Published jointly by U.S. Environmental Protection Agency; Federal Deposit Insurance Corporation; Federal Mediation and Conciliation Service; Department of Health and Human Services (Division of Alternative Dispute Resolution Services, Departmental Appeals Board); Department of Justice, Office of the Senior Counsel for Dispute Resolution; Department of State, Office of the Dispute Resolution Specialist; Department of the Treasury, National Office of Appeals; and Wisconsin Employment Relations Commission. ©1996 Christopher Honeyman and Charles Pou, Jr. Permission is granted to reproduce this document in whole or in part, with proper attribution. 

Moderators
Christopher Honeyman, Consultant 
Charles Pou, Jr., Administrative Conference of the U.S.

Panelists 
Deborah S. Dalton, Environmental Protection Agency 
Donald L. Greenstein, U.S. Department of Justice 
Philip J. Harter, Attorney 
Eileen B. Hoffman, Federal Mediation and Conciliation Service 
Robert M. Jones, Florida Conflict Resolution Consortium 
Charlotte Kaplow, Federal Deposit Insurance Corporation 
Neil H. Kaufman, U.S. Department of Health and Human Services 
Thomas C. Louthan, U.S. Department of the Treasury 
Robert P. Myers, Jr., U.S. Department of State 
Suzanne Goulet Orenstein, RESOLVE, Inc.
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Contents

Introduction 
Who’s Talking 
Part One: Ten Perspectives 
Part Two: Hard Questions, Tentative Answers 
I. On conflict of interest and confidentiality
II. The economics of outside and within-agency providers
III. The procurement process and related issues
IV. Nuts and bolts: Getting the right people
V. Are quality controls readily available?
Annotated Bibliography
Appendix: Tasks, Skills and Performance Criteria of Mediators 
Tasks of a mediator (samples) Knowledges, skills, abilities and other attributes Performance evaluation criteria
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Finding and Hiring Quality Neutrals: 
What every government official needs to know

Introduction
When should neutrals from the private sector, from within the agency involved in the dispute, or from another agency be used? What policy, budgetary, conflict of interest and other issues arise? What is your agency’s perspective?

Beginning in mid-1994, the Administrative Conference of the U.S. and the Inter-agency ADR Working Groups sponsored an attempt to address these and related questions. This monograph examines the main questions that were put to the panel in four successive discussions over more than a year.

The monograph is constructed approximately in the form of a transcript, and draws heavily from transcriptions of two workshops held during the 1995 annual conference of the Society of Professionals in Dispute Resolution. But some of those who had much to contribute could not be present at every meeting of the group. In order to take advantage of their perspectives, and for purposes of clarity, the discussion has been edited and reorganized, and some comments (particularly Philip Harter’s), made at sessions that were not recorded, have been added back in. The edited “transcript” attempts to capture the essence, not necessarily the sequence, of a complex and multi-faceted discussion.

Sponsoring this working group was among the last of a long series of contributions to the dispute resolution field by the Administrative Conference, which ceased to exist as an agency of the Government on October 31, 1995. We would like to express our gratitude to the Conference’s management and staff for their forward-looking response to a difficult situation. Thanks are also due to the William and Flora Hewlett Foundation and the Wisconsin Employment Relations Commission, without whose joint support Christopher Honeyman’s involvement in this group would not have been possible. The reader should note, however, that the opinions of all of the participants are their own, and are not necessarily those of the U.S. Government agencies represented, or of the Foundation or the Commission.

Who’s Talking
By definition, a document which has as its intended audience a wide spectrum of government officials must anticipate that many will not “know the players without a scorecard.” Not only is a reputation for expertise in ADR often made within a relatively closed environment, such as a single department; but explaining the background of the person speaking is sometimes a necessary prerequisite to a real understanding of why his or her opinion logically ought to differ from your own. The short bios which follow may help the reader place the panelists’ views in perspective.

Christopher Honeyman 
Chris Honeyman serves as director of the Dispute Resolution Program of the State of Wisconsin’s Employment Relations Commission. For eighteen months beginning in early 1994, Mr. Honeyman also served as a consultant to the William and Flora Hewlett Foundation, studying the financing of the dispute resolution field in general with an eye to developing better strategies. His final report, Financing Dispute Resolution, was completed in September, 1995. As part of that inquiry, Mr. Honeyman began to examine the possibilities for improving understanding of the strengths and limitations of the various ways of providing neutrals for disputes within or involving the Government. In cooperation with the Administrative Conference of the U.S. and other agencies, this initiative led to a series of discussions among Government and outside experts, culminating in this monograph. Mr. Honeyman has written extensively about dispute resolution ethics, qualifications and quality control, and financing. These writings have been instrumental in a number of government agency, court-based, scholarly and other initiatives in the field. Among these was an independent national research and development program known as the Test Design Project. Mr. Honeyman was director of that project from its 1990 inception to its conclusion in 1995. In that capacity he served as draftsman of the Project’s Methodology (National Institute for Dispute Resolution, 1995) and its Interim Guidelines for Selecting Mediators (NIDR, 1993). The Project’s work as well as Mr. Honeyman’s individual writings on quality control have been widely cited. Mr. Honeyman has worked as a mediator, arbitrator and administrative law judge in labor disputes since 1978; from 1973 to 1978 he served as a field agent and hearing officer for the National Labor Relations Board, based in Detroit. He has also served as a neutral in a variety of other kinds of disputes; from 1984 to 1987, for example, he served ad hoc as the sole administrative law judge of the State of Wisconsin’s then-new Waste Facility Siting Board.

Charles Pou, Jr. 
Charles Pou served as director of the dispute resolution program at the Administrative Conference of the U.S. for nearly ten years. He has conducted and managed a series of research and implementation projects that have served to increase federal agencies’ use of mediation and other alternative means of dispute resolution during that period. Mr. Pou was centrally involved in the drafting and enactment of the Administrative Dispute Resolution Act of 1990, which implemented many Conference recommendations and gave the Conference lead responsibility for assisting and coordinating federal ADR activity. He later chaired the government’s ADR Coordinating Committee, which oversees the activities of several interagency ADR working groups. Mr. Pou has written, spoken, and taught extensively on dispute resolution and administrative law issues, worked with dozens of agencies to help them install dispute resolution processes, and developed educational and training programs, publications, videos, and other materials intended to assist federal agencies to employ ADR processes effectively. He has mediated both federal government and private cases in the D.C. District Court’s program.

Deborah S. Dalton 
Ms. Dalton is Deputy Director of the Consensus and Dispute Resolution Program (formerly the Regulatory Negotiation Project) in the Office of Policy, Planning and Evaluation, Environmental Protection Agency. As such, she advises EPA program office and regional office management on the selection and implementation of various consultation, consensus-building and dispute resolution procedures for use in developing rules, implementing policy and prosecuting enforcement actions. She is co-author/co-editor of the primary reference book on regulatory negotiation “Sourcebook on Negotiated Rulemaking,” initially published by the Administrative Conference of the United States in 1990 and republished in 1995. Ms. Dalton is the Project Officer for the largest dispute resolution contract in the Federal Government, providing access to a full range of dispute resolution services (facilitators, mediators, arbitrators, and trainers) for both regulatory and enforcement dispute resolution. She wrote the EPA’s “Request for Proposal” for this contract, chaired the EPA’s Technical Review Committee that evaluated proposals, and served as primary advisor to the contracting officer who negotiated the contract. As project officer she oversees the selection and performance of mediators for more than 95 work assignments annually. She serves as in-house liaison and mediator between the service providers (who know little of contracting requirements) and the EPA program officers (who know little of mediation.) Ms. Dalton has also worked with EPA and other agencies to come up with other ways of contracting for neutrals, such as small purchase orders. She assisted ACUS and GSA in reviewing the impact of, and recommending changes to, the Federal Acquisition Streamlining Act for obtaining neutrals. Ms. Dalton initiated and coordinated the design of a training course for FMCS mediators for Negotiated Rulemaking, and served on the Blue Ribbon committee for FDIC in the design of their roster requirements.

Donald Greenstein 
Don Greenstein is Deputy to the Senior Counsel for Dispute Resolution at the Department of Justice. Mr. Greenstein has been involved in National Performance Review activities throughout the federal government, and under the auspices of the ACUS Working Groups chaired the committee which designed and implemented the Sharing of Neutrals Pilot Program. This pilot, launched in August, 1994, later became an ongoing tool for resolution of EEO and other internal federal agency disputes. He presently is chairing the program’s steering committee. Mr. Greenstein has served on the faculty at a number of DOJ—Legal Education Institute and DOJ—Attorney General Advocacy Institute dispute resolution and negotiation classes as well as at training programs at other federal agencies and within the private sector. He has also served as a mediator and arbitrator for local court and community programs throughout the D.C. metropolitan area, and as a mentor to peer mediation programs at public elementary schools in Kensington, Maryland and Falls Church, Virginia.

Philip J. Harter 
Philip Harter is an independent lawyer and mediator in private practice. His primary focus is on designing and mediating complex, multi-party matters involving public policy. In addition, he consults with agencies on dispute resolution systems and serves as a neutral in commercial disputes. The United States Court of Appeals for the District of Columbia Circuit, En Banc, appointed him as a mediator to assist the court in the resolution of its cases. Mr. Harter is also Adjunct Professor of Administrative Law at the Washington School of Law of the American University and of Environmental Dispute Resolution at the Vermont Law School. Mr. Harter is the Chair of the Section of Administrative Law and Regulatory Practice of the American Bar Association and was appointed by the President of the ABA as the Co-chair of its Committee on Regulatory Reform. He was formerly a member of the Council of the Section of Administrative Law, and was appointed by successive Presidents of the ABA to its Standing Committee on Dispute Resolution. Mr. Harter’s article Negotiating Regulations: A Cure for Malaise was the basis of the Administrative Conference’s recommendations on negotiated rulemaking and has served as the foundation for the subsequent practice. ACUS subsequently based its recommendation on agencies’ use of alternative means of dispute resolution on his report, Points on a Continuum: Dispute Resolution and the Administrative Process. Mr. Harter was a principal draftsman of the Negotiated Rulemaking Act of 1990 and the Administrative Dispute Resolution Act, both of which were enacted as amendments to the Administrative Procedure Act.

Eileen Barkas Hoffman 
Eileen Hoffman has served since 1991 as General Counsel of the Federal Mediation and Conciliation Service. Previously, Ms. Hoffman served as one of the agency’s ten district directors, responsible for 17 mediators in an eight state district from 1985 to 1991, and as a field mediator (Commissioner) in Washington, D.C. from 1982 to 1985 and in New York from 1976 to 1980. In 1978, she represented FMCS on a six month assignment to the British Advisory, Conciliation and Arbitration Service (ACAS). She also served as research director for the Massachusetts Labor Relations Commission (1974-75) and as a research specialist for the Conference Board (1971-74). Ms. Hoffman has served in a number of capacities in professional associations, including as president of the Society of Professionals In Dispute Resolution (1983-1984), as executive board member of the Industrial Relations Research Association, the Society of Federal Labor Relations Professionals and of the Association of Labor Relations Agencies, and as a public member of the ABA’s Labor Law Section Committee on Federal Labor Relations. She has written in the fields of collective bargaining, comparative labor relations, communications, and alternative dispute resolution. As the lead mediator for federal negotiated rulemaking committees, she facilitated draft regulatory negotiations with the Environmental Protection Agency, the Department of Transportation, and the Federal Aviation Administration. She teaches graduate school courses at the University of Maryland in organizational communication and negotiating public policy disputes and law courses in ADR and negotiations at George Washington University Law School, and has conducted training in negotiations, dispute resolution skills and systems design for government officials, labor and management groups, administrative law judges and EEO officers. She has also taught graduate courses in collective bargaining at Cornell University and seminars on women in the labor movement at the University of the District of Columbia.

Robert Jones 
Bob Jones has served since 1990 as director of the Florida Conflict Resolution Consortium, a state program assisting in complex growth management, public policy and community dispute resolution. He has been active in the dispute resolution field for more than fifteen years, serving as an arbitrator in labor and employment disputes and as a mediator in community disputes. From 1982 to 1990, he worked for the National Institute for Dispute Resolution, primarily on public policy disputes and professional education programs. In 1992, Mr. Jones was appointed chair of the Society of Professionals in Dispute Resolution’s Commission on Qualifications. He played a major role in the deliberations of that twenty-member body, which in 1995 published its second report, “Ensuring competence and quality in dispute resolution practice.”

Charlotte Kaplow 
Charlotte Kaplow is an attorney with the Closed Bank Litigation Section of the Legal Division of the Federal Deposit Insurance Corporation. She joined the FDIC in 1990 as a member of the Conflicts Resolution Unit, which was responsible for the development of the ADR Program at the FDIC and RTC. In 1992, Ms. Kaplow became one of the two ADR Coordinators responsible for developing, implementing and coordinating all ADR matters for the FDIC. In that capacity, she designed and implemented the Claims Pilot project which the FDIC ran in the Northeast. Ms. Kaplow also helped design and teach both the Basic ADR Course and the Advanced Negotiation Course at the FDIC. Ms. Kaplow is one of two FDIC staff who, with the RTC ADR Unit, were responsible for the development of the FDIC/RTC Roster of Neutrals.

Neil H. Kaufman 
Neil Kaufman is a lawyer and is Director of Mediation Services at the Department of Health and Human Services’ Departmental Appeals Board. In addition to his federal sector experience, Mr. Kaufman has an extensive mediation background by virtue of his affiliation with the D.C Mediation Service (1982-86) and the D.C. Superior Court Multi-Door Program (1986-94). Mr. Kaufman also mediates for northern Virginia Mediation Services, and is certified by the Supreme Court of Virginia to mediate disputes in the State court system. Mr. Kaufman has been trained in and has mediated interpersonal, small claims, domestic relations, personal injury, contract, grant and employment discrimination cases. He has trained new mediators throughout the federal sector, and is on the adjunct faculty of the Department of Justice’s Legal Education Institute, where he teaches negotiation and mediation. Mr. Kaufman has written a mediation manual, “A Mediation Model,” which is used widely in federal sector mediation skills courses.

