Evaluation of Civil Division ADR Program

Evaluation of Civil Division ADR Program
DOJ Seal
U.S. Department of Justice
Civil Division
Office of the Assistant Attorney General
Washington, D.C. 20530

NOV 15 1994

Honorable Thomasina Rogers
Chair, Administrative Conference of the United States
2120 L Street, N.W., Suite 500
Washington, D.C. 20037-1568

Dear Ms. Rogers:

I am pleased to respond on behalf of the Department of Justice to the Administrative Conference's request for a description of the Department's efforts to implement the Administrative Dispute Resolution Act and the Negotiated Rulemaking Act of 1990.

Alternative Dispute Resolution Policies

Although the Department of Justice has interpreted Administrative Dispute Resolution Act to apply to administrative proceedings in which agencies engage, the Department's actions implement the Act have been integrated with efforts to foster use of alternative dispute resolution (ADR) in litigation in conformity with the Executive Order on Civil Justice Reform, Executive Order No. 12778, 56 Fed. Reg. 55195 (Oct. 25, 1991), and the Civil Justice Reform Act, Title I, Pub. L. No. 101-650, 104 Stat. 5089 (1990). Accordingly, my review of ADR within the Department extends to its incorporation in litigation as well.

The Department of Justice has consistently endorsed alternative dispute resolution. Predating the Act, Attorney General Order No. 1109-85, issued on October 4, 1985 and codified at 28 C.F.R. § 50.20, provides that "[t]he Department recognizes and supports the general goals of court- annexed arbitrations, which are to reduce the time and expenses required to dispose of civil litigation." An example of early implementation is the policy adopted in June, 1986, by the Commercial Litigation Branch of Civil Division, encouraging use of mini-trials in its cases.

During hearings on the legislation ultimately passed as the Administrative Dispute Resolution Act, William P. Barr, then Assistant Attorney General, Office of Legal Counsel, testified that the Department believed it essential to develop alternatives to "full-scale litigation of disputes involving the government." Statement to the Subcommittee on Oversight of Government Management, Senate Committee on Governmental Affairs, Jan. 31, 1990, at 2; see also Statement to the Subcommittee on Administrative Law and Governmental Relations of the House Committee on the Judiciary, Sept. 19, 1989, at 1: "[t]he Department has encouraged, and continues to support, the use of ADR techniques in those cases where ADR can reduce the time and expense devoted to litigation."

On May 22, 1992, Attorney General Order No. 1591-92, codified at 28 C.F.R. § 14.6, integrated administrative dispute resolution into adjudication of claims brought under the Federal Tort Claims Act. This order, applicable Government-wide, provided that agency personnel should be trained in dispute resolution techniques and skills and authorized the use of any alternative dispute resolution technique or process in the adjudication of appropriate claims. It also increased the authority of several agencies to compromise tort claims under the authority granted by § 8 of the Administrative Dispute Resolution Act.

In August, 1992, "Guidance on the Use of Alternative Dispute Resolution for Litigation in the Federal Courts" was issued, encouraging its use and providing practice guidance for practitioners throughout the Government. More than 3,500 copies were initially distributed to Department components, U.S. attorney offices, other agencies, and the private bar. Additional guidance concerning ADR was included in Attorney General Order No. 1658-93, 58 Fed. Reg. 6015 (Jan. 25, 1993), which implemented Civil Justice Reform initiatives contained in Executive Order No. 12778

The Department supported changes to the Federal Acquisition Regulation to implement § 6 of the Administrative Dispute Resolution Act, now codified in 48 C.F.R. § 33.204. See 56 Fed.Reg. 67417 (Dec. 30, 1991). The Department of Justice is also a signatory to the Alternative Disputes Resolution Pledge taken by Federal agencies in conjunction with the Administrator for Federal Procurement Policy on May 16, 1994. Jamie S. Gorelick, the Deputy Attorney General, expressed the Department's commitment to ADR both at the ADR Pledge Signing Ceremony for Government Procurement officials and at the July 20, 1994, kickoff of the Interagency Pilot Project for Sharing Neutrals. Attorney General Janet Reno has also voiced strong support in her public statements for using alternatives to litigation to improve the results gained in resolving disputes and to reduce the costs and delays associated with litigation.

The Department has signalled its strong support for ADR in several initiatives just undertaken. These are detailed in the discussion below of current initiatives.

