"A Day With Justice"
Sponsored by The National Legal Center for the Public Interest
United States Department of Justice
October 28, 2003Remarks by Linda A. Cinciotta
Senior Counsel for Alternative Dispute Resolution
Director, Office of Dispute Resolution
United States Department of JusticeAlternative Dispute Resolution Comes of Age in the Federal Government
Introduction
Good morning. I appreciate this time with you and the chance to talk about alternative dispute resolution. ADR has come of age in the federal government in less than two decades. Let's take a look at the state of federal ADR yesterday, today, and tomorrow.
Most people would like to avoid conflict whenever they can. But conflict is not all bad - it can be constructive and a catalyst for growth. It is also inevitable - both in business and in life. So what should we do with conflict? In our legal world, litigation too often has been the only game plan for dealing with conflict. The courts have been the place of first resort for settling disputes. But the need for an alternative to litigation was evident at least 150 years ago, when Abraham Lincoln said: "Discourage litigation because the nominal winner often is a loser, in both time and money." It took a long time after President Lincoln's advice for the law to adopt a new framework recognizing that litigation is not, and should not be, inevitable. That framework is ADR.
"ADR" is just an umbrella term for techniques that employ the services of a third-party neutral to assist in the resolution of a dispute. ADR includes mediation, arbitration, early neutral evaluation, and several other techniques. At the Department of Justice, as in the private sector, the most commonly used ADR technique is mediation. Skilled mediators can encourage the parties to get past the legal positions of their counsel and focus instead on their own underlying interests.
The Beginnings of Federal ADR
How many times have you heard someone say that things happen very slowly in the federal government? Big institutions normally do not change quickly. But ADR proved to be a welcome exception. Very quickly - in less than two decades - ADR evolved from just an idea to an accepted dispute resolution tool for the Department of Justice and the federal government. A number of requirements and policies drove this fast-track development.
First, back in 1985 - before any ADR legislation had been enacted - the Attorney General issued an order recognizing the need for ADR to reduce the time and expense of civil litigation. A few years later, Justice's Office of Legal Counsel was headed by the future Attorney General, your colleague The Honorable William P. Barr (now the Executive Vice President and General Counsel of Verizon Corporation, Inc.). Mr. Barr testified before Congress in support of the legislation ultimately passed as the Administrative Dispute Resolution Act of 1990.
The second stage was passage of the Administrative Dispute Resolution Acts of 1990 and 1996, which required agencies to adopt an ADR policy.
The third chapter was passage of the Alternative Dispute Resolution Act of 1998, which required the federal district courts to have an ADR process available for all civil cases and to require civil litigants to consider use of ADR.
These requirements and motivators provided the platform for use of ADR in the federal government. But the practical realities were the true catalyst for its quick growth and widespread use. The federal agencies dealt daily with an overloaded court system. Their time and funding were drained as they wound through the litigation maze of trial and appeal. Equally important, they recognized that a litigation win can be a pyrrhic victory. The parties lose control of their dispute once it is presented to the court for resolution. The court's decision may not, and often does not, resolve the underlying problems that led to the litigation in the first place. Even the "winning" party can find the victory came too late and the price paid for it was too high.
Ultimately ADR became a common sense option for federal agencies. It is cost-effective, time-efficient, and it gives the parties control over the outcome.
The Acceptance of ADR
Getting the Department of Justice attorneys to add ADR to their litigation repertoire happened quickly, but it did not happen overnight. Litigators are warriors, by training and often by nature. Forming litigation game plans is what they do. But they also support effective resolution of cases short of full-blown litigation. In fact, the vast majority of the Justice cases do not actually enter the courtroom. For every civil case brought to verdict, there are 100 cases resolved before trial.
