibits discrimination on the basis of disability and requires our
programs, activities, and facilities to be accessible, subject to the
limitations contained within the statute and our regulations. A
disability on the part of one or more parties otherwise willing to use
ADR will not act as a bar to its use. The Department will bear the cost
of these accommodations. As particular
[[Page 40370]]
ADR programs are established, we will consider whether to fully
incorporate the ADA Mediation Guidelines.
Requesting the Department To Consider ADR
One commenter suggested that we provide persons who are potentially
interested in using ADR with a way of exploring the possibility of its
use. The commenter noted that parties should be able to explore the
potential for using ADR without talking with their immediate adversary.
The Department agrees. We have updated the Department's ADR web
site (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.dot.gov/adr) to include information about the Department's
Dispute Resolution Council and contact information for the Department's
Dispute Resolution Specialist and the Deputy Dispute Resolution
Specialists in each of the operating administrations and the Office of
Inspector General.
Internal vs. External Neutrals
One commenter recommended that the Department rely on outside
contractors to serve as neutrals in ADR proceedings. The commenter
stated that in-house staff may ``have an opinion about the general
nature of the problem and therefore may not be neutral.'' In addition
the commenter noted that there may be a perception of bias by the
parties. Another commenter noted that the United States Postal Service
has successfully used private mediators to resolve employment disputes
and that feedback from employees and management has been extremely
positive.
In using a variety of ADR techniques, the Department has relied
upon both internal and external neutrals. For example, the Department
established a mediation program to resolve EEO complaints, in which
employees serve as mediators as a collateral duty to their assigned
positions. In addition, depending upon the availability of Departmental
employees or to avoid conflicts of interest, private mediators have
been used. In litigation, the Department has used private mediators.
The Department of Justice has noted that private mediators are the best
source of mediators for government cases. In the area of environmental
ADR, the Department is considering external neutrals. The U.S.
Institute for Environmental Conflict Resolution is assembling a roster
of qualified dispute resolution and consensus building professionals
with particular experience in transportation cases. The Institute will
draw from its roster of qualified neutrals with substantial experience
in environmental conflict resolution. This Transportation Roster is
part of an ADR system designed through an interagency agreement with
the Federal Highway Administration. For most negotiated rulemakings,
the Department has generally relied upon outside neutrals. However,
internal neutrals have been used to convene and facilitate negotiated
rulemaking when parties were interested in the process, but there was a
lack of funding to pay for an outside neutral.
The Department will continue to make a determination of whether to
use an internal or external neutral on a case-by-case basis,
considering a variety of factors, including costs. As a practical
matter, in some instances, the Department may be choosing between in-
house neutrals or no ADR process. In response to the comment, we have
added a provision to the policy statement that neutrals will disclose
actual and potential conflicts of interest. This is consistent with the
Model Standards of Conduct for Mediators that have been approved by the
American Arbitration Association, the Litigation Section and the
Dispute Resolution Section of the American Bar Association, and the
Society of Professionals in Dispute Resolution.
Environment
Appendix II to the Interim Statement of Policy (65 FR 69125)
provided examples of a variety of the Department's ADR initiatives. The
environmental example noted that, with the assistance of the U.S.
Institute for Environmental Conflict Resolution, a Federal agency
created to assist parties in resolving environmental conflicts around
the country that involve Federal agencies or interests, the Federal
Highway Administration (FHWA) is working on developing an ADR system
that would be applied during the National Environmental Policy Act
(NEPA) process. One State department of transportation (the State)
commented on the example. The State welcomed the use of ADR as long as
it has the discretion to participate in ADR, without the risk of losing
Federal funds. The State is concerned that the Department may create a
policy implementing ADR that would mandate or compel the use of ADR to
resolve disputes.
A copy of the State's comments was provided to FHWA for its
consideration and, as this effort continues, FHWA will continue to
consider input. Draft documents relating to FHWA's initiative will be
posted for review and comment on its environmental streamlining website
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fhwa.dot.gov/environment/strmlng.htm. For additional
information, you may call Lucy Gariliauskas at 202-366-2068 or Fred
Skaer at 202-366-2058. You may write to them at FHWA, Office of
National Environmental Policy Act Facilitation, 400 Seventh Street, SW,
Washington, DC 20590.
List of ADR Considerations
The interim statement of policy included a list of ADR
considerations. The Department did not receive any comments on that
list. For the ease of those wishing to determine whether ADR may be
appropriate, these considerations are included in the Appendix.
Legal Authority
This policy statement is issued pursuant to the Administrative
Dispute Resolution Act of 1996, 5 U.S.C. 571-583, which authorizes and
encourages Federal agencies to use consensual means of dispute
resolution as alternatives to traditional dispute resolution processes.
