Elements of Voluntary Civil Dispute Resolution
There are four principal issues to be covered in this brochure:
- CRT Voluntary Civil Dispute Resolution Policy and ADR Criteria
- Authority for use of ADR
- CRT use of mediation
- How does ADR work
- Requesting ADR
- Selecting a neutral
- Who pays for the cost
- Elements of a mediation agreement
CRT Voluntary Civil Dispute Resolution Policy and ADR Criteria
The long-standing policy of the Civil Rights Division to seek a voluntary
resolution of our cases and investigations has served us well and will continue
to do so. While there are settlement variations among our Sections that are
defined by statute and administrative procedures, as a general rule the Division
seeks to resolve cases and matters through party-to-party negotiations. The
timing of such negotiations is also influenced in large measure by Executive
Order 12988 and the Division's ability to gather relevant information, thereby
placing significant responsibility on Division personnel to determine when
voluntary negotiations should begin. Operating in concert with this long-standing
settlement policy of the Division is the narrower concept of alternative dispute
resolution (ADR). Over the last several years ADR has emerged within both
the Department of Justice and the federal district courts as an important
and effective settlement tool.
The Division provides this pamphlet to disseminate information regarding
Division policy with respect to ADR, a process that involves the use of third-party
neutrals to resolve disputes. As each federal district court begins to implement
the requirements of the recently-enacted Alternative Dispute Resolution Act
of 1998, requiring each federal district court to adopt local rules regarding
the use of ADR, information regarding Division policy in this area can serve
to enhance the willingness of parties to explore the use of this settlement
vehicle with Division personnel. While the Division will continue to emphasize
traditional party-to-party negotiations for resolving our disputes, successful
application of ADR should complement our efforts to achieve statutory objectives
with a minimal use of resources.
What is the Settlement Policy of the Civil Rights Division?
The Civil Rights Division resolves most of its civil matters on a voluntary
basis through the use of bilateral negotiations, e.g., party-to-party settlement
discussions. Nothing contained herein is intended to diminish our reliance
on this successful method of case and matter resolution. What is outlined
in this brochure is an additional tool the Division will utilize to seek an
amicable resolution of cases and matters when bilateral negotiations have
been unsuccessful.
What is the ADR Policy of the Civil Rights Division?
The Attorney General has committed the Department of Justice civil litigating
Divisions to make greater use of alternative dispute resolution. Consistent
with this commitment, the Civil Rights Division will explore alternative dispute
resolution in all appropriate cases. As with any settlement technique, the
Civil Rights Division places initial responsibility with our line level representatives
to evaluate alternative dispute resolution on a case-by-case basis. Civil
Rights Division criteria for ADR case selection are published at 61 Fed. Reg.
36,906-36,908 (1996).
Factors evaluated by the Division when considering the use of ADR include:
- The parties and their relationships
- Nature of the case
- Timing
- Public sanction necessary
- Imbalance of power or ability
- Judicial decision required
- Selection process for ADR neutral
- Successful summary judgment certain to resolve case conclusively
- Case very likely to settle through unassisted negotiations in near future
What Forms of ADR are Used by the Civil Rights Division?
Most of the Civil Rights Division's experience with alternative dispute
resolution has been with mediation. In such a proceeding the discussions among
the parties are confidential and non-binding.
Normally, the mediator assists the parties in reaching a resolution. The
success or failure of a mediation often rests on the skill of the mediator.
In a constructive mediation the parties are focused on the areas of consensus,
the emotional component of the negotiation has been defused, each party has
a chance to give its version of events, and each party has the opportunity
to hear the other side's case, unfiltered by its own counsel.
Unless controlled by local federal court rules, the parties jointly select
and retain a mediator, determine the process that will be followed in the
mediation and set the time frame within which agreement should be reached.
In mediation, the mediator focuses not only on the rights of the parties,
but also the interests of the parties and what each party believes it needs
in order to agree to a resolution of the dispute. The ultimate objective of
a well conducted mediation is to allow each party to recognize that its interests
and goals can be achieved through a voluntary resolution and to reach that
resolution.
How Does the Division Handle a Request for ADR?
A request to discuss alternative dispute resolution should be made of the
Division representative with first line responsibility for the case or matter.
