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The Administrative Dispute Resolution Act of 1996 (“ADR Act”), 5 U.S.C. §§571-584, requires each federal agency to promote the use of alternative dispute resolution (“ADR”) and calls for the establishment of an interagency committee to assist agencies in the use of ADR. Pursuant to the ADR Act, a Presidential Memorandum dated May 1, 1998, created the Interagency ADR Working Group, chaired by the Attorney General, to “facilitate, encourage, and provide coordination” for federal agencies. In the Memorandum, the President charged the Working Group with assisting agencies with training in “how to use alternative means of dispute resolution.”
The federal Interagency ADR Working Group Steering Committee (“the Steering Committee”) has developed three documents designed to serve the goal of assisting federal agencies with training in how to use ADR: a confidentiality guide; a guide for federal employee mediators; and a guide for federal employee ombuds. A brief description of each of the three guides is set forth below, and the complete text of each of the three documents can be found at the links at the bottom of this page.
Public comment on the three guides is solicited by a notice published in the Federal Register on November 9, 2005. The Steering Committee invites all interested individuals or organizations to submit comments on these documents for its consideration before they are posted in final form. All comments must be postmarked or emailed by 30 days from the date of the Federal Register notice. Please address
all comments to Hon. Richard C. Walters, Administrative Judge, U.S. Department of Veterans Affairs Board of Contract Appeals (09), 810 Vermont Avenue, N.W., Washington, D.C. 20420 and send by
e-mail to Rich.Walters@va.gov. Electronic transmission is preferred to ensure full distribution.
Please note that the three Guides apply to the internal management of the federal civilian executive branch. They are not intended to create any new right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any person.
- The first document is entitled “Protecting the Confidentiality
of Dispute Resolution Proceedings: A Guide for Federal Workplace
Alternative Dispute Resolution Program Administrators.” This Guide provides
practical guidance to federal administrators on the application of
the confidentiality provisions of the ADR Act to federal workplace
dispute resolution programs. (Confidentiality under the ADR Act may
apply also to other ADR processes used to address workplace disputes,
such as facilitation, conciliation and use of ombuds.) The Guide
extends the guidance issued by the Federal ADR Council, Report on
the Reasonable Expectations of Confidentiality Under the Administrative
Dispute Resolution Act of 1996, 5 Federal Register 83085, December
29, 2000, which may be found on this web site under “Guidance” (“Confidentiality
in Federal ADR Programs (December 29, 2000)), and is designed to
be used in concert with the confidentiality provisions of the ADR
Act as well as agency confidentiality policies and guidance.
The confidentiality Guide describes in practical, non-legal terms the nature
and limits of confidentiality in federal alternative dispute resolution
proceedings. Each chapter includes a description and discussion of
the issues, a legal analysis, and questions and answers related to
confidentiality as it pertains to an aspect of a federal workplace
ADR program. The first chapter discusses issues applicable throughout,
and the various stages of, a dispute resolution proceeding. The remaining
chapters discuss particular issues regarding confidentiality: confidentiality
agreements; recordkeeping; program evaluation; access requests; and
non-party participants.
- The second document is entitled “A Guide for Federal Employee Mediators.” This
Guide provides practical ethical guidance for federal employee mediators tailored
to mediation practice within the federal government. It builds upon the September
2005 Model Standards of Conduct for Mediators issued by a joint committee of
three major nationwide organizations (the American Arbitration Association, the
American Bar Association, and the Association for Conflict Resolution) and approved
by all three organizations. The Guide sets forth the Model Standards in their
entirety and provides further explication through Federal Guidance Notes for
federal employee mediators for mediations they undertake for the federal government.
The Federal Guidance Notes include discussion of: impartiality; conflicts of
interest; confidentiality; quality of the process; advertising and solicitation;
and fees and other charges.
- The third document is entitled “A Guide for Federal Employee
Ombuds” and was
developed by the Coalition of Federal Ombudsmen in conjunction with the Steering
Committee. The Guide builds upon the Standards for the Establishment and Operations
of Ombuds Offices issued on February 9, 2004, by the American Bar Association.
The Guide sets forth the Ombuds Standards in their entirety and provides supplementation
through Federal Guidance Notes for specific areas unique to federal Ombuds practice.
The Federal Guidance Notes include discussion of: establishment and operations;
independence, impartiality and confidentiality; limitations on ombuds’ authority;
notice; and Executive Ombuds.
Each of these documents may be accessed below.
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