[Federal Register Volume 60, Number 205 (Tuesday, October 24, 1995)]
[Notices]
[Pages 54482-54484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26343]
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DEPARTMENT OF ENERGY
Office of Dispute Resolution; Alternative Dispute Resolution
AGENCY: Department of Energy.
ACTION: Notice of interim policy statement.
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SUMMARY: The Department of Energy today publishes an interim Statement
of Policy on Alternative Dispute Resolution to further its commitment
to the use of alternative dispute resolution for resolving disputes in
a fair, timely, and cost efficient manner, and to comply with the
Administrative Dispute Resolution Act, 5 U.S.C. Sec. 571 et seq. The
Department seeks comments from the public, including those persons
whose activities the Department regulates, on any aspect of this
interim policy and its implementation. At the end of the 30-day comment
period, the Department will consider issues raised by interested
persons and may modify the interim Statement of Policy.
DATES: Comments on this Statement of Policy should be received on or
before November 24, 1995.
ADDRESSES: Comments may be submitted to Phyllis Hanfling, Director,
Office of Dispute Resolution (GC-12), U.S. Department of Energy,
Washington, DC 20585.
FOR FURTHER INFORMATION CONTACT: Phyllis Hanfling, Director, Office of
Dispute Resolution, U.S. Department of Energy, Washington, DC 20585,
(202) 586-6972.
SUPPLEMENTARY INFORMATION: The Administrative Dispute Resolution Act
(ADRA), 5 U.S.C. Sec. 571 et seq., enacted November 15, 1990,
authorizes and encourages federal agencies to employ consensual methods
of dispute resolution as alternatives to litigation. Under the ADRA, a
federal agency is required to: (1) Designate a senior official as a
dispute resolution specialist; (2) establish training programs in the
use of dispute resolution methods; (3) adopt a policy on the use of ADR
techniques; and (4) review the standard language in agency contracts,
grants or other agreements, to determine whether to include a provision
on ADR.
Congress enacted the ADRA to reduce the time, cost, inefficiencies
and contentiousness that too often are associated with litigation and
other
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adversarial dispute resolution mechanisms. Experience at other federal
agencies shows that ADR can help achieve mutually acceptable solutions
to disputes more effectively than litigation or administrative
adjudication. In recognition of these virtues, Vice President Gore
recommended in September 1993 that federal agencies ``increase the use
of alternative means of dispute resolution.'' Report of the National
Performance Review, Recommendation REG06 (Sept. 7, 1993).
Therefore, the Department of Energy has adopted the following
interim Statement of Policy:
Statement of Policy on Alternative Dispute Resolution
A. Introduction
This statement of Policy addresses the use of alternative dispute
resolution (ADR) by the Department of Energy as required by the
Administrative Dispute Resolution Act (ADRA), 5 U.S.C. Sec. 571 et seq.
The ADRA authorizes and encourages agencies to use mediation and
other consensual methods of dispute resolution as alternatives to
traditional dispute resolution processes. The ADRA requires agencies to
designate a Dispute Resolution Specialist, establish a policy
addressing the use of ADR, review contracts and grants for appropriate
inclusion of ADR clauses and provide for regular training on ADR.
The initiatives required under the ADRA are supplemented by the
Negotiated Rulemaking Act, 5 U.S.C. Sec. 561 et seq., which establishes
a framework for use of negotiated rulemaking (``reg neg'') to increase
acceptability and improve the substance of rules.
B. Policy
The Department of Energy is committed to the use of ADR as a
management tool to prevent or minimize the escalation of disputes, and
to resolve disputes at the earliest stage possible in an expeditious,
cost effective and mutually acceptable manner. In furtherance of this
commitment to the use of ADR, and in compliance with the ADRA, the DOE
has designated a Dispute Resolution Specialist and created an Office of
Dispute Resolution, with responsibility to encourage and coordinate the
ADR efforts of the Department, formulate Department-wide ADR policies,
disseminate information about the Department's ADR activities,
including pilot programs, and provide assistance, consultation and
training within the Department on ADR matters. The Department supports
the flexible use of all ADR processes, including mediation, neutral
evaluation, reg-neg, partnering, mini-trials and arbitration, where
appropriate.
C. Strategic Focus
The Department will strive to maximize use of appropriate ADR
techniques in three main areas.
