ADR Frequently Asked Questions
- What is "Alternative Dispute Resolution"?
- Who can use ADR?
- What are the characteristics of ADR?
- What are the typical ADR processes?
- What are the benefits of choosing ADR techniques to resolve conflicts?
- Is ADR always the preferred course of action?
- Can I demand ADR?
- If I am involved in a dispute, what should I do?
- How does the ADR process actually work?
- How does the ADR Office interface with other dispute processes?
- Will I lose any rights by using ADR?
- Does ADR have costs associated with it?
- What is the role of the ADR Specialist?
- Will the ADR Specialist maintain confidentiality?
- May I have a representative?
- How will ADR agreements be enforced?
- Does the workplace benefit from ADR?
- How does a third-party neutral help?
- What makes ADR work?
- Is ADR successful?
- Is there legal authority for Agencies to use ADR?
- Can ADR be used for FEMA's programs?
- What resources are available to promote commitment to and awareness of ADR within the Agency?
- How can I learn more?
What is "Alternative Dispute Resolution"?
Alternative Dispute Resolution (ADR) is a term used to describe problem-solving processes that can be far superior to using adjudicative methods for resolving conflicts. ADR promotes creative solutions to disputes that are unavailable in traditional dispute resolution forums. ADR emphasizes communication between the parties. By focusing on the parties' real interests, rather than on their positions or demands, ADR enables the parties to work together to solve the real concerns underlying the conflict.
FEMA's ADR program is available to assist FEMA employees, partners, contractors, and those impacted by disasters with preventing, managing, and resolving disputes. The Office can provide the expertise and resources necessary for successful ADR.
What are the characteristics of ADR?
ADR processes are:
- Voluntary -the parties choose to use ADR;
- Expeditious - ADR avoids components of traditional litigation that prolong and delay resolution;
- Flexible - the dispute process is handled and resolved through an ADR agreement in which the parties choose the ADR method, agree on the degree of confidentiality in the process, outline the specific steps of the process, and establish time periods for each step;
- Non-judicial - decision-making remains with the parties to the dispute rather than a third-party who has no stake in the outcome; and
- Controlled By the Parties - the parties maintain control of the process and the outcome.
What are the typical ADR processes?
ADR processes can include informal discussions, coaching, mediation, conciliation, facilitation, arbitration, and early neutral evaluation. These processes may be used separately or together, depending upon the situation.
What are the benefits of choosing ADR techniques to resolve conflicts?
Participants report many benefits from using ADR, including:
- Increased respect and trust;
- More creative, satisfying, and enduring solutions;
- Greater compliance with settlement agreements;
- Reduced costs in dollars and emotional energy;
- Faster resolution of issues;
- Improved communication and working relationships; and
- A sense of empowerment.
Is ADR always the preferred course of action?
ADR may not be appropriate in all cases. Specifically, it may not be appropriate when:
- A definitive or authoritative resolution of the matter is required for precedential value;
- The matter involves or may bear upon significant questions of Government policy;
- Maintaining established policies is of special importance;
- The matter significantly affects persons or organizations that are not parties to the ADR;
- A full public record is important; or
- The Agency must maintain continuing jurisdiction over the matter with authority to alter the disposition of the matter in light of changed circumstances.
Both parties must agree to use ADR, and no party can be forced to use it. All aspects of ADR are voluntary, including the decision to participate, the type of process used, and the content of any final agreement. The parties have the right to terminate ADR at any time if it appears to be unproductive. Moreover, the ADR Specialist has the authority to decide that ADR is not appropriate in a given situation.
If I am involved in a dispute, what should I do?
An appropriate course of action depends upon a number of factors, including the issue(s) in dispute and one's employment status. If you are a bargaining unit employee, you should contact your union representative. If your situation involves allegations of discrimination, sexual harassment, or retaliation, you should contact the Office of Equal Rights or an EEO counselor. If your dispute does not fall under either of those categories, or if you are unsure what to do, contact the ADR Specialist. You can discuss your situation and you will be advised on your ADR options. ADR can be initiated at almost any point, though it is generally more advisable to attempt resolution as early as possible and at the most informal level.
