Alternative Dispute Resolution

The Federal Mediation and Conciliation Service's involvement in non-labor conflict resolution had its origins during the 1970s. Congress requested and then authorized the Service to assist two Native American tribes in a centuries-old land use dispute. The Hopi and Navajo tribes had been in conflict over their adjoining lands for generations. A mediation team led by former President Kennedy appointee, Director William Simkin, conducted a successful facilitation over a two year period which involved complex and contentious issues.

Since that initial trial-by-fire experience into multi-party, multi-issue, public policy conflict, the Service has participated in various alternatives to litigation processes. The Service has provided fact finding, facilitation and mediation services to numerous federal, state and local government agencies. It provides consultation, systems design, education/training/mentoring and evaluation as well.

Consultation

The consultation process entails giving the potential customer in-depth information on the services offered by FMCS and how those services may be of benefit to them.

System Design

FMCS mediators are available to work with governmental agencies to analyze existing conflict resolution methods, and to provide options available for improvement and a detailed plan for implementation, maintenance and evaluation of a new system.

Education/Training/Mentoring

Much of FMCS' ADR work focuses on training and education in conflict resolution. The agency not only regularly trains and mentors collateral duty mediators for other agencies, but frequently conducts ADR awareness programs and instructs persons involved in conflict in how they can be an effective participants in the program. Typically, FMCS offers very intensive, highly interactive skills-based mediation training which lasts anywhere from 2-5 days.

The goal of the program is to equip the user with the fundamental skills and theoretical underpinning of the mediation process. It is not designed to make the trainee a full fledged mediator, nor does the agency certify students who have finished the course.

To learn the skills necessary to be a mediator, FMCS believes that on-the-job experience is essential. Therefore, clients frequently ask FMCS to mentor their students through live cases. The cases typically arise from the client agency, and an FMCS mediator will co-mediate several cases with the student over a period of time.

Evaluation and Follow-up

While conflict is a normal part of our daily lives, it can be an uncomfortable experience, especially when it involves the workplace. Federal and public sector customers have been using mediation services in EEO-related disputes as a less costly alternative to litigation. Some organizations utilizing EEO mediation include: Legal Services Corporation, the Department of Transportation/ Office of the Secretary, State Department, and the Federal Aviation Administration.

In fiscal year 1995, FMCS handled a record number of reimbursable ADR projects. We were able to involve more of our mediators than ever before; nearly 40 percent of our field staff participated. Not only did we facilitate six negotiated rulemakings this year, we continued to deliver conflict resolution training to a wide variety of governmental organizations. State and Federal headquarters, as well as their field offices, contracted with us to mediate EEO workplace disputes. Mediators were successful in handling discrimination issues ranging from whistle blower complaints to sexual harassment problems. We have also assisted large federal agencies with their nationwide conflict resolution training programs.

A partial list of the agencies with which FMCS has had a long standing ADR affiliation are:

Examples of some of the major ADR projects we have undertaken during fiscal year 1995 include:

Regulatory/ Multi-party Negotiations

In a time of growing concern about the fiscal impact of federal policies and regulations on businesses, workers and the public, the Administrative Dispute Resolution Act of 1990 and the Negotiated Rulemaking Act of 1990 authorize FMCS to use its mediation expertise to bring together the regulators and those who will be affected by regulations or policies to formulate the proposed rules or policies through negotiation. As a neutral third-party, FMCS convenes and facilitates complex, multi-party procedures to help produce draft rules and policies by consensus.

The New Don Pedro Project

The New Don Pedro Project is a large volume storage reservoir in the Tuolumne River Basin of California, licensed by the Turlock and Modesto Irrigation Districts to store water for irrigation and municipal water supplies. By exchange agreement, The City of San Francisco also stores water in the reservoir. The project license required reevaluation of the allocation of water from the reservoir, studies to be performed and submitted to the Federal Energy Regulatory Commission (FERC), and an Environmental Assessment issued outlining the impacts of various changes in the amount of water release.

Anticipating that a large number of private and public sector organizations with diverse concerns and strongly-held points of view would intervene in the issue, FERC asked FMCS to mediate a series of settlement meetings with FERC and the intervenors to attempt to reach consensus and resolve issues surrounding modification of water flow requirements. The interested parties included:

FMCS mediators prepared a convening report outlining the scope of the issues and the problems that needed resolution. Training in consensus decision-making and interest-based bargaining was then conducted for all participants. The actual negotiations took place over a ten-month period of three to four-day mediated sessions per month, and involved more than 40 participants negotiating 15 major issues. A settlement agreement was reached in April 1995, signed by nine of the ten interested parties, and has just been reviewed by the U.S. Fish and Wildlife Service to ensure that the terms comply with the Endangered Species Act.

Federal Railroad Administration

In 1995, the Federal Railroad Administration used the Regulatory Negotiation process for the first time to develop regulations covering safety issues aimed at protecting railroad workers who perform maintenance and repair work on or near railroad tracks. The Safety Standards Negotiated Rulemaking Advisory Committee brought together 25 different interested parties, including representatives of eight railroads, five railway unions and four railroad industry associations with the FRA in the process of Regulatory Negotiation.

FMCS mediators facilitated seven negotiating sessions with the 25 members of the Advisory Committee beginning in January. Consensus was reached on 11 specific and nine general recommendations, describing the requirements for development of specific rules and procedures for roadway workers, defining training requirements and specifying restrictions on trains entering areas where workers are in danger of being struck while on or near railroad tracks. The committee, together with the U.S. Secretary of Transportation signed a history-making agreement in May 1995. The recommendations in the agreement will be used as the foundation for a Notice of Proposed Rulemaking on Roadway Worker Protection.

Indian Self-Determination Regulatory Negotiation

In March of 1995, FMCS began facilitation of the largest regulatory-negotiations proceedings ever to be undertaken in the Federal government. At the table were 63 participants -- 48 persons who represented over 400 Native American tribes, and 15 Federal officials representing the interests of the Departments of Interior and Health and Human Services. Historically, tribes have had to deal with many layers of bureaucratic control in order to realize the final product of a grant or contract, often confronted with conflicting guidelines, depending on the agency with which they were dealing. In 1994, Congress passed the Indian Self Determination Act in order that the federal government may award contracts and grants to Indian tribes without the unnecessary burden or confusion associated with having two sets of rules for single program legislation. The charge of the committee was to develop consensus on a wide variety of topics, including:

To work their way through the regulations, the committee broke into several working groups, each being given responsibility to deal with several subject areas. FMCS assigned four mediators to the project to assist with both the full committee meetings and in facilitating working group sessions. Both the full committee, as well as the working groups, met numerous times over a fourteen month period, each meeting typically lasting three to four days. As of April 1996, consensus had been reached on a great majority of the issues, with the remaining issues to be addressed at a full committee meeting in early May of 1996.

Summary

The results of this more participatory approach to rule and policy-making have been extremely positive. By using a public negotiating process, potential or actual antagonists can be motivated to participate, and become invested in helping the agency solve a regulatory problem. The likelihood of subsequent challenges to a new regulation is greatly reduced.

The challenge of bringing together groups of people, often with competing interests, to reach consensus on complex government policies and regulations has proved to be a highly-productive use of FMCS' mediators expertise in facilitation and joint problem-solving. Not only are the results positive and the concept gaining in use, but making regulatory and policy decisions in a public, participatory process is simply a better way for government to do business.

Alternative Dispute Resolution Program Data

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Last modified: February 12, 1998