The Act defines alternative means of dispute resolution as ``any
procedure that is used to resolve issues in controversy * * *'' It
defines ``issue in controversy'' as ``an issue which is material to a
decision concerning an administrative program of an agency, and with
which there is disagreement * * *'' The Act requires that each Federal
agency adopt a policy that addresses the use of ADR and appoint a
Dispute Resolution Specialist. Congress enacted the Administrative
Dispute Resolution Act to reduce the time, cost, inefficiencies, and
contentiousness that too often are associated with litigation and other
adversarial dispute resolution mechanisms.
This policy is also consistent with several other Federal statutes
and regulations.
The Negotiated Rulemaking Act of 1996, 5 U.S.C. 561-570,
establishes a framework for use of negotiated rulemaking. Congress
enacted the Negotiated Rulemaking Act to increase the acceptability and
improve the substance of rules, making it less likely that the affected
parties will challenge the rules or resist enforcement.
The Alternative Dispute Resolution Act of 1998, 28 U.S.C. 651-658,
directs all Federal courts to establish ADR programs.
The Contracts Disputes Act, 41 U.S.C. 605(d) and (e), permits the
use of ADR for resolving claims.
The FAA's Procedures for Protests and Contracts Disputes, 14 CFR
Part 17, encourages the use of ADR as the primary means of resolving
procurement related disputes.
[[Page 40371]]
The Federal Sector Equal Employment Opportunity Regulations, 29 CFR
Part 1614 requires agencies to establish or make available an ADR
program. The ADR program must be available during both the pre-
complaint process and the formal complaint process.
Relationship to Other Dispute Resolution Procedures
This policy statement replaces the Interim Statement of Policy on
Alternative Dispute Resolution published in the Federal Register on
November 15, 2000. It does not supersede collective bargaining
agreements or other statutory, regulatory, or contractual dispute
resolution procedures, or military disciplinary processes. ADR is
intended to supplement, not replace, existing procedures.
No Creation of Rights
ADR is voluntary. The choice of when and how to use ADR is within
the discretion of the Department's Operating Administrations and
Secretarial offices, and all parties must agree. This statement of
policy does not create any right to judicial review involving the
compliance or noncompliance with the statement. In addition, the
statement does not obligate the Department to offer funds to settle any
case, to accept a particular settlement or resolution of a dispute, or
to alter any existing delegation of settlement or litigation authority.
Issued in Washington, DC on June 3, 2002.
Norman Y. Mineta,
Secretary of Transportation.
Appendix--ADR Considerations
A decision to use ADR may be made before or after a dispute
arises. Several factors should be considered in making that
decision. Some factors may favor the use of ADR while others may
weigh against it. Although not intended as an exhaustive list of
factors, the Department has determined that ADR may be helpful in
resolving a particular dispute where one or more of the following
factors are present:
1. Identifiable Parties. There is an identifiable group of
constituents with interests (the parties) so that all reasonably
foreseeable interests can be represented.
2. Good Faith. The parties are willing to participate in good
faith.
3. Communication. The parties are interested in seeking
agreement, but poor communication or personality conflicts between
the parties adversely affect negotiations.
4. Continuing Relationship. A continuing relationship between
the parties is important and desirable.
5. Issues. There are issues that are agreed to be ripe for a
negotiated solution.
6. Unrealistic View of the Issues. The parties' demands or views
of the issues are unrealistic. A discussion of the situation with a
neutral may increase the parties' understanding and result in more
realistic alternatives and options.
7. Sufficient Areas of Compromise. There are sufficient areas of
compromise to make ADR worthwhile.
8. Expectation of Agreement. The parties expect to agree
eventually, most likely before reaching the courtroom or engaging in
other adversarial processes.
9. Timing. There is sufficient time to negotiate and ADR will
not unreasonably delay the outcome of the matter in dispute. There
is a likelihood that the parties will be able to reach agreement
within a fixed time. There are no statutory or judicial deadlines
that are adversely affected by the process. ADR may result in an
earlier resolution of the dispute.
10. Resources. The parties have adequate resources (budget and
people) and are willing to commit them to the process.
While many of these factors may apply to agency rulemaking,
there may be some variation in the consideration. For example, with
regard to ``Expectation of Agreement,'' the consideration may be
that all affected interests recognize that there is a problem that
must be solved and that Federal regulation is the appropriate
response. Furthermore, under the Negotiated Rulemaking Act, the head
of the agency would determine whether negotiated rulemaking is in
the public interest and would consider several factors concerning
the parties, the timing, the costs, and the issues. See 5 U.S.C.
561.
There are also factors that suggest that ADR should not be used.
The Administrative Dispute Resolution Act of 1996 provides factors
that suggest that ADR is inappropriate or may not be productive in a
particular dispute resolution proceeding. See 5 U.S.C. 572.
[FR Doc. 02-14692 Filed 6-11-02; 8:45 am]
BILLING CODE 4910-62-P