STATEMENT OF JEFFREY M. SENGER
DEPUTY SENIOR COUNSEL FOR ALTERNATIVE DISPUTE RESOLUTION
UNITED STATES DEPARTMENT OF JUSTICE
THE SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES
FEBRUARY 29, 2000
Mr. Chairman and Members of the Committee, it is a pleasure to be with you this afternoon to discuss H.R. 3312, the "Merit Systems Protection Board Administrative Dispute Resolution Act of 1999." As the Deputy Senior Counsel for Alternative Dispute Resolution (ADR) at the Department of Justice, I advise and train Assistant United States Attorneys and Department of Justice litigators in negotiation and ADR. I also work with the Attorney General in her capacity as chair of the Interagency ADR Working Group, an organization created to promote the use of ADR throughout the executive branch, pursuant to the Administrative Dispute Resolution Act. We have found that Act to be extremely effective in encouraging agencies to use these efficient and effective ways to resolve disputes. The proposed bill continues in the positive direction of this earlier legislation. With some clarifications that we believe are consistent with the intent of the bill, we would support it.
In the past, the government has relied heavily upon traditional, adversarial processes to resolve both internal matters and disputes involving the public. We have learned, however, that these processes can have serious costs. Even when the government wins a case, it can find victory has come at too high a price - the underlying relationships between the parties may be destroyed, and this can be far more harmful in the long run. Nowhere is this more true than in the workplace area that is the subject of the present bill. Parties in these cases often have longstanding relationships with each other. These disputes may pit one member of an office against another. On many occasions, the parties to such a dispute must continue to work with each other after the matter is adjudicated. During the time it takes to process a workplace case, and even long after it is over, the dispute can be extremely corrosive to the productivity of the office and the morale of its employees.
We have learned that ADR can help resolve these conflicts in a manner that is quicker, cheaper, and, importantly, helps to preserve the relationships of the people involved in the disputes. In ADR, the goal is to ensure that communication comes first and litigation comes last, if at all. Parties meet with a neutral third party who is trained and experienced in handling disputes, and they search for a resolution of their problem together. While formal litigation often silences the parties, ADR gives them an opportunity to talk with each other directly, under the guidance of a dispute resolution professional. They often find the process is far more satisfying and effective than having their lawyers fight things out before a tribunal.
Congress clearly understands these benefits, and, indeed, has sparked a revolution in the way that the government handles conflict by passing landmark legislation encouraging agencies to use ADR. This has been a true bipartisan effort, as the Administrative Dispute Resolution Act was passed by a Democratic Congress and signed into law by a Republican President, and then expanded and permanently reauthorized in a bill from a Republican Congress that was signed into law by a Democratic President.
When Congress passed the watershed Administrative Dispute Resolution Act in 1990, it required agencies to adopt a policy that addresses the use of ADR, designate a senior official to be the dispute resolution specialist of the agency, provide ADR training on a regular basis, and review standard agreements to encourage the use of ADR. In the course of permanently reauthorizing this Act in 1996, Congress also called for the creation of an Interagency ADR Working Group to facilitate and encourage agency use of alternative dispute resolution. President Clinton issued a Memorandum on May 1, 1998, creating the Interagency ADR Working Group and appointing Attorney General Janet Reno to chair it. Since that time, the Working Group has been assisting agencies in making the goals of the Act a reality.
We believe that every well-run agency should have at least one ADR program. Over the past year, the Working Group has acted to implement Congress's vision in this area. The Group has sponsored programs covering workplace claims, contracts and procurement matters, claims against the government, and civil enforcement cases. We have sponsored more than fifty training sessions, meetings, and colloquia on all aspects of ADR, including such topics as finding quality neutrals, designing an ADR training program, dispute systems design, evaluation of ADR programs, obtaining resources for ADR programs, overcoming barriers to ADR, ethics, confidentiality, and conflict assessment/case selection. More than five hundred representatives from across the government are participating. We have created a Federal ADR website that has received tens of thousands of requests for information from across the country.
I am also speaking today on behalf of the Attorney General, who has a strong personal belief in the value of ADR (or "Appropriate Dispute Resolution," as she calls it). The Attorney General has worked tirelessly to implement the Administrative Dispute Resolution Act and has ensured that Justice Department lawyers use these processes in Federal litigation as well. In 1995, the Attorney General issued an Order to promote the broader use of ADR, calling for training for all civil Department attorneys and requiring each litigating component to publish an ADR policy statement in the Federal Register. Critically, the Attorney General backed up this commitment by creating a $1 million fund to pay for mediators, and this fund was recently replenished. Over the past four years, we have provided ADR training to more than 1600 Department of Justice lawyers, both in Washington and in all 94 United States Attorneys' offices around the country. Not surprisingly, use of ADR in the Justice Department has grown dramatically, almost quadrupling in four years.
