ADR MECHANISMS: What are they and how do they work?

The Workplace Disputes Section panel presentation on "ADR Mechanisms: What are they and how do they work?" was held on Monday, April 19, 1999 at the United States Postal Service Headquarters, 475 L'Enfant Plaza, SW, Washington, DC. The session was facilitated by Judy Filner, Attorney, ADR Team, US Postal Service, and attended by representatives from 21 federal agencies. The session opened at 9:00 a.m. and closed at 11:10 a.m.

The goals of this session were: a) to provide participants with definitions of ADR tools, illustrate when they are commonly used, and provide an overview of the optimal use of each tool (type of case, complexity of issues, who the parties are, outcome sought, eg., decision, recommendation, etc.); b) to provide participants with real time illustrations of use by federal agencies of each tool; and c) to provide participants with examples of use in employment/EEO cases.

Panel members with extensive experience in ADR mechanisms provided brief introductory remarks. Following their remarks, panel members answered audience questions, which were elicited through the use of a workplace disputes cases study.

Panel members were:

Frank Carr, Chief Trial Attorney and Agency Dispute Resolution Specialist, U.S. Army Corps of Engineers, Washington, D.C.

George Chuzi, partner in the Washington, D.C. law firm of Kalijarvi, Chuzi & Newman.

Leah Meltzer, Director, ADR Program, Office of General Counsel, Securities and Exchange Commission.

Donald Greenstein, Corporate Law Section, ADR Team, United States Postal Service.

Karen Leichtnam, Civil Branch Chief of the Multi-Door Dispute Resolution Division at the D.C. Superior Court.

Frank Carr presented on MINI-TRIAL. This is a structured non-binding ADR technique wherein the disputing parties engage in an information exchange at an informal meeting attended by principals representing both parties who have settlement authority. The mini-trial also includes a neutral advisor who provides substantive advice on the strengths and weaknesses of the positions held by the

parties in conflict. Mr. Carr mentioned that mini-trial is often not appropriate for employment cases, and is frequently used in large civil cases.

Don Greenstein presented on MEDIATION. Mediation is a flexible, non-binding, process in which a third-party neutral, the mediator, facilitates discussions among the parties helping them attempt to reach a settlement that is acceptable to all parties involved, The hallmark of this process is that the decision about outcome is left to the parties. Mediation provides parties with an opportunity to expand traditional settlement discussions into broad resolution options that frequently go much further than the legal issues involved in the controversy.

A Mediator:

1. Works to improve communication between the parties;
2. Assists parties in clarifying interest and concerns, their own as well as those of its opponent;
3. Helps parties review the strengths and weaknesses of each party=s position;
4. Explores the consequences of not settling;
5. Can meet jointly as well as separately with parties;
6. Assists in generating options for mutually acceptable resolution.

George Chuzi presented on EARLY NEUTRAL EVALUATION. In ENE a neutral third party with expertise in the subject matter of the dispute assesses the strengths and weaknesses of a case for the parties. Having an opinion or evaluation of the case as a whole is helpful to parties who have very different assessments of the merits of their cases. The neutral=s assessment is non-binding, and in some models the parties use the neutral to facilitate settlement discussions, provide case planning guidance, and assist with discovery procedures.

Leah Meltzer presented on the role of the Ombuds. The workplace Ombuds is generally a highly placed agency employee who is a neutral staff member of the agency who provides confidential and informal assistance to employees in resolving work-related concerns and is outside the normal management control structure. More specifically, the Ombuds serves both management and employees as a confidential and informal information resource, communications channel, complaint-handler and dispute-resolver, and a person who helps an organization work for change by recognizing trends, surfacing potential problems or issues and recommending changes. The Ombuds has no power to direct that actions be taken or undone but rather may recommend actions or policy change.

The four essential characteristics of an Ombuds position are:

7. Independence
8. Neutrality
9. Confidentiality
10. Ability to look into matters.

A federal workplace Ombuds office may be most effective:

1. If an Equal Employment Opportunity (EEO) agency office is beleaguered with complainants who are not presenting EEO matters.
2. If an Employee Assistance Program (EAP) office is receiving workplace complaints that are outside the EAP office's mandate.
3. If the personnel-related offices are not working together as a team.
4. If employee morale is low.
5. If communications between employees and management are suffering.
6. If management is caught by surprise by the emergence of significant workplace issues.
7. If management and unions are constantly at loggerheads.
8. If an agency has been faced with numerous claims of retaliation.

Karen Leichtnam concluded the panel presentations with an overview of an ADR system which incorporates a number of different ADR options. The Multidoor Program, at the D.C. Superior Court, has been one of only three courts nationally that has incorporated the idea of Professor Frank Sander, Harvard University School of Law, to provide litigants with multiple case-resolution options when they are involved in a court case. Ms. Leichtnam also introduced the audience to the concept of Aintake@ (assessing the case for ADR options, including referring it out to out-of-court resources), and to how the D.C. Superior trains mediators and maintains quality practice among them.