Management of Alternative Dispute Resolution

In accordance with the Administrative Dispute Resolution Act, the Assistant Attorney General, civil Division, was designated by the Attorney General to serve as the Department's Dispute Resolution Specialist. On August 23, 1991, Stuart M. Gerson, then Assistant Attorney General, Civil Division, wrote to the Department components and asked their assistance in implementing the Administrative Dispute Resolution Act. In response, the major components and many of the smaller offices within the Department designated a Dispute Resolution Specialist.

An Ad Hoc Committee was formed to implement Executive Order No. 12778. A subcommittee on Alternative Dispute Resolution was formed as part of this effort and met regularly to consider both ADR initiatives in litigation and implementation of the Administrative Dispute Resolution Act. The Department chartered a Civil Justice Working Group in 1993 comprised of representatives from all of the civil litigating and policy components. An ADR Sub-Group, formed as part of the Working Group, has recommended Department-wide policies, several of which are reflected in the discussion of current initiatives.

As the agency's Dispute Resolution Specialist, I have maintained liaison with the Administrative Conference of the United States through my Special Counsel and with Government-wide Civil Justice Reform efforts through my Senior Counsel for Policy.

Components are free to design their own internal steering committees or other ADR management tools. Civil Division, for example, formed a committee of ADR specialists in 1993 to be a centralized source of ADR information within their branches.

Training in Alternative Dispute Resolution

During the initial phase of implementing Executive Order 12778 and the Administrative Dispute Resolution Act, a questionnaire was sent to the Component Dispute Resolution Specialists in November, 1991, seeking information on the disputes in which the components routinely engage and an assessment of how ADR might be used. A similar request for information about court-annexed ADR went to U.S. Attorneys from the Executive Office of U.S. Attorneys in July, 1991. These questionnaires helped in the process of tailoring later training efforts.

Training of Component Dispute Resolution Specialists followed in January, 1992. The Department was assisted in this training by the Administrative Conference of the United States. A follow-up seminar for the Component Specialists was offered in May, 1992.

The office of Legal Education (OLE), an element of the Executive Office for U.S. Attorneys, has played a leading role in ADR training. In February, 1992, OLE presented a program on Civil Justice Reform and implementation of Executive Order 12778, discussed above. This nationwide broadcast was OLE's first nationwide telecommunications training. An Alternative Dispute Resolution Seminar, where ADR is the exclusive subject, is offered twice a year by the Legal Education Institute (whose primary target is agency counsel) and once a year in the Attorney General's Advocacy Institute (whose primary target is assistant U.S. attorneys). ADR is also taught in the Negotiations Skills Course, offered three times a year, and the Federal Administrative Process Course, offered two to three times a year. About 110 students completed the ADR course in 1994; 120 students each completed the Negotiations Skills Course and the Federal Administrative Process Course in 1993-1994. ADR is also a subject in these courses: the Civil Chiefs Course, offered for assistant U.S. attorneys twice a year and the Civil Practice Seminar, offered three times a year.

Justice components have offered a variety of other training opportunities which are discussed below in the survey of Justice components. Department of Justice employees have also participated in programs sponsored by the Administrative Conference of the United States and other organizations outside the Department.

Alternative Dispute Resolution Neutrals

In 1993, the Department was canvassed for persons qualified to serve as ADR neutrals. Thirty Department of Justice employees responded to this one-time call. All reported some experience in ADR. Most have had considerable experience in mediation, facilitation, or conciliation. Many have experience in arbitration. The intent in assembling this roster of neutrals was to provide the Department with a list of qualified neutrals for use in dispute resolution and to identify points of contact for consultation concerning ADR processes and internal training. While several of these employees have been employed for the latter purpose, they have not been used for the former. The Department hopes to make these employees available for use in the Interagency Pilot Project for Sharing Neutrals. Other employees have indicated an interest in being trained as ADR neutrals.

Survey of Department of Justice Components

The Civil Division, Civil Rights Division, Environment and Natural Resources Division, and Tax Division have experience in ADR and have used it in litigation. In addition to the policies listed above that apply across the Department and to the Government generally, for example, the Tax Division issued a directive in July, 1991, encouraging ADR use in tax cases where appropriate.

