Mr. Steenland welcomed the participants and summarized the prior meeting of the Claims Against the Government Section.  He then asked all agency participants to describe the reactions of their management to the idea of a pilot project to arbitrate claims against the government cases.

Discussion Among Participants:

One agency representative reported definite interest in the project, noting that the details will need to be developed in order to obtain approval.  Another indicated her agency does not have many claims to adjudicate, noting she is attending for general background reasons.  Another said his agency is interested in supporting the program.  Another said his agency would like something in writing before committing, noting that the program could be valuable, given the types of cases his agency handles.  Another said his agency was interested, particularly for smaller dollar value cases.  Another said his general counsel is interested but cautious and would like to hear about the success of similar efforts in other organizations.  Another said her agency would be interested for the small-dollar cases they handle.  Another said her agency mostly handles workplace and contracts cases.  Another noted that a separate agency is causing a backlog because it is 2-4 years behind in processing complaints, which ties up people in his agency.  Another said his agency is interested for leased property damage cases, which would be well suited for an expedited small claims program of this type.  This issue should be addressed by the Contracts and Procurement Section.  Another participant requested that the Section consider recommending a legislative change to the Federal Tort Claims Act to eliminate the disparity between the 20% fee allowance for administrative settlements and the 25% allowance for litigation.  This disparity acts as an incentive for plaintiff's counsel to avoid settlement at the agency level in order to take the case into litigation and increase his fees.

Mr. Steenland explained further about the potential pilot, noting that parties would enter the arbitration with a ceiling approved by the agency in advance or by the Department of Justice, depending on the amount.  The agency would screen cases to determine which were appropriate for the program.

Agency representatives suggested they could benefit from a sharing of best practices in the government in handling claims cases.  It would be valuable to pool information such as jury evaluation reports that one participant described, which give verdicts for various types of claims as a benchmark for settlements.  Participants also discussed available training in ADR, including the Justice Department's Legal Education Institute in Columbia, South Carolina.  Agencies would like a database of experts used by Assistant United States Attorneys in claims cases.

 Participants discussed who to use as neutrals in these cases.  Outside arbitrators would be skilled but expensive.  On the other hand, government employees might be perceived to have biases.  However, one participant noted, Board of Contract Appeals judges generally are perceived as fair.  Newly-retired government employees were also suggested as arbitrators.  Other issues discussed included whether the government should bear the costs, or whether the participants should pay a share.

Three participants volunteered to serve on a Steering Committee to help develop the pilot arbitration project.

Remarks of Jeff Senger, Deputy Senior Counsel for ADR at the Department of Justice:

Mr. Senger described the IADRWG website, located at www.financenet.gov/iadrwg. He said the site contains links to many important ADR documents, including the Administrative Dispute Resolution Act; the Presidential Memorandum of May 1, 1998, that established the Working Group; a model Policy Statement on ADR; a statement of key elements of a successful ADR program; and a copy of the Attorney General's speech at the opening meeting of the Working Group. The site includes additional links to other federal agency ADR programs and several private sector ADR organizations. As the Working Group Sections create additional documents, they are posted on the website. Times, locations, agendas, and minutes of meetings are posted on the site.

He explained that participants can send email messages to everyone else in the Section or the Working Group by going to the "Forums" section of the site.  This enables participants to ask questions about such topics as ADR procedures, available training, or recommendations for good neutrals.  We would like people to use this feature to engage in ongoing dialogues between meetings.

Mr. Senger then distributed handouts listing other available resources on the internet.  These include academic sites, corporate organizations, and other government agencies.

Next Meeting:

The next Section meeting will be of the Pilot Arbitration Program Steering Committee, and anyone in the section who would like to participate is welcome.  It will be June 4 from 9:30 to 11:00 in Room 5240 of the Department of Justice at 950 Pennsylvania Ave. NW.  Please send an email to Jeffrey.M.Senger@usdoj.gov if you would like to attend.