Traditionally, the only settlement route for our attorneys was one-on-one negotiations with opposing counsel, without the assistance of a third-party facilitator. Those unassisted negotiations do, and will always, have an important role. But there are many times and reasons that negotiating with the other side will not work. For example, the parties may harbor too much distrust, anger, or suspicion of each other, or they may value their cases very differently. Also, even where traditional unassisted negotiations between the parties result in a settlement, it often occurs late in the process - as late as the courthouse steps on the eve of trial. At that point, the parties already have incurred large costs and have invested large amounts of attorney time.
Some, or many, of those cases may have been concluded quicker, better, and less expensively if ADR and the assistance of a third-party neutral had been enlisted. A neutral third party can turn the tide by helping the parties diagnose the problems that led to their adversarial stance, and exploring suggestions for resolving their differences. Because the ADR neutrals have independence and the trust of the participants, they can: facilitate the discussion between the parties; assist them in identifying their real interests; give them objective feedback; "reality test" their litigation positions; and help them craft creative solutions.
ADR can be particularly helpful for claims where emotions run high, for example in tort claims or Title VII discrimination cases. In settings like that, mediation provides plaintiffs with the opportunity to express their frustration and anger, or "vent" so that they can more easily move towards a resolution.
Training was the key to adding assisted negotiations to the Justice attorneys' tool kit. Some may have been skeptical at first - after all, ADR is not the win/lose model that litigation warriors are used to following. What has changed their orientation to the win/win approach of ADR? For a period of years, the Department planned and presented extensive training to make its attorneys as skilled in mediation as they are in a courtroom. Thousands of them were trained in mediation advocacy to make them good partners in facilitated settlement negotiations. Over time, the Justice culture of litigation has come to embrace ADR.
An added incentive for Justice attorneys to use ADR is the availability of funding to pay private professional neutrals. The Office of Dispute Resolution administers a fund - currently one million dollars annually - which any Justice attorney can tap. Since the attorneys do not have to use their own limited litigation funds to retain a mediator, there is no financial disincentive to steer them away from ADR. There are no strings or conditions attached to use of the fund. The attorneys can, in consultation with the other parties, select any neutral they believe is best suited for their particular case.
Federal Policy
ADR has "arrived" in the Executive Branch of the federal government - it is being used in virtually all agencies.
At the Department of Justice, the Attorney General's strategic goals include growth and successful use of ADR. He made his philosophy clear to graduating law school students last year, saying:
".....As officers of the court, lawyers have a responsibility to their clients, but this responsibility must always be carried out within the context of justice. To that end, adversarial justice and consensus justice are mutually reinforcing concepts. Behind every successful mediation of a dispute is the prospect of aggressive litigation. And behind all successful litigation must be the opportunity to citizens to work together to reach a mutually beneficial outcome."
DOJ's Use of ADR in Civil Cases
The Department of Justice is putting the Attorney General's words into practice every day, and that translates to use of ADR in many cases. The Department is "the Nation's litigator," representing the interests of the United States in court, and as such is the biggest user of the federal court system. Justice has almost 10,000 attorneys. They comprise the nation's - indeed, the world's - largest law firm. The Justice attorneys are using ADR processes to settle thousands of cases annually in many types of civil enforcement and defense litigation.
Perhaps the most dramatic example of ADR at work was the Antitrust Division's Microsoft case, where Justice and some states sued the software maker for alleged violations of antitrust laws. The case involved two dozen lawyers at Justice, as well as dozens from Microsoft and the offices of the state attorneys general. All sides litigated the case for three and one-half years through a trial, an unsuccessful attempt by a judge to settle it, and an appeal. They then entered mediation with an experienced private mediator. They began exploring possible settlement options, and in about two weeks they had a settlement agreement. Although some states declined to join it, the settlement agreement resolved Justice's claim, and the judge approved it. Query how long, without ADR, the parties would have continued to litigate, what sort of resources they would have expended, and how the country's computer industry would have been affected by the uncertainty.
Another example is our Civil Division which represents the United States, its departments and agencies, Members of Congress, Cabinet officers, and other federal employees in civil litigation. The Division handles over 20,000 new cases annually. Its attorneys use ADR in aviation and admiralty defenses, medical malpractice, class action discrimination, health care and consumer fraud enforcement, and workplace discrimination litigation.
