Agency: Department of Energy

Action: Notice of Interim Policy Statement

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. § 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 [30 days after publication of this notice in the Federal Register].

Addresses: Comments may be submitted to Phyllis Hanfling, Director, Office of Dispute Resolution (GC-12), U.S. Department of Energy, Washington, D.C. 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. § 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 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

1. 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. § 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. § 561 et seq., which establishes a framework for use of negotiated rule making ("reg neg") to increase acceptability and improve the substance of rules.
   
   
2. 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.
   
   
3. 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 whistle blower 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 rule makings 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:
      
      1. 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.
      2. 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".
      3. Finally, the Department will encourage and assist its management and operating contractors and their counsel in applying ADR techniques in litigation brought against them.
         
         
4. 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:
      1. introductory ADR training to assure that executives, managers and supervisors understand what ADR is, its potential benefits and where to go for assistance;
      2. ADR training for personnel having an identified role in dispute management (e.g., labor/management relations, contract disputes, litigation, administrative adjudication);
      3. 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.
      
      
5. 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.
   
   
6. Periodic Evalution
   
   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, D.C. on September 18, 1995
______________________________
Robert R. Nordhaus
General Counsel