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Federal Dispute Resolution: Using ADR with the United States Government / Edition 1

Federal Dispute Resolution: Using ADR with the United States Government / Edition 1

by Jeffrey M. Senger, Frank E. A. Sander


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Product Details

ISBN-13: 9780787968588
Publisher: Wiley
Publication date: 10/03/2003
Edition description: First Edition
Pages: 416
Product dimensions: 6.14(w) x 9.52(h) x 1.25(d)

About the Author

Jeffrey M. Senger is senior counsel in the Office of Dispute Resolution at the United States Department of Justice. He advises and trains federal lawyers around the country in negotiation and alternative dispute resolution. He is a faculty member at Harvard Law School’s Program on Negotiation, the National Institute of Trial Advocacy, and Harvard’s trial advocacy program. He has published numerous articles in the field and has testified before the United States Congress.

Read an Excerpt

Federal Dispute Resolution

Using ADR with the United States Government

By Jeffrey M. Senger

John Wiley & Sons

Copyright © 2003

Jeffrey M. Senger
All right reserved.

ISBN: 0-7879-6858-7

Chapter One


Disputes with the federal government may be inevitable, but litigation
is not. Traditional government methods of dispute resolution,
including adversarial processes such as trials, have inherent limitations.
They are expensive, sapping resources from both citizens and
their government. These methods are time-consuming, demanding
participants' attention and energy for months and even years.
They often force people who need to work together to engage in
combat instead, driving them further apart rather than bringing
them together. Even when parties prevail in these processes, they
can find the victory has come too late or at too high a price. Moreover,
controversy may not end just because one side has won and
the other has lost. Court rulings often fail to resolve the underlying
problems that caused the complaints to be filed in the first place.
It is no wonder that citizens and government officials alike are increasingly
searching for other ways to resolve conflict.

Alternative dispute resolution (ADR) often is a better way to
solve problems in a wide variety ofgovernment matters. In ADR,
the parties meet with a neutral professional who is trained and experienced
in handling disputes. With the guidance of the neutral
party, they talk directly with each other about the problems that
caused the dispute and ideas for resolving their differences. The
neutral party assists them in identifying their underlying interests,
developing creative options for meeting their needs, and crafting
a resolution that will work for the future. Experience has shown
that this approach is frequently quicker, cheaper, and more satisfying
for everyone involved than adjudication.

These ideas have gained bipartisan support in all branches of the
federal government. The U.S. Congress has noted, "Administrative
proceedings have become increasingly formal, costly, and lengthy resulting
in unnecessary expenditures of time and in a decreased likelihood
of achieving consensual resolution of disputes; [ADR] can
lead to more creative, efficient, and sensible outcomes; ... the availability
of a wide range of dispute resolution procedures, and an increased
understanding of the most effective use of such procedures,
will enhance the operation of the Government and better serve the

Former Chief Justice Warren Burger commented, "The notion
that ordinary people want black-robed judges, well dressed lawyers
and fine courtrooms as settings to resolve their disputes is incorrect.
People with problems, like people with pains, want relief, and
they want it as quickly and inexpensively as possible."

Former attorney general Janet Reno has said of ADR, "We have
an extraordinary opportunity. The legal profession has an opportunity
to help bring this Nation together; to build understanding,
rather than to divide it; to build community, rather than to fragment
it; to be the peacemaker and the problem solver, as never before
in the history of the profession.... In this next millennium
of the practice of law, we may know a more peaceful Nation and a
more peaceful world."

Because of ADR's success, the government's use of it has grown
greatly. At the Justice Department, for example, parties used ADR
in five hundred cases in 1995. Seven years later, annual ADR use
had grown to close to three thousand cases. The Equal Employment
Opportunity Commission (EEOC) now uses mediation in
about five thousand workplace cases annually, and the U.S. Postal
Service mediates twice that many each year. The Environmental
Protection Agency has eight full-time ADR staff members and pays
private mediators millions of dollars in mediator fees each year. All
told, more than four hundred people now work on ADR full time
in the federal government, and agency ADR programs are funded
by more than $36 million in dedicated budgets. The government's
total commitment to ADR is even higher than these figures. Many
agencies operate programs that are funded from other budgetary
sources and staffed by employees who have part-time ADR responsibilities
in addition to other duties.

Benefits of ADR

The government and private parties have found many benefits
from the use of ADR. Among them are time savings, money savings,
greater predictability and self-determination, greater creativity,
improved relationships, and increased satisfaction.

Time Savings

One of the greatest problems with traditional federal government
dispute resolution is delay, much of it caused by an explosion of complaint
filings. In U.S. district courts nationwide, annual filings of new
cases have increased from about 35,000 to more than 250,000 over
the past sixty years-that is, by a factor of seven times-while U.S.
population during this period only doubled. At the appellate level,
annual case filings grew from 2,800 to more than 57,000 over the
past fifty years, a twenty-fold increase.

This huge growth in litigation has had a major impact on the
way the government operates, because the United States and its
agencies are parties in nearly one-third of all federal district court
civil cases. The government simply does not have the resources to
take all of these cases to trial. Indeed, less than 2 percent of federal
lawsuits where the government is a party go to trial. Given this
reality, "alternative" dispute resolution in the government is actually
trial adjudication, because trials are so rare.