The request will be reviewed pursuant to the Civil Rights Division's ADR Case
Screening Factors, set out at 61 Fed. Reg. 36,906-36,908 (1996). There is
no hard-and-fast rule that determines when a case is appropriate for ADR,
but generally an ADR evaluation could occur in any case or matter that is
at a juncture where the Division is prepared to discuss a voluntary resolution.
How is an ADR Neutral Selected?
The selection of the neutral is considered one of the most critical steps
in the ADR process. The neutral is selected by agreement among the parties.
Sources for identifying or locating neutrals are a local bar association,
a court-annexed ADR program, and professional ADR organizations.
Who Pays for the Neutral?
In some areas court-appointed neutrals are available free of charge, but
in most cases a mediator will require payment. In some cases, there may be
costs for travel and for experts or consultants. The Civil Rights Division
typically splits evenly the costs involved in the mediation. While mediation
costs vary widely depending on the nature and complexity of the case, many
mediations result in savings to the parties when these costs are measured
against the expenses of litigation. Because costs are always of critical importance
to the parties, the mediation agreement (see below) should be used as a vehicle
to set out the extent of the costs the parties will commit to the mediation
effort.
What is Typically Embodied in the Mediation Agreement?
The nature of ADR and the commitment the parties make to the effort may
require a written mediation agreement. The mediation agreement is designed
to set out the responsibilities and expectations of the parties with regard
to the mediation process. However, the mediation agreement is a separate and
distinct document from the final agreement of the parties. Typically a written
mediation agreement will contain provisions that address the following matters:
- Process is voluntary and may be terminated at any time
- Mediator has no authority to decide the case or matter
- Process and all its components are confidential
- The chronology of the mediation, e.g., mediator reviews written submissions,
meets with all parties and counsel present, meets with each side individually,
etc.
- A description of the settlement authority that each representative brings
to each mediation session
- The dates the mediation is to begin and end
- The rate of pay of the mediator and how the cost will be shared among
the parties
- An agreement that no party shall be bound by anything said or done at
the mediation unless a settlement is reached, reduced to writing, and signed
by all parties and counsel
What are Department of Justice Sources of Information Regarding ADR?
Questions or inquiries about ADR should be directed to the Division representative
who is responsible for the case or matter. An additional source of information
regarding ADR and who is available for questions is the Office of the Senior
Counsel for Alternative Dispute Resolution, United States Department of Justice,
Room 5240 Main, Washington, DC, 20530 (202-616-9471). The Office of the Senior
Counsel for Alternative Dispute Resolution is a Department wide office that
was established by the Attorney General to encourage greater use of dispute
resolution throughout the Department of Justice and all its offices, boards
and divisions. General inquiries regarding ADR may also be directed to the
Office of the Assistant Attorney General, Civil Rights Division, (202-514-2151).
More information about the Civil Rights Division and ADR may be accessed on
the internet at www.usdoj.gov.
What is the Authority for the Use of ADR?
There are a variety of federal orders, statutes, regulations and guides
that reference ADR and its use by the Department of Justice. While not all
are applicable in all situations, examples of such reference materials are:
- Attorney General Order (April 6, 1995)
- Executive Order 12988, 61 Fed. Reg. 4729 (1996)
- Notice of Policy on the Use of Alternative Dispute
Resolution, and Case Identification Criteria for Alternative Dispute Resolution,
61 Fed. Reg. 36,895 (1996)
-
Administrative Dispute Resolution Act of 1996, 5 U.S.C.A. 571 et
seq.
- ADR
and Settlement in the Federal District Courts, a sourcebook for judges and
lawyers (Federal Judicial Center 1996)
- Mediation
and Conference Programs in the Federal Courts Of Appeals, a sourcebook for
judges and lawyers (Federal Judicial Center 1997)
- Alternative Dispute Resolution Act of 1998, Pub.
L. No. 105-315, 112 Stat. 2993 (to be codified at 28 U.S.C. 651-658)
No Private Right of Action Created
Nothing in this brochure or any other documents of the Department of Justice
shall be construed to create any right or benefit, substantive or procedural,
enforceable at law or in equity, by a party against the United States, its
agencies, its officers, or any other person.
Note: For persons with disabilities, this document will be available in large
print, audio tape, computer disc, and braille.