AlternativesTO THE HIGH COST OF LITIGATION

INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION VOL. 24 NO. 8 SEPTEMBER 2006

AlternativesAlternatives to the High Cost of Litigation (Print ISSN 1549-4373, Online ISSN 1549-4381) is a newsletter published 11 times a year by the International Institute forConflict Prevention & Resolution and Wiley Periodicals, Inc., a Wiley Company, at Jossey-Bass. Jossey-Bass is a registered trademark of John Wiley & Sons, Inc.

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TO THE HIGH COST OF LITIGATION

Publisher:Susan E. Lewis John Wiley & Sons, Inc.

Editor: Russ Bleemer

Jossey-Bass Editor: David Famiano

Production Editor: Chris Gage

Published online in Wiley InterScience (www.interscience.wiley.com).Alternatives DOI: 10.1002/alt

VOL. 24 NO. 8 SEPTEMBER 2006140 ALTERNATIVES

ADR BRIEF • ADR BRIEF • ADR BRIEFFOLLOW-UP: FINAL GOVERNMENTADR GUIDES PUT EMPHASIS ONCONFIDENTIALITY PRACTICES

Three comprehensive guides centered ongovernment alternative dispute resolutionprocesses have been revised, finalized, andreleased on the Internet by a group of fed-eral agency officials that focuses on pro-moting and improving ADR use.

The revisions, from drafts circulated lastyear and opened for comment in the Feder-al Register at the end of 2006, add languagethat highlights the nature of governmentalreporting relationships, and emphasize theguides’ principal focus, ADR confidentiality.

The Federal Interagency AlternativeDispute Resolution Working Group, whichis made up of conflict resolution specialists,doesn’t regulate, nor does its work have theforce of official federal branch policy. Butthe three guides seek to institutionalize bet-ter practices, along the lines of the workinggroup’s mission. They also could serve as afoundation for government offices nation-wide that decide to install or improve ADRprograms that reduce litigation.

Though the new materials address in-ternal government operations, federal prac-tices have served as systemic models for pri-vate businesses, contractors, and the legalprofession. Individuals and businesses deal-ing with the federal government also mayintersect with some of the practices.

In addition, soon after the materialswere finished in the spring, the eight-year-old working group updated its missionstatement—reflecting the demise of itsown initial reporting relationship for thegroup’s initiatives. The new “governancedocument” was posted on the workinggroup’s Web site at www.adr.gov in July.

The new handbooks’ purpose, notes aresponse to comments on the Confiden-tiality Guide for Federal Workplace ADRProgram Administrators, “is to encouragethe integration” of the Administrative Dis-pute Resolution Act of 1996, 5 U.S.C. 571et seq., “and its legislative intent withagency policy and practice, and to providehelpful advice on potentially difficult ques-tions to ADR program administrators en-gaged in workplace ADR.”

The working group’s responses to com-ments for the workplace guide, along withresponses to comments on guides for feder-al employee ombuds, and federal employeemediators, were posted at its Web site inMay, along with the complete final guides.The working group set up subcommitteesto air the issues and draft the guides; sub-committee members prepared the respons-es last winter.

Alternatives examined the draft effortshortly after the 30-day comment periodclosed in December. See “Federal Govern-ment’s ADR Specialists Release Guidancein Three Areas,” 24 Alternatives 5 (January2006).

Issues highlighted in the Alternatives ar-ticle centered around the ombuds guidedraft. They were raised by drafting subcom-mittee member Howard Gadlin, ombuds-man at the National Institutes of Health, inBethesda, Md. Though the writers of theseven comment letters can’t be identifiedunder the rules of the Justice Department,which oversees the working group’s activity,Gadlin says that he wrote a comment letterabout the issues. He submitted commentsto the full working group about agency no-tice procedures that included suggestedchanges to statements about ombuds’ inde-pendence, and officials’ obligations to re-port fraud allegations.

His comments, along with those fromfour other commenters, resulted in revi-sions—some extensive—for the finalombuds guide.

* * *

While the ombuds guide had significantchanges, there is little new language in theother two documents. There were only twocommenters on the confidentiality efforts’centerpiece document, “Protecting theConfidentiality of Dispute Resolution Pro-ceedings: A Guide for Federal WorkplaceADR Program Administrators.” Theguide—which complements an AmericanBar Association ad hoc committee’s “Guideto Confidentiality Under the Federal Ad-ministrative Dispute Resolution Act,” re-leased early last year—provides a question-and-answer format for hypothetical scenar-ios which administrators can apply to

real-life mediation confidentiality issues.The working group declined a request

to name specific program administrationprocedures, noting the omission is inten-tional. “The challenge posed to the drafterswas to describe the various aspects of con-fidentiality requiring explanation while stilloffering flexibility for agencies to deter-mine how to most appropriately completethis task,” the comments state.