Agencies have reported many benefits from their increased use of ADR. Here is a list of the most common advantages of ADR we have found so far:
We have also found a number of specific examples of savings achieved through the use of ADR in workplace matters. The United States Postal Service, for example, has implemented one of the leading workplace mediation programs in the country. Postal Service policy is to conduct a mediation within two weeks after a complainant requests it. The average mediation takes just four hours, and 81 percent of mediated cases are closed without a formal complaint being filed. Satisfaction is extremely high. Twice as many employees report being satisfied with the amount of control, respect, and fairness of the process as they are with the traditional process (88 percent satisfaction rate versus 44 percent). Both employees and supervisors are equally satisfied with mediation.
Another benefit of the Postal Service program has been that mediation appears to be creating lasting changes in the behavior of people in the workplace. With the increased communication that mediation provides, employees and supervisors seem to be learning to get along better. In fiscal year 1999, after the implementation of the ADR program, the number of complaints filed dropped by approximately 16 percent. This translates into thousands of fewer complaints per year, which represents a huge cost savings. EEO complaints are very expensive to process, and cost estimates range from a conservative $5,000 for handling a simple case up to $77,000 for taking a more complicated complaint all the way through to the end of the process. Even using the lower figure, the reduction in complaints is saving millions of dollars each year in processing costs, not to mention the costs in morale and productivity.
Similar results have been reported by the United States Air Force for its workplace ADR program. The Air Force has used ADR in more than 7,000 workplace disputes between fiscal years 1997 and 1999, with a resolution rate higher than 70 percent. The agency reports that relations between supervisors and employees have improved, and parties on all sides are very pleased with the results. Due to the success of ADR, the Secretary of the Air Force has now ordered its use "to the maximum extent practicable."
It is worth noting that the private sector has been achieving excellent results with ADR in workplace cases as well. For example, many people believed that the massive sexual harassment suit brought against the Mitsubishi company would be impossible to resolve without a Federal court trial. However, with the able assistance of former Federal judge Abner Mikva, who served as a mediator, the parties were able to reach a settlement that saved huge amounts of money in litigation fees, many months of delays, and, most importantly, allowed the parties to take control of their own dispute and reach a resolution that was agreeable to both sides.
With this success so far of ADR in the government, it is no surprise that the Attorney General and the Interagency ADR Working Group support the passage of further legislation in this area, including the present bill. We believe that HR 3312 would make a valuable contribution to the ADR landscape in theFederal government.
The findings set forth at the beginning of the bill mirror our own conclusions about ADR. We concur wholeheartedly that workplace disputes can waste Federal government resources, take up too much time, and deflect managers and employees from their primary job functions. We have found as well that by the time a case is formally filed with an administrative body such as the Merit Systems Protection Board (MSPB), the positions of the parties have hardened, communication is difficult and often antagonistic, and open discussion of alternatives to litigation can be impossible. We agree that early intervention by an outside neutral will have the benefit of allowing the parties to explore settlement outside the adversarial context.
We agree also that these programs require adequate funding to be fully successful. We have found that there is no substitute for dedicated budgets and staff in developing and operating effective ADR programs. Many agencies agree with the bill's premise that workplace cases should be mediated as early as possible before positions harden. Consequently, many agencies offer mediation for all workplace matters to seek resolution before a case is filed with the MSPB or EEOC. Those agencies that have been able to allocate funds to create full-time ADR programs in the workplace area have realized benefits far outweighing the costs involved. Only with proper funding can an agency provide the policies, procedures, training, case consultation, and other services that an ADR program requires to work most effectively.
We also support the provisions of the bill calling for a rigorous evaluation of the effectiveness of the ADR program. While studies establishing the benefits of ADR have been increasing, there is still a need for more research in this area. The bill instructs that the MSPB evaluate the pilot and report to the President and Congress with their recommendation on whether voluntary early intervention ADR is desirable, appropriate, and effective for cases covered by the pilot. The report must include: the number of cases subject to the program and the associated results and resources expended, as well as customer satisfaction with the pilot. Documented evaluation of the pilot will be invaluable in assessing whether it should be made permanent.