These litigating divisions have trained in ADR. The Civil Division, for example, provided comprehensive training for its attorneys in two rounds of seminars: two sessions offered in April and May, 1992 and four sessions between October, 1992, and January, 1993, attended by about 300 employees. Two other courses were offered in 1993 for about 60 managers. Most recently, the Civil Division sponsored an ADR seminar in June, 1994. The Environment and Natural Resources Division sponsored a five-hour ADR training course for about 140 attorneys in November, 1993, and a day-long negotiation skills course in January, 1994, for 25 attorneys. Several sections within the Environment and Natural Resources Division have also sponsored .informal seminars for attorneys to discuss application of ADR techniques in their cases. Tax Division provided instruction for all its attorneys following publication of Executive Order 12778.

Information concerning use of ADR by litigating divisions is mostly anecdotal at present (although the Department is considering initiatives to gather data more systematically). In March, 1991, the Civil Division integrated ADR into its case management system which captures data about cases retained for handling in Washington or which are jointly handled with United States Attorneys. While reportable ADR events include judge-supervised settlement conferences, other settlement activities such as party-to-party negotiations are excluded. The hours devoted to ADR show steadily increasing commitment to ADR in appropriate circumstances although they represent only a small percentage of our overall litigation efforts:

ADR Proposals Total ADR Hours
FY 1991 19 994
FY 1992 44 1,039
FY 1993 73 2,232
FY 1994 56 3,305

Mediation comprised 25 percent of the instances in which ADR was actually used and not just proposed. Arbitration was used six percent of the time. These statistics likely underreport the prevalence of ADR since the case management system relies on time reporting by individual attorneys.

Within the Civil Rights Division, the Coordination and Review, Voting, Public Access, Special Litigation, and Housing and Employment Sections either implement special programs that provide suitable alternatives to litigation or are experimenting with ADR techniques.

The Coordination and Review Section investigates complaints under Title II of the Americans with Disabilities Act of 1990 (ADA), alleging discrimination by State and local governments. Resolution through ADR is encouraged by both the ADA and by regulation. See 42 U.S.C. § 12212; 28 C.F.R. § 35.176. Shortly after the ADA became effective, the Coordination and Review Section staff was trained for two days in negotiation, conciliation, mediation, and persuasion. The Section has expedited and resolved claims through a modified mediation process. Because formal offers of settlement and ADR precede full investigation of complaints and conciliation must fail before litigation begins, ADR has resulted in 22 settlements before completion of a full investigation and resolution of about 100 other cases without formal settlement agreements.

The Public Access Section has awarded two grants to explore use of mediation as an alternative to investigation and litigation of complaints made under the ADA. Under one pilot grant, mediators at community mediation centers in five cities have been trained and will mediate some 200 cases to be referred out of the Department by the Public Access Section. Under another grant, the Key Bridge Foundation for Education and Research will train about 90 mediators in five other cities to whom approximately 675 other ADA disputes will be referred. As with the Community Board Program grant, the mediators will deal directly with the disputing parties. The Key Bridge Foundation will also publish a guide for consumers of mediation services in the ADA context and a guide for mediators who wish to mediate ADA disputes.

The Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997, et seq., also encourages ADR, requiring "informal methods of conference, conciliation and persuasion" before litigation to correct unlawful conditions of confinement or institutionalization. 42 U.S.C. 1997b(2)(B). The Special Litigation Section therefore seeks alternatives to litigation, particularly consent decrees, in every case.

Administrative processes affecting all of the litigating divisions (which include the Antitrust and Criminal Divisions) and most of the Department's other offices, boards, and divisions concern personnel and procurement matters common to all Federal agencies. ADR has not been used in any great degree in the adjudication of these matters. One reason is that the Department engages in relatively few disputes of this nature. During one fiscal year, for example, the Justice Management Division, which supports most offices, boards and divisions, handled 11 pre-award contract bid protests, two contract claims, 19 equal employment opportunity complaints, and 6 grievances under agency procedures.

One recent innovation applicable to all components of the Department is the Attorney General's Comprehensive Program for Prevention of Sexual Harassment, announced April 25, 1994. This program requires each component to appoint contact persons to assist in the informal resolution of sexual harassment complaints. This process, which does not supplant normal EEO procedures and is similar to pre-complaint counseling in EEO cases, offers a novel way for complainants to make complaints and have them resolved quickly and effectively.

Some of the Department's offices, boards, and divisions engage in unique activities in which ADR is being examined for applicability or has already been incorporated.