Participants were given case studies to stimulate questions. Suggested questions included: What is the best process for resolving this case? Why? Who should participate in an ADR process? Do they have settlement authority? What type of neutral should be used in this case? Will a subject matter expert be needed? How could an Ombuds, or a convening process, be helpful in this case?

Questions from the case studies and from the workplace experiences of the audience led to many questions. Mr. Chuzi and Mr. Carr talked about mini-trial and ENE and argued that each would be an appropriate mechanism where the two sides in a case needed an evaluation of the merits of its claim. Ms. Meltzer

reviewed the possible role of an Ombuds in an EEO case, at a stage earlier than federal court. She and several participants also responded to a request for guidelines about how agencies are deciding when a case should be in EEO counseling and when it should be with the Ombuds office. Ms. Meltzer referred to the case of Abrams v. Apfel, a 1998 case which raises the likelihood that employees cannot be denied access to their Ombuds office even if they have filed an EEO case. The audience also raised and discussed with the panel issues related to the difficulty with (blurring of) definitions of ADR processes and roles of neutrals. For example, there is little distinction between an evaluative mediation process and an ENE. This is important particularly as an agency, or parties or their representatives, select neutrals. Following are highlights of additional audience questions: (a) possible resources to find neutrals for each process [call U.S. District Court for D.C., Nancy Stanley 202-216-7340; Federal Shared Neutrals Program, Jamie Blume 202-260-9632; ADR Team of the U.S. Postal Service (Don Greenstein 202-268-3082 or Judy Filner 202-268-3688) for suggestions; (b) funding considerations and sources for paying neutrals, including the U.S. Department of Justice=s fund for ADR in filed cases (contact Jeff Senger 202-616-9471); and (c) issues related to managing neutral quality.

Many practical issues were discussed, resources shared, and once again the participants were provided with a very productive networking opportunity.

Major areas of concern and interest continue to be: How to build a program, which ADR process to concentrate on, how to find quality neutrals, how to pay for neutrals, how to overcome agency concerns about opening Afloodgates= of complaints, how to manage multiple ADR options.

MINI-TRIAL Frank Carr

A structured non-binding ADR technique wherein the disputing parties engage in an information exchange at an informal meeting attended by principals representing both parties who have settlement. The mini-trial also includes a neutral advisor who provides substantive advice on the strengths and weaknesses of the positions held by the parties in conflict.

MEDIATION Don Greenstein

A flexible, non-binding, process in which a third party neutral, the mediator, facilitates discussions among the parties helping them attempt to reach a settlement that is acceptable to all parties involved, The hallmark of this process is that the decision about outcome is left to the parties. Mediation provides parties with an opportunity to expand traditional settlement discussions into broad resolution options that frequently go much further than the legal issues involved in the controversy.

A Mediator:

Works to improve communication between the parties;

Assists parties in clarifying interest and concerns, their own as well as those of its opponent;

Helps parties review the strengths and weaknesses of each party's position;

Explores the consequences of not settling;

Can meet jointly as well as separately with parties;

Assists in generating options for mutually acceptable resolution.

EARLY NEUTRAL EVALUATION George Chuzi

In ENE a neutral third party with expertise in the subject matter of the dispute assesses the strengths and weaknesses of a case for the parties. Having an opinion or evaluation of the case as a whole is helpful to parties who have very different assessments of the merits of their cases. The neutral's assessment is non-binding, and in some models the parties use the neutral to facilitate settlement discussions, provide case planning guidance, and assist with discovery procedures.

"Negotiated rulemaking" is an alternative to traditional processes for developing agency rules and policies that brings together representatives of the agency and the various affected interests to negotiate the text of a proposed agency policy with the aid of a neutral mediator. "Reg-neg" is one of several different "consensus-building" processes that are used for reaching agreement on broad policy or other conflicts affecting a large number of people.

Frank Carr is the Chief Trial Attorney and Agency Dispute Resolution Specialist, U.S. Army Corps of Engineers, Washington, D.C. He received his B.A. Degree, 1966, and his J.D. Degree, 1969, from Duquesne University in Pittsburgh, Pennsylvania. In 1974, he received an L.L.M. Degree from Georgetown University in Washington, D.C. Mr. Carr served on active duty with the U.S. Army from 1970-1975 and recently retired as a Colonel, Military Judge, in the Army Reserve. He has received numerous military and civilian awards. In the military he was awarded the Legion of Merit Medal, a Bronze Star Medal, two Meritorious Service Medals, three Army Commendation Medals, two Army Achievement Medals and the National Defense Service Medal. As a civilian, he was awarded two Meritorious Civilian Service Awards and was selected as the 1989 Civilian of the Year by the Corps of Engineers. In 1995, as a member of the Corps" ADR/Partnering team, he received the National Performance Review's Hammer Award. In 1997, he was presented the Chief Counsel's Dispute Avoidance and Resolution Award. Mr. Carr has served as an officer in many professional and government organizations, including the American Bar Association, Public Contract Law Section; the Boards of Contract Appeals Bar Association; Federal Bar Association, Construction Committee of the Government Contracts Section; and the Department of Defense ADR Working Group (Procurement). Mr. Carr is a frequent lecturer and author on Federal government procurement and litigation topics, Alternative Dispute Resolution (ADR), and Partnering.

