[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 

[[Page 54483]]
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. 

[[Page 54484]]


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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