Federal agencies now decide hundreds of thousands of cases annually—far more than do federal courts. The formality, costs and delays incurred in administrative proceedings have steadily increased, and in some cases now approach those of courts. Many agencies act pursuant to procedures that waste litigants’ time and society’s resources and whose formality can reduce the chances for consensual resolution. The recent trend toward elaborate procedures has in many cases imposed safeguards whose transaction costs, to agencies and the public in general, can substantially outweigh their benefits.
A comprehensive solution to reducing these burdens is to identify instances where simplification is appropriate. This will require a careful review of individual agency programs and the disputes they involve. A more immediate step is for agencies to adopt alternative means of dispute resolution, typically referred to as “ADR,” or to encourage regulated parties to develop their own mechanisms to resolve disputes that would otherwise be handled by agencies themselves. ADR methods have been employed with success in the private sector for many years, and when used in appropriate circumstances, have yielded decisions that are faster, cheaper, more accurate or otherwise more acceptable, and less contentious. These processes include voluntary arbitration, mandatory arbitration, factfinding, minitrials, mediation, facilitating, convening and negotiation. (A brief lexicon defining these terms is included in the Appendix to this recommendation.) The same forces that make ADR methods attractive to private disputants can render them useful in cases which a federal agency decides, or to which the government is a party. For these methods to be effective, however, some aspects of current administrative procedure may require modification.
It is premature to prescribe detailed procedures for a myriad of government activities since the best procedure for a program, or even an individual dispute, must grow out of its own needs. These recommendations therefore seek to promote increased, and thoughtful, use of ADR methods. They are but a first step, and ideally should be supplemented with further empirical research, consultation with experts and interested parties, and more specific Conference proposals.
1. Administrative agencies, where not inconsistent with statutory authority, should adopt the alternative methods discussed in this recommendation for resolving a broad range of issues. These include many matters that arise as a part of formal or informal adjudication, in rulemaking1, in issuing or revoking permits, and in settling disputes, including litigation brought by or against the government. Until more experience has been developed with respect to their use in the administrative process, the procedures should generally be offered as a voluntary, alternative means to resolve the controversy.
2. Congress and the courts should not inhibit agency uses of the ADR techniques mentioned herein by requiring formality where it is inappropriate.
B. Voluntary Arbitration
3. Congress should act to permit executive branch officials to agree to binding arbitration to resolve controversies. This legislation should authorize any executive official who has authority to settle controversies on behalf of the government to agree to arbitration, either prior to the time a dispute may arise or after a controversy has matured, subject to whatever may be the statutory authority of the Comptroller General to determine whether payment of public funds is warranted by applicable law and available appropriations.
4. Congress should authorize agencies to adopt arbitration procedures to resolve matters that would otherwise be decided by the agency pursuant to the Administrative Procedure Act (“APA”) or other formal procedures. These procedures should provide that—
(a) All parties to the dispute must knowingly consent to use the arbitration procedures, either before or after a dispute has arisen.
(b) The parties have some role in the selection of arbitrators, whether by actual selection, by ranking those on a list of qualified arbitrators, or by striking individuals from such a list.
(c) Arbitrators need not be permanent government employees, but may be individuals retained by the parties or the government for the purpose of arbitrating the matter.
(d) Agency review of the arbitral award be pursuant to the standards for vacating awards under the U.S. Arbitration Act, 9 U.S.C. 10, unless the award does not become an agency order or the agency does not have any right of review.
(e) The award include a brief, informal discussion of its factual and legal basis, but neither formal findings of fact nor conclusions of law.
(f) Any judicial review be pursuant to the limited scope-of-review provisions of the U.S. Arbitration Act, rather than the broader standards of the APA.
(g) The arbitral award be enforced pursuant to the U.S. Arbitration Act, but is without precedential effect for any purpose.
5. Factors bearing on agency use of arbitration are:
(a) Arbitration is likely to be appropriate where—
(1) The benefits that are likely to be gained from such a proceeding outweigh the probable delay or costs required by a full trial-type hearing.
