CHAPTER 14 MEDIATION AND ALTERNATIVE DISPUTE RESOLUTION
| Jurisdiction | United States |
(Sep 2016)
MEDIATION AND ALTERNATIVE DISPUTE RESOLUTION
Attorney Advisor
U.S Department of the Interior Office of the Solicitor
Lakewood, CO
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PHILIP C. LOWE is an attorney advisor with the Department of the Interior's Office of the Regional Solicitor, Rocky Mountain Region. Formerly a hydrogeologist and environmental scientist, he advises Interior agency clients on legal and policy issues related to leasing and development of oil and gas, coal, coalbed natural gas, oil shale, uranium, wind, and geothermal resources, as well as multi-state electrical transmission lines. Phil also provides guidance to Bureau of Land Management clients on air quality and climate change issues associated with energy development projects, and on NEPA and FLPMA issues associated with resource management plans, amendments, and records of decision. He received his B.S. with honors in 1981 from Rutgers University, where he won several athletic and academic awards, and in 1989 earned a law degree from the University of Texas at Austin.
ADR with Natural Resource Management Agencies - Settlement and Mediation
Conflicts associated with natural resource agency decisions are often resolved through administrative appeals to agency tribunals or litigation in federal district courts. Beyond litigation and administrative appeals, alternative dispute resolution or ADR encompasses a wide range of processes ranging from direct negotiations to facilitation, mediation and arbitration. In the context of resolving disputes involving federal natural resource management agency decisions, these processes often involve direct settlement negotiations with the agency or mediation, where a neutral third party assists the parties in negotiations to resolve a dispute.
While the Bureau of Land Management and the Forest Service provide different formal administrative reviews for decisions involving different resources,2 this paper will focus on the general processes of direct negotiation and mediation to resolve conflicts associated with agency decisionmaking. Other papers within this Special Institute provide details of formal administrative appeal processes such as those under the Department of Interior's Office of Hearings and Appeals (OHA) Interior Board of Land Appeals (IBLA) and Interior Board of Indian Appeals (IBIA)3 the Department of
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Agriculture's Forest Service4 or the BLM State Director Review process under 43 C.F.R. 3165.3(d) . This paper will first discuss the general legal background for agencies to enter into settlement negotiations and then provide an overview of issues associated with direct settlement negotiations related to natural resource decisions including considerations of timing, confidentiality and agency authority. It will then provide a review of the mediation process, including evaluating particular disputes to determine whether they are appropriate for mediation, evaluating and selecting a mediator, preparing for mediation, agreements to mediate, confidentiality and reaching a final agreement.
Legal Background
Civil Justice Reform Act
The Civil Justice Reform Act (CJRA)5 arose after a series of surveys conducted by the Brookings Institution in the early 1990's revealed widespread abuse in federal civil litigation, especially during the discovery process. Known as the Biden Bill after its principal sponsor, then Senator and now Vice-President Joseph Biden, the CJRA was intended to "facilitate deliberate adjudication of civil cases on the merits, monitor discovery, improve litigation management and ensure just, speedy and inexpensive resolutions of civil disputes."6 Similar to the Administrative Dispute Resolution Act (ADRA), the core principles of the CJRA are to improve litigation management and reduce costs and delays. In addition to requiring each federal district court to create
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advisory groups to improve litigation processes, the CJRA also mandated that the Director of the Administrative Office of the United States Courts (AO) prepare a semiannual report showing, by U.S. district judge and magistrate judge, all motions pending more than six months, all bench trials submitted more than six months, all bankruptcy appeals pending more than six months, all Social Security appeal cases pending more than six months, and all civil cases pending more than three years.7
The reporting requirements under the CJRA were intended to assist in reducing both costs and delays in civil litigation in the district courts, as well as evaluate demands on the district courts' resources. This information is used by each district's advisory group to assess the current state of the court and identify causes of cost and delay, in order to improve performance in light of the CJRA's goals. A common theme in addressing these issues was to promote the use of ADR, one of the six case management principles identified in CJRA. In addition, the CJRA also mandated that government attorneys analyze the prospects for settlement of federal litigation and encouraged consideration of settlement. Many courts' local rules now require that attorneys discuss ADR with their clients and opposing parties' counsel, address the appropriateness of ADR in case management plans8 and be prepared to discuss the possibility of settlement in initial scheduling conferences under Rule 16.9
