RESISTANCE AND CONSTRAINTS TO IMPLEMENTING AN ADR PROGRAM
The Workplace Disputes Section workshop on AResistance and Constraints to implementing an ADR Program@ was held on Tuesday March 9, 1999 at the US Postal Service, 475 L=Enfant Plaza, SW, Washington, D.C. The Workshop was facilitated by Don Greenstein, Attorney, ADR Team, US Postal Service, and attended by representatives from 25 federal agencies. The session opened at 9 a.m. and closed at 12 noon.
The goal of this workshop was to offer participants a sense of assurance as well as new approaches to overcoming the existing barriers to the use of ADR.
The following panel members, who gave brief opening statements about resistance in their own agencies, acted as the breakout group facilitators:
Cynthia Mazur, FEMA, Associate General Counsel Program Law,
Carol Ann Adamcik, FEMA, Attorney, Office of General Counsel,
Nadine Manning, Attorney Advisor, Departmental Appeals Board, HHS and,
Stephen Altman, Assistant Branch Director, Commercial Litigation Sect., DOJ
Ms. Mazur and Ms. Adamcik discussed the issues facing their small agency and noted that overcoming such issues is difficult when there are limited resources and insufficient staff to support changing the culture.
Ms. Manning discussed the issues faced by a large and vastly divergent agency like HHS. Her work at the Contract Appeals Board has allowed her to gain insights from other sectors of her own agency. Each component has been involved in supporting other sectors. She noted that getting buy-in from management and employees by marketing an ADR program, as well as educating all levels of the work force, are imperative to overcoming resistance.
Mr. Altman discussed issues faced by the lowest level of employees, line attorneys. He felt that getting buy-in is important and that education is even more imperative. Creating incentives and changing the culture with statements from the top and encouragement from managers is necessary to overcome traditional mindsets.
A question and answer period occurred prior to the breakout groups. One individual who felt a strong need to get buy-in from scientists at the NSF inquired about reported studies on work force changes through the use of ADR. Kim Brown from the US Postal Service REDRESS task force explained that Professor Lisa Bingham from Indiana University has two published articles on perceptions and changes within the workforce at the US Postal Service after mediation was implemented.
The three breakout groups met for an hour and fifteen minutes. Each group was comprised of nine to ten people. The individuals in each group introduced themselves, their agency, size, objectives for this session and/or constraints that exist to ADR implementation in their agency. Each group appointed a scribe and notes were made.
The last 30 minutes were spent discussing the issues that were discussed in the small groups. The group reports seemed to be very similar.
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Attorneys who win a large percentage of cases on motion or settle a large percentage of cases see no use for changing the way they do business._
Scheduling an ADR process is an added burden to federal attorneys and/or federal employees= already heavily burdened schedule._
Attorneys don=t want to give up control to an outsider who doesn=t know their case and is not an expert on the law._
Client agencies want their Apound of flesh,@ particularly in enforcement matters, and the DOJ wants the penalty._
ADR is or can be hard to use, especially after considering the record-keeping and/or paperwork associated with hiring a third-party neutral._
Agencies resist ADR because of limited resources, including resources needed to pay for a high level ADR specialist in the agency._
Managers don=t accept ADR easily, as a program or as a process that they should participate in. They believe that they will be raked over the coals in mediation -- that even attending a process is an admission of guilt. They feel they have to come to the table with money and that they will be opening the floodgates._
There is a lack of information about ADR and about ADR Specialists= responsibilities. This creates resistance, hostility or ignorance of the program._
There is a perception that ADR is for EEO cases only.A suggestion for a number of the above resistances and constraints was to offer an
AADR 101@ course for all staff in a unit, division or agency. Others suggested ADR training for attorneys or other personnel geared for the experience and knowledge of the group to be educated. Use a factual scenario in the training that is specific to the employee group and agency being trained. ADR should be highly visible. Positive experiences should be shared. ADR Contacts throughout an agency must be marketed._
Issues arise in the field when ADR is seen as a mandate from headquartersA suggestion to overcoming this barrier was to change the terminology used and seek input from all that are going to be involved; inclusion rather than mandates.
_ Buy-in from management and employees can be achieved if education occurs and the program is appropriately marketed to all employees and management._
Lack of money is an barrier to implementation, especially in smaller agencies.Some agencies have received mentorship from others. HHS offers training; The USPS has a roster of neutrals. DOJ will cover costs of mediation if a DOJ attorney is handling the matter in court. Sharing of Neutrals is a resource that all federal agencies can tap.
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Managers have no desire to change the way they do business. A feeling of loss of control by allowing ADR viewed as a new program to take the case over.Managers need to be educated so they understand that ADR means more control not loss of it.
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Sharing of information and programs in the federal sector.All participants felt a strong need for more information sharing in the federal sector.