Robert P. Myers, Jr. 
Bob Myers has been the Department of State’s Dispute Resolution Specialist since 1994. In that capacity, he has been responsible for developing an alternative dispute resolution plan for the State Department; designing and teaching a pilot mediation course at the Foreign Service Institute; and developing and implementing a pilot mediation program to handle Equal Employment Opportunity cases. Since being appointed a Foreign Service officer, Mr. Myers has served as a political officer in the Philippines, Laos, and Spain; coordinator for ethnic minorities affairs in Vietnam; chief of refugee affairs in Thailand; political advisor to the commanding general of U.S. Southern Command in Panama; and as U.S. Consul General in Belfast, Northern Ireland. His “domestic” assignments have included counternarcotics, legislative affairs, anti-terrorism and dispute resolution work. Before joining the Foreign Service, he worked as an intern for the Agency for International Development in Washington, as a community development officer for a Native American reservation in Banning, California for American Friends Service Committee, and as a purser/medical officer on a freighter to the Orient for the States Line Steamship Company. Mr. Myers has served as a mediator for the D.C. Mediation Service and the D.C. Government’s Office of Civil Rights and Minority Business, and recently joined the shared neutrals program as a mediator.

Suzanne Goulet Orenstein 
Suzanne Orenstein is vice-president and director of mediation and training at RESOLVE, an environmental dispute resolution organization in Washington, DC, where she has worked as an environmental mediator since 1987. She is responsible for designing, staffing, conducting and managing dispute resolution efforts on environmental policy matters at the federal, state and local level. The issues she has helped forge agreement on include greenhouse gas emission reductions, methods for assessing pesticide impacts on birds, allocation of financial responsibility at Superfund sites, revision of rules concerning Resource Conservation and Recovery Act (RCRA) manifesting, and public participation in RCRA permitting. Prior to joining RESOLVE, Ms. Orenstein was the Alternative Dispute Resolution Coordinator for the Attorney General of Massachusetts, where she inaugurated programs to settle various civil cases. She also served on the faculty of the University of Massachusetts Graduate Program in Dispute Resolution, where she taught mediation and negotiation courses. She has more than fifteen years of experience as a mediator and trainer. With respect to the questions that arise in the procurement of neutrals, Ms. Orenstein has managed, for eight years, a large federal contract for environmental dispute resolution services awarded by the U.S. Environmental Protection Agency. She also chaired the SPIDR Environmental Sector during the period when it developed and published its list of competencies considered desirable for environmental mediators.

Part One: Ten perspectives
The issues involved in finding and hiring quality neutrals for government disputes are many and varied. We have tried to address them by deliberately soliciting contrasting points of view, which emerge from differences in role, experiences and agency (or non-agency) setting. In the course of several discussions spaced over more than a year, we found that the act of stating everyone’s biases first helped others to recognize the reasons for the differing terms in which different actors viewed these problems. But beyond that being candid, and to some degree self-critical, helped to define a larger area of common ground than had been thought to exist. As in the discussions which led to this monograph, we believe it is best to begin here with a short statement of where each participant is “coming from.” Like much of the rest of this document, the statements which follow are slightly refined versions of those recorded at two workshops conducted by the group at the 1995 annual meeting of the Society of Professionals in Dispute Resolution, amplified by some remarks noted at earlier discussions. Though what follows has been edited (primarily to convert spoken English into more readable form) no attempt has been made to go beyond the somewhat rough-and-ready content characteristic of a discussion which is still evolving. The reader is therefore requested to bear in mind that the statements of all participants reflect the state of our understanding, and are subject to change as that understanding develops. We have no illusions about being definitive, and hope merely to be useful.

Bob Jones:
For the last two years I chaired a twenty-member Commission that SPIDR as an organization re-formed. There was an original Commission, formed in 1987, that delivered its report in 1989, and so it had been three or four years in the interim where SPIDR did not have a clear focus on some work going on on qualifications. And this was a period of time, starting in the early 90’s, where there was a lot of activity at the state level, at the federal level, on policies, with legislatures doing various sorts of things, described in various ways, by various practitioners. And there were lots of new practitioners, and new sectors, new applications, new areas, and a lot of change. The organization thought they needed to reconvene their Commission. This time around we had 20 members. We had 3 Canadian members, we had 17 practitioners in the U.S. covering the whole range of contacts from labor and employment to environmental to family, so it was a very broad group, reflective of the broad number of sectors within the organization. 

And we worked for a couple of years as we were groping to figure out what we could do of value and of use and of guidance to this organization and others in the field. That resulted in, a couple of months ago, the 1995 Commission on Qualifications Report. It’s not simple and straightforward and prescriptive as such, and therefore it’s hard to describe what in fact it contains in five minutes. But let me just say briefly in terms of the organization of the report, our judgment was that there was a very poor framework for the discussion of qualifications, especially when you had to cross over boundaries from one sector to another or from one process to another. And so one of the things we focused on, and it was really a matter of necessity within the group of 20 that we had, was to come up with a way to have a conversation where we could begin to get at issues and not fall apart in the first instance. So part of the report’s suggested framework is that there are a series of fundamental questions to ask. Whether you have an existing program or whether you’re about to launch a program, there are a series of considerations to look at as you go through that. So the thought was to offer this out as a framework for guidance in this dialogue—an important dialogue but a difficult one.

The second part of the report has recommendations, and these are addressed to all audiences. They’re addressed to practitioners, they’re addressed to dispute resolution organizations or programs, such as programs within governmental entities. And there are recommendations for trainers, there are recommendations for consumers and for government policy makers and legislators. The Commission tried to tease out recommendations that could be directed in terms of guidance for different audiences.

They are broad recommendations. There’s not a whole lot of prescription in them, but underlying them is a commitment to competence as a concept. That needs to get defined and there needs to be a process for defining that. It’s linked to quality, and part of that premise was that in order to get to that analysis you needed to bring a broader group of “stakeholders,” as we call them—practitioners, users, policy makers, program administrators—to collectively work on the question of how to organize a qualification system; how to go through that; and how to apply and tailor it to your particular context.

That problem of context was the other thing that I will say, briefly, a couple of words about. We had about maybe 10 or 12 contexts represented on our Commission. It was very difficult having conversations about what applies in a family context in terms of competent practice, and what applies in a public policy environmental multi-party/stakeholder, or in an international context. So one of the things we suggest is context is really very very important and if you begin to take the view that you can propose some universals that cut across, you immediately are going to run into problems. It’s our suggestion as a policy matter that you need to define the context, the goals of the program, etc., and tailor your system to fit that context.

We also came up very strongly that we’re not suggesting that everyone stop and disband everything you’ve got just because there’s a new way of doing this. I think recently we had a conference in Florida and several people from the federal level came down to this Governor’s conference and Neil Kaufman offered for that crowd the notion of “ready, fire, aim.” I think that’s the notion of reviewing and refining as an ongoing process. You never get it right out, and if you can recognize that, and build that into the policy and the framework, you need to invest in that ongoing learning process because that is how these programs evolve.

I’ll just make a point about the multiple paths to competence. We asked everyone, early on in our group, to tell the story of “how you became a neutral practitioner.” We had 20 stories and not a single one of them fit any model, any sense of standardized approach. Some came to the field from such wildly different things, like running a sporting goods store to being a labor negotiator. The point is that we realize that competence is acquired in different ways. To try and standardize that and limit the paths—one, we don’t know enough to do that and, two, there’s a richness in the multiple kinds of experiences. But competence needs to be defined at some level, in terms of protection for the user, but also for the integrity of the field itself.

Those are very general overview kind of propositions; I encourage you to look at the report. SPIDR as an organization is going to be trying to figure out what this report means, for itself.

Chris Honeyman:
For this quick overview, I’d like to focus on what mediation is and on what “quality” means in a mediator. In a research and development effort called the Test Design Project, we drew up a methodology, and the definitions which are shown (in Appendix A) are from that document.

The excerpts start with a list of tasks of mediators, which resulted from a long and involved discussion among many sectors of the field. We had judges involved in this discussion, as well as people who represent membership organizations, people who have studied the field for years as scholars, and mediators of many kinds and descriptions. But neither that list nor any of the “skills” lists which follow is complete. Every one has to be tailored for a particular program by the people running that program. The Methodology is about how to think your way through that process. There are, for example, programs in which “following procedure” is meaningless. These are programs which are so new that to follow procedure would mean in practice to apply models from somewhere else that have absolutely no applicability—and therefore that criterion may be inappropriate for a certain program. There are other programs in which we’ve had the objection that “oral communication” should not be specified as a knowledge, or skill, because the program deals with deaf people. So the task list—what the program wants the mediator to do—varies somewhat from program to program.

The Methodology excerpts (Appendix A) continue with some descriptions of some of the qualities that we thought went into “good” mediation. And again, the overall description of any quality you’re looking for may vary from one program to the next, and this is part of the process that Bob was talking about. There is, for instance, a whole philosophical branch of the field that believes that it is not part of the responsibility of a mediator to “generate options.” Among those groups, “generating agreements” is also not typically considered to be part of the responsibility of the mediator—it’s supposed to be the mediator’s job to create conditions under which the partiescan do that. So our “variant 1” list is not appropriate for everybody; and we tried to lay out some examples of what evaluation scales might look like for some programs which were following other doctrines. 

I would like to draw your attention to the last item in the list of basic skills, “substantive knowledge.” We came to the conclusion after long discussion that we didn’t want to press for programs to require substantive knowledge in the initial selection of the mediators, because we had concluded that it is quite common for a mediator to be effective with the parties, if the person has the other skills, even if the person knows nothing at all about the kind of dispute that this is. Mediators learn as they go.(1)

Charles Pou:
The Administrative Conference has been involved in giving advice and some degree of assistance to agencies on questions of finding and selecting neutrals for about 10 years. I guess it really got a little more intense with the passage of the Administrative Dispute Resolution Act back in 1990. We were given a number of relatively formal responsibilities, some of which we’ve picked up on with alacrity and some of which we’ve quite frankly proceeded very slowly on. Also a lot of informal advice giving and consultation with agencies. One of the things that we have the responsibility for is establishing and administering a roster of neutrals for federal agencies. We have taken a very distinctive view about what’s appropriate there, and indeed it’s a view that some people have disagreed with us on. Personally, and I think institutionally, we are very reluctant to take the position that we can predict who is likely to be competent in the future in a variety of processes and a variety of milieus with a lot of different types of parties. So while the Act authorizes, indeed some would say directs, the Administrative Conference to develop standards for neutrals, we have not developed those standards because frankly we don’t think that we’re qualified. We’re starting to see some things in the field like the second SPIDR Commission report that are getting some thoughtful analysis, and I think the field frankly is not quite ready to make those types of broad prescriptive determinations in advance.

It’s not just a question of what you are competent at doing; it’s also a question of what the—perhaps unintended—consequences of credentialing are. I think any types of standards, of necessity, are exclusive and I think in a field that can pride itself on being inclusive and open to people from a lot of different backgrounds, it would be really tragic to start to set standards too high or too strenuous in the name of competency. I think there are other ways to get to competency.

We at ACUS have tried to stress the old Sy Sims notion that an informed consumer is our best customer. The more you know, the better able you are to ask questions about what you need in a particular type of case, the better you will be able to get a neutral who suits your needs in that particular case. Indeed the Administrative Dispute Resolution Act is very, very open—I think reflecting the Conference’s perspective—and really relies more on what the parties want in any particular case than anything else. To try and help agencies along those lines we’ve developed guidance documents. We have put on a number of round tables and seminars, brown bags, including some of the things that Chris really has taken the lead in putting together and moderating. Our basic idea is that the more people in the government know, the better able they’ll be to make intelligent decisions without the need for some type of specific criteria. There have been agencies, in particular FDIC and RTC, that have seen a need, for their own purposes, to develop those kinds of criteria, and I think they’ve really done it in a very thoughtful way. But I think that’s because of their particular situation, and Charlotte Kaplow can talk more about that. We are still of the view that there are just too many types of disputes and too many types of agencies out there for meaningful criteria to be developed across the board for the whole government.

One thing we have tried to do in addition is to keep agency dispute resolution specialists who’ve been appointed under the Act apprised of some of the recent innovations that have been going on, like Chris’ Test Design Project. I think there’s really some very thoughtful advice that is being developed. My view is that giving people that advice, making it available to them in a way that they can then incorporate it into what their agency does, makes a lot more sense than for some central part of the government to start issuing rules or guidelines about who you can or can’t hire in particular situations. 

Don Greenstein:
Through the leadership of Charlie Pou at the Administrative Conference there was a working group that was put together about two and one-half years ago. Neil Kaufman and I jointly organized the “sharing of neutrals” pilot project. It was based on the idea that within the federal sector, there were a number of individuals who had training as mediators which came from outside local court programs and community based programs, who could be utilized to mediate internal federal disputes with the idea that on a collateral duty basis an employee from one agency might be tapped to help mediate disputes at another agency.

The program, which started a year ago in August, just completed its first year. It was very slow to get started but we did have a pool of approximately 30 trained facilitators most of whom had over 100 cases under their belt in outside programs. The idea was then to set it up as a co-mediation model with individuals who had a minimum of 20 hour training course to be co-mediated through at least 5 mediations; and then the idea would be that those individuals could become lead mediators. The program has had over 30 cases which have been mediated over the past year. It was originally set up to be geared towards EEO, employment discrimination type cases. I’d say over 80 percent of the cases that have been mediated have been in that area. We’ve had some other contract and other issues come up. The program was set up on the same model that Charlie talks about for his roster at ACUS, as being inclusive rather than exclusive. A minimal amount of training, the idea was that the agency that was contacting with a request for a neutral would have a choice of individuals and could select on their own. We have available information packets, which contain most of the information about the program as well as the forms needed for applying to participate. The program recently went nationwide, and it is no longer a pilot but an ongoing sharing of neutrals program. We’re always looking for more neutrals to participate. But we have had a number of individuals from the outside call asking to participate; the problem there is that we are being exclusive in that area. Our feeling is that we’ve set up a program in the federal sector and we want individuals who have federal experience. We have taken in retired federal employees to act as neutrals, but otherwise it’s on a collateral duty basis. These retired federal employees are volunteering their time.