ADR is being used in Justice's tax disputes, and in the vast array of civil matters handled in United States Attorneys' Offices nationwide.
Our Civil Rights Division is using ADR to settle housing, employment, education, and other types of discrimination claims. Its ADA Mediation Program for disabilities rights complaints has allowed the Department to achieve meaningful compliance with the law without having to allocate scarce resources to investigate or litigate the mediated disputes. It has referred thousands of complaints for mediation, with a success rate of 77%.
Our Environment and Natural Resources Division enforces and defends the environmental laws and programs of the United States. Its attorneys use mediation in a variety of cases, including water rights disputes and Native American land disputes. Even in the environmental enforcement area, when Justice is convinced the defendant has violated the law, it is willing to consider mediation in appropriate issues. Justice is not going to negotiate the remedy that the Environmental Protection Agency has the discretion to craft. But if, for example, the corporation is prepared to do what is necessary to comply with the law -- and the only question is the amount of the civil penalty to capture the economic benefit of non-compliance -- the Environment Division is probably willing to talk.
Results of ADR at DOJ
What results is the Department of Justice seeing in its ADR cases? Justice has an agency-wide resolution rate of 70% in cases where ADR is used. To obtain detailed measurements, we undertook a study of over 800 civil cases where Assistant United States Attorneys used ADR over a five-year period. Our data show these results:
-ADR was more likely to result in settlement if it was used closer to trial: 72% of the cases settled when they were less than 90 days from trial; and 53% settled when they were 90 or more days before trial. But the reverse side of that coin was that the savings were less if ADR was used closer to trial than if it was used earlier.
-ADR was more likely to be effective in larger-dollar cases. ADR was successful 78% of the time where the settlement was for less than $30,000. But it was successful 90% of the time where the settlement was for more than $120,000.
-The average investment in ADR was quite small: $870 paid to the mediator; 12 hours spent in preparing for the mediation; and seven hours spent in the mediation itself.
-The return on investment was good because the average benefits from ADR were significant: $10,700 saved in litigation costs; and six months saved in litigation time.
But results cannot be measured solely in tangible terms. Even where the cases did not settle, our attorneys realized other valuable benefits from ADR, including:
-narrowing the issues; and
-helping the parties move closer to settlement, or facilitate a later settlement, by demonstrating good faith, expressing empathy, or improving their relations.
Special Interests of the United States
Justice's support for ADR is very strong. But we must remember that ADR is a tool for appropriate cases, not a panacea for all cases. We recognize that private parties face more unusual challenges and greater complexity in mediating with the United States than they would in dealing with other private parties.
The interests of the United States often are unique. A corporate client focuses on the bottom line, and drives toward a solution that is as quick and efficient as possible. But Justice and other federal attorneys cannot be motivated to settle for nuisance value or because it would be a good financial deal. They must consider the effect that settlement may have on similar claims, and the interests of other agencies and institutions. They can resolve cases only in ways that will not undermine important legal issues, jurisdictional defenses, or policy interests.
Moreover, many of the government's cases simply are not appropriate for ADR at all, for example, those requiring precedential guidance to interpret a statute or regulation. Justice always must be prepared to litigate fully every case that it cannot or should not settle. The reminder is in the words of the Supreme Court which are etched on the walls of the Justice Department:
"[a government lawyer] is a representative not of an ordinary party to a controversy, but of a sovereign whose obligation.....is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935)
Special Applications of ADR at DOJ
I want to take you for a moment beyond the civil arena, to the other areas where Justice is using ADR to good advantage in a variety of settings.
In the criminal area, the United States Attorney's Office for the District of Columbia has established a Community Misdemeanor Mediation Service Program. Through a partnership with a local dispute resolution center, experienced mediators work to resolve pre-arrest and post-arrest cases between complainants and defendants who have an ongoing relationship. The parties may be neighbors, workplace colleagues, landlord/tenant, or family members. The typical cases involve misdemeanor charges of simple assault, threats, unlawful entry, or destruction of property. About 80% of the cases are resolved through mediation and diverted from prosecution.
