|
IAWG CIVIL ENFORCEMENT SECTION
Dispute Resolution/Enhanced Negotiations Training Seminar
EPA Ariel Rios Building January 27, 1999 9:30 A.M. - 4:00 P.M.
MINUTES
Section Chairman Bob Ward, Senior Counsel for ADR at the Environmental Protection Agency, welcomed attendees to the first ADR training session for the Interagency ADR Working Group's Civil Enforcement Section. Bob introduced Peter Steenland, Senior ADR counsel from the Department of Justice, and thanked him and his colleague Jeffrey Senger, also from DOJ, for organizing the day's program and conducting the training. Bob announced the creation of the CES Steering Committee, and invited interested CES members to join. The next meeting will be on 2/1/99 from 2:00 to 4:00 P.M. in the Ariel Rios Building. At the February 1st Steering Committee meeting the CES Draft Implementation Plan which will be examined and approved if consensus can be reached on its design. Peter Steenland, DOJ Senior Counsel, gave a short lecture on the rationale for implementing ADR programs. Peter noted that unassisted negotiation leads to settlement in 90% of all disputes, but that settlements achieved through this process are often costly and time-consuming. Peter then suggested the following possible reasons for these shortcomings: unassisted negotiations are not focused on the idea of trading, unassisted negotiations are driven by the parties' positions rather than by their interests, and unassisted negotiations are limited by human behavior and emotion. In a question and answer session after Peter's lecture, one participating agency expressed concern that government participation in ADR would cause and/or give the impression that government agencies are willing to compromise their authority and discretion. Peter responded by reminding the agency participants that ADR should be used only when its use is in the interests of the government. Another participant voiced concern that defendants will come to the table expecting the "same deal" as another defendant was offered. Peter responded to this by noting that the use of ADR usually results in the same outcome that would have occurred using unassisted negotiation. Therefore, ADR does not open new floodgates. David Batson, EPA ADR Liaison, stated that ADR is nothing more than a negotiation tool used to more efficiently obtain the same outcome that would be reached by unassisted negotiation and that the goal of the training session to be to consider ADR in the resolution of every dispute. David then demonstrated the range of ADR processes using the attached chart, indicating that each ADR technique is designed to solve specific negotiation problems. After lunch, agency participants were divided into three groups, and each group was
given a different case study. The participants were asked to decide what procedures could be
used to settle their cases efficiently. Jeffrey Senger, DOJ Deputy Senior Counsel, led the
discussion for each of the case studies, and comments were heard from each of the groups. Peter
Steenland, DOJ Senior Counsel, announced what procedures were actually used in the resolution
of the disputes.
A participant raised a concern that the use of ADR processes does not give the public a definite guarantee of fair procedures. Peter responded that the government is accountable to the public in the same manner that it is accountable if unassisted negotiation was used to settle cases. Another participant raised confidentiality concerns, and Peter replied that neither the information learned during ADR sessions nor the mediator can be used in subsequent court proceedings. Finally, questions were raised regarding the manner in which a neutral is chosen. Peter responded that there are many different ways to choose a neutral, however, in all cases the mediator must be chosen consensually. Stephen Altman, DOJ Assistant Director, Civil Division,, Peter Steenland, Jeffrey Senger, Bob Ward and David Batson gave a demonstration mediation. Stephen Altman, the mediator, began the mediation by asking each side to give an opening statement, commenting that opening statements should be omitted if the parties are extremely adverse. The mediator then met with each side to discuss their position and interests. Stephen Altman indicated that during the individual meetings with the parties he was attempting to place doubt in the parties' minds and determine the interests of the parties. Stephen Altman then informed the participants that a mediator may use his/her discretion in relaying offers from opposing parties. The mediation was cut short due to time constraints. Stephen Altman concluded the demonstration mediation with a comment that a mediator should repeatedly focus on the points on which both parties agree. Bob Ward closed the training session and invited attendees to attend the Steering Committee meeting on Monday, February 1, 1999 in the Ariel Rios Building from 2:00 - 4:00 P.M.. Attendees
Adams, Wendy Environmental Protection Agency Afzal, Leila National Oceanic and Atmospheric Administration Altman, Stephen United States Department of Justice Axtell, Jeanne United States Department of Agriculture Batson, David Environmental Protection Agency Bresnan, Peter Securities and Exchange Commission Brodtman, Walter Environmental Protection Agency Cameron, Francis (Chip) Nuclear Regulatory Commission Coleman, Jill Federal Trade Commission Davis, Stephen Department of Health and Human Services Ficker, Rodney Defense Logistics Agency Ford, Cecilia Department of Health and Human Services Forman, Eric United States Department of Agriculture Fox, Gary Small Business Administration Gadt, Larry United States Forest Service Geist, Andrew Securities and Exchange Commission Gibson, Chester United States Department of Agriculture Grunberg, Nancy Securities and Exchange Commission Henning, Carlos United States Department of Agriculture Hicks, William Securities and Exchange Commission Hoffman, Janice Department of Health and Human Services Hu, David Social Security Administration Knishkowy, Jeff United States Department of Agriculture Mahon, John Army Corps of Engineers Meltzer, D. Leah Securities and Exchange Commission Miles, Richard Federal Energy Regulatory Commission Mills, Michael Environmental Protection Agency Rothman, Steve Federal Energy Regulatory Commission Scharf, Lee Environmental Protection Agency Senger, Jeffery Department of Justice Steenland, Peter United States Department of Justice Swartz, Marc Navy Trojecki, Amy Environmental Protection Agency Ward, Robert Environmental Protection Agency Williamson, Jeffrey Federal Energy Regulatory Commission3 Winer, Michael Environmental Protection Agency Wright, Brad Department of Energy Young, Eric Environmental Protection Agency |