The situation is similar in the administrative arena. Federal administrative
equal employment opportunity (EEO) complaints rose
by more than 50 percent over a recent eight-year period. Over
about the past ten years, agency EEO case backlogs have doubled,
hearing backlogs at the EEOC have tripled, and appellate backlogs
have increased sevenfold.

ADR reduces these delays by sidestepping the adjudicative process
and its backlogs. For example, in workplace cases involving the
Office of Special Counsel, ADR resolved complaints in an average
of 115 days, while the traditional adjudicatory process required an
average of 465 days. In disputes with the Federal Aviation Administration,
parties using ADR resolved bid protests in an average of
25 days, while those seeking a final agency decision typically waited
61 days. In federal court civil cases (mostly torts and employment
discrimination actions), Justice Department attorneys estimated
time savings averaging six months per case where ADR was used.
At the Department of the Air Force, the amount of time required
to process an Armed Services Board of Contract Appeals contract
case dropped by 50 percent after the agency began using an ADR

ADR processes require less time from participants than litigation,
which demands many hours for preparation and adversarial
proceedings. For example, Justice Department lawyers estimated
that using ADR saved 89 hours of staff and attorney time on average
in each case. Similarly, at the administrative level, the Office
of Special Counsel found that the average workplace case using
ADR required 24 hours of agency staff time; in contrast, the average
case that did not use ADR required 260 hours.

Money Savings

ADR also saves money for parties involved in federal government disputes.
First, the time savings already described directly correlate with
money savings. When private parties and government officials resolve
disputes more quickly, they can spend the time they save on other
important matters. Quicker settlements can result in lower attorney
fees for private parties. When more cases settle, the government saves
money as well because fewer courtrooms, judges, administrative hearing
officers, docket clerks, and the like are required.

Adjudication is expensive. Estimates of the administrative costs
for processing an EEO case range from $5,000 for an informal dispute
to up to $77,000 for a formal dispute that goes all the way
through to an appeal. Federal employees contact an EEO counselor
about fifty thousand times a year, so these expenses are substantial.
In many types of litigation, both the government and
private parties must pay for deposition transcripts, expert witness
consultations, expert testimony, travel costs, and other expenses.

Use of ADR can reduce these costs by resolving matters without
the need for adjudication. Justice Department attorneys estimated
that ADR saved an average of $10,700 in litigation expenses in each
case. The Office of Special Counsel estimated an average cost of
$1,000 to process a case where ADR is used, compared with an average
cost of $10,500 for a case that does not go to ADR. The U.S. Air
Force examined travel and staff costs for base engineers, inspectors,
contracting officers, pricers, auditors, and experts, and determined
that ADR saved $40,000 per case for contract cases involving less than
$1 million and $250,000 for cases over $1 million.

Greater Predictability and Self-Determination

ADR benefits parties because it allows them to decide how to resolve
their dispute. The only way a case will settle in a voluntary
ADR process is if both parties agree to an outcome they created
themselves. In contrast, parties relinquish this control whenever
they turn their case over to a judge or jury. Once a court process
begins, the results are unpredictable.

Adjudication can be surprisingly uncertain. In one study of civil
cases, judges who had presided over jury trials were asked whether
they would have ruled the same way the jury did. These judges had
heard the same witnesses the jury had, seen the same evidence,
and listened to the same arguments from counsel. Nonetheless,
the judges disagreed with the jury verdicts in half of the cases.
One possible reason for this unpredictability, revealed in the study,
is that jurors appear not always to understand the law. For example,
they were asked at the end of trial what the burden of proof
was for the civil plaintiff. These jurors had listened to lawyers for
both sides discuss the burden of proof, and they had listened to
the judge's instructions that the burden in civil cases requires the
plaintiffs to tip the scales of evidence only slightly in their favor.
Nonetheless, 38 percent of these jurors stated that the plaintiffs'
burden was to prove their case beyond a reasonable doubt.

Many individuals who have important government cases do not
want to hand over control of their dispute to such unpredictable
outside parties. ADR gives them the opportunity to resolve their
conflict on terms they choose for themselves.

Greater Creativity

Courts are limited in the relief they can award. In many disputes,
a court can offer a party only money. When plaintiffs can get only
money from a case, they simply ask for as much as possible, and
more creative options are not explored. In contrast, the parties in
ADR are not constrained by the need to put a monetary value on
every situation, so they have the freedom to fashion their own solutions.
Furthermore, they understand their needs better than anyone
else, and they know what would satisfy them best. They are free
to develop options that may be worth much more to one party
than they cost the other to provide. Sometimes they even create
solutions that make both parties better off.

Improved Relationships

Litigation destroys relationships. The litigation process forces people
to attack each other's positions and prove that they are right
and the other side is wrong. It is no wonder that almost all parties
leave trials with negative feelings toward each other.

