PROMOTING THE BROADER APPROPRIATE USE OF ALTERNATIVE DISPUTE RESOLUTION TECHNIQUES
||April 6, 1995
||OBD/H-1 OBD/F-2 SPL-23
||Office of the Associate Attorney General
- PURPOSE. The purpose of this order is to promote the
broader use of alternative dispute resolution (ADR) in
appropriate cases to improve access to justice for all
citizens and to lead to more effective resolution of
disputes involving the government.
- SCOPE. The provisions of this order shall apply to all
Departmental litigating divisions and to all U.S. Attorneys.
This order is applicable to civil matters only. It is not
intended to affect criminal matters, including enforcement
of criminal fines or judgments of forfeiture.
- MODIFICATION. This order expands upon but does not
otherwise modify the Department of Justice's Memorandum of
Guidance on Implementation of the Litigation Reforms of
Executive Order No. 12778, notice of which was published at
58 Fed. Reg. 6015-03.
- AUTHORITY. In addition to the general authority conferred
upon the Attorney General by law, specific authority to
provide ADR guidance is provided by section 3 of the
Administrative Dispute Resolution Act of 1990, Pub. Law 101-552, 104 Stat. 2736-37.
- DEFINITION. As used in this order, "formal ADR techniques"
include, but are not limited to, arbitration, mediation,
early neutral evaluation, neutral expert evaluation, mini-trials and summary jury trials.
- CREATION OF POSITION OF SENIOR COUNSEL FOR ALTERNATIVE
DISPUTE RESOLUTION. There shall be created within the
Department of Justice, the position of "Senior Counsel for
Alternative Dispute Resolution." The Associate Attorney
General shall designate a career employee of the Department
of Justice at the Senior Executive Service level to fill
this position. The Senior Counsel shall develop policy on,
and promote aspects of ADR, and in furtherance of that goal
- Assist senior management in developing policies for the
use of ADR, including revising the Department Guidance
on the Use of Alternative Dispute Resolution for
Litigation in the Federal Courts.
- Assist with the design and execution of ADR-related
training, recordkeeping, program evaluation and
- Provide advice and assistance to Department supervisors
and employees on selecting appropriate cases for using
ADR and on the application of particular ADR
- Report regularly to the Attorney General, through the
Associate Attorney General, on the status of the
Department's ADR activities.
- Represent the Department in government-wide ADR
activities, including programs and projects with the
Administrative Conference of the United States, the
Office of Management and Budget, the National
Performance Review, and the federal courts.
- Advise senior management on legislation, rulemaking,
and other policy matters relating to ADR.
- Serve as the Dispute Resolution Specialist for the
Department of Justice as defined in Section 3(b) of the
Administrative Dispute Resolution Act, 104 Stat. at
- Perform such other duties and functions related to the
promotion of ADR as may be assigned by the Attorney
General, the Deputy Attorney General and the Associate
- COMPONENT ADR GUIDANCE. By September 11, 1995, each
litigating division and the Executive Office for United
States Attorneys acting on behalf of the United States
Attorneys shall provide its attorneys with ADR guidance
containing the following provisions:
- A policy statement by the head of the component
indicating that attorneys are expected to use ADR in
appropriate cases as an alternative to litigation and
are to cooperate with court-annexed or court-sponsored
ADR programs and with efforts to develop and evaluate
- A set of criteria to be used in identifying specific
cases appropriate for resolution through settlement
negotiations or the use of a formal ADR technique. The
component guidance should also identify ADR methods
most suitable to resolving certain categories of cases,
and criteria for the selection of ADR providers.
- A requirement that any attorneys whose practices are
substantially civil attend a comprehensive basic
training program in negotiation and ADR and that all
experienced attorneys handling civil matters be
required to participate in periodic supplemental ADR
training. The content and nature of such training
shall be determined by the Senior Counsel for
Alternative Dispute Resolution in consultation with the
Department's training components.
- A complete explanation of the internal procedures
attorneys should follow in obtaining authorization and
funding for the use of formal ADR techniques.
- FURTHER RESPONSIBILITIES OF PERFORMING COMPONENTS.
- The components subject to this order shall coordinate
with the Senior Counsel for Alternative Dispute
Resolution the development of the ADR guidance, as well
as their performance of related recordkeeping, program
evaluation and reporting functions.
- The components subject to this order shall review their
ADR guidance at least annually and, in conjunction with
the Senior Counsel for Alternative Dispute Resolution,
shall make any necessary changes.
- The components subject to this order, in consultation
with the Senior Counsel for ADR, shall designate a
person or persons with primary responsibility for
coordinating the component's ADR efforts so that a
network of individuals with ADR expertise is
established throughout the Department. This network
shall assist the Senior Counsel for ADR in developing
and implementing Department ADR policies.
- The components subject to this order shall maintain
statistics regarding its use of ADR and report those
statistics annually to the Associate Attorney General.
These statistics should demonstrate both the
component's compliance with this order and the full
extent of its overall use of informal and formal ADR
- NO PRIVATE RIGHTS CREATED. This order is intended only to
improve the internal management of the Justice Department in
resolving disputes and conducting litigation. This order
shall not be construed as creating any right or benefit,
substantive or procedural, enforceable at law or in equity,
by a party against the United States, its agencies, its
officers, or any other person. This order shall not be
construed to create any right to judicial review involving
the compliance or noncompliance of the United States, the
Justice Department, its officers, or any other person with
this order. Nothing in this order shall be construed to
obligate the United States to offer funds to settle any
case, accept a particular settlement or resolution of a
dispute, to alter its standards for accepting settlements,
to submit to binding arbitration or to alter any existing
delegation of settlement or litigating authority.
- FURTHER GUIDANCE. The Associate Attorney General shall have
the authority to issue further guidance regarding the scope
of this order, consistent with the purposes of this order.