How does the ADR process actually work?
Generally, the ADR Specialist is contacted by one or more parties in a dispute. They discuss the issue/s involved to determine whether the case is appropriate for ADR and how the issue should be addressed. If the initiating person decides that a facilitated discussion with the other person could be helpful, the second person is contacted. This person decides whether participation would be productive and acceptable. If the parties and the ADR Specialist agree that ADR is desired and appropriate, they identify the ADR process(es) to be used, designate an ADR neutral or a process for selecting one, and provide a date by which ADR will be completed. The parties may agree on the terms of a confidentiality agreement. The parties proceed using the agreed-upon ADR process until the case is resolved or one or both of the parties opts out. If a resolution is reached, it is usually recorded in a written agreement. If no resolution is reached, the parties may choose to use another process.
How does the ADR Office interface with other dispute processes?
FEMA's ADR policy does not supersede collective bargaining agreements or other statutory, regulatory, or contractual dispute resolution procedures. The ADR Office works with the administrators of other dispute resolution processes to develop and implement ADR options within those processes and works with FEMA units to help them establish and manage ADR systems in program areas.
Will I lose any rights by using ADR?
Generally, ADR does not prevent participants from pursuing formal grievance or complaint avenues if an agreement is not reached. However, those other avenues may have deadlines that are not affected by attempts to use ADR.
Does ADR have costs associated with it?
The ADR Office can provide many no-cost options. Third-party neutrals are available from other Federal agencies. If both parties agree that private-sector third-party neutrals are to be used, the sponsoring FEMA office typically pays the associated costs. The ADR Specialist will discuss these options with the parties and arrangements will be agreed upon prior to commencing ADR.
What is the role of the ADR Specialist?
The ADR Specialist manages the ADR Office in fulfillment of the Agency's ADR policy. The Specialist functions as a neutral impartial person. The Specialist is skilled in a wide variety of processes that might enhance resolution.
The ADR Specialist will:
- Listen to complaints and problems without criticism;
- Help to open communication channels between parties;
- Serve as a feedback mechanism;
- Obtain explanations of policies and procedures; and
- Explore and facilitate options for resolving concerns.
The ADR Specialist does not:
- Provide legal advice;
- Search for blame;
- Make judgments regarding who is right or wrong;
- Act as a therapist; or
- Have authority to compel or impose settlement.
Will the ADR Specialist maintain confidentiality?
The ADR Specialist will observe confidentiality for information obtained in private conferences with a party and will not reveal specific details without seeking prior approval. Specific confidentiality provisions may be negotiated and incorporated in the initial ADR agreement signed by the parties at the commencement of the ADR process. Accordingly, the ADR Specialist will maintain confidentiality unless compelled by a court order, subpoena, or other mechanism of law requiring disclosure.
Although it is not necessary to have an attorney or other representative to participate in FEMA's ADR program, either party may invite a representative to accompany or advise them. The ADR Specialist or third-party neutral will decide what role the representatives will play in the ADR process. For example, a mediator may ask that a representative provide advice or counsel, but not speak for a party. If you plan to bring a representative to an ADR session, you can discuss this with the ADR Specialist prior to the session.
How will ADR agreements be enforced?
Even agreements reached in good faith may sometimes be subject to different interpretations or to unforeseen circumstances. It is recommended that agreements include provisions for dealing with unanticipated developments or differences of interpretation that may affect the application of the agreement. For example, a clause may provide that parties meet to discuss any differences of interpretation or application and, if they are unable to resolve the matter directly or through mediation, for the issue to be decided by a person they have agreed upon in advance.
Does the workplace benefit from ADR?