George Chuzi is a partner in the Washington, D.C. law firm of Kalijarvi, Chuzi & Newman. The firm litigates employment matters, mostly on behalf of federal employees. Mr. Chuzi is a graduate of the Georgetown University Law Center, and he has practiced federal personnel law for over 20 years. For the past 10 years, Mr. Chuzi has served as one of the original Mediators and Early Neutral Evaluators in the U.S. District Court's Mediation Program. He is the co-author of "Sexual Harassment, Federal Law," published by Peter Broida's Dewey Publications.

Leah Meltzer is Director, ADR Program, Office of General Counsel, Securities and Exchange Commission. While she was a visiting fellow at the Administrative Conference of the U.S. (ACUS), she conducted a study of federal workplace Ombuds, and spent several months with the Office of the Ombudsman at the Federal Deposit Insurance Corporation (FDIC). Since that time, she has lectured and written on various aspects of Ombuds practice. She also has consulted with numerous federal agencies considering implementing a federal workplace Ombuds program. Leah is currently a member of the Coalition of Federal Ombudsmen, and a member of the steering committee of the ABA's ad hoc Committee on Ombudsmen. In her work at the Commission, Leah is responsible for implementation of the agency's alternative dispute resolution policy. In this capacity, she designs and develops ADR policies, procedures and programs to promote the appropriate use of ADR in workplace and other areas. She assesses cases for suitability for ADR use and designs and manages the ADR training program for managers and staff. Leah also consults with other federal agencies on designing and implementing ADR programs. She is a member of the Steering Committee of the Department of Justice ADR Working Groups, and the Civil Enforcement ADR Working Group. She was a member of the Steering Committee of the Federal ADR Network, and chaired its workplace disputes committee. Leah graduated from Georgetown University Law Center in 1980. She is a mentor-mediator with the Interagency Shared Neutrals program, and mediates with the U.S. District Court ADR Program and the District of Columbia Superior Court Multi-Door Program (Family Law). She can be reached at (202) 942-0048 or by e-mail at meltzerd@sec.gov.

Donald Greenstein is a member of the Corporate Law Section's ADR Team at the United States Postal Service. He joined the ADR Team in October of 1995 after twelve years with the Department of Justice, Tax Division. He has been involved in ADR work in the public and private sector since 1989. He co-chaired the federal interagency committee that designed the Federal Sharing of Neutrals Program. He also worked on the implementation of ADR policy at various components of the Department of Justice and numerous other federal agencies. Don was involved in organizing and producing ADR and negotiations courses for assistant U.S. attorneys around the country. At the USPS, Don has been involved in a variety of activities ranging from being a resource, trainer and dispute resolver. In January, 1998 he was responsible for producing a satellite broadcast to all purchasing and contracting officers at the US Postal Service on the use of mediation in contracting disputes. He has acted as a mediator in a variety of internal USPS disputes, including EEO, contract, and interpersonal matters involving employees, as well as outside service providers. Don is a certified mediator in Virginia. He mediates in a variety of Federal and State court programs, private and community annexed programs. He has been involved in numerous forms of ADR procedures including mediation, facilitation, arbitration, as well as hybrid ADR procedures. He has acted as a mediator-mentor, as well as a mentor to peer mediation programs in Montgomery County, Maryland schools and the City of Falls Church school system. He is a Virginia and D.C. licensed attorney with a law degree from Antioch School of Law.

Karen Leichtnam is the Civil Branch Chief of the Multi-Door Dispute Resolution Division at the D.C. Superior Court, where she administers six ADR programs. She has worked at Multi-Door since 1988, where she initially served as Program Officer for the Small Claims Mediation program. She also trains mediators for the division, as well as other government and private mediation programs. She is active in the local chapter of SPIDR (Society of Professionals in Dispute Resolution ), and serves on the D.C. Bar=s Attorney Client Arbitration Board. Ms. Leichtnam began her career in mediation in 1986, as a volunteer mediator with the D.C. Mediation Service. She can be reached at 202-879-1597, or at leichtkl@dcsc.gov.

Charles Pou, Jr. is a partner in the new dispute resolution firm of Harter & Pou. For over ten years, Pou directed the dispute resolution program at the Administrative Conference of the United States, where he was a principal draftsman of the Administrative Dispute Resolution Acts of 1990 and 1996 and headed a team carrying out the Conference=s lead responsibility within the federal government for ensuring agencies" implementation of consensus-based decision-making methods. He has worked with many agencies in setting up new conflict resolution programs, served as a mediator of public policy and other government and private disputes, and published numerous articles on dispute resolution and administrative law issues. A cum laude graduate from Rice University and from Harvard Law School, Pou was recognized by the Washington, DC Chapter of SPIDR in 1995 with its annual award for Outstanding Contribution to Improved Dispute Resolution.