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Barry McVay's FEDERAL CONTRACTS DISPATCH

DATE: October 4, 2000

FROM: Barry McVay, CPCM

SUBJECT: Department of Justice; Federal Alternative Dispute Resolution Programs

SOURCE: Federal Register, October 4, 2000, Vol. 65, No. 193, page 59200

AGENCIES: Department of Justice (DOJ), Federal Alternative Dispute Resolution Council

ACTION: Notice of Availability

SYNOPSIS: DOJ is soliciting comments on two documents designed to help federal agencies develop alternative dispute resolution (ADR) programs: "Confidentiality in Federal Alternative Dispute Resolution Programs," and "Evaluation of Federal Alternative Dispute Resolution Programs." It is expected that final versions of these two documents will be published by the end of the year.

DATES: Comments must be submitted by November 1, 2000.

ADDRESSES: Send comments to Jeffrey M. Senger, Deputy Senior Counsel for Dispute Resolution, United States Department of Justice, 950 Pennsylvania Ave. NW, Room 4328, Washington, DC 20530.

SUPPLEMENTAL INFORMATION: The government and the private sector have been using alternative dispute resolution (ADR) techniques with increasing frequency in recent years because it is usually quicker, cheaper, and less adversarial than litigation. In ADR, parties meet with each other under the guidance of a neutral professional, and together they talk about the problems that led to the complaint and often find creative, effective solutions that are agreeable to all sides.

One of the provisions of the Administrative Dispute Resolution Act of 1996 (ADRA) (Public Law 104-320) called for the establishment of an interagency committee to assist agencies in the use of ADR. The Federal ADR Steering Committee, a group of subject matter experts from federal agencies with active ADR programs, has prepared two draft documents intended to help agencies use ADR and to evaluate the effectiveness of agencies' ADR programs.

• The first document, "Confidentiality in Federal Alternative Dispute Resolution Programs," describes the nature and limits of confidentiality in federal ADR proceedings. Guarantees of confidentiality permit parties to speak openly, without fear their statements will be used against them later. Confidentiality also facilitates ADR by encouraging parties to avoid the posturing that often occurs when proceedings are on the record. Further, confidentiality gives parties the ability to trust the mediator because they are assured he or she will not later take sides and talk publicly in favor of one party or the other. At the same time, the public have a general right to know what happens in government proceedings and do not want ADR to be used to shield improper activity that involves public business.
  
  This document is designed to give a detailed explanation of the reasonable expectations of confidentiality for parties who participate in ADR involving the government. The first section of the report reprints the confidentiality provisions of the ADRA. Next, the report contains a section-by-section analysis of these confidentiality provisions. The next section provides, in question-and-answer format, an expanded analysis of the issues likely to arise in practice. Finally, the report presents a model confidentiality statement suitable for use by neutrals in federal ADR proceedings.
  
  
• The second document, "Evaluation of Federal Alternative Dispute Resolution Programs," contains detailed guidance for agencies to use when conducting evaluations of their ADR programs. The first part of the document is a two-page description of general evaluation recommendations for federal ADR programs. It provides specific data that agencies should capture and gives a brief introduction to other important concepts, such as validity, reliability, and presentation of data. The remainder of the report is a twenty-page detailed description of evaluation, including planning and design, methodology, and communicating results. The report concludes with a bibliography of additional resources in this area.

FOR FURTHER INFORMATION CONTACT: Barry McVay at 703-451-5953 or by e-mail to BarryMcVay@FedGovContracts.com.

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