Suzanne Goulet Orenstein:
RESOLVE works closely with the U.S. EPA. I should note that Debbie Dalton is here. Debbie and I are the partners who have shaped the work, integrating outside facilitators and mediators into the EPA use of dispute resolution, which as many of you know, is quite extensive. EPA is in the forefront of doing regulatory negotiations and settlement of lawsuits that are enforcement cases. We’ve pioneered introduction of mediation into various kinds of environmental disputes.

Environmental disputes have a couple of features that make them particularly amenable to bringing in outsiders. They are very visible, very controversial issues where people don’t trust each other. Where environmental groups are suing agencies and have long histories of disputing, using outsiders has been pretty—in at least some cases—productive, and I think EPA was wise in looking at why it was necessary to bring in outside mediators. And they’re very very skilled at making some of those determinations. 

I think it would be best for me to use my remaining 2 1/2 minutes just to talk about the perspective of the outside neutral, because Debbie will talk about contracting issues that go into trying to work with a government agency when you’re an outside neutral. For us, a primary concern in preserving neutrality is making sure we have the confidentiality protection in every contract that we sign with the government. The cost of responding to the RFP’s that come out alone is pretty significant. We’ve spent upwards of 40 thousand dollars at times bidding on the contract that’s going to be awarded; that means you have to be an organization that has a cash flow, that has a rate structure that covers those costs in some way. EPA’s been very good at helping us understand how to build our rates so that we can recover all of the costs of doing business with them, and we’ve really matured on that front.

I think another contracting issue that we have to deal with, and that we pay a lot of attention to is this quality control issue that several of you mentioned. Our contract is set up—and I should have said this earlier so that it doesn’t look like we’re doing all the work—our contract is set up to be a bit like a roster. We are a prime contractor, which is the way the federal government contracts, and we have 65 individuals who are in 19 organizations who are subcontractors. So we play a role with EPA in sending work to mediators around the country and making sure that we’re matching a mediator with a dispute: Working with the agency to develop the qualifications for each mediation project, and then finding the best person in the country to meet that.

Some of you know me from the past. I started out in the mediation business in 1979 as the director of a community mediation program, and I feel like I have been matching mediators and disputes since those days—and those skills still apply in the management of this EPA contract. We try to do training for our subcontractors; we have an annual meeting to bring the subcontractors together with EPA; we recently brought a bunch of facilitators together to talk about some common problems on one kind of project; so we take our quality control seriously. But a better term for it might be to call it support, for the people who are doing the work to meet the needs of the agency, to help them understand the needs of the agency, and likewise to help the agency understand the needs of the mediators. 

Deborah Dalton:
As Suzanne will tell you, one of the biggest problems that we’ve had in the eight years of having a contract with EPA is that we’ve changed contracting officers, on average, at least twice a year over the years that I’ve managed this contract. It is a continuing problem within EPA to keep our contracting officer educated and flexible enough to be able to manage a contract that is not your typical government contract.

I have available selected portions of the request for proposal that we put out in the fall of 1993 for dispute resolution firms to bid on. The full document is about three times that thick by the time you add in all of the standard federal acquisition regulation provisions. In the sample, I left out most of the cost submission requirements in there and just put in the substantive statement of work, the technical evaluation criteria and the instructions for preparation of the technical portion of the proposal which I thought were pieces that were more useful to our audience. Contracting officers at your own agency will know what portions of the RFP to include and how to request the cost documentation that best pleases your agency.

I’ve managed this contract and the preceding contracts for about eight years now. The contract has grown. The first year that I managed it, it probably carried less than five hundred thousand dollars worth of services in the first year, and I don’t think we even used that much. The contract for the latest contract year (March 21, 1994 to March 21, 1995) used in excess of three million dollars worth of services. Training, mediation, facilitation, public participation services, in all more than 65 delivery orders were placed on the contract. We now have about 96 delivery orders on this contract which are managed by one and a half people in my office, plus a contracting officer who manages 12 other contracts, and Suzanne and her staff, so we work pretty hard at this. I’m also available to talk to people about other kinds of issues that we’ve had with regard to managing dispute resolution services between agency users and the mediators.

Philip Harter:
I come with multiple hats. I suppose foremost is my own self-interest as a private provider of dispute resolution services to government agencies. A significant portion of my practice is wrapped up with designing, convening, or mediating issues involving at least one government agency. Oftentimes it is the agency alone which retains me, but in some instances that responsibility is divided between an agency and private companies. My second perspective is from the vantage point of one who has been deeply involved in developing both the theory of the administrative use of dispute resolution techniques but also the implementing legislation. From this perspective, I am interested in enhancing the system by which the Federal Government offers the responsible use of dispute resolution processes. Finally, as an administrative law junkie, I am also interested in how ADR fits into the broader administrative process. I would love to say that each of these perches yields precisely the same view, but t’ain’t so: they’re not always fully consistent with one another and at times they are in outright disagreement with each other.

Charlotte Kaplow:
The FDIC is slightly different from other government agencies, in that we are a government-chartered corporation funded by insurance premiums paid by insured depository institutions. There are thus fewer constraints on the FDIC’s ability to hire outside neutrals. In addition, the FDIC had a massive amount of litigation with outside parties. At the time we started with ADR, we decided that we needed to develop some sort of system for finding neutrals. Between the FDIC and the RTC, we had a hundred and twenty thousand pieces of litigation pending around the country. So we figured we were going to need a lot of neutrals. We didn’t just need mediators, we use arbitration, we use neutral expert fact finding, we have done minitrials, so we were looking for a broad range of neutrals. But we wanted them to have some background in commercial type dispute resolution. We didn’t feel that somebody who had done a lot of family work or community work was going to be able to make the jump to huge commercial disputes. We looked at context, as the Second SPIDR Commission report in the end recommended, and what we needed were people that had some expertise in the kinds of disputes which we see the most.

We then tried to figure out how we were going to come up with these neutrals, and we looked at the literature, and at the time there were a couple of trial performance-based reports—one out of Wisconsin, one out of Massachusetts—where they had actually done performance-based qualification. They’d given people a problem, they put them up on a stage or whatever and had them mediate and then they were evaluated. And indeed the first SPIDR report was out at the time that we were looking for a way to do this. And it also recommended performance based qualification. But that’s very expensive when you’re trying to do it nationally, and we didn’t see how we could do that. So we looked for something else. The SPIDR report suggested that an experience-based qualification test might be an alternative to the performance based test.

Then we had to decide: How do you evaluate experience? We didn’t think it was education, and we came up with some ideas and then we pulled in what we called our blue ribbon panel, which was a group of professionals in various areas of dispute resolution. We had some government people. We had Charlie Pou, we had Debbie Dalton, we had some outside providers. We had Linda Singer and Michael Lewis on the panel. And we had some academics. We had Frank Sander come in and give us some advice. And they came up with some standards that we could use to try and qualify neutrals for an FDIC/RTC roster, and we published a report.

What we decided was that experience-based criteria were things like the total hours or time spent as a neutral; the number of cases that had been handled; the diversity of both substance and process; and the dollar amount—we see a lot of big dollar amount cases; and multi-party experience because we also see a lot of cases where there are a lot of different parties; and then the complexity of the cases, multi-issue type cases. We also had, because we thought Congress had told us we had to, a qualification standard for women and minorities. We just recently discovered we’re unconstitutional, so we are in the process of redoing our standards to reflect the fact that the Supreme Court has said you can’t give points to qualify women and minorities for a roster. At the time we made the determination to give points for women and minority status we believed we were complying with our Congressional mandate, but we now think it may be unconstitutional so we made some changes. I want to mention the fact that the FDIC also does use internal neutrals. We have trained mediators in-house who have done disputes in the past involving what we called “controlled entities.” When we take over a bank, we inherit its litigation; if you take over 50 banks, you’re liable to have litigation between 2 or more of the banks. We mediate all of those types of disputes that come under controlled entities, so we also have used internal neutrals and we are going to continue to use internal neutrals, and indeed we are in a process of talking about developing an internal roster of neutrals and doing some co-mediation the same way that they’re doing the inter-agency shared neutrals program. Then we’re hoping we’ll have people to offer to the shared neutrals program.

Eileen B. Hoffman:
FMCS is a major provider of dispute resolution. In the beginning, when the Department of Labor was founded, we were the U.S. Conciliation Service, doing labor mediation, and we had a roster of arbitrators. So we had private citizens on a roster of arbitrators, but fully paid and staffed mediators. (We called them conciliators then.) When we became independent of the Labor Department in 1947, we inherited that same idea of full-time federal employees providing mediation and a roster of private citizens doing arbitration. 

What’s happened is the field has moved and we’ve been moving with it, from helping Navajo and Hopi Indians in land disputes, to resolving EEO complaints and dealing with other kinds of reg negs and other administrative disputes. In recognition of that, the Administrative Dispute Resolution Act of 1990 named us as one of the in-house agencies to assist ACUS and the government generally in providing neutral mediation services and other services for disputes—a whole range of disputes called, briefly, administrative disputes. We’ll have an extension in the form of an amendment that was just introduced by Senator Grassley and Senator Levin from Iowa and Michigan respectively, a Republican and a Democrat, called the Administrative Dispute Resolution Act of 1995. This wisely does not have a sunset provision, so we don’t have to keep going round and round. Basically what that Act said was—to Federal agencies—it’s okay to do this. Up till then, there were a number of general counsels who said, “if it’s not in the law maybe we shouldn’t be doing it” and therefore the ADR Act made ADR an “okay thing to do” and encouraged its use. Some of the fruit of that you see around here—dispute resolution specialists in the room, who now have these titles and, hopefully, commensurate responsibilities and respect. The Act created an industry out of what FMCS is trying to do, and we’re very pleased to see that. FMCS has reorganized itself to deal with these changes. ADR is now an integral part of a mediator’s job. John A. Wagner, Director of ADR Services in Washington, DC and his excellent staff, as well as our 200 mediators throughout the country, provide the services.

There’s been a change in our work load, in step with changes in the labor movement. Much of our time is still resolving crisis-type labor disputes, but what we’re doing increasingly is teaching, training and other kinds of alternative dispute resolution, be it in the form of “partnerships” between federal unions and management, grievance mediation or things like systems design, negotiated rulemaking, policy dialogues and facilitation. There are lots of different terms for it, but the essential change is having people look at what they’re doing in a slightly different way. Actually our people have found that to be skills-enhancing. The labor-management community is looking at us as more of a full service operation, and we’re getting involved in areas beyond the labor area. I see an interesting and important cross-fertilization going on. What we are learning is that you can transfer skills in certain types of disputes to other areas. 

But when we can get into substance versus content, I do think a grounding not only in process, but in some substantive knowledge is critical for certain types of disputes, not only for your own legitimacy but also for creating options and devising better ways of helping the parties resolve their problems. Just recently in the area of unfair labor practices we were named by the National Labor Relations Board to mediate some outstanding charges of unfair labor practices. We’re doing it cautiously in this one case. We would like people to resolve their problems without going through the whole litigation cycle. If we can be of assistance in that area, it’s something we would favor. We also have a roster, as I mentioned earlier, of arbitrators—there in the labor arbitration area it at least seemed easier to reach a consensus about who should be on that roster in terms of content, hearings, cases, which Charlotte mentioned. In the ADR area it may be harder. 

In conclusion, the mechanism for our mediation in the alternative dispute resolution area is through inter-agency agreements. We’ve heard earlier about contracting, which is one approach, full-time employment, which is another, but there can also be inter-agency agreements, whereby our agency signs an agreement with another federal agency to provide this service. It avoids some of the other hassles that were mentioned about contracting. 

Neil Kaufman:
I’m going to tell you something about myself that even those who’ve heard me talk before don’t know. Most of you know me as a mediator, but I am also “Chief Administrative Officer” for the Departmental Appeals Board of the Department of Health and Human Services. The reason I tell you that is because that in a sense represents my bias and what I’m in this discussion for, which is to talk about collateral duty. We’ve accomplished promoting ADR in the federal sector with no resources, no budget for it, and we’ve done it through collateral duty. Hence, not only am I Chief Administrative Officer, not only do I run our ADR effort, but I have other duties. I believe ADR can be advanced without a lot of resources, without a whole lot of contracting out. We’ve done it by people taking on additional work, by using people who already have skills. And there are a lot of people in the federal sector who already have specific skills. That’s true for Washington, DC in particular, because D.C. has some very good community programs. We just tapped into that resource. Also, we had people who were skilled trainers who could go out and train other people in the organization.

Robert Myers:
Since I am the Dispute Resolution Specialist at the State Department, you may be surprised to hear that “we don’t have any conflict at the State Department.” At least that was a common attitude I encountered when I started about a year ago. Fortunately, I was able to convince the Under-Secretary of State for Management that we needed to comply with the ADR Act by putting together an ADR program, and that I should be the person to do it. In fact, he asked why it hadn’t been done already, and instructed me to go out and do it as quickly as possible.

But, he made it clear that, given budgetary stringencies, I would have to draw on existing resources; he also instructed me to begin in the EEO area. So I had certain prescriptions to deal with right from the outset. I had no money and I was told basically to pilot my effort in the EEO area. My major resource would be the men and women of the Department of State.

