Alternative Dispute Resolution

FMCS has been involved in alternative dispute resolution (ADR) programs for nearly three decades. The agency was first involved in an ADR program in the early 1970s when it was asked to mediate a land dispute between the Navajo and Hopi Indian tribes. FMCS moved into the arena of regulatory negotiations in the early 1980s working with the Federal Aviation Administration and since then has become increasingly involved in this activity.

Through the FMCS alternative dispute resolution (ADR) program, mediators assist federal agencies in institutionalizing mediation and other forms of conflict resolution as an alternative to costly litigation. After consultation with client agencies, we provide such services as conflict resolution systems design and evaluation, education, training and mentoring. Through our "train the trainer" programs, we educate agency personnel in conflict resolution skills so they, in turn, can train others. We mediate disputes both within agencies (e.g., age discrimination and other fair employment complaints, whistleblower complaints) and between agencies and their regulated public (e.g., environmental disputes).

Initial assessment of a client agency’s needs.

Analysis of existing mechanisms and design of appropriate methods and strategies for implementing ADR.

Available on contract to agencies to provide mediation, facilitation and convening services for all types of disputes, depending on FMCS resource availability.

Assessment of ADR programs and continuing involvement to improve ADR initiatives.

The following list represents these activities in terms of most-to-least-frequently requested:

Recently, FMCS has been involved in regulatory negotiations with the National Highway Transportation Safety Administration (international standards for automobile headlight bean patterns), the Equal Employment Opportunity Commission (benefits to older workers), and has handled two cases for the Bureau of Indian Affairs of the U.S. Department of the Interior. One is in conjunction with the Department of Housing and Human Services of 48 separate Native American Tribal Councils and will develop procedures and regulations to enable the transfer and administration of health and education programs. The other addresses issues of self-governance arising from the transfer of authority and block funding for programs which have been administered by the federal government. An earlier negotiated rulemaking conducted for the Federal Energy Regulatory Commission over environmental issues surrounding the New Don Pedro Dam Project in California has received final acceptance. This negotiation involved 23 intervenors, including state agencies, county governments, water districts and a number of sport and environmental organizations.

Examples of some of the major ADR projects we have undertaken during Fiscal Year 1996 are as follows:

Boundary Waters/Voyageurs National Park

Our mediator’s conflict resolution skills continue to find important application away from the bargaining table. In the Administrative Dispute Resolution Act and Regulatory Negotiation Act, Congress authorized FMCS to provide alternative dispute resolution services to federal, state and local government entities. A highly visible part of this work is in the mediation of public lands disputes.

Within the Superior National Forest in Northeastern Minnesota are the Boundary Waters Canoe Area Wilderness (BWCAW) and Voyageurs National Park (VNP). BWCAW, one of the few water-based wilderness areas in the National Wilderness Preservation System, is administered by the U.S. Forest Service and encompasses 1,300,000 acres along the Minnesota-Ontario border. BWCAW contains more than 1,175 lakes, 1,500 portages (areas to transport boats from one lake to another), 183 miles of hiking trails and 2,000 campsites. Nearby is Voyageurs National Park, comprising 200,000 acres.

Public debate has continued unabated for decades between interests who want BWCAW to be a pristine wilderness and want the use of VNP somewhat limited, and groups of landowners, businesses and other multiple-use advocates in the area who want greater access, more areas open to motorboating and more local control over both natural areas. Federal legislation in 1978 and subsequent court decisions did not settle the issues, and in 1996, opposing bills in Congress brought the controversy to a boil. Against this backdrop, one of the state’s U.S. Senators requested that FMCS facilitate a multi-party dispute resolution process which could identify the various interests and viewpoints in the disputes, and bring representatives together to attempt to develop consensus recommendations which could finally resolve the longstanding conflict.

The FMCS mediation team conducted an information-gathering Convening Process, receiving over 200 contacts from individuals and organization wishing to participate in the mediation, and conducting 100 extensive interviews from among those contacts. A Convening Report recommended separate negotiating committees for BWCAW and VNP, identified the basic issues in dispute and suggested the members of a committee who could represent all the viewpoints in each dispute. The mediation team brought the members of both negotiating committees together in August for two days of training in Interest-Based Bargaining. As of the end of Fiscal Year 1996, the committees had begun their deliberations in a series of public sessions with extensive news media coverage, each committee meeting in alternate weeks in different locations around Northern Minnesota.

Title II of the Older Workers Benefit Protection Act of 1991 requires that an employer offering employees an exit incentive program, and wishing them to waive rights to sue under the law, must ensure that the waiver is knowing, voluntary and involves additional consideration to which the employee is already entitled. The law also requires that the employer supply certain information regarding the job titles, classification and organizational units of those employees selected for an exit incentive program, and for those employees not selected.

The Equal Employment Opportunity Commission (EEOC) found it necessary to develop rules to interpret this statue. Since the law was enacted in 1991, there had been litigation over interpretation of many of the provisions of the statute. What constitutes "knowing and voluntary?" What is additional consideration? What is the appropriate information to give to employees?

EEOC asked FMCS to conduct a Regulatory Negotiation to attempt to clarify many of these questions. Over 80 people applied to be on the negotiating committee. EEOC selected 18 lawyers, 10 representing management, 8 representing plaintiffs and 2 from EEOC. Two mediators from the Federal Mediation Service served as facilitators. The committee met for 7 two-day sessions, starting in December and ending in July.

The committee soon agreed not to deal with certain issues, since consensus was thought to be unlikely on them. The committee moved ahead on the remaining agenda, developed ground rules for its deliberation, divided into subcommittees, held numerous telephone conversations in addition to the committee meetings and, by July, reached consensus.