1. Dispute Prevention
The Department believes that ADR techniques can be used as a
management tool to prevent conflict from escalating into more serious
disputes. For example, faced with significant changes due to
realignment of its workforce, this is an important time to provide
training of employees and managers in conflict resolution techniques.
Mediation and other forms of ADR may be applied to workplace related
issues to promote a humane and productive workplace and a reduction in
grievances, EEO and whistleblower complaints.
To prevent disputes in the contracting area, the Department may
consider ``partnering'' large contracts when appropriate. This
technique, used successfully by several other Federal agencies and by
private sector companies, fosters cooperative efforts to carry out the
objectives of the contract and helps to manage conflict by identifying
potential disputes and planning in advance for their resolution.
Finally, ``facilitated negotiations''--mediations with large groups
of disparate interests striving to reach a consensual decision on a
policy issue--will be encouraged. This may include negotiated
rulemakings where appropriate.
2. Early Intervention
Where disputes cannot be avoided, early use of ADR, especially
mediation, can nonetheless promote their prompt and efficient
resolution and avoid the need for a more formal disposition.
3. Litigation
(a) The ADRA amended Chapter 5 of Title 5, United States Code, to
encourage Federal agencies to use ADR to resolve disputes involving
their administrative programs when all participants voluntarily agree.
DOE will pursue the appropriate use of ADR in administrative
litigation, and will consider the use of ADR in such cases when
requested by a party to the litigation or by the administrative body
hearing the case.
(b) In addition, the Department will provide assistance to the
Department of Justice, as requested, in support of DOJ Order 1160.1,
``Promoting the Broader Appropriate Use of Alternative Dispute
Resolution Techniques''.
(c) Finally, the Department will encourage and assist its
management and operating contractors and their counsel in applying ADR
techniques in litigation brought against them.
D. Role of the Dispute Resolution Specialist
The Dispute Resolution Specialist, who also acts as the Director of
the Office of Dispute Resolution, serves as a resource to all DOE
components and contractors. The Dispute Resolution Specialist shall:
1. Identify categories of disputes and potential disputes that are
suitable for ADR;
2. Develop ADR procedures and establish pilot projects for use by
the Department in resolving appropriate disputes;
3. Identify categories of agreements, contracts and memoranda of
understanding which may be suitable for inclusion of standard ADR
clauses;
4. Develop education/training programs for DOE personnel in ADR
techniques and applications, including conflict management and
resolution skills. This shall include:
(a) Introductory ADR training to assure that executives, managers
and supervisors understand what ADR is, its potential benefits and
where to go for assistance;
(b) ADR training for personnel having an identified role in dispute
management (e.g., labor/management relations, contract disputes,
litigation, administrative adjudication);
(c) Skill training for an internal group of mediators.
5. Institute procedures to support more systematic use of ADR
within DOE.
6. Disseminate information on ADR techniques and their
applicability within DOE.
7. Ensure that procedures are in place for evaluation of ADR
results, including numbers of resolutions, satisfaction of the
participants and estimated cost savings.
E. Reporting and Consultation
The Dispute Resolution Specialist may be consulted to assist in
determining whether and when ADR should be used, selecting the
appropriate ADR process, choosing a neutral and preparing for the ADR
process. Departmental components that employ ADR processes shall report
annually to the Dispute Resolution Specialist concerning their use of
ADR, including the final outcome of all ADR activities, so that she/he
can maintain relevant statistics.
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F. Periodic Evaluation
DOE believes that its ADR policy should continue to evolve. To that
end, it has determined to periodically evaluate the ADR program and the
steps taken toward its effective implementation. The Dispute Resolution
Specialist will report annually to the General Counsel and the
Secretary on the Department's progress in implementing this policy and
will recommend any necessary revisions.
In addition, pursuant to Section 3(a) of the ADRA, the Dispute
Resolution Specialist will consult with the Administrative Conference
of the United States and the Federal Mediation and Conciliation Service
concerning steps to develop and strengthen the Department's ADR
capabilities.
DOE welcomes and encourages input on the use of ADR from both
within and outside the Department.
Issued in Washington, DC on September 18, 1995.
Robert R. Nordhaus,
General Counsel.
[FR Doc. 95-26343 Filed 10-23-95; 8:45 am]
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