Justice's Community Relations Service offers formal mediation in cases of community racial tension and conflict. In 2002, it successfully concluded mediation in 18 racial conflict situations, which ended with formal agreements that serve as models for other communities facing similar conflicts. CRS also developed a conflict resolution training program for law enforcement officers dealing with racial, ethnic, and cross-cultural confrontations.
At the community level, Justice is active in funding mediation training for local law enforcement agencies to use in resolving citizen complaints through the "COPS" office (Community Oriented Policing Services). Justice is promoting ADR for local conflicts in school, neighborhood, special education, and family problems through its Office of Community Dispute Resolution. And it is promoting the use of criminal offender mediation programs and restorative justice through its Office of Victims of Crime.
Federal Workplace ADR
I had many years of experience in human resources management at Justice before joining the Office of Dispute Resolution. That background has given me a particular interest in use of ADR in the workplace and I'd like to spend a few minutes addressing it.
As is the case with offices everywhere, conflict is "a given" in the federal workplace. In so many cases over the years, I saw situations where workplace conflicts escalated out of control, causing serious problems for both the involved parties and the entire office. You in the private sector know as well as we do that those unresolved workplace conflicts exact a high cost. They negatively impact productivity, morale, and relationships for both the short-term and the long-term. Unconstrained workplace conflict can polarize and paralyze an office. You just have to say "there must be a better way." We need a vehicle for early intervention in these disputes so they are resolved quickly and effectively.
ADR is that vehicle. But for now most of the federal sector is lagging behind the private sector in using it for workplace conflict. In the federal sector, ADR is being used uniformly in only one area of workplace conflict - discrimination complaints. Other than that, ADR is unavailable or underutilized in most of the federal agencies, including the Department of Justice.
Federal agencies are required to offer ADR only for allegations of discrimination under the equal employment opportunity laws and regulations. They need not offer ADR for any other type of office dispute. EEO allegations are the most common type of workplace complaint in the federal government and are raised about 50,000 times annually. In the last decade, federal agencies have seen a doubling of their EEO case backlogs. The Equal Employment Opportunity Commission has seen a tripling of its hearing backlog and a seven-fold increase in its appeal backlog.
The cases are time-consuming and expensive. On average, a federal administrative EEO case takes three and one-half years to process at the agency level. If a federal civil trial process follows that, it adds another two years. Processing a simple case at the agency level costs at least $5,000 and formally litigating a more complicated one can cost almost $80,000.
The use of ADR has resolved many of these EEO cases economically and effectively. The Department of Justice pays, on average, approximately $1,000 for a mediator in a workplace case, and our attorneys estimate the litigation cost savings at more than $17,000. An added bonus of course is that ADR helps the parties rebuild and preserve their relationships.
But many of these cases never should have developed into an EEO complaint in the first place. Many of them are not about discrimination at all. In the cases that progress to hearing at the EEOC, the administrative judges there find discrimination only about five percent of the time.
Why do so many claims allege discrimination when 95% of the time there is no discrimination? It's actually very understandable. In many agencies, employees can get the potential benefits of ADR only if they do raise a complaint of discrimination because their agencies do not offer ADR in any other context. Even if the dispute is not really about discrimination - and even if the employees do not really believe it is - the EEO process represents the best, or only, way for employees to use ADR for having their issues heard or taken seriously. The EEOC itself has observed that many of these disputes are simply "basic communications problems" in the workplace (ADR Study, U.S. EEOC Office of Federal Operations, October 1996). This is a problem begging for a workable solution.
