USDOJ Seal

REMARKS FOR JAY STEPHENS
OMB PROCUREMENT ADR AWARD CEREMONY
INDIAN TREATY ROOM, APRIL 16, 10:00 A.M.


      It is a pleasure to take part in the first-ever awards for government procurement ADR. I congratulate you for your vision in sponsoring these awards. This event provides an opportunity to give well-deserved recognition to innovative and effective ADR programs in the government and the private sector. Showcasing these programs allows organizations that are just starting out in ADR to benefit from the lessons that have already been learned in this field. OMB’s leadership today will encourage development of the best possible ADR programs, which help drive down the cost of government and deliver better results to the taxpayers.

       My own professional experience suggests that ADR can be a very effective tool for resolving a range of disputes. During my career, I have had an opportunity to work in both the public and private sectors. Much of my work has focused on resolving disputes between the government and private parties and among various private sector parties. I have viewed dispute resolution from the perspective of a government prosecutor, an attorney in private practice, and an in-house counsel for a Fortune 100 company. My clients generally wanted their matters resolved quickly, effectively, and with a minimum amount of adversity. In many cases, the parties wanted and needed a continuing business relationship after a dispute was resolved.

       Disputes are inevitable, but litigation is not. For some time, it has been clear to me that litigation is less and less appropriate for a society that is increasingly complex and competitive. It does not make sense to proceed in every case with extensive discovery and motions practice, followed by arguments from platoons of lawyers, followed by lengthy delays waiting for decisions and then appeals of those decisions. The parties involved in a dispute are silenced by these processes and rarely meet with each other directly. Clients want to remain in control of their disputes, but they lose control once they present a matter to a court for resolution. Moreover, a court ruling often fails to resolve the underlying problems that caused the suit to be filed in the first place.

       Adversarial litigation also damages the relationships of the people involved. All of you work in the contracts area, a field where maintaining good relations is vital. Litigation forces people whose job requires doing business with one another to engage in combat instead. Further, controversy may not disappear just because one party has won and the other has lost. Even when the government wins a case, it can find that victory has come too late in the day and at too high a price.

       ADR as an alternative to scorched earth litigation is growing, not out of benevolence and altruism of the participants, but out of the simple recognition that it is often a better way to do business. Working together, parties can craft solutions that address their needs much more thoroughly and creatively than those a court would order. Clients greatly appreciate that ADR is almost always quicker and cheaper than litigation.

       As Associate Attorney General, I have responsibility for supervising the Department of Justice’s civil litigating components. Our resources, like yours, are finite. We cannot justify the use of limited resources to litigate cases that can be resolved in a less costly manner. When our ADR program began seven years ago, the Department was using ADR in only about 500 cases per year. We now use ADR in 3,000 cases each year. This program is helping transform the culture of the Department.

       To be sure, we must be prepared to litigate fully every case that we handle, and there are some cases that we cannot or should not settle. Furthermore, using ADR does not mean writing a blank check to the other side. We must settle our cases prudently or not at all.

       But the fact is, we settle far more cases than we take to trial at the Justice Department. For every civil case we bring to verdict before a judge or jury, we resolve more than 100 before trial. We dispose of some of these cases by motion, but we settle too many of the rest on the courthouse steps, after spending years of attorney time and millions of dollars in costs. If we can settle appropriate cases earlier, even only a few months earlier, we can realize enormous savings over our entire caseload.

       The federal government has also increased its use of ADR because of the active encouragement of Congress. In 1990, President George Bush signed into law the Administrative Dispute Resolution Act. This Act requires every executive agency to designate a senior official to be the dispute resolution specialist of the agency, provide for training on a regular basis, adopt an official ADR policy, and – particularly important for today’s awards ceremony – review each of its standard contract agreements to encourage the use of ADR. This was watershed legislation for the government and marks the beginning of the comprehensive federal effort in the field.

      Six years later, Congress ordered the creation of an Interagency Working Group to coordinate the government-wide ADR effort. The Attorney General is the chairman of this Working Group. The group has produced many materials to assist agencies in developing ADR programs, including the Electronic Guide to Federal Procurement ADR, a comprehensive manual covering the field.

      The government has also increased its use of ADR because more and more courts and administrative boards have recognized its value and are requiring it. In 1998, Congress passed the Alternative Dispute Resolution Act, which required every district court in the country to devise and implement its own ADR program, and to require that litigants in all civil cases consider the use of an ADR process at an appropriate stage in the litigation. Many Boards of Contract Appeals are requiring the use of ADR as well.

      Thanks to all of these factors, the government ADR effort is substantial and growing. Overall, federal executive agencies now dedicate over 400 full-time positions and 40 million dollars each year to ADR. All agencies have a senior official designated as their dispute resolution specialist, typically at the senior executive service level or higher.

      Our award winners today exemplify the best ADR programs in the government. It is notable that all of today’s winners are involved with the critical issues now facing the government -- national defense and homeland security. We have seen that ADR programs can help us procure major weapons systems more quickly, build bases in a more cost-efficient manner, and keep our federal aviation system running effectively. ADR is helping us do our most important jobs better. Throughout the government, it conserves essential resources and enables us to do more with less.

      President Bush has called on us to make government more citizen-centered, results-oriented, and market-driven. ADR enables us to meet each of these objectives. It allows us to resolve disputes effectively and efficiently and to provide our citizens with a maximum amount of respect and a minimum amount of adversity. Our award winners today have done an outstanding job in furthering these goals. I congratulate them for their outstanding successes and for demonstrating the real value of ADR.