The administrators’ guide commentsalso note that duties vary widely through-out the government, depending on theprogram, agency, and current needs. Theresponse again eschewed specificity, de-clining to spell out program administra-tors’ roles: “Because of the variation insuch roles, from case to case and agency toagency” the subcommittee notes, “theConfidentiality Guide cannot indicate de-finitively to what extent any program ad-ministrator serves in the role of a neutral.”

* * *

The changes to the second document, “AGuide for Federal Employee Mediators,”were even slighter, emphasizing that theguide stands side by side with the 2005Model Standards of Conduct for Media-tors. The guide contains the model stan-dards in their entirety. The subcommitteeexplains that it would not revise the mod-el standards language to adapt to federalADR practices, but instead supplementedand annotated the standards to highlightunique federal mediator practice issues.The model standards were laboriously de-bated and drafted over several years bythe American Arbitration Association,the American Bar Association and the As-sociation for Conflict Resolution, alongwith individuals and other ADR profes-sional groups.

“I think we significantly improved theproduct,” says Richard C. Walters, an ad-ministrative judge at the U.S. Departmentof Veterans Affairs Board of Contract Ap-peals in Washington, who oversaw the sub-committees’ collection of comments and re-vision of the first two guides. “Somechanges were made . . . to make sure that itwas guidance, and not mandatory such thatthe agencies were on the hook for expend-

VOL. 24 NO. 8 SEPTEMBER 2006 ALTERNATIVES 141

Published online in Wiley InterScience (www.interscience.wiley.com).Alternatives DOI: 10.1002/alt

ADR BRIEF • ADR BRIEF • ADR BRIEFing funds,” he says, explaining, “There hadbeen prior instances where similar guidancehad created questions about whether agen-cies were bound to expend funds.”

* * *

The effects of the comments are most ap-parent in the final version of the third doc-ument, “A Guide for Federal EmployeeOmbuds.” NIH’s Gadlin says, “It bettertakes into account ombudsman practicethan do the [Standards for the Establish-ment and Operation of Ombuds Offices, aFebruary 2004, ABA document] on whichthey are a commentary and expansion.”

Three key points in comments Gadlinsubmitted on behalf of his agency were ad-dressed by the working group subcommitteerevising the ombuds guide. Gadlin is amember of the subcommittee, as well as amember of the Federal Interagency ADRWorking Group’s steering committee,which guides the working group’s opera-tions under Justice Department supervision.

First, the final version of the guidancewas reworked to emphasize that ombuds’independence is a prerequisite to their func-tioning effectively. It calls for ombuds, “ifpossible, [to] report and have direct accessto the highest agency official.” Gadlin’scomment on the draft notes that reportingto a human resources head or an operationsdirector would be inappropriate, creatingconflicts within the agency. Invoking thoseexamples, the final guidance was rewrittento note that “it is critical that the reportingrelationship not present a conflict thatwould impact adversely the integrity, inde-pendence and impartiality of the Ombuds.”

The reporting relationship also was atissue with regard to reporting fraud andabuse. The draft guidance suggested, ac-cording to a comment, that ombuds couldchoose to disclose dispute resolution com-munications that were not prohibitedfrom disclosure by the Administrative Dis-pute Resolution Act.

The final draft spells out the obligationof federal employees to report fraud, wasteand abuse. But it also encourages programdesign that facilitates the reporting require-ment. At the same time, it also expressly af-firms the necessity for ADR Act-style con-

fidentiality for ombuds’ operations. Ultimately, the final guidance con-

cludes that “where potential conflicts mayarise” between reporting and maintainingconfidentiality, “It is essential that federalOmbuds have access to independent orproperly insulated legal counsel, in orderto obtain competent advice.”

Gadlin also had problems with the om-buds guidance’s notice provision, which hebelieved was too soft. See Alternatives arti-cle, supra. While the final guidance leaveswiggle room for an ombuds to provide no-tice of a problem with his or her agencybased on a complaint under certain condi-tions, the guidance now states, “Federalemployee communications to a federalOmbuds should never be construed as pro-viding notice to the federal agency or oth-er federal entity, because Ombuds muststrictly maintain the confidentiality ofthose communications and their own inde-pendence from others within the entity.”

* * *

The four working group steering committeemembers who discussed the changes for thisarticle were pleased with the results, and hadhopes that the practices the guides advocatewould become widespread. In particular,

members cite the confidentiality guide’ssample scenarios as potentially most useful.They are “just the kind of things people willrun across from time to time,” says revisionorganizer Richard Walters, who also is onthe working group’s steering committee.

Howard Gadlin, who also is director ofNIH’s Center for Cooperative Resolution,says that the more-focused final ombudsstandards will be useful when he speaks togovernment agencies about setting up theirown programs. The guide “will help somedecide that they can’t meet the ombuds’standards, and will call it something else,”he says. “That is important to me, too.Sometimes the best effect those of us in thefield can have with agencies considering in-stituting programs . . . is to say that theydon’t gain anything by setting up a pro-gram that doesn’t meet the criteria for om-budsman, but then calling it that anyway.”