The Office of Justice Programs (OJP) deals with disputes in contract and grant disagreements, audit resolution, Public Safety Officer Benefit Death and Disability claims, and civil rights complaints, as well as personnel issues. Recent and continuing growth in size and responsibility has led OJP to start formulating an ADR policy which was not warranted by the few disputes seen in earlier times. Efforts are focused on EEO and labor and employee relations. For example, OJP's Partnership Council (a Labor-Management forum), is looking into the adoption of an ADR system and is discussing the need and options for implementation.

The Community Relations Service, a unique component in the Department, has, since 1964, provided conciliation and mediation services to prevent and resolve community wide conflicts arising out of discriminatory practices based on race, color, or national origin. These services are provided through the 15 CRS regional and field offices throughout the country. CRS also has responsibility for providing humanitarian services to Cubans, Haitians, and unaccompanied minors of these and other entrant groups emigrating to the US. In a unique combination of these missions, CRS is providing conflict resolution services in the Cuban and Haitian camps in Guantanamo Bay, Cuba and in Panama. Earlier this year, CRS also successfully mediated a dispute between the Black Coaches Association and the National Collegiate Athletic Association concerning expansion of opportunities for education, employment and NCAA governance for African-Americans and other ethnic minorities.

Each of the major bureaus and services within the Department, (Federal Bureau of Investigation, Drug Enforcement Administration, Immigration and Naturalization Service, U.S. Marshals Service, and Bureau of Prisons) manages its own administrative services. ADR has not been used extensively by these bureaus or services but it has their increasing attention.

The Federal Bureau of Investigation has incorporated ADR in the enforcement provisions of an agreement to settle class discrimination claims brought by African-American FBI agents. The parties agreed that material and willful breaches of the agreement will be addressed by a mandatory ADR mechanism prior to seeking judicial relief. The ADR process has three phrases: informal discussion; mediation by a three-member panel; and issuance of findings and recommendations. The parties agreed to split the costs of ADR procedure subject to a couple of clear exceptions. Although there has been no necessity for recourse to this ADR process, it represents a novel integration of administrative dispute resolution within the framework of litigation.

The Immigration and Naturalization Service has started a pilot project in its Western Region to introduce ADR into its EEO process. Its principal feature will be diversion of EEO disputes to a conciliation process overseen by 36 EEO Conciliators who are senior management officials and who have already undergone training in conciliation and mediation techniques.

ADR is included in current reorganization plans of the Marshals Service. Under consideration is establishment of a "peer review group" to resolve EEO disputes at the counseling stage, a "Complaints Review Board" to facilitate settlement of formal complaints of discrimination, and a "Partnership Council" to resolve labor disputes. The Service already utilizes a Grievance Adjudicator who informally attempts to resolve employee grievances. The Service has plans to train EEO investigators in mediation, train an ADR coordinator for contract disputes, and integrate ADR training in programs at the Marshals Service Training Academy.

In the Drug Enforcement Administration, the EEO Section is considering implementing a formal mediation program and a fact-finding conference program to respond to increasing numbers of EEO complaints. The EEO Section intends to test these methods in early 1995. ADR techniques are also being considered for implementation by the Office of Procurement in connection with contract disputes and preaward bid protests and by the Office of the Controller in connection with employee claims, disputes involving accounts receivable, and disputes involving overpayment of compensation.

The Bureau of Prisons, which has considerable involvement in construction contracting, has entered into nine "partnering agreements" with contractors which have been an effective means of reducing project delays. While cost savings are difficult to estimate, contracting personnel and project managers report satisfaction with the process. In one instance of the neutral-sharing initiative, the Bureau is joining a consortium of agencies in Dallas-Fort Worth which is assembling a pool of personnel who will be trained as mediators and used in local disputes.

CURRENT ALTERNATIVE DISPUTE INITIATIVES1

1 The initiatives discussed here should not be included in your report to Congress until the Attorney General has had the opportunity to take final action on them.

The Civil Justice Working Group has recommended to the Attorney General that actions be taken to promote the significantly increased use of alternative dispute resolution in all the components of the Department and among its client agencies. The Attorney General is now considering whether to:

