The Administrative Conference and the Development of Federal ADR

The Administrative Conference of the United States (ACUS) was established by statute in 1964 as a means of bringing together the best thinking from the public and private sectors to find ways to improve the functioning of federal agency programs.  A full-time staff, currently only 15 people, works with a membership of approximately 100 senior government officials, academics, attorneys, and other experts, to research issues of administrative procedure and develop recommendations that will increase the efficiency, fairness, or effectiveness of those procedures.  Conference recommendations are most often addressed to agencies or Congress.  They result from an entirely open process, which encourages public input.  Information about the entire body of ACUS work, including more than 200 sets of recommendations, and access to current projects are available at www.acus.gov.

Early in the 1980s, the Conference started to research ways to incorporate into federal programs the growing body of private sector experience with consensual approaches to preventing or resolving disputes as alternatives to court litigation.  Our initial foray in this area looked at ways to incorporate experience with voluntary consensus standards development, resolution of environmental disputes, and other public policy negotiations, into the federal rulemaking process.  This led to recommendations in 1982, which described our concept of negotiated rulemaking, set forth a number of criteria for identifying when this process might be appropriate, and suggested some basic procedural steps.  The innovative application of this new technique for drafting consensus-based regulations by the Environmental Protection Agency and the Federal Aviation Administration led ACUS to refine its recommendations in 1985, and encouraged other agencies to adapt “reg neg” to their own programs.  Guidance and assistance from ACUS to agencies and congressional staff eventually led to enactment of the Negotiated Rulemaking Act in 1990.

Soon after adopting the first negotiated rulemaking recommendations, ACUS began a much broader program of seeking to apply “alternative means of dispute resolution,” and the term “ADR” quickly became part of the vocabulary of federal officials.  Over the next several years, the Conference adopted numerous recommendations that initially addressed ADR generally, but soon produced guidance on a variety of specific procedures such as mediation, arbitration, and use of settlement judges and ombudsmen, and specific contexts such as contract disputes, farmer-lender disputes, and the Americans with Disabilities Act.  Conference recommendations also addressed technical matters such as ADR confidentiality and how to acquire services of neutrals.

A key event in this history was a daylong gathering in 1987 of hundreds of federal officials with private sector ADR experts representing a variety of perspectives, including corporations, public interest groups, academics, and practicing attorneys.  The objective was to demonstrate to the government officials, based on private sector experience, the enormous potential value of appropriate use of ADR by agencies.  Among the speakers were Senator Orrin Hatch, American Bar Association President Eugene Thomas, EPA Administrator Lee Thomas, and D.C. Circuit Chief Judge Patricia Wald.  Within a few days, Senator Charles Grassley’s office contacted ACUS to discuss whether ADR legislation might be helpful.  In the next few weeks, a small team including ACUS attorneys Charles Pou and David Pritzker and Conference consultant Philip Harter produced the first draft of what became the Administrative Dispute Resolution Act, enacted in 1990, contemporaneously with the Negotiated Rulemaking Act. 

Each of these statutes specified a role for ACUS to lead a government-wide effort to find the most appropriate ways to apply the full range of ADR techniques to federal programs, to achieve greater efficiency, cost savings, and overall increased satisfaction with the outcomes.  ACUS carried out this responsibility through a combination of symposia, written guidance, training sessions, and individualized advice to agencies.  A key component of this program was the creation of voluntary interagency working groups that enabled the most experienced and enthusiastic supporters of ADR to share their expertise with one another and with newcomers to ADR.  In general, a working group was formed wherever or whenever a specific need arose, addressing, for example, ADR systems design, ADR in EEO and other workplace disputes, training and education, qualifications for neutrals, and creation of an information clearinghouse.  ACUS published a newsletter twice each year to inform agencies about new developments and training opportunities.  The Conference also created a nationwide database of dispute resolution neutrals. 

Another important aspect of these efforts was the widespread support of numerous agencies and their willingness to share their expertise.  A few of the many examples:  the Federal Mediation and Conciliation Service was a leading source of training; the Department of Health and Human Services took the lead in operating a shared neutrals program; the Army Corps of Engineers shared its extensive experience with ADR in contracting; EPA shared its expertise in resolving environmental disputes and collaborated with ACUS in producing two editions of the “Negotiated Rulemaking Sourcebook,” a compendium designed to guide agencies through the reg-neg process.

The two 1990 statutes contained sunset clauses, which reflected an expectation that Congress would evaluate the success of these measures before making them permanent, based in part on required reports to Congress from ACUS.  The Administrative Dispute Resolution Act of 1996 renewed this legislation permanently.  However, in 1995, Congress eliminated all funding for ACUS, so an alternative was needed for the supporting activities described above.  A directive from President Clinton in 1998 formalized the coordination process by creating an “Interagency ADR Working Group,” to be convened by the Attorney General. 

ACUS returned to the scene in 2010, and since then has been an active participant in the IADRWG.   At a 2012 ADR Symposium co-sponsored by the Department of Justice and ACUS, Attorney General Eric Holder recognized our partnership and emphasized the importance of the ongoing interagency collaboration in improving the Government’s “collective ability to resolve disputes effectively, equitably, and efficiently.” 

This article originally appeared in the inaugural issue of "Resolving Conflict," the newsletter of the Interagency Alternative Dispute Resolution Working Group of the U.S. Government.

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