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Alternative Dispute Resolution Frequent Questions
Answers to frequently asked questions about the use of alternative dispute resolution in enforcement and compliance actions.
- What is Alternative Dispute Resolution (ADR)?
- What is convening?
- What is mediation?
- What is facilitation?
- What is arbitration?
- How will I know whether my case is appropriate for ADR?
- Where determined appropriate, how does EPA pay for neutral service?
- Will EPA's Office of Enforcement and Compliance Assurance (OECA) pay for a neutral?
- How do I find a neutral third party?
1. What is Alternative Dispute Resolution (ADR)?
Consistent with the Administrative Dispute Resolution Act of 1996 (PDF, 37.1 KB), EPA's ADR Policy defines ADR as "any procedure that is used to resolve issues in controversy, including but not limited to, conciliation, facilitation, mediation, fact finding, minitrials, arbitration, and use of ombuds, or any combination thereof." 5 USC 571(3). All these ADR techniques involve a neutral third party, a person who assists others in designing and conducting a process for reaching agreement, if possible. The neutral third party has no stake in the substantive outcome of the process. Depending on the circumstances of a particular dispute, neutral third parties may be Agency employees or may come from outside EPA. Typically, all aspects of ADR are voluntary, including the decision to participate, the type of process used, and the content of any final agreement.
2. What is Convening (or Conflict Assessment)?
Convening (also called conflict assessment) involves the use of a neutral third party to help assess the causes of the conflict, to identify the persons or entities that would be affected by the outcome of the conflict, and to help these parties consider the best way (for example, mediation, consensus-building, or a lawsuit) for them to deal with the conflict. The convener may also help get the parties ready for participation in a dispute resolution process by providing education to the parties on what the selected process will be like.
Mediation is a process in which a neutral third party (the mediator) assists disputants in reaching a mutually satisfying settlement of their differences. Mediation is voluntary, informal, and confidential. The mediator helps the disputants to communicate clearly, to listen carefully, and to consider creative ways for reaching resolution. The mediator makes no judgments about the people or the conflict, and issues no decision. Any agreement that is reached must satisfy all the disputants.
Facilitation is a process used to help a group of people or parties have constructive discussions about complex, or potentially controversial issues. The facilitator provides assistance by helping the parties set ground rules for these discussions, promoting effective communication, eliciting creative options, and keeping the group focused and on track. Facilitation can be used even where parties have not yet agreed to attempt to resolve a conflict.
Arbitration is a process in which each party presents its case, usually at a hearing conducted by a neutral or panel of neutrals who hear the facts and arguments presented by each side, and render a non-binding opinion or binding decision in light of relevant laws and procedures. EPA cannot currently engage in binding arbitration.
6. How will I know whether my case is appropriate for ADR?
EPA Enforcement ADR Specialists or the Conflict Prevention and Resolution Center are willing to help you consider whether ADR is appropriate for your enforcement or compliance matter. Please feel free to call or email them.
7. Where determined appropriate, how does EPA pay for neutral services?
For cases where small purchases are sufficient, and where parties are interested in acquiring the services of a specific neutral, the Administrative Dispute Resolution Act of 1996 (PDF, 37.1 KB) and the Federal Acquisition Regulations allow EPA to use a non-competitive procurement process.
For cases where small purchase amounts do not cover the cost of a neutral and where a specific neutral has not been identified, use of EPA's Consensus Dispute Resolution Services Contract, managed by the Conflict Prevention and Resolution Center is the preferred method for hiring neutrals.
8. Will EPA's Office of Enforcement and Compliance Assurance (OECA) pay for a neutral?
OECA will pay for the convening services of a neutral third party or a confidential EPA neutral in appropriate enforcement/compliance cases. If, after convening, participants decide to go to mediation, they are asked to equitably share mediation costs. Go to How We Can Help You, Contact an ADR Specialist to find how who can help you.
9. How do I find a neutral third party?
Go to How We Can Help You, Find a Neutral to find out how.