Administrative Dispute Resolution Act of 1996
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After requiring federal district courts to implement ADR procedures in the CJRA, Congress passed the related Administrative Dispute Resolution Act (ADRA)10 in 1996. The ADRA provided express Congressional endorsement of federal agencies using alternative dispute resolution (ADR), such as mediation, to resolve various administrative matters. The Act also encourages officials to initiate ADR procedures as a way to offer a prompt, expert, and inexpensive alternative to litigation. The ADRA directs the agency to adopt a policy that addresses the use of ADR, examine the use of ADR with formal and informal adjudications, rulemakings, and other agency actions, designate a senior official to become the agency's dispute resolution specialist, provide training to that specialist and other employees responsible for the agency's ADR implementation, and review each standard agreement the agency has to determine if the agreement encourages the use of alternative means of dispute resolution. For example, the Bureau of Land Management has a Collaboration and Dispute Resolution Program11 which was established in 1997 to "increase BLM capacity for, and use of, collaboration and dispute resolution."12
The ADRA also provides explicit protection for confidential communications in dispute resolution proceedings, recognizing that confidentiality is critical in ADR processes. Further and important to natural resource management agencies, communications treated as confidential under the ADRA are also exempt from disclosure under the Freedom of Information Act (FOIA). Therefore, the ADRA not only provides a more efficient alternative to litigation but provides the confidentiality
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protections of Federal Rule of Evidence 408 within an administrative context and specifically includes that under FOIA Exemption 5.13
Further, the ADRA administers a remedy for those who seek to review the award established through the ADR procedures. Under the ADRA, arbitration is subject to judicial review and federal district court may vacate the award if "the use of the arbitration or the award is clearly inconsistent with the factors set forth in 5 USC § 572." 9 U.S.C. § 10. The ADRA illustrated Congressional concern with the heightened financial and time burdens placed on all parties in litigation, and sought to have federal agencies alleviate such burdens where possible by implementing ADR procedures.
Executive Order 12988
Along with ADRA and CJRA, on February 5, 1996, then President Clinton signed an Executive Order on Civil Justice Reform14 which among other things, advised government litigation counsel to make "reasonable attempts to resolve a dispute expeditiously and properly before proceeding to trial." The Order also encouraged government counsel to take training in ADR techniques and that "whenever feasible, claims should be resolved through informal discussions, negotiations, and settlements rather than through utilization of any formal court proceeding." While the Order defined government litigation counsel as those trial counsel in the United States Attorney's Office and the litigation division of the Department of Justice, it also include those agencies authorized by law to represent themselves in court without assistance
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from the Department of Justice as well as private counsel hired by any federal agency to conduct litigation on behalf of the agency or the United States.
The legal underpinnings of ADRA, CJRA and EO12988 all serve to encourage federal resource management agencies to consider using ADR whenever feasible. Direct negotiations and mediation are the two ADR processes most often used by natural resource management agencies to resolve disputes. However, facilitation is often used in multi-stakeholder planning processes. Arbitration is rarely used, and so this paper will next focus on strategies for using direct settlement negotiations and mediation to address assist in resolving disputes over natural resource management decisions.
Settlement
Settlement Statistics
While anecdotal evidence supposes that over 90 percent of all cases in federal court litigation settle,15 this frequently cited figure is probably not correct, and certainly not indicative of settlement involving natural resource agency decisions, where a much lower percentage of cases eventually settle. According to the United States Attorneys' Annual Statistical Report, less than 0.6...
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