I began by talking with a number of ADR experts, several of whom are in this room, about how to get an ADR program up an running. I quickly came to the realization that we would need mediators and somehow would have to train them. I had no money, but FMCS was kind enough to offer us Pete Swanson. Together with Pete, we developed a mediation course to be given at the Foreign Service Institute.

The key thing I want to focus on in this very brief session is: How did we identify trainees with high potential to become quality mediators? We were not certain what selection criteria to use, but as we looked around, the best criteria we could find were Chris Honeyman’s—his knowledge, skills and abilities list—slightly modified. (We found that there were a couple of skills we could not test for, such as integrity and emotional stability. You might want to refer to the Test Design Project’s Methodology for a discussion of those kinds of issues.)

We decided to interview each one of the candidates who volunteered for the course. We asked them to send us a resume and to participate in a half hour interview, in which a role play consumed most of the time. We gave them a small conflict to resolve in any way they could, using their natural problem solving skills. We didn’t expect them to perform as mediators. We just wanted to see what their style was and we then graded them on a scale of 1 to 10, using the modified Honeyman criteria. We think that the interview and criteria worked remarkably well. Indeed, Pete Swanson said that our group was the best he ever had trained.

I heard something earlier that I wanted to pick up on, and I hope that we are not “unconstitutional” too, but one of the things we were looking for, above and beyond the normal skills that you need in a mediator, was diversity. Diversity in an ethnic and racial sense, but also in a vocational sense: We wanted men and women from all corners of the State Department—Civil Service, and Foreign Service, white collar and blue collar, high ranking and low, with a wide variety of functional skills. We did quite well, but we did not get either the very low ranking people or the crême-de-la-crême (supposedly) of the Foreign Service. This is something we will be working to improve next time around. Finally, since we felt that there would be a need for our mediators to also serve as “catalytic agents” we looked for people, some at least, who could go from the training and be able to spread the word about ADR throughout our organization. In that spirit, we also sought participation by our colleagues in AID, ACDA and USIA, with the idea of getting their agencies more actively involved in ADR and, in the longer run, perhaps forming our own in-house shared neutrals program.

We stayed in-house for our training because our options were constrained by a lack of money, but also because we believed it was important to inculcate ADR skills into our workforce. With money, we might have on occasion hired professional mediators from the outside. We also considered using the shared neutrals program, but it was just starting at that point and wasn’t yet taking cases. So we were really forced to go in-house, and to use people that would do mediation as a collateral duty. Now we’re up and running; we mediated about a dozen cases and we have begun to use the shared neutrals program, as well the Dispute Resolution Board at the Department of Agriculture.

In terms of identifying and selecting quality people for training as neutrals, I hope that the State Department will in some sense serve as a “guinea pig,” because we did compile some statistics using Chris’ criteria. It will be interesting to see if the people who best met the criteria in the interview become high quality/best mediators over time. Already, our top rated person has been selected as a member of the shared neutrals program, while the person ranked lowest in the interview process failed the course. While this may be anecdotal information, we think that it tends to validate both the Honeyman criteria and our selection process.

Our problem now is how to “certify” our trainees. They are presently co-mediat-ing with experienced mediators. The question that bedevils us is: How does one decide when people are fully-fledged? Should we ask a blue ribbon panel to use the Honeyman criteria and grant certification accordingly? That is where we are in terms of trying to identify, train and certify quality mediators at the State Department. If anyone has any ideas about certification, I would like to hear from them.

Part Two: Hard questions, tentative answers
This group has now grappled on several occasions with some quite tricky problems. The following section is based primarily on the group’s answers as given at the September, 1995 SPIDR workshops noted above. They are subject to change as the discussion develops and as more perspectives come into play.

I. Are there conflict of interest problems, confidentiality problems, or other concerns that affect whether neutrals who are federal employees of other agencies—or of your own agency—can be acceptable or usable as a neutral? 

We started with the hardest case, the “inside the agency” question. Here, the mediator is drawing a paycheck from the same agency within which the case occurs. We asked Suzanne Orenstein to make the case against using an internal neutral. 

Orenstein:
I mentioned earlier, in environmental disputes there are probably some barriers to getting at the nitty gritty parts of the dispute if you were to use an internal agency person, when people are in dispute with the agency. That’s why I’ve thought that one of the criteria for using an outside neutral is to look at the level of controversy and the agency’s involvement in that controversy. If the agency is a party in an intense dispute, you probably are going to have trouble getting the kind of frank communication you need to settle disputes through mediation using an inside person—but that’s my “outside” view.

Honeyman:
Okay, but wait a minute. You’re starting to distinguish types of cases here, right? 

Orenstein:
Yes, I am. But I have to say, in response to Neil’s earlier comment, that folks working inside the agency on disputes is necessary—great in lots of situations. It is not, however, free. We, as taxpayers, are paying our government employees to do that, and I don’t think we should assume that the services are free.

Honeyman:
Would you expand a little bit on the kinds of conflict of interest perceptions that you’re afraid of?

Orenstein:
Again it depends on the context. Who’s in the dispute, what their knowledge is of the workings of the agency, and so forth. However, if agency personnel are mediating disputes that involve their colleagues, you’re going to have trouble establishing trust, the trust that’s necessary for people to confide private things and really settle a situation. I have never worked in the EEO area and it seems to me that that is an area where this is happening and it does not seem to be a barrier from what I’ve heard, so I’d be curious to hear from those who have that kind of experience. On the environmental side, we’ve been fortunate that we have done a lot of work as outsiders, and there have been examples where internal people have been extremely helpful. It’s not verboten, it’s not necessarily in playing a mediating role. At EPA we have people who are doing process design and beginning to bring the parties together. The key is, if you move to an outside person, that you have a good partnership between the internal and external people. You need outside people when the level of distrust is very high; when the parties are giving up legal options or avenues in the settlement; when you’re trying to provide confidentiality or protect it; when you’re looking for a special kind of substantive expertise; and when the agency is integrally or publicly involved in the dispute.

Honeyman:
Okay. The other end of that spectrum, the “use people from inside the agency concerned, and even the sub-department concerned,” is represented, I think, by two people here, Neil and Bob. Let’s start with Neil.

Kaufman:
In response to Suzanne’s comment that it’s not free—it’s not free, but it’s very cheap, you ought to see my paycheck! And it’s very good, I might add. So I did overstate in my initial comments. I don’t think that inside people can do everything, by any means. And I don’t think that’s realistic. But I wanted to represent the opposite of the idea that all you need to do is: “We want to design a system, let’s get an outside contractor.” You don’t have to do that. There are other ways to approach this. 

In terms of the conflict of interest, I think that in a small agency it may be more of a problem with the kinds of cases that you’re referring to—EEO—than for a large agency. And so I think you do have to be aware of that. And I think you have to make sure—you have to also realize that whether there’s some conflict, if you put it before the parties and they say don’t worry about it, we want to mediate anyhow, then you can proceed. And that’s occurred as well.

Honeyman:
Can you come up with some idea of numbers of cases that have been handled through this internal system?

Kaufman:
We’ve handled hundreds of EEO cases internally, and we’ve never had an internal person say they didn’t want to use our services because we were part of the agency, except once. We did have it once. And the person wasn’t terribly familiar with our organization. 

One aspect of our organization that may distinguish it, and this may be something that you all will find might be different for you, is that we’re already postured as a neutral within the department. And it’s a very large department. And we’re there almost like a court. So we have a reputation already for neutrality. Yeah, I get my paycheck from the federal government. Nevertheless, our job is to resolve conflict and we have over the years developed a reputation for neutrality, so I think that helps us.

Honeyman:
Are you dealing primarily with EEO issues in this program, or are there contracting and other kinds of issues that come before you?

Kaufman:
We have a wide variety of cases. We mediate grants cases (things like Medicaid in a state-run program, and Head Start). We also mediate enforcement actions, contract disputes and non-EEO workplace disputes.

Honeyman:
Bob?

Myers:
Our agency is pretty small and everybody seems to know everybody else, so there is a problem of both confidentiality and trust. Interestingly enough, it cuts both ways. In the first place, we’ve not had a lot of cases, but so far we’ve done pretty well in terms of people buying in and staying with our in-house system. Frankly, I thought our people would say, “No way I’m going to put my Foreign Service career on the line, using a mediator from Agriculture who doesn’t understand what an embassy is, and what an ambassador is, and what foreign policy is. My career is on the line here, you know.” Yet, both cases that we sent over to Agriculture settled. So we are offering both an in-house option and a choice of going outside the agency to either the shared neutrals program or Agriculture’s Dispute Resolution Board.

As I mentioned in my opening remarks, the other thing we’re looking at is training mediators in-house who are not from the State Department, but who work in sister foreign policy agencies like AID, ACDA and USIA. Those people would not formally be part of our personnel system. Since many of our complainants are fighting Personnel, they may be reluctant to trust an insider as a neutral. But if we can offer a mediator who is from a sister foreign policy agency. someone who has served in an embassy overseas and understands what an ambassador is and what foreign policy’s about, he or she generally should be acceptable. So we are actively developing this option.

Neil said something interesting to Suzanne, to the effect that the service provided should not only be cheap, but the crucial thing, he said, is that it be good. If it’s good, then that’s okay. The jury’s still out for our group; we’ve just trained them, and it’s going to take time to know whether our people are good. One of our trainees has been accepted by the shared neutrals program, and it appears that most of the others will emerge as good mediators; they seem to establish the trust that you need. Therefore, we’ve avoided the conflict of interest problem, at least so far.

Audience member:
It seems to me that there are 3 different categories of cases. In one, you have disputes within an agency, between an employee, for example, and the agency. A second is inter-agency disputes, and the third is between the government and a private party. Certainly, in any of those three cases, if both parties consent, I don’t think you have a problem. We’re talking here about mediation, which is a consensual process where nobody has to agree unless they want to agree. I think it’s difficult to perceive a conflict of interest situation in that kind of a situation unless the mediator violates the confidentiality aspect of his or her responsibility. However, when you’re talking about the government and a private party, I think as a practical matter there are going to be relatively few cases where private parties are going to be happy having—unless it’s statutorily mandated—are going to be happy having a neutral provided by the federal government.

Harter:
I pretty much agree with Suzanne Orenstein and want to underscore her analysis. Before revisiting that, however, I’d like to address the specific question. It seems to me that there is generally no particular conflict of interest problem if the neutral is from a program that is independent of the issue in controversy, whether from the agency in the dispute or another. So long as the neutral does not report to anyone involved in the dispute and is not tied up in the specific, factual matters then it should be satisfactory so long as all the parties are aware of the neutral’s regular duties and approve of the neutral serving in that capacity. After all, that is pretty much the same system we have for administrative law judges: They are employees of the agency whose cases they will be adjudicating, but they may not be answerable to anyone who has prosecutorial duties. Employing someone from within the same agency may be a bit dicey if the parties do not have the opportunity to object. It would strike me, for example, that it might not be entirely unreasonable for someone to be a bit concerned that a neutral might be steeped in the prevailing “culture” of the agency and hence not fully sympathetic to their cause. But, absent those unusual cases, there is probably not a major problem for routine cases.

And, although the current provisions of the ADR Act do not extend full confidentiality to government employees since the Act does not exempt neutrals from FOIA, one can make a reasonable argument that the neutral’s notes are not “records of the agency” subject to FOIA when the employee is performing collateral duty.

Picking up on Suzanne’s point, large, major cases involving policy may present a special situation that needs some special thought. First, if the issue involves the policy of the agency, any employee of that agency is necessarily under the direction of someone who is involved—the agency head. While that may be more theoretical than real, the example indicates two concerns. One, those outside the agency may nevertheless feel the relationship between the neutral and the agency is too close since the issues transcend a few individuals. And two, the neutral should be someone from outside the part of the agency—the entire subagency—that is involved with the issue since the person at the top of that section will likely be involved in making the final decisions and it would be inappropriate for someone who directly or indirectly reports to that person to serve as the neutral. Thus, one of the measures is the degree of controversy: The larger, more policy-oriented, more agency wide, the more appropriate it would be to go outside the agency—to someone in the private sector or someone from another agency.

Another, related concern, is that large disputes often take a long time to resolve. The question then becomes whether someone who is being a neutral on the side, in addition to their specific duties, will have sufficient control over their time to perform the duties throughout the process. A private provider is paid to do so.

Also, in some disputes the neutral may be called upon to do things that might be very difficult for an agency employee to perform. For example, senior officials may need to be contacted, or people from other agencies in situations where there would normally be a chain of command that would prevent—or at least discourage—the agency employed neutral from doing that.

Lastly, one needs to think about the long run: Being a neutral, like most activities, improves with practice and experience. The agency needs to make sure that using its own employees, or those of other agencies, is likely to build a cadre of experienced professionals, or whether those neutrals may not be available after a year or so. If the types of cases and those who are mediating them will build that corps, then this is not a concern. If however, there is likely to be a significant turnover, then I would worry about that.

In sum, for specific, fact-based issues, I surely see nothing wrong with using agency personnel and indeed I see some positive benefit. As the issues get more complex and more policy oriented, I see problems with staying inside the agency.

Greenstein:
The Department of Justice was slow to sign on to sharing of neutrals, because the agency represents various federal client agencies in EEO cases. There’s a real concern at the agency about whether it should exclude litigation attorneys that might be involved in representing agency clients in these cases, so that there wouldn’t be a potential conflict of interest. What the agency has done is to exclude some attorneys from the civil component and U.S. Attorneys’ offices which handle EEO litigation.

Internally for EEO disputes, the Department set up its own internal roster of neutrals (and I was very much against it at first, specifically raising the issue of how is an individual from the Department going to be viewed as neutral.) The EEO office noted that if the parties agree on the mediator, then there’s no bias. After some experience I’m tending to agree with that position, and have participated in a few EEO internal disputes involving other components of the Department. I come from the Tax Division, I’m presently in the Associate Attorney General’s Office. At the outset I acknowledged that I came from the Tax Division, within DOJ. There was never an issue raised related to the fact that I was a DOJ employee.