(2) The norms which will be used to resolve the issues raised have already been established by statute, precedent or rule, or the parties explicitly desire the arbitrator to make a decision based on some general standard, such as “justice under the circumstances,” without regard to a prevailing norm.
(3) Having a decisionmaker with technical expertise would facilitate the resolution of the matter.
(4) The parties desire privacy, and agency records subject to disclosure under the Freedom of Information Act are not involved.
(b) Arbitration is likely to be inappropriate where—
(1) A definitive or authoritative resolution of the matter is required or desired for its precedential value.
(2) Maintaining established norms or policies is of special importance.
(3) The case significantly affects persons who are not parties to the proceeding.
(4) A full public record of the proceeding is important.
(5) The case involves significant decisions as to government policy.
6. Agency officials, and particularly regional or other officials directly responsible for implementing an arbitration or other ADR procedure, should make persistent efforts to increase potential parties’ awareness and understanding of these procedures.
C. Mandatory Arbitration
7. Arbitration is not in all instances an adequate substitute for a trial-type hearing pursuant to the APA or for civil litigation. Hence, Congress should consider mandatory arbitration only where the advantages of such a proceeding are clearly outweighed by the need to (a) save the time or transaction costs involved or (b) have a technical expert resolve the issues.
8. Mandatory arbitration is likely to be appropriate only where the matters to be resolved—
(a) Are not intended to have precedential effect other than the resolution of the specific dispute, except that the awards may be published or indexed as informal guidance;
(b) May be resolved through reference to an ascertainable norm such as statute, rule or custom;2
(c) Involve disputes between private parties; and
(d) Do not involve the establishment or implementation of major new policies or precedents.
9. Where Congress mandates arbitration as the exclusive means to resolve a dispute, it should provide the same procedures as in Paragraph 4, above.
D. Settlement Techniques
10. In many situations, agencies already have the authority to use techniques to achieve dispute settlements. Agencies should use this authority by routinely taking advantage of opportunities to:
(a) Explicitly provide for the use of mediation.
(b) Provide for the use of a settlement judge or other neutral agency official to aid the parties in reaching agreement.3 These persons might, for instance, advise the parties as to the likely outcome should they fail to reach settlement.
(c) Implement agreements among the parties in interest, provided that some means have been employed to identify other interested persons and afford them an opportunity to participate.
(d) Provide for the use of minitrials.
(e) Develop criteria that will help guide the negotiation of settlements.4
11. Agencies should apply the criteria developed in ACUS Recommendations 82-4 and 85-5, pertaining to negotiated rulemaking,5 in deciding when it may be appropriate to negotiate, mediate or use similar ADR techniques to resolve any contested issue involving an agency. Settlement procedures may not be appropriate for decisions on some matters involving major public policy issues or having an impact on persons who are not parties, unless notice and comment procedures are used.
12. Factors bearing on agency use of minitrials as a settlement technique are:
(a) Minitrials are likely to be appropriate where—
(1) The dispute is at a stage where substantial additional litigation costs, such as for discovery, are anticipated.
(2) The matter is worth an amount sufficient to justify the senior executive time required to complete the process.
(3) The issues involved include highly technical mixed questions of law and fact.
(4) The matter involves materials that the government or other parties believe should not be revealed.
(b) Minitrials are likely to be inappropriate where—
(1) Witness credibility is of critical importance.
(2) The issues may be resolved largely through reference to an ascertainable norm.
(3) Major questions of public policy are involved.
13. Proposed agency settlements are frequently subjected to multiple layers of intra-agency or other review and therefore may subsequently be revised. This uncertainty may discourage other parties from negotiating with federal officials. To encourage settlement negotiations, agencies should provide means by which all appropriate agency decisionmakers are involved in, or regularly apprised of, the course of major negotiations; agencies should also endeavor to streamline intra-agency review of settlements. These efforts should serve to ensure that the concerns of interested segments of the agency are reflected as early as possible in settlement negotiations, and to reduce the likelihood that tentative settlements will be upset.