ADR can:
- Generate broader support for the Agency's mission and programs;
- Improve internal morale;
- Increase employee retention, productivity, and confidence in management; and
- Support a diverse workforce because differences are addressed constructively.
How does a third-party neutral help?
The third-party neutral keeps the parties focused and constructive in their discussions. Unlike a judge or jury, the third-party neutral does not have decision-making authority nor the power to impose a resolution on the dispute. Rather, the neutral works with the parties to facilitate communication, identify underlying issues, explore options, and craft a mutually satisfying solution.
Three important elements are associated with ADR: interest-based problem solving, neutrality/impartiality, and voluntary participation.
Interest-Based versus Rights-Based Resolution: Litigation and other administrative forums use rights-based approaches. They are based on weighing the evidence and law that establish the relative rights of the parties involved. Although appropriate in some situations, these techniques focus on entitlements, positions, proof, judgment, and fact-finding. Negotiations that are based on positional bargaining often fail because of polarized viewpoints. Thus, rights-based forums end when a final determination is made as to the winner and loser of the dispute.
On the other hand, with interest-based approaches to resolution, parties work to understand each other's perspective and concerns. They seek to find common interests and strategies to solve mutual concerns, and they work together to build more productive means of communicating. This model of conflict resolution takes into account the interests of everyone involved. These interests are the building blocks to successful negotiations and lasting solutions. Interest-based approaches change the conflict atmosphere to one of joint responsibility for authentic and creative problem solving.
Neutrality and Impartiality: The ADR Office has no stake in the outcome of any resolution. The ADR Office is committed to a neutral and fair process for all participants.
Voluntary Participation: Because ADR is voluntary, participation generally signals good faith willingness to work to improve the situation. ADR works best when people are committed to finding reasonable and satisfying solutions through open and honest dialogue.
Federal Agency results using mediation to resolve disputes have been phenomenal with impressive time savings, cost avoidance, and resolution and satisfaction rates. The U.S. Department of Agriculture and the U.S. Treasury have experienced an overall dispute resolution rate of about 82% with 83% of the Treasury disputes resolved within 25 days. The Department of Agriculture estimated its savings attributable to ADR in staff resources and investigative and litigation costs to exceed $1,000,000 over the last two years. The Postal Service reported mediation satisfaction rates in the high 90s for both participants. The EEO Commission tracked 11,600 cases and reported satisfaction rates of over 90% for all participants.
Is there legal authority for Agencies to use ADR?
In 1990, Congress passed the Administrative Dispute Resolution Act, which was permanently reauthorized in 1996. This law requires all Federal Agencies to promote and foster greater use of ADR in all of its activities. Since that time, there have been numerous Executive Orders, a Memorandum from the White House, another ADR Act in 1998 aimed specifically at Agency counsel, and Memoranda from the Justice Department requiring greater Agency use of ADR.
Can ADR be used for FEMA's programs?
ADR can be effective in preventing and resolving disputes involving external parties in many contexts, including disaster projects, hazard mitigation projects, insurance claims and flood mapping, personal injury and property damage claims, rulemaking, contracting, policy development, negotiations, and litigation.
What resources are available to promote commitment to and awareness of ADR within the Agency?
The ADR Office provides ADR briefings to management, all employees, FEMA organizations, and regions on request. ADR posters and brochures are published and distributed to all FEMA facilities. The ADR Office maintains a reference and lending library of ADR materials. The FEMA intranet site provides information on the FEMA ADR program and links to other sites for additional information. In addition to providing dispute resolution services, the ADR Office can help provide training in alternative dispute resolution, interpersonal communication, collaborative problem solving, and consensus building.
For more information on FEMA's ADR services, contact Cindy Mazur, the ADR Specialist, at FEMA HQ, 500 C Street SW, Washington, DC 20472; tel. (202) 646-4094; cindy.mazur@dhs.gov
Last Modified: Thursday, 04-Jan-2007 10:16:46 EST