In the sharing program, though, the individuals come from outside the given department and specifically bring with them their federal experience. We had a number of different cases where we specifically had to tailor to the diversity that was spoken about earlier, and for the type of case where we’d have a high level federal executive that was involved in the dispute, we needed to find a mediator of the same stature, so that there was some credibility to it as well as a perception of neutrality to all participants.

Pou:
I’d just like to make a couple of points to follow up on some things that were said already. My favorite point on the whole question of neutrals and what works in different situations is, it all depends.

I mean there ain’t no right answer that will apply across the board, and I think Suzanne made a good distinction. Any time you have a major policy issue where people at or near the top care strongly about what the outcome may be, you can’t have somebody inside the organization playing a neutral role, because they’re going to get pressure either directly or indirectly that is hard to ignore.

I also think that those are not the run-of-the-mill cases. In those cases you have to have somebody from outside and you probably have to have somebody with a lot of experience in that particular situation. I also think that there’s a lot of cases, though, that are very controversial and involve members of the public, where you can use inside people. FMCS and our agency worked with the Labor Department to put together a program; the fact that Labor is a big agency and has a lot of different components, so that you can bring people from OSHA to do cases for another part of the agency, made a difference, and made those people more acceptable to the outside parties. I think you could not possibly make that work at EPA, which is a small, cohesive agency, and which (some feel) has kind of an “bastion” mentality vis a vis the people they regulate.

It really can depend on the kind of agency culture, on the agency. And on the location of the neutral. Neil makes an excellent point about their being perceived as neutral. I think somebody from the Office of General Counsel, as opposed to the Departmental Appeals Board, would probably not be perceived as neutral. So I think there are resources within certain agencies that make use of in-house neutrals possible, just as there are other agencies where, based on their structure and their mission and their culture, it will never work. Any particular answer that tries to be all things and cover the waterfront misses the point—that acceptability to the parties in the particular case is critical; that is really a very individualistic thing.

Honeyman:
Let’s give an illustration of that, if I may, because at the last meeting Tom Louthan, who represents the Internal Revenue Service, spoke up with something I frankly would never have expected to hear, which was that apparently they have a system now in which there is some acceptability of internal people dealing with large tax cases. Mostly, the public of the United States is not viewed as having a high level of trust for the Internal Revenue Service, so I thought this was very interesting.

Louthan:
Chris, recently we published Announcement 95-2, 1995-2 I.R.B. 59, which has the guidelines for our test of mediation for cases in the Appeals administrative process. In February, we held a public hearing to get feedback on the program. The mediation test should begin in the late Fall. Many of these cases involve ten million dollars and above, and we were seeing that they were going to litigation—you know what that costs. Maybe we could take an extra step in our appeals procedure where we could try to settle the case without litigation. You might have heard of the Apple Computer Corp. case. In that case, the agreement-to-arbitrate proposal was 4 pages long. Well, a year later and 100 pages, they hadn’t signed the agreement to go to arbitration.

So we felt, yes, there is a great possibility that mediation can be successful because it is a much quicker process. We’re talking about a factual dispute where the parties are really far apart, not for a case where they’re close together, and we had a billion dollar case concerning valuation of property, and the first thing we heard at the hearing was that a draft agreement to mediate would help the parties negotiate. We have developed exhibits which give the parties everything they need to get started. We expect that the mediation process can be concluded in two or three months for these tax cases. At the public hearing we got feedback not only from the people in the field that were going to use it (and believe me, there are a lot of skeptics out there, you need to involve them) but also from the taxpayers. They’re the most important part, those 2 people—the taxpayer and the person that’s in the field—they’re really the disputants. It was also at the public hearing that the idea for using Appeals mediators arose.

Honeyman:
But did, in fact, this become acceptable, to use an inside person as a mediator? 

Louthan:
When we held the public hearing it was clear that some people strongly felt we could use an internal person from Appeals. That would be someone either that was well respected and versed in the particular industry, and that had mediation skills—or sometimes maybe it’s a communication problem between the 2 disputants—maybe you don’t need the industry expertise. I think, the 2 parties that are involved in the dispute have to feel good about having that person as a mediator. You can’t force someone to have a particular mediator. That’s the cornerstone of the program. So they can either come “inside” or “outside.” This is a decentralized decision by the region—it’s not controlled at the national office. The two parties to the dispute get together and discuss who would be a good mediator. We heard from several people, we could use the appeals person as the mediator. So we were obviously encouraged by that because as long as the mediator discloses what any potential conflict could be and the parties know about that potential conflict, if they agree to that person being the mediator, this is acceptable. 

Honeyman:
Now that actually is an important point. This goes to the ethical requirements on neutrals. About ten years ago within SPIDR, there was a major wrangle over how to design a system of ethics. The long and the short of it was in the end, what the organization decided after a good deal of soul searching was that disclosure was the key. The requirements that are built around ethics now are not prescriptive, for the most part they hinge on the notion that everybody has got some kind of a point of view, that you cannot have a truly neutered object as a mediator. Therefore, the most important thing is to tell the parties what you’re going to do to them, and then they have a chance to go somewhere else if they can’t live with that.

Audience member:
A question with regard to confidentiality and the statutory I.G.s and mediation, anybody?

Pou:
As a matter of fact, the I.G. at the Department of Agriculture is trying to get hold of a lot of records from the various farmer lender mediation programs, particularly the one in Texas which seems to have somehow caught their attention. The Administrative Dispute Resolution Act, which covers most of what takes place in the federal government, had, when it was introduced, a strong confidentiality provision. There were some people who didn’t like the idea that that confidentiality provision could create an exception to the Freedom of Information Act, and they basically stuck in a clause at the last minute that said that this is not an exemption to FOIA. As a practical matter what that means is that there’s a real incentive in some agencies’ eyes to use neutrals from the private sector, who are not as likely to be subject to the Freedom of Information Act, as opposed to people from inside the government who are agency employees because, arguably, documents in their possession might be agency records. I think there are good arguments that that’s not the case. But confidentiality has been a concern. The version of the Act that Senator Grassley introduced last week cures this and actually makes the confidentiality provision a FOIA exception. In terms of IGs under the Act, there’s nothing about IGs’ access or Congress’s access or anybody else’s access that is any different from the general public’s access. The Act states very explicitly that parties and neutrals shall not disclose except….., and it doesn’t say, you know, anything special about making provision for Congress or IGs; that was intentionally done.

Dalton:
As someone from an agency who went through a year of providing information to congressional committees, one of the design aspects that you may want to build into any kind of mediation system is one that’s built into the multi-door courthouse mediations, which is that at the end of the mediation the mediator destroys any personal, private, confidential records. If you have that as a design provision, then you have no records to provide. It’s in there. They can’t criticize you for not providing records that you don’t keep.

Pou:
The issue is not always about records alone, but also about being able to interview the mediator.

II. What are the economics of using outside contractors, and to what extent are these different from using mediators shared among agencies? Are there other cost considerations than fees?

We asked Charlotte Kaplow to address this first, because FDIC had used a variety of sources of neutrals.

Kaplow:
We haven’t actually used the shared neutral program, but we do use internal mediators; we have had an agreement with FMCS to provide neutrals; and we contract outside. And one of the things that we did—we ran a pilot project in New England where we gave the parties a choice of neutrals, both from the private sector and FMCS neutrals. What we discovered was because the FMCS neutrals were so much cheaper than the outside neutrals—they averaged about $50 an hour and the outside providers were anywhere from about $125 to $250-$300 an hour—in smaller cases that were not complicated, people chose the FMCS neutrals. In complex cases that involved big dollar amounts, they went for outside providers. So, it really does depend on the case partially, the kind of economic determinations people make. If you’ve got a small case and you can get somebody for $50 an hour, you’re going to use them whether they’re a government person or not. If you’ve got a big dollar amount case, your concerns about neutrality become heightened, I think. 

Honeyman:
Suzanne, I seem to recall that this was an issue that was close to your heart. 

Orenstein:
This $50 an hour I have to come back to. I actually don’t know for sure how FMCS charges its fees. At $50 an hour, whether that includes all of the subsidy to the staff that comes with a government budget, a government office, a government-provided computer, etc….. I think there’s a perception that the private sector is paying people exorbitant salaries and charging for exorbitant overhead. All we do is charge the government for the cost of putting an employee in the workforce. And I think the federal government doesn’t calculate things the same way that the private sector does, so that if you did a similar calculation that you might not have the disparity between $50 an hour for a person from FMCS and an outsider.

The other thing is that I definitely know, because public employees’ salaries are public, what their salaries are—and our salary scale is not as good as the federal government. I think it’s a matter of how you count up the fees and how you count up the rates. On the other hand, somebody selling the service for $50 an hour is going to, you know, sell, and that’s a reality of the market that we have to think about.

Hoffman:
A correction please—FMCS charges $55 an hour plus overhead of 20%, as well as travel and expenses. The federal government does charge overhead costs.

Dalton:
The rates on my contract, which are fully loaded rates including salary, benefits, vacation, office space, electricity, you know, the whole thing ’cause they’re outside contractors, vary from $110 to about $210 an hour with an arithmetic mean of about $150 an hour.

Honeyman:
So you’re talking about buried costs, in other words, that are disappearing into somebody else’s budget?

Orenstein:
They’re subsidies. Or, you know, the way the federal government charges for rent is very different than the way the private market—in the way they allocate it to each employee is probably very different, that’s all.

Harter:
There are two distinct issues here: one is the amount paid to the neutral and the other is the transaction cost of obtaining the neutral.

As for the first, as a private practitioner, I am quite concerned that agencies seem to think because someone is already on the government’s payroll that there is no cost in using their services as a neutral. In fact, Congress appropriated funds to pay that person to perform specific duties that are, I gather by definition given the drift of this discussion, independent of serving as a neutral in the particular dispute. The costs include not only that person’s salary, but also their office space, secretary, vacation time, retirement and medical programs, and so on. Last time I looked, the package was about 1.2 times the salary. Thus, to get a rough idea of what the neutral actually costs the government, you need to divide their annual salary by 2,000 to put it in hourly terms and then multiply by 2.2—that is the figure that needs to be compared to hiring someone on the outside. At least, that is the cost of the government of providing those services. I appreciate that someone in an agency is not particularly concerned with that since their own program would not have to pay that amount—in essence it would receive a subsidy. But, in terms of public policy, we do need to think about it when deciding what is in the best overall interests of the government. So understood, my strong guess is that many providers outside the government are fully competitive on a fully allocated cost basis.

The second item is the transaction cost of obtaining the services of a neutral. An agency can use its own employees by means of a simple phone call or some other minor administrative duty. Agencies can share employees via inter-agency memoranda that are quite trivial to implement. The transaction costs can be measured in pennies (well, almost). But to get someone outside, if for anything but the most minor matter, significant costs are incurred. Even if the procurement can be done short of a full request for proposals, multiple bids are required, much paper work, many phone calls, loss of control by the program office, and generally at least six weeks if not more. For larger cases, a full bore RFP is required that is expensive for the agency to prepare and process and expensive for a practitioner to respond. And it takes time; lots of time. And imposes lots of rigidity. And incurs lots of expense.

The transaction costs are something that clearly need to be addressed. Many of us had hoped they were when Congress supposedly streamlined the Federal Acquisition Process, but so far that seems to have happened only in our dreams because it surely has not penetrated any contracting shop that I am aware.

As far as I know, FDIC could be used as a model for a procedure to greatly reduce these costs. After some studying and an advisory group, they put together criteria that would be used to determine whether someone had the requisite experience and expertise to be on a roster. Once there, the agency can select off the roster without significant additional transaction costs. A similar situation could be developed by an agency or by a central agency that could, in turn, be used by other agencies.

Honeyman:
Don, it seems to me that there is some kind of costing that must take place in the shared neutrals project, and people may not know how it works. How do you account for the value of the time that one agency is giving to another, if it gets out of balance? 

Greenstein:
The program has just completed its initial year, and what’s written into the program is that there would be accountability. It’s called “shared” because the idea is that an agency’s time used, of a mediator, would be compensated back by offering individuals who were trained to facilitate/mediate similar cases for other agencies. We’ve been keeping track of that, thanks to the HHS computer system, of the hours of the mediators involved. At this point, we’re just tallying that up. I think, in terms of dollar amount my sense is we will not be looking at thedollars spent by one agency, because there a difference in the employment level of the individuals involved. We have people from GS 11 up to SES involved in the sharing program.

Honeyman:
So you don’t try to account for salary differences?

Greenstein:
We’re counting on an hour for hour basis, and that’s our only accountability. At this point it’s a collateral duty and it’s with approval of a supervisor from the agency where that individual’s employed.

Kaufman:
I hate to do it, but I was actually going to agree with Suzanne. I think that what she says does represent a reality that’s out there; but there’s also the reality that there is this federal government, there are a lot of people working in it, and a lot of the people are more productive in that they have a collateral duty that’s interesting and that they enjoy. So that’s part of the picture as well. What you’re saying is true, however. 

Honeyman:
So you have a distinction there. It sounds to me like you’ve got two different versions of costs that are being paid somehow. You’ve got costs that somebody is deliberately burying. And then you’ve got costs that are sunk costs—in the classic free-market sense, that there are things that you’ve already had to pay for, because you hired somebody on a salary and they’re there for the year whether they do any work or not. So, that’s a sunk cost, and if they can be given a collateral duty there’s no extra out of pocket expense. 

Audience member:
My question is whether you’re contracting in some sense for a management function from this outside organization, or whether you’re contracting directly with individuals and management remains inside?

Dalton:
We do, in our contract, have a management function that we’re paying the prime contractor for. On every delivery order that’s released out to our prime contract, there are hours for the prime contractor to manage the roster, to manage the quality assurance over the product that’s coming in, to manage the billing. Part of that is because at EPA we have exactly three FTE’s that are devoted to this, and we could not manage a roster of 18 or 36 contractors to provide these services on more than 100 work assignments going out in a year. It just would be—on the kind of resources we have we could not do it. And so our agency, because we have had access to contracting money, has been able to do this. 