14. In cases where agencies must balance competing public policy interests, they should adopt techniques to enable officials to assess, in as objective a fashion as possible, the merits of a proposed settlement. These efforts might include establishing a small review panel of senior officials or neutral advisors, using a minitrial, publishing the proposed settlement in the Federal Register for comment, securing tentative approval of the settlement by the agency head or other senior official, or employing other means to ensure the integrity of the decision.
15. Some agency lawyers, administrative law judges, and other agency decisionmakers should be trained in arbitration, negotiation, mediation, and similar ADR skills, so they can (a) be alert to take advantage of alternatives or (b) hear and resolve other disputes involving their own or another agency.
E. Private Sector Dispute Mechanisms
16. Agencies should review the areas that they regulate to determine the potential for the establishment and use of dispute resolution mechanisms by private organizations as an alternative to direct agency action. Where such use is appropriate, the agency should—
(a) Specify minimal procedures that will be acceptable to qualify as an approved dispute resolution mechanism.
(b) Oversee the general operation of the process; ordinarily, it should not review individual decisions.
(c) Tailor its requirements to provide an organization with incentives to establish such a program, such as forestalling other regulatory action, while ensuring that other interested parties view the forum as fair and effective.
Appendix—Lexicon of Alternative Means of Dispute Resolution
Arbitration. Arbitration is closely akin to adjudication in that a neutral third party decides the submitted issue after reviewing evidence and hearing argument from the parties. It may be binding on the parties, either through agreement or operation of law, or it may be non-binding in that the decision is only advisory. Arbitration may be voluntary, where the parties agree to resolve the issues by means of arbitration, or it may be mandatory, where the process is the exclusive means provided.
Factfinding. A “factfinding” proceeding entails the appointment of a person or group with technical expertise in the subject matter to evaluate the matter presented and file a report establishing the “facts.” The factfinder is not authorized to resolve policy issues. Following the findings, the parties may then negotiate a settlement, hold further proceedings, or conduct more research.
Minitrial. A minitrial is a structured settlement process in which each side presents a highly abbreviated summary of its case before senior officials of each party authorized to settle the case. A neutral adviser sometimes presides over the proceeding and will render an advisory opinion if asked to do so. Following the presentations, the officials seek to negotiate a settlement.
Mediation. Mediation involves a neutral third party to assist the parties in negotiating an agreement. The mediator has no independent authority and does not render a decision; any decision must be reached by the parties themselves.
Facilitating. Facilitating helps parties reach a decision or a satisfactory resolution of the matter to be addressed. While often used interchangeably with “mediator,” a facilitator generally conducts meetings and coordinates discussions, but does not become as involved in the substantive issues as does a mediator.
Convening. Convening is a technique that helps identify issues in controversy and affected interests. The convenor is generally called upon to determine whether direct negotiations among the parties would be a suitable means of resolving the issues, and if so, to bring the parties together for that purpose. Convening has proved valuable in negotiated rulemaking.
Negotiation. Negotiation is simply communication among people or parties in an effort to reach an agreement. It is used so routinely that it is frequently overlooked as a specific means of resolving disputes. In the administrative context, it means procedures and processes for settling matters that would otherwise be resolved by more formal means.
51 FR 25643 (July 16, 1986)
__ FR _____ (2012)
1986 ACUS 9
1 See ACUS Recommendations 82-4 and 85-5, “Procedures for Negotiating Proposed Regulations,” 1 CFR 305.82-4 and 305.85-5.
2 For example, the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 et seq., provides for mandatory arbitration with respect to the amount of compensation one company must pay another and yet provides no guidance with respect to the criteria to be used to make these decisions. The program has engendered considerable controversy and litigation.
3See, e.g., the procedure used by the Federal Energy Regulatory Commission.
4See ACUS Recommendation 79-3, “Agency Assessment and Mitigation of Civil Money Penalties,” 1 CFR 305.79-3.
5See also, ACUS Recommendation 84-4, “Negotiated Cleanup of Hazardous Waste Sites Under CERCLA,” 1 CFR 305.84-4.