In many government cases, this result is particularly harmful.
For example, because more people work for the government by far
than any other employer in the country, there are a large number
of government workplace disputes. Parties to these disputes often
must continue to work together while their complaints are processed,
a situation that creates awkwardness and tension that can
make the workplace very uncomfortable. Many times, others in the
office are affected as well. People often choose up sides in a dispute,
and entire workplaces can be infected by a single conflict.

ADR allows parties to preserve their relationships by working
together to resolve their disputes. The process fosters a collaborative
atmosphere because the goal is agreement, not victory or defeat.
Many times, parties find that participation in ADR is the start
of a significant improvement in their relationship.

Research has shown long-lasting relationship improvements as
a result of ADR. At the U.S. Postal Service, for example, ADR appears
to have helped employees and managers understand each
other better. In the first full year after ADR was introduced at the
agency, the number of new formal workplace complaints dropped
by 24 percent from the previous year. Complaints continued to
drop during the following year by an additional 20 percent. The
agency believes this decline is due to increased communication between
employees and supervisors as a result of ADR. Similarly, during
a three-year period at the U.S. Air Force, the number of EEO
complaints that were mediated increased by 36 percent, and the
number of total complaints dropped by 39 percent.

Increased Satisfaction

Parties find ADR to be a more satisfying process than litigation,
which silences the parties with rigid processes that require their attorneys
to take the lead. ADR, in contrast, gives the parties a voice
in resolving their own disputes. Litigation forces parties into combat
with each other, while ADR allows them to work collaboratively.
Not surprisingly, it is the dispute resolution method parties prefer.

For example, the U.S. Postal Service has conducted satisfaction
studies of tens of thousands of ADR participants. Close to 90 percent
of these parties reported that they were highly satisfied or satisfied
with their experience in ADR. Both employees and managers were
equally satisfied. In contrast, parties who participated in adjudication
in comparable cases reported satisfaction levels of about 45 percent.
Similarly, the EEOC found that more than 90 percent of
parties who used ADR said they would do so again.

Examples of Successful ADR

Several examples will show the wide range of government cases where
ADR has been successful. One of the most important cases in which
ADR was used is the Microsoft litigation. The Justice Department and
a number of states sued the software maker in 1998 for alleged violations
of antitrust laws. This case demanded enormous resources
from all sides. A dozen Justice Department attorneys worked on the
case full time, joined by another dozen who worked on the matter
part time. Microsoft was represented by as many lawyers or more.
Many lawyers from state attorney generals' offices also participated.
All sides litigated the case through a trial, an unsuccessful attempt
by a judge to settle the matter, and an appeal to the appellate court.


Excerpted from Federal Dispute Resolution
by Jeffrey M. Senger
Copyright © 2003 by Jeffrey M. Senger.
Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Foreword, by Frank E. A. Sander.


1. Introduction.

2. Selecting Cases and Processes for Federal ADR.

3. Selecting and Hiring Neutrals for Federal ADR.

4. Preparing for Federal ADR.

5. Advocacy in Federal ADR.

6. ADR in Federal Workplace Cases.

7. ADR in Federal Contracting Cases.

8. Confidentiality in Federal ADR.

9. Federal ADR Program Design, Management, and Training.

10. Evaluation of Federal ADR Programs.

Appendix A: Administrative Dispute Resolution Act of 1996.

Appendix B: United States Department of Justice, Attorney General Order Promoting the Broader Appropriate Use of Alternative Dispute Resolution Techniques, April 6, 1995.

Appendix C: Alternative Dispute Resolution Act of 1998.

Appendix D: Presidential Memorandum on ADR, May 1, 1998.

Appendix E: Federal ADR Council, Confidentiality in Federal Alternative Dispute Resolution Programs, December 29, 2000.

Appendix F: Report to the President on the Interagency ADR Working Group, May 8, 2000.




About the Author.

What People are Saying About This

From the Publisher

"A splendid reference. Senger knows the subject, for he has been a leader in promoting the use of appropriate dispute resolution by federal agencies as an alternative to litigation."
— Janet Reno, former Attorney General

"An indispensable guide to effective use of ADR in cases with the U.S. government. This book will help you navigate the remaining rocks and shoals of this important area."
— William H. Webster, former United States Court of Appeals Judge, United States District Court Judge, Director of the CIA, and Director of the FBI

"Mr. Senger's wise and practical book makes the case for using the techniques of ADR to resolve federal disputes."
— James A. Baker III, former Secretary of State, Secretary of the Treasury, and White House Chief of Staff

"Must-reading for anyone purchasing from, litigating with, or dealing with the federal government."
— Carrie Menkel-Meadow, professor of law and director, Georgetown-Hewlett Program in Conflict Resolution and Legal Problem Solving

"This is the best book I know for everyone— lawyer or client— who has a dispute with the U.S. government. . . . A wise government lawyer will have a copy, and so should you."
— Roger Fisher, professor emeritus, Harvard Law School; director, Harvard Negotiation Project; and coauthor, Getting to Yes

"From the Microsoft case to the conflict in Northern Ireland, dispute resolution is a vital part of the work of our government. Jeff Senger's book is a valuable guide to the techniques used in this field."
— George Mitchell, former United States Senate Majority Leader

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