The private sector faces a comparable problem, but for a different reason. Corporations are pressured by the competitive and global economy. They must find a workable solution to cut the cost of their workplace conflict. Many of them are doing so by adopting integrated systems that allow them to manage conflict, not just disputes. These integrated conflict management systems anticipate conflict and try to intervene with it before the conflict develops into real problems. Our former Associate Attorney General, now your colleague, Jay B. Stephens (Vice President and General Counsel at Raytheon Co.) is providing a good example. Raytheon's new workplace ADR program is a pro-active systems approach, and the Raytheon program leaflet describes it well:
"The ADR process is not about winning; it is about fair and responsible reconciliation and restoring relationships, when different views of a situation bring people into conflict."
Like the private sector, the federal government can cut the cost of workplace conflict and would do well to take a page from the corporate book. We should stop waiting passively for workplace disputes to end up by default in an adversarial process like EEO before dealing with them. Instead, we should get out in front of those "basic communications problems." We can, and should, adopt integrated conflict management systems that let federal managers and employees use ADR for dealing constructively and pro-actively with their workplace conflicts.
What's Next for ADR?
In closing, let's look at how remarkable the last 20 years have been for ADR, as well as where we are today, and where we are going tomorrow.
Twenty years ago, the Internet was not part of our daily lives. Today, we cannot imagine business without it, and indeed business has accelerated to keep pace with the speed of the Internet. The prospect of waiting several years for a dispute to be resolved in a civil action has become unacceptable. Tomorrow, we will all need attorneys skilled in time-efficient dispute resolution.
Twenty years ago, geographic boundaries were defined. Today, the Internet has made them porous. Tomorrow, the global community will need attorneys who can deal quickly and well with disputes in a multi-cultural, international environment. That community will be looking to the United States for guidance. This summer alone, the Office of Dispute Resolution was asked to give briefings on the dispute resolution processes of the United States to legal delegations from Indonesia, Malaysia, Gaza, and the West Bank, as well as a judicial delegation from the Slovak Republic.
Twenty years ago, mediation was not part of the curriculum when many of us were in law school. Many of us were not taught how to negotiate, or how to differentiate between legal positions and client interests. We were not encouraged to "think outside the box" and become creative problem-solvers. Today, more than 150 law schools offer clinics, courses, or programs in dispute resolution or negotiation and related skills. Some have LL.M. programs in the field. Law students learn to assess the value of a case, conduct risk analysis, and distinguish the client's real interests from the legal position being asserted. They can negotiate in a way that creates value and minimizes conflict, and use those skills for both transactional matters and dispute resolution. Many of them want to work in an area where they can use their dispute resolution skills. Tomorrow, we will need them and will give them many chances to use those skills.
Twenty years ago, dispute resolution was not part of judicial operations. Today, ADR is being used, not just in the courtrooms, but also in the boardrooms, the classrooms, our personal lives, and on the streets. Students from an early age use peer mediation to resolve their disputes. Mediation is being used for nursing homes and geriatric care issues. Police officers use mediation skills to resolve conflicts without force. Community leaders use conflict resolution techniques to deal with racial and ethnic tensions. Tomorrow, mediation will be part and parcel of our world, from kindergarten to the end of life.
Twenty years ago, ADR was just the beginning of an idea. Today, ADR has come of age. It is a framework for management of conflict in both the public and private sectors. It is conserving our resources and enabling us to do more with less. It is lessening the cost of business and government, and delivering better results to the stockholders and the taxpayer. This winter, the American Bar Association's Dispute Resolution Section will ask the ABA House of Delegates to approve a recommendation that federal agency ADR programs and initiatives be fully funded and considered an integral part of their core mission. The recommendation also seeks Congressional oversight to insure maximum usage of ADR by federal agencies.
Today, the term "alternative" dispute resolution is a misnomer. ADR has become so much more than just an alternative to litigation. People now think of it as "appropriate" dispute resolution for an endless array of conflicts. It is the smart approach, it is accepted, and it has become part of our universe. Tomorrow, the federal arena, the private sector, and our everyday lives will offer ever-expanding uses of appropriate dispute resolution.
Thank you.