We’ve considered for a long time what other backup systems we would have to go to were we to get major cuts in our contracting budgets, and one of the primary backups that we would go to would be FMCS because of the fact that, again, their costs are buried. What FMCS charges in its $50 an hour is the same thing any federal employee sees on his or her paycheck. I don’t know about others, but EPA’s paychecks tell me how much I make per hour, and that’s basically what FMCS charges. I did some investigation into these rates at one point. The federal government does not figure in overhead, they do not figure in the vacations, they do not figure in rent and lights and electricity and phone service and rugs and carpets; all this other kind of stuff is not in there.

If these overhead items were to be figured in—it increases the cost quite considerably, into the 80 to 100 dollars an hour range, and that still doesn’t cover everything.

When you’re looking at collateral duty, whether you’re looking at collateral duty within your own agency or borrowing from someplace else in the federal government, you have to look very carefully at how much collateral duty you’re expecting this person to do, and whether or not that person really is sitting around doing nothing for that number of hours or can make up their own work in their spare time. Most of your mediations will occur on workday time, so that means that this person is going to have to make up their own work, or be excused from their own work, for the necessary number of hours.

EPA does not have a mediation program in personnel, grievances or EEO. If and when we do it, we may in fact go to a collateral-duty program to start it up. Those programs traditionally have a little less money to go outside anyway and usually require significantly fewer hours of a mediator’s time than large public policy, enforcement or Superfund cases. Most of those cases involve time in excess of 100-200 hours per case, which is a lot of time for somebody to do on collateral duty. I dare to say that most of the cases on the shared neutrals program are nowhere near that amount of hours per person on one case. A collateral duty person may get up to a couple hundred hours in a year or two if they’re really good, and are really interested, and have nothing else to do. I don’t know about your agency, mine’s facing a 34 percent cut under this Congress and the number of collateral duty people that are going to be available may be very small. 

Audience member:
Follow-up on that. In terms of the economics of putting out that RFP, what was your time cost of developing and getting the first round of your RFP and your actual contract with RESOLVE?

Dalton:
The RFP that I handed out is the third such RFP that I have written and released. So the economics of putting together the third version, what with computers and block and move and erase functions, didn’t take me as long as it did the first time. It’s a matter of iterations, it’s a matter of getting smarter over time and making the program bigger over time. It took us two years from the time I started the paperwork to the time we awarded the most recent contract under a really rush provision because our previous contract had run out four months earlier. And it was not a lot of fun. It takes a lot of effort. I’d say that I was probably working on it a third of my time over the two years and we probably had a contracting specialist working 20 percent of his time. It doesn’t take two years to do what it is you have to do under the Federal Acquisition Regs but there’s a lot of do something and wait, and do something else and wait, and then do something else and then just wait for the in box to get to you.

Audience member:
The organization where I work has a proposal in with OMB. I don’t know if any of you’ve heard of the “franchise fund,” but basically there is a law which is authorizing a pilot, if you will, for six agencies to operate as a fee-for-service, and it’s intended to be an efficiency measure, I believe. And I have been involved in pricing, how we would price ADR services and, including overhead it was running about, and including benefit factors, it was running about half what you’re talking about. Of course that’s not paying Washington, D.C. rent, because we’re operating out of another city. That would make a big difference.

Honeyman:
Did you include supervisory time and those kinds of overhead charges in calculating that?

A Yes.

III. The procurement process, and related issues

Honeyman:
Let’s move on to the circumstances where a clear preference emerges for in-house people, cross-agency sharing or outside contractors. One of the questions that’s come up is: Is the RFP process a real barrier to using outsiders? I guess we go back to Debbie once again.

Dalton:
The RFP process is a horrible barrier. The Federal Acquisition Streamlining Act will help quite a bit. However, it asn’t helped at this point yet. Our RFP, as I said, was about an inch and a-half thick. It required an incredible amount of time to read and analyze it, to obtain the information needed and to analyze the information. Suzanne has already said that it cost them about $40,000 to bid the contract. We sent out over 100 copies of the RFP to everyone we could think of, every firm we could think of that was listed anywhere, every dispute resolution journal, just about any place that we could send it out, and we got very few responses back in the way of interest, and we got very few bids because it did take such an effort to bid this contract.

The other thing that you will find is that most dispute resolution organizations do not read the Commerce Business Daily. It is not on their daily reading list. Most of them don’t have a clue even where to go and look at it, they don’t sign up for the same kinds of Commerce Business Daily bulletins that the defense industry would, to be informed that there is a new contract coming out. So you have to do the leg work with regard to sending out the RFP to potential bidders. We in fact sent out the abstract of the RFP to the hundred organizations and asked them to respond back, and then we also sent the RFP out to those organizations that we thought might bid it.

Our contract, of course, was a very large one. We were doing it for the whole agency. We weren’t doing it for one specific case or one specific kind of case. It is an umbrella RFP that provides dispute resolution services for the entire agency for just about anything we could think of, and so it did require a teaming effort on the part of anybody who was interested, or a very large firm.

Pou:
I’d just like to point out that that’s a horrible burden and nobody should have to go through it more than about once in a life time. But I think it’s also fair to point out that that’s the exception rather than the rule, in terms of the way agencies get neutrals. The RFP process is a term of art; the federal contracting process is really the question, does the federal contracting process get in the way. There are different levels of formality depending on the size of the contract, and a lot’s going to depend on that. A contract under $2,500, which may be the rarity, you can do pretty much what you want to hire someone. If it’s a “small purchase” which, depending on what agency you’re with, is anything from $2,500 to $100,000, it’s considerably less formal and you don’t have to go through nearly as much.

Honeyman:
$2,500 and below would pay for a couple of days, and a lot of cases have been resolved in that or less.

Pou:
Especially if you’re splitting the cost. That’s a $5,000 contract if somebody from outside the government’s paying half of it. So I think that there is more flexibility with the smaller purchases, and the recent Federal Acquisition Streamlining Act purported to make it even easier. Depending on who your contracting officer is and what agency you’re with, it may well be easier. But the fact is that many contracting officers don’t like it to be too easy for you. So they have their own agenda. I think it may well be that the forthcoming amendments to the ADR Act will say “and we meant it when we tried to simplify the process and make it very clear that you could pretty much hire who you want when you want without competition, at least in certain circumstances.” But right now it’s an obstacle; it’s not an insuperable barrier, except in the biggest cases, but it’s really a pain.

Audience member:
Has anyone in the community put out guidelines? Not even guidelines, so much as just general advice on these smaller pieces and what to say to your contracting officer to get their attention about the costs and all of that?

Pou:
We’ve given informal advice and Debbie’s working on something right now that would do that. But also the Justice Department is about to put out some interpretive guidance on competition in contracting that may be very helpful to agencies.

Greenstein:
We’re in the process of putting together guidance that’s going to go out to all Department of Justice attorneys for hiring and acquiring neutrals for their own cases. Specifically, how to go about it with the new guidelines in mind. Justice is trying to put something out that’ll be easy for attorneys to understand, to use in hiring neutrals from the private sector. As an aside that goes along with this, Justice has in place, for those of you that don’t know, a new order from the Attorney General that was issued April 6th, under which the ADR office was created.

Orenstein:
I just would like to bring us back to why you go outside, why you stay inside, and de-couple a little bit the procurement barriers from the purchase of the service that you need. I think that when you’re dealing with the government it is hard to get through the procurement process, but it’s not going to be impossible. And Charlie is right, the RESOLVE contract is atypical, it’s just big. You’re not going to have that many big things. The bigger the case, the more you’re going to have to go through in terms of procurement, and that seems to make sense. On the other hand, I don’t think it’s a good idea for people to think that we should have inside-government mediators because procurement is too difficult or because people are too expensive, or the resources aren’t there. You need to think about who do we need, and then what resources do we have and how do we get them? And putting aside self-interest and so forth, I think there are some circumstances where you need an outside person and there are lots of people who are very good at winding their way through the procurement process, and I think it would be worth investing time and figuring out how to do that.

Pou:
I would like to second that. I think that you put a crimp on the public’s buy into the use of ADR with the government if you limit yourself to internal neutrals, because a lot of people are, for whatever reasons (mostly perception) not going to enter into any ADR process with the government that involves a government neutral. We don’t want to limit the use of ADR in the government, so you have to get around the procurement issues and use outside neutrals, or you’re really limiting the use of ADR with the public.

Honeyman:
Charlotte, can you just comment on what you at FDIC did in that regard?

Kaplow:
We’re not appropriated. We don’t have as much of a problem with that kind of a thing as your normal government agencies. The money for a lot of our neutrals comes out of the receiverships that we administer, so we have not had that kind of problem. And our contracting people have been very helpful. We have an ADR steering committee and it has on it somebody from contracting who works with us so we could overcome the problems. 

Honeyman:
So you felt like you could just hire whoever–

Kaplow:
Yes, and we do, again, we do very small things. We hire a neutral for a case. We split the costs. So we rarely have anything over $25,000, and we do a PAV for that because we can. (Purchase Acquisition Voucher.)

Audience member:
We’ve gone through some of the problems of the procurement process and from the Department’s viewpoint I sense that there may be a view that there is some resistance on the Federal Government’s part to hire outside neutrals and that there is some bias there. My experience is that the parties decide exactly how this process will unfold, and it’s been my experience that once the attorneys decide and the clients decide that this thing should be resolved, then the question is how, internal versus external.

Are there biases internally? Once we decide that we should handle it externally, we decide how the costs are going to be allocated and then the procurement process has been very easy, very simple, because we’re dealing with small purchases. And the Office of General Counsel, at least at the Department of Veterans Affairs, we have a good relationship with our procurement people because we service in-house counsel as well as litigators, so we’ve been able to work things out. We’ve been able to work things out; maybe the Department of Veterans Affairs is a little different, and I don’t want to say that it’s a very simple process, but it’s not a complicated process either. We’ve resolved multi-million dollar contract disputes involving prime contractors and a number of sub-contractors—resolved them in a couple of days, using an outside neutral, and there was no resistance internally once we decided that we had to get this thing resolved. 

Audience member:
Yes. I’m a contracting officer and I’m on a taskforce to write a proposal to bring mediation into my agency. I want to assure that the FASA provisions are in that proposal. And I had to do it as a contracting officer—if I had to go two years to get an RFP, they’d fire me.

Honeyman:
When FASA says you can use something less than full and open competition to acquire the services of neutrals, how do you define that? What do you have to do? Could you just go out and hire whoever you wanted then and there without doing anything further? 

(Two audience members:)
That’s our interpretation, but we think there are contracting officers out there who have different interpretations.

Audience member:
That’s been our experience as well. Sometimes the parties decide on, agree on, who the neutral would be, looking at a number; and then we may approach three or two, but the process is really not that complicated using the less than full and open competition. I don’t think that you should consider hiring a neutral any differently than hiring a claims consultant or some other specialty that we normally hire, and maybe it helps if you emphasize that this is no different. It’s not; the product may be slightly different but the process in hiring or utilizing specialty-type people is not different. 

Pou:
I think it is fundamentally different in a couple of ways. I mean this is the only law that I know of involving a government agency that requires the consent of somebody outside the federal government, and as to which half of the pay is going to be given by somebody from outside the federal government. To me, that makes it a fundamentally different situation, and I think there ought to be procedures that recognize that the agency needn’t undertake even the small purchase, three-bid type of approach that you’re talking about. It should be simplified.

Dalton:
The other difficulty that I can foresee as someone who manages outside contracting for an agency is sorting through the volume of letters, brochures, flyers etc. from potential service providers. We’ve had a lot of complaints over the years from people who are not on our contract about the fact that they are not on the contract and that we’re being unfair because we’re not spreading the work around to every SPIDR member who could conceivably qualify to do the work.

Somehow people in the outside world think that the federal government has some positive duty to give them work. What happens with a lot of agencies is you find somebody you like, and you repeatedly go to those people—and that’s going to happen under FASA, it just is going to happen. People get comfortable with particular mediators, whether that’s a good idea or a bad idea is something that a whole other group than SPIDR is debating, but I think it’s going to happen and you’re going to have to deal with the fact that some people are going to come bouncing into your contracting officers and complain about the fact that you are basically limiting the field. I think it’s a big problem.

The other thing I was going to say is that one of the things that I see as a problem in the profession from the shared neutrals program and the collateral duty program is the same thing that professionals who practice on the outside have had to overcome over the last 10 years, which is how do you exist as a profession if you give your services away for free? Ten or fifteen years ago a lot of the professionals in the mediation field, particularly public policy and a lot of the community mediation, were working for free. They were giving their services away and it’s been a very difficult transition to make it into a career that pays the rent. These mediators were being funded by the courts, by the government, by volunteers, by whatever, and it’s taken an awful long time for the profession to become something that you could practice as a living and get paid for, other than by teaching negotiation. And I think that’s one of the problems that we’re regenerating here when we have a shared neutrals program. We’re saying that federal government people can practice it as collateral duty and that the Congress need never give us FTE’s to do this because it’s good government policy. And I think that we should not forget that in constructing our programs, because if we let the Congress get away with thinking that we’re all going to volunteer to do this forever then they’re never going to give us what we need, which is professional mediators inside the agencies.

Honeyman:
Bob, I’d like you to state, if you could, as Chairman of the SPIDR qualifications commission, whether SPIDR as an organization is taking a position on behalf of independent contractors, or whether it has moved away from that public perception of its role and now considers the internal folks and the people participating in the shared neutrals project as equally entitled to SPIDR’s, a share in SPIDR’s policy making and the like. Is there tension within this organization among different groups of people, many of whom are vying for the same work?