We applaud the fact that the bill makes the use of ADR entirely voluntary for both agencies and employees. We note that the very first sentence describing the bill notes that the ADR program is "voluntary", and that Section 2(a)(6), Section 2(c), the heading of Section 585, Section 585(a)(1), and Section 585(d)(1) also state that the process will be "voluntary." We believe it is absolutely vital that all parties, including the government, be free to choose whether or not to participate in ADR. One of the founding principles of mediation is that it is a process where parties control their own destiny in the resolution of their dispute.
There are a number of reasons why voluntariness is crucial in these cases for the government as well as the employee. Certain of these cases involve allegations of misconduct, including violence, that may require an individual to be removed from the workplace as soon as possible. Moreover, by the stage of the proposed personnel action, often the employee has already been the subject of progressive discipline, and significant dispute resolution and negotiations may have already taken place. In these cases, we should not mandate another layer of complexity in the process. The agency should be free to decline ADR and proceed to a final decision as quickly as possible, consistent with good management. Indeed, in any type of case, either an employee or an agency should be free to decline to participate and pursue an adjudication of the matter without delay.
In this regard, several subsections of the bill would benefit from redrafting to avoid ambiguity. Section 585(c)(1)(B) notes that the Board may waive "statutory, regulatory, or Board imposed adjudicatory time frames." It is important to redraft this provision to note that both the agency and the employee must voluntarily agree before the Board may waive any time frame. Similarly, Section 585(b)(1) of the bill states that ADR "may be invoked by the Board at any time" and Section 585(b)(3) states that all relevant disputes "shall" be subject to ADR. This language should be clarified to note that any party may refuse to participate in ADR for any reason, including if it does not approve of the process or neutral chosen. The Administration will be forwarding more specific comments on the bill in the future.
We offer several suggestions for the MSPB pilot based on our experience with the Interagency ADR Working Group. We have found that the following eight principles form the core of successful workplace mediation programs. In our judgment, they represent the most effective means for implementing the Administrative Dispute Resolution Act in a manner that is consistent with both the spirit of the Act and the best practices that are generally adhered to in the dispute resolution community:
Confidentiality: All ADR processes should assure confidentiality consistent with the provisions in the Administrative Dispute Resolution Act. Neutrals should not discuss confidential communications, comment on the merits of the case outside the ADR process, or make recommendations about the case. They should not be asked to reveal any of this information by agency staff or management who are not parties to the process. Agency policies should provide for the protection of privacy of complainants, respondents, witnesses, and complaint handlers.
Neutrality: Those who function as neutrals should fully disclose any conflicts of interest, should not have any stake in the outcome of the dispute, and should not be involved in the administrative processing or litigation of the dispute. For example, they should not also serve as counselors or investigators in that particular matter. Participants in an ADR process should have the right to reject a specific neutral and have another selected who is acceptable to all parties.
Preservation of rights: Participants in an ADR process should retain their right to have their claim adjudicated if a mutually acceptable resolution is not achieved.
Self-determination: ADR processes should provide participants an opportunity to make informed, uncoerced, and voluntary decisions. Participants, rather than the neutral, should decide the outcome of the dispute.
Voluntariness: Employees' participation in the process should be voluntary. In order for participants to make an informed choice, they should be given appropriate information and guidance to decide whether to use ADR processes.
Representation: All parties to a dispute in an ADR process should have a right to be accompanied by a representative of their choice, in accordance with any applicable collective bargaining agreement and/or relevant statutory or regulatory framework.
Timing: Use of ADR processes should be encouraged at the earliest possible time and at the lowest possible level.
Coordination: Coordination of ADR processes is essential among all agency offices with responsibility for resolution of workplace disputes, such as human resources departments, Equal Employment Opportunity offices, unions, agency ombuds, labor and employee relations groups, administrative grievance organizations, legal counsel, and employee assistance programs.
In conclusion, we share the belief of Congress when it passed the Administrative Dispute Resolution Act of 1996 that ADR has the potential to transform the way that the Federal government resolves disputes. We are starting to see the results of this vision as more and more agencies have been implementing these programs. We are enthusiastic about Congress's continued interest in this field, as demonstrated by the bill we are here to discuss today. It is not easy to change an organization as big as the Federal government, and doing so requires a series of incremental steps. We believe the bill before the Subcommittee today is one of those steps. We look forward to continuing to work with you to realize a future where all government employees facing conflict will be able to act as peacemakers and problem-solvers.