The working group will continue, be-yond its Web site publication, to seek waysto have the material institutionalized intogovernment practice. It may publish thematerial in hard copy form, along with theABA standards the guides invoke. Earlierthis year, it held a luncheon seminar on

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VOL. 24 NO. 8 SEPTEMBER 2006142 ALTERNATIVES

Published online in Wiley InterScience (www.interscience.wiley.com).Alternatives DOI: 10.1002/alt

Task Force on the Quality of Mediation.Bryan succeeds Thomas J. Sti-

panowich, who departed earlier this year tobecome academic director of the StrausInstitute for Dispute Resolution at the Pep-perdine University School of Law in Mal-ibu, Calif. Stipanowich, who remains onCPR’s board, in 2000 had succeeded CPR’sfounder, longtime president and CEOJames F. Henry, who had retired. Henryalso founded Alternatives in January 1983,which CPR publishes with Jossey-Bass, aSan Francisco-based unit of John Wiley &Sons Inc. Q

REGISTRATION, SPONSORSHIPSAVAILABLE FOR CORPORATE LEADERSHIP AWARD DINNER

CPR’s Corporate Leadership Award Din-ner will be held Tuesday, Nov. 7, in NewYork. This year, CPR will honor RussellC. Deyo, vice president and general coun-

sel of Johnson & Johnson.The black tie event will begin at 6:30

p.m.. It will be held at Cipriani 42nd St.,in New York.

Deyo has been a J&J officer for morethan two decades. He became a memberof the New Brunswick, N.J.-based phar-maceutical company’s executive commit-tee in 1996, and was elevated to Vice Pres-ident, General Counsel and Chief Com-pliance Officer in April 2004.

Earlier this year, J&J’s law departmentreceived the ABA’s 2005 Pro Bono Awardfor its sustained dedication to pro bonopractice and work with charitable organi-zations, efforts that Deyo oversees.

Sponsorship opportunities, and infor-mation on making reservations, are avail-able at www.cpradr.org. For more infor-mation, contact CPR Senior Vice Presi-dent Beth Corman at (212) 949-6490, orbcorman@cpradr.org. And for informa-tion about ad specifications in the AwardsProgram Book, contact Sharon Henry &Co. Event Consultants, shenry@toad.net,

or (703)723-1781 or (866)723-1781. Q

ROUNDUP: TRAINING EVENTS, PAST AND FUTURE

The CPR Institute held several trainingsessions over the summer involvingadvanced alternative dispute resolutiontechniques and issues.

Most of the sessions were open to thepublic for a fee. All provided New Yorkstate continuing legal education credits.

For the first time, in June CPR helda special dual-track training session, justbefore CPR’s 2006 Spring Meeting atthe Four Seasons Hotel in Atlanta. Thedual-track advanced mediator trainingintermingled two separate courses forexperienced practitioners. One of thetracks was for experienced or trainedmediators who wanted to advance theirfacilitator skills. The other track wasdesigned for attorneys or business execu-tives who represent clients in mediation,

CPR NEWS • CPR NEWS • CPR NEWS • CPR NEWS

ethics issues that aired some of the guid-ance’s confidentiality scenarios.

* * *While the guides’ revisions were inprocess, the working group also was up-dating its own mission. In July, it posted atits Web site a new governance document,describing its authority, structure, and de-cision-making process. It lists the workinggroup’s initial members, as well as “grand-fathered” members.

The document contemplates a moreactive working group than originally con-ceived, taking the decision-making processas a given, rather than as a potential activ-ity. The small orientation change reflectsthe initiatives the group has taken on overthe years to promote ADR in the govern-ment, rather than merely acting on orders.

The biggest change is the elimination

of a reference to a reporting relationship.The working group’s original governancedocument described how it was supposedto run its initiatives past the Federal ADRCouncil, a senior advisory body of 17 sen-ior government officials, many of whomwere federal agencies’ top lawyers. But thecouncil, which was created by AttorneyGeneral Janet Reno to implement Presi-dent Bill Clinton’s 1998 order under theAdministrative Dispute Resolution Act,dissolved as its members left their posts.

The Justice Department has overseenthe working group since President GeorgeW. Bush took office, via its Office of Dis-pute Resolution. Director Linda Cinciotta,who cleared the three guidance documentsafter the subcommittee recommendations,says the new governance reflects the waythe working group is operating now.

“That was a very different setting, in2000, when many of the different agen-

cies were just getting started with theirprograms,” she explains. Now, Cinciottasays, the emphasis generally is not ADRprogram construction, but “expanding,innovating and measuring success, [and]trying to provide guidance and best prac-tices, for mutual support and education.It’s a different environment now—muchmore operational and proactive in ap-proach. In the early years it was more pol-icy-oriented.”

Cinciotta says her office is working withgovernment dispute resolution specialists inand out of the working group on a reporton current federal government agencies’ADR activities. One report has been issuedunder the ADR Act and the Clinton order,in May 2000. The latest report, she says, isexpected around year-end. Q

DOI 10.1002/alt.20143

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