Jones:
You need to kind of parse out some issues about what level you’re dealing with here; the internal issues within an agency in terms of disputes that arise within that agency; the next suggestion was inter-governmental from fed to state to state to local and the inter-governmental issues; and then the issues from government to private. I think on each level there this conversation gets changed and there are different questions to be addressed. I mean I’ve been struck on the second level, this inter-governmental level, that there are some very interesting, innovative “peer” notions about how to get a job done in terms of bringing governments together to work on policy issues, etcetera. How you are able to rely upon this notion of peers within intra-governmental issues is another, to me, interesting issue.

Honeyman:
I have to take a leaf from Sherlock Holmes and say that the key there is the dog that did not bark. What you didn’t hear from Bob is the important thing. That is that there are a number of individual members of SPIDR who would be offended, or see it as a threat to their livelihood, that the shared neutrals project is becoming something that is a fixture, and that the internal agency procedures that are being done at Health and Human Services and other agencies are also becoming a recognizable and probably fairly long-lasting feature of the landscape. That, however, does not appear to be reflected in a “get lost” perspective by SPIDR as an organization, which Bob to some extent represents in this context. And I think that’s important, because of the origins of this organization and the perceptions that you might get by talking to individual members. I think it’s fairly clear that the organization as a whole is now taking a broader, more encompassing view of what membership might reasonably entail.

IV. Now for some nuts and bolts: How are you going to do this? “Who ya gonna call?”

We asked Charlotte Kaplow to begin a run-down for people who may never have dealt with this before.

Kaplow:
I think you do have to distinguish the FDIC and our ability to do things with a little less formality. We have our roster. When we have a dispute where we’re going to need a neutral, we have the parties come up with criteria for what they’re looking for in a neutral, you know, they want “a mediator from Texas who has commercial real estate background” and we pull up a panel and we submit the names to both parties, both the FDIC attorney and client and whoever’s on the outside. They then go through a regular process of interviewing or whatever they want to do and they’ll narrow it down to one neutral. They may, in the process, have interviewed those people and talked to them, and we do have on the roster the rates that people are charging which we ask people to keep current. And they’re called. It isn’t really a contract between the FDIC and a neutral, it’s an agreement to mediate a dispute and the mediator is decided on. We insist that the costs be split. The FDIC will not foot the bill for the whole thing.

Honeyman:
So, we have here a slightly special case, and we already know the EPA is a special case because of the huge size of this one contract. Who else has got an independent contracting arrangement going? Tom?

Louthan:
What we do is the IRS does not maintain a list and I think we’ve gone over the reasons for that. We don’t think it’s appropriate to foster any one person’s career. So we look first to the Administrative Conference! All of the contacts that we get from people, we recommend that they go through the procedure to be on the list for the Administrative Conference. Also, we’d look to any other organization in the country, the Center for Public Resources or the Center for Dispute Settlement. We don’t have any guidelines concerning the outside people, except that again our focus is on the two disputants picking that outside person. But the contracting is done by my office to take the pressure off the regions. We have a budget for that and we go through the procurement process for them.

Pou:
I’ll say, first, better stop relying on the Administrative Conference. I think the small purchase process is what most agencies tend to use. I don’t think they need to go to even that level of formality. Basically that just requires the agency to get three bids, even telephonically, which can be done fairly expeditiously. And some agencies I think even streamline it a little bit beyond that. No matter whether it’s a small purchase or not, there’s this kind of hurry up and wait syndrome. One thing where some parts of the government like the Administrative Conference have had the advantage is that we just don’t have the bureaucracy, so that we can do it a little bit more quickly. And, OSHA for instance, has asked us on a couple of negotiated rulemakings to basically take over the contracting process so they didn’t have to deal with the in-house contracting people that they would ordinarily have gone through. I think that there’s some real future prospect in that for agencies that are willing to do that kind of streamlined approach.

I think if I were in the private sector looking to get some current information on agencies that might be hiring, I would start reading the Commerce Business Daily. You can get it on line. You can get focused on what you really care about. Agencies that do contracting regularly have lists of people who are interested in particular types of contracts and if private providers can get on those lists, then presumably they will get notified from time to time of opportunities as they arise.

But I think Debbie’s right that there seems to be a perception on the part of private people that even with small purchases where you really legally only have to get three bids, that they should have been contacted anyway and if you didn’t, you did something that was, if not illegal, at least immoral in their eyes. And I think whatever the agencies can do to try and open it up a bit so that people at least find out about opportunities, even if they’re not given a chance to bid every single time, would be a good step in the right direction. There are a lot of agencies out there that haven’t done nearly as much as they could to get the word out to people who might be interested. ACUS has probably been guilty of that as much as anybody.

Honeyman:
Let’s look at the other side of this coin. The mechanisms for getting hold of people inside the government are not necessarily obvious either. Let’s start with Bob, who’s been dealing with this very recently and has now got—I was interested because you said that you were using people from USAID and from the Department of Agriculture. Let’s start there. Why Agriculture?

Myers:
Well, for the obvious reason that they had an existing Dispute Resolution Board and one of our people did not want to use an in-house mediator and wanted to have someone they felt was more disinterested. And so we asked them if they would like to try the Department of Agriculture’s Dispute Resolution Board? They agreed.

These are also cases—this addresses a different issue slightly, but what we have found is—I don’t know how much you know about the Dispute Resolution Board at Agriculture—it’s a pretty tough process. It’s not pure mediation, per se, and we found that for our more impacted cases, cases that have been around for 8, 10 months and were going nowhere, that our lawyers really liked the idea of putting it in that context and having them resolved there. And we were pleasantly surprised that they did resolve there. I wasn’t convinced that they would, necessarily.

Honeyman:
So as a matter of internal government economics, how does this work? Do you owe Agriculture some time or?

Myers:
Okay, on that case, I mean there’s no such thing as a free lunch I suspect, but Agriculture, to get us interested in their process, said we’ll take six of your cases for free so you can become familiar with our process. I think that the fact that the FMCS gave us Pete Swanson for free to train on one occasion was done with the reasonable expectation that later on they’ll be able to charge us for that kind of training. I think that’s reasonable. But we were at a point where we couldn’t pay. I think Agriculture over time will expect us to pay. And also I think we should, going back to the earlier question, we will go out of the building for mediators. And one thing I heard in that discussion that didn’t get addressed specifically is I think we have a shared interest here. You said it specifically. Getting the word out is part of what we all want, I mean certainly in the SPIDR context we’re all interested in that and the idea of keeping it in-house and to yourself is really not very smart or forward looking so I think we all have an interest in this, in getting outside people involved in the process when they’re needed.

Honeyman:
Pursuing the mechanisms within your agency for another moment, you are providing people at various different salary levels from various different parts of the organization. Is there any kind of internal costing that you’re required to do?

Myers:
No.

Honeyman:
So, their time is free to you, from your point of view?

Myers:
Yes. But with the conditions that we discussed earlier. Obviously there are costs, we are paying for them, but we’re not being asked to account for those costs.

Honeyman:
What I’m looking for is a contrast or comparison to another agency that is also using inside people. Tom, I guess, in your system is there some kind of accounting that you’re required to do for the value of people’s time?

Louthan:
Because this was focused on at the public hearing, and it’s the policy of the National Director of Appeals to support the use of the Appeals mediator to assist the resolution of a case with a taxpayer, we would keep track of the results for evaluation purposes. We also have a built in evaluation program that we use. You want to see how those people are doing and keep track of hours and of costs—travel cost, et cetera.

Honeyman:
But that’s also an interesting thing because you’re dealing with big time cases here, cases where there’s a lot of money at stake, right? Okay. The agency has said it’s prepared to eat the travel costs and just quietly lose that somewhere in the budget, is that right? For the internal people.

Louthan:
Yes. I guess you’re focusing on a very big issue here that you might get to the situation where you cannot use outside contracting because of budget concerns. So it’s important that you develop the people in your own organization, because besides going to court this may be the only option they have, of using the internal person.

Honeyman:
Okay, but these are big cases in which it is worth everybody’s while to have somebody travel in order to get the right person to the right case. Right?

Louthan:
Exactly.

Honeyman:
Okay. Neil, how do you deal with the cost questions of people inside Health and Human Services? Are you having to deal with things that might be regarded as cash costs like travel? Or in the kinds of cases you’re dealing with is that not really a factor? 

Kaufman:
Well, if someone’s traveling, it’s obviously a factor. If we can get both parties to split the cost of travel, that’s great, and we’ve done that. In terms of other costs, my job, I’ve got what’s called a 50/50 job. Half of my job is supposed to be spent doing ADR, mediating a lot of cases, running a mediation program. So that’s a cost of doing business for our organization. You know, it’s built into it. We share a lot of neutrals. I’ve used people from other agencies. Never even shows up on anybody’s books. You know, they’ve got some time, they’re willing to do it, they do it.

Honeyman:
How do you deal with out-of-pocket expenses if there’s travel involved, or has there ever been travel involved for somebody when it’s a shared arrangement?

Kaufman:
Absolutely. There are incidental costs. There are costs that come up and it’s gotta be in somebody’s budget.

We have an ADR team and we’ve started charging fees for training. We’ll draw on those fees for things like what you’re talking about, travel, to do some sort of—we’re creative. What can I tell you? We have no budget per se. Some people do. You all do. 

Kaplow:
We have fees, and all that kind of thing.

Honeyman:
Right. But you’re also the special case that’s not exactly on the standard revenue plan. How about the shared neutral project? How do you deal with that?

Greenstein:
In shared neutrals, the agency is requesting the mediation, and it’s only the agency that can do that; if there’s an individual in the EEO process, they can’t request the agency to use shared neutrals (although they can request that the agency consent to mediation through another ADR program.) The sharing project was designed so that the agencies that sign on to participate will have access to request mediators. Every agency that signed on has used the system and plans to use it, so I don’t see that as a barrier. But the bottom line is that the agency agrees at the time it signs on that it will pay any costs. When it was in the Washington area, that was dandy, because generally from here to Baltimore some agency may have to pay minimal mileage and parking costs, but that’s all it’s ever been.

We’ve recently had some requests that have come in from the Seattle, Washington area and from Alaska to use shared neutrals. Luckily, both those areas were able to find people locally. But the bottom line was in that case they were agreeing at the front end when they said they needed somebody, that they would pay for the transportation for the individual to come out, so it wasn’t a problem. At Department of Justice in our new office, we’ve been inundated with requests from individuals who want to be on our list, our roster. We are taking resumes and information, putting them in files and sending them out to the components just as that “information.” We’re not creating a roster. The Department of Justice has specifically set up a fund to encourage the use of ADR. The Department recently received Congressional approval to transfer money which was allocated for hiring expert witnesses and reallocating it for hiring neutrals. The Department is putting some money into a new fund called the ADR fund which is going to be no-year money specifically for hiring outside neutrals for dispute resolution purposes. And that money we’re hoping will be used up very quickly. Our sense is that within over a year from now we’d like that to be gone so we can replenish it with more, the thought being to encourage as much dispute resolution as possible. The Department of Justice is trying to do empirical data studies as well, to show that there are going to be great cost savings to our litigators from using outside neutrals to help DOJ resolve its cases as early as possible.

V. What quality controls are readily available?

The treatment of the various sub-issues that make up this important topic is necessarily brief here. This discussion should be read as supplementary to the documents listed in the annotated bibliography, many of which were drafted by participants in this monograph.

Audience member:
What are some of the good places where one could be trained as a mediator or get an experience base?

Honeyman:
I’m going to turn to somebody who has not been heard from so far, but not for lack of expertise. David Matz runs the newly upgraded Graduate Program in Dispute Resolution at the University of Massachusetts, Boston, and for a number of years he’s been one of the better known trainers and teachers in the country.

Matz:
Thank you. I think the narrow answer I would give to your question, despite the fact that I run a graduate program and what have you, is that graduate programs aren’t necessarily the place for you to be looking to be trained as mediators. It seems to me that while there are lots of training programs around—free-lance trainers and programs of all kinds—the kind I think you should favor is any kind that gives people actual experience in real conflicts, as distinguished from role plays.

That is, there are a number of programs around that have access to real cases and provide supervised training for mediators. They will certainly have gone through role plays and exercises and classroom stuff preparatory to that, but one major component, if you can possibly find it, ought to be working on real cases. The gap between working on role plays and real cases is quite substantial. And if you’re looking for mediators I think you should be looking for folks who have both kinds, both the real experience and the supervised experience, because what you want to find out is, you want to talk to the supervisor when you want to find out how that person has been doing.

Honeyman:
Does anybody on the panel who is running, in effect, a training program want to comment on the care and feeding of a training program in-house? Bob, you’re running one. 

Myers:
Well, we’ve done it once. One thing that comes to mind in direct response to your question is that the Washington, D.C. area is blessed with top flight trainers. Many fine organizations and individuals are to be found here, and I’m sure that people in this room know their names and can give you some addresses. Our training program at State was set up in the way that it was because the law said go to FMCS and/or ACUS, and so we dutifully did what we were told to do. Both FMCS and ACUS turned out to be much more responsive than we could have ever expected and we got a lot of good advice from them. When it came time to train, we knew several people who were willing to train for us and to get us started, and so we did it on a pilot basis with FMCS. We now have trained 29 mediators at the Department of State. That’s probably more than we need, but since our personnel come and go on overseas assignments, and we also had five people from other agencies, I assume that we will be conducting one training course per year, at the Foreign Service Institute probably, as well as taking advantage of the already existing Negotiations course to introduce State personnel to the basic concepts of ADR. The next mediation course most probably will not be for a new class of mediators because we have enough, I think, to keep us going, but we will probably re-train the initial group of people in more advanced skills. Then the year after that, we will hold a second course in basic mediation skills. So, we will probably go back and forth in that way. I would suspect—but don’t hold me to this, because I will no longer be involved—that such training will be contracted out. 