  • Issue an Attorney General Order requiring litigating components to make broader use of alternative dispute resolution techniques in appropriate civil cases and providing for related training and record keeping. The order would require each litigating component to identify classes of cases suitable for ADR, describe the component's internal procedures for approving the use of ADR, establish an ADR training requirement and keep statistics documenting its use of ADR.
  • Appoint a career attorney at the Senior Executive Service level to exercise full-time responsibility in promoting and monitoring the Department's use of ADR. This high-ranking official would be responsible for implementing the Attorney General's order, monitoring the compliance of the components, and assisting in developing additional Department-wide policies and practices regarding the use of ADR.
  • Create an earmarked ADR Expense Fund to finance the costs associated with the Department's use of ADR professionals. Current Department and Government contracting procedures make it quite difficult for attorneys to obligate their components to pay for the services of ADR neutrals. Creating a fund modelled on the Expert Witness Fund would remove a current barrier to the use of ADR by ensuring the ready availability of funds to pay for the services of ADR neutrals in appropriate cases.
  • Co-Sponsor with the Administrative Conference of the United States and the National Performance Review (NPR) a government-wide conference series on ADR. These conferences would encourage agencies to make greater use of ADR as an alternative to referring cases to the Department for litigation, thereby effectuating a major goal of the NPR and the intent of the Alternate Dispute Resolution Act.

These proposals are guided by the following principles: that programs be structured in a way that benefits not only the system as a whole, but also improves the ability of individual litigants to obtain access to civil justice; that quality assurance be developed so that ADR techniques are not only theoretically sound, but actually produce just and cost-efficient results in actual disputes; and that use of ADR be encouraged, not by forcing disputants and their attorneys into mandatory programs, but by educating the attorneys and the public why it is in their interest to use ADR in appropriate cases. Guided by these same principles, senior Department officials will work to overcome resistance to ADR in the Department and systematically encourage its appropriate use to resolve disputes with the Government. As the "nation's litigator" and the representative for virtually every Governmental agency in the Federal courts, the Department of Justice believes it should play a leadership role in expanding the appropriate use of ADR -- not only to urge others to use ADR, but to set an example through the way in which it works to resolve disputes in which the Department is involved as a party or in a representative capacity. In doing so, the Department hopes to set an example for the entire legal profession in evaluating the appropriate use of ADR techniques in litigation.

While several of these proposals address the use of alternative dispute resolution in civil litigation, we are mindful of our obligations and our opportunities under the Administrative Dispute Resolution Act. The proposal to appoint a career Senior Executive to promote and monitor ADR will be a key component of future efforts to implement the Administrative Dispute Resolution Act. This Senior Counsel for Alternative Dispute Resolution will become the Department's first full-time Dispute Resolution Specialist. We expect that this action will provide continuity, credibility, and comprehensiveness for our ADR effort.

Reporting to either the Deputy Attorney General or the Associate Attorney General, the Senior Counsel for ADR will assist components in making greater use of ADR and designing and executing related training, record keeping, program evaluation, and reporting functions. The Senior Counsel will also 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. One of the Senior Counsel's chores will be to work with each Component in revitalizing its administrative dispute resolution efforts and ensure that persons identified as Component Dispute Resolution Specialists serve actively in that role which has not been the case in most instances to date.

Creation of an ADR Expense Fund with simplified procedures will promote ADR by addressing concerns that existing procedures that rely on general operating funds are cumbersome and lead some supervisors to hesitate authorizing ADR. The proposal to cosponsor conferences with the Administrative Conference and the National Performance Review will also signal the Department's renewed commitment to ADR.

Negotiated Rulemaking

Negotiated rulemaking has not been used by the Department of Justice although Justice attorneys have assisted other agencies in their rulemaking efforts. Most regulations promulgated by the Department do not easily lend themselves to negotiated rulemaking owing to their subject matter or scope.

In lieu of formal negotiated rulemaking procedures, however, the Drug Enforcement Administration has institutionalized the "focus group" concept in its regulatory program (21 C.F.R. Part 1300 et seq.). The concept encompasses a broad range of activities to insure communication about matters of mutual concern and interest to DEA and the registrant population. DEA sponsors biannual working committee meetings for national associations representing manufacturer, distributor, practitioner, pharmacy, and mid-level practitioner registrant groups. A subject at one meeting, for example, involved registrant concerns about quick and efficient delivery of medications to long-term care patients and DEA's concern that the risk of diversion of controlled substances be contained. As a result of these discussions, DEA published a Notice of Proposed Rulemaking to amend the regulations to permit the transmission of prescriptions for controlled substances via facsimile.

Conclusion

The Department of Justice takes seriously its obligation to join with other agencies in facilitating the access of citizens to the processes of government. The Department appreciates the opportunity to contribute to the Administrative Conference's report to Congress.

Sincerely,
Signature of Frand W. Hunger
Frank W. Hunger
Assistant Attorney General,
Civil Division