Honeyman:
One closing comment about training. That is that the thing that should leap out at you from this presentation is the complexity and the variation that are involved in this field. That extends to the training. There is no such thing as a standard training course for a mediator. There are philosophical differences among programs. There are enormous economic differences and differences in the length of training.

I come out of a labor relations background, in which the agency that I’ve worked for regarded training as 3 to 5 years of full-time employment—and we started with people who, most of the time, were lawyers in their 30’s or 40’s, people who had been around. We still figured that “journeyperson” status took years of actual case handling. So what “trained” means is different to different people. One of the things that we hope that the Methodology, the red book, will be used for in the future is for those who are constructing certification systems; qualification systems that are not certification; and training programs, to look through the designs and the methods and the concerns that have been registered in that document and ask themselves: All right, what are we trying to train people to do? We hope that that document will be useful in that context.

Greenstein:
Chris, before you close, I just wanted to say that at the Department of Justice we’re facing training a little differently in that we’ve got 6,000 civil litigators that the Department hopes to train how to go through ADR processes, and we’re actually trying to do some of this in-house and some of it with outside contractors, the idea being to try and train some of our own people how to be the trainers so that we can train 6,000 people over the next few years.

Honeyman:
But those 6,000 you are training to be users of the mediation services? 

Greenstein:
That’s correct.

Honeyman:
One of the things that I stressed in my recent report on financing dispute resolution generally is there’s probably been too much of an emphasis on training more mediators and not enough of an emphasis on training our customers. I’m going to do whatever I can to push the resources of the training part of the field in the direction of starting to make us not only better mediators, but also to produce for us some more informed customers. 

Audience:
What is meant by “senior” mediator? I heard that twice in presentations. 

Dalton:
What I mean by senior mediators—when we did our request for proposal we set up a number of “labor categories” because that’s how you do it in the federal government with a big contract. And we established a labor category for senior mediators and one for junior mediators, recognizing that a lot of the kinds of the mediations that we do it’s useful to have someone who is a little less experienced, who may be in charge of taking the minutes or keeping contact with the parties and is basically kind of an experienced apprentice. Senior mediators in the case of our contract have 5 or more years of demonstrated experience as a mediator, which they have to demonstrate through the proposal process.

Greenstein:
Just a couple of things. I think the notion of senior mediator also came up in the context of the shared neutrals program, which is a different concept. I mean that’s someone with a lot of experience who’s helping a relatively inexperienced mediator learn the ropes, in a mentorship process.

Audience:
At the EPA, did you set standards for people the contractor and subcontractors would have on their rosters, or did they set the standards?

Dalton:
EPA described the basic standards and the same standard was applied across-the-board. The technical proposal instructions included two things that we could use to evaluate experience. The first was presentation of a set of case studies with various types of disputes where they had to describe a case—and we specified that not all of those cases could be cases that the prime contractor had handled—that they had handled. The second was that all of the firms that would bid as a team, (we knew it was going to be a partnership, with the size of our contract there probably isn’t a dispute resolution firm in the country that could handle singly the size contract that we were placing); each had to fill out a chart which listed mediations under various environmental and land use laws and describe the parties, the dispute, the results in a simplified chart so that we could get an idea of the range of experience they had under various environmental laws and also under US administrative laws such as the Administrative Procedure Act, the Federal Advisory Committee Act or the Freedom of Information Act, because we needed a fair amount of experience in those sectors. And from these two items, we were able to weigh the experience quotient. Again, as with Charlotte, we didn’t have the ability to go around and interview all these people and put them through any role plays or observations. We had seen a number of the firms in action over time. There are maybe 60 firms in the United States that do national or state level public policy negotiations, and we at EPA had seen a number of those people work over time, but not all of them.

Audience:
What do you do to evaluate their performance?

Dalton:
Their performance on an ongoing basis? That’s a little harder. We don’t have in place a formal performance evaluation. We do have evaluation sheets that go to our EPA client offices at the end of a case, in which they evaluate the services that the various mediators have provided and how well that was provided, give us any comments on weaknesses that they saw with regard to being able to manage the dispute, any weaknesses in reporting, because we do have a lot of written reports that have a lot of emphasis in some cases.

We just started a project in which we are going to consider how we might involve the parties to disputes in an evaluation of both EPA’s handling of the dispute, and the mediator’s handling of a dispute. That’ll probably be another year in the making. 

Audience:
This morning she said there’s some attempt made to deal with quality issues. 

Dalton:
Given the lack of resources we have at EPA, we have 3 people that handle all of EPA’s dispute resolution programs and so basically we wanted a prime contractor who could do some quality assurance, some evaluation of their own team. They are responsible as prime contractor to the agency. Our contract, or privity of contract is with the prime, not with the sub-contractors, and the prime is responsible for resolving disputes among sub-contractors, resolving disputes between the government and the sub-contractors. 

Honeyman:
Isn’t it fair to say that there is a considerable amount of fixed quantity about this—didn’t the names of the people to be used primarily as mediators become a condition of the contract and sub-contract?

Dalton:
Right. The prime contractor was the organization that decided who would team with them to bid the contract. In accepting the contract and in issuing the contract, it was issued to the prime with certain sub-contractors basically pre-approved onto the contract. Our primary list had its rates cleared at the time of issuance of the contract. The supplemental team, which is another 18 or 20 firms have not had their cost audit and their rates cleared. So we still have to clear another 18 or 20 through the Federal Acquisition costing process and auditing process onto that contract. But the names of those additional 18 or 20 firms have been accepted when we signed the contract.

Audience:
Some of us are wannabes and aren’t in government, are you effectively saying that if you’re not part of one of these named organizations, it’s a closed shop, you will not be accepted?

Dalton:
At EPA, the contract was issued in 1994 for five years. It’ll come up again in 1999. My advice to people if they want to do mediation of disputes with EPA is to talk to RESOLVE, our prime contractor, who can add sub-contractors during the period of the contract if they and the other members of the team see a reason to do that. There may be disputes in which we develop a program in the next two or three years that the current slate doesn’t cover. For instance, the contract contemplates the use of mediation for grievance and EEOC—EEO kind of disputes but very few of the current team—either the prime team or the supplemental team—are people that have specialized in that, most of them are in land disputes and pollution, environmental mediators. So there’s a possibility. Certainly, if we go under the Federal Acquisition Streamlining Act and decide to place some of our work out on purchase orders, we can do that. It’s not any more advantageous to us one way or another; our contracting shop is clogged both in the small purchases and in the large purchases arena. It’s a question of what do we get from that? Do the parties really want somebody off the contract, and that’s all they’ll agree to? In which case, we may have to go off contract to do that, but pretty much for the next five years for the major portions, for the large work orders that are going through, they will go through that contract.

Audience:
My question’s on choice. Eileen had alluded before to the marketplace. What FMCS does is they always send out a list of seven and then the consumer so to speak, the union and the company or the agency, they get a chance to choose, each striking three and one is left. Are any of you offering a choice of mediators or if you send names to them for a mediator’s background and they don’t particularly like that one, can they then reject and ask you to send somebody else?

Kaplow:
Oh yeah. The FDIC roster—it’s always a number of choices and then the parties select from that choice. If nobody is acceptable to the parties then we can try again, or we are perfectly willing to have people off the roster submitted. You know, if an outside party just says we don’t want somebody from your roster, we also go outside and look at people that are not on the roster.

Greenstein:
With sharing of neutrals, we set it up to send out only the lead mediators’ names and we’ve been sending out three. We’ve had one or two occasions where after going through those three someone’s come back with a specific request. When we get the initial phone call we try and find out if there are criteria that an individual wants and we have it set up in a computer system so that we can have names spit out that come from particular criteria, background or whatever. But our whole idea was that the parties should select, and we’re not pushing any individual and we’re trying to be inclusive so that every individual on our roster gets out to mediate as much and as frequently as possible. 

Kaufman:
At HHS, what we do is when someone comes to us and wants a mediator, we don’t just say we’ll mediate the case for you. We give them a choice. They can use the ACUS roster, they can use our mediators, they can pick a mediator from the private sector. Whoever they want to mediate the case is okay with us. We are free, though. And that does seem to make a difference to a lot of people.

Pou:
We helped a certain large agency about a year ago put a mediation program in place for EEO cases, and did a lot of interviewing with people in various parts of the department. And virtually everybody we talked to above a certain grade level said yes, we really like the idea of a mediation program. The mediators clearly should come from inside the agency because only they will understand the agency culture, and the mission, and what goes on here. Virtually everybody we talked to below that grade level said, great idea. We really like the idea of a program, but we can’t possibly have people from inside the agency do this because nobody trusts those people. So, what we came up with was to offer them a choice. It just varies immensely not only from agency to agency but within agencies depending on who you’re talking to.

Greenstein:
In terms of the sharing program the individuals are coming from a different agency to begin with. At Justice, the EEO office has internally has set up an internal roster and thought that there wouldn’t be a problem, and when I was asked to mediate the first case internally I said fine, I’ll call the parties, if they agree I’ll do it and the parties agreed and the mediation went forward. I think it depends on the agency size. In a small agency I don’t think an EEO case would work with an internal neutral. Where there are many components like at Department of Justice, I think it works fine.

Hoffman:
There’s a middle road in which somebody mediates all the time who’s a federal employee and it’s not a collateral duty, who comes in as a professional who does all of these cases—comes in for a day and goes back out. So you’ve got a couple of different models to look at, so don’t lose sight of the variety that you have here.

Audience:
When you send someone over to a different agency for whatever the dispute may be, are you sending someone in this collateral duty, are they gone for a day, for a half a day, for two or three days? What are you talking about?

Greenstein:
An average mediation from the ones that I’ve done in our shared neutrals is probably four to six hours, a half day.

Honeyman:
From the earlier discussions that we held through the past year on this topic, one thing that kept coming up was that despite the enthusiasm for these kinds of in-house and shared arrangements that exist in several agencies now, no one felt comfortable about providing a mediator for a really complex case under one of those arrangements. Because all kinds of collateral attacks could be mounted on an employee who declared himself or herself so available as to have four weeks to go do some major dispute. People would start to wonder what that person was doing for a living the rest of the time. And none of these programs feels that they can make people available for negotiated rulemaking—type length of cases, I think.

Greenstein:
Well, I tend to differ with that. While I worked in the Tax Division here at the Department of Justice I was asked to help facilitate the implementation of a new performance appraisal system. It has been on-going for over 6 months now. Tax Division approved it. I’ve been doing it on a collateral duty basis along with my other responsibilities. My own supervisor approved it. I’m not so sure that everyone would get that approval. Everyone knew that I was volunteering to do this but saw this as something that the Attorney General wanted to be used in the place. Under this present administration there is a favorable attitude towards the use of dispute resolution and facilitated procedures. But I think you’re correct. If we had mediators and dispute resolvers coming from a small agency such as FEMA, the Federal Emergency Management Agency, to go mediate a case at another agency on a regular basis and they were going to be gone for one day a week on an on-going basis, I think that the supervisor as well as the agency would not be willing to allow their employees to participate.

Audience:
Have any of you in the EEO area talked about using contracts with outside services? 

Pou:
The EEOC, Equal Employment Opportunity Commission have used outsiders. They’ve used some inside folks, but they have used outside mediators for their own internal EEO complaints.

Audience:
I note that when you put the functions of the mediators up, there was something interesting there where they will come out and do things other than conventional mediation, is that right? For instance, if there is a conflict between managers, would they come—could you get a mediator to take care of that conflict?

Honeyman:
Oh, sure. As a matter of fact, most labor mediators have had the experience where all the mediating they’re actually doing is between several people in one party. The other party isn’t the problem. This is pretty routine actually to a lot of us.

I wanted to devote a little more attention to the subject of rosters because that tends to be quite important to a lot of people in SPIDR. Charlie’s ACUS roster is deliberately, I don’t know what you’d call it—I would call it a non-selected roster. It’s a listing of people interested. Not a listing of people proven, is that fair?

Pou:
If you fill in all the blanks and sign on the dotted line, you can get listed on our roster.

Honeyman:
Right. Okay. But now there are other rosters that do represent somebody’s judgment of whether you deserve to be there. Bob manages something like that I think.

Jones:
I work at the state level in a state office. In fact, our roster—we don’t call it a roster anymore, we call it a directory—looks a lot like Charles’. And it’s an informed—basically we provide information as provided as sworn to by the mediator or facilitator to the interested party and assist them in selection. There are other states that have statutory authority to do more than that; Oregon has a little more elaborate directory in the environmental area where they have some pre-qualifying steps to get onto the roster. But there’s a lot of variety around the states. There are about 20 state offices around the country and each office, depending on how it was formed, and what statutory framework it was given, does or doesn’t really get involved in qualifications issues.

Honeyman:
There really is a big range of how rigorous these roster arrangements are. The agency that I work for, for instance, maintains a roster of outside arbitrators. We also maintain a panel internally of salaried arbitrator/mediators. Parties are free to pick either one at, actually, quite substantially different cost structures. The oddity is that the internal system is much tougher to get into than the external panel. I mean the internal system is a major and rigorous written and oral competitive examination system that frightens off a lot of people when they first see it, and has served as the basis for a lot of quality control design work elsewhere. The external roster is much more sensitive to the politics of turning people down, and therefore contains some folks whom none of us would pick as an arbitrator. And that’s just life. The parties have a choice, after all. They’re going to get a list of people. They are free to figure out which are the real thing, and they do. Typically if you go to an agency that has a roster system with 100 people on it, say, it’s fairly common that 20 will be getting almost all the work. Sometimes the number’s smaller than that.

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Annotated Bibliography
A. The Test Design Project and SPIDR’s Commission on Qualifications

1. The following are, respectively, the most recent policy statement of the Society of Professionals in Dispute Resolution and the concluding publication of the Test Design Project. The former is the best available overview of the qualifications for dispute resolution generally; the latter is a more in-depth treatment of what “quality” means in mediation in particular, with examples of how it might be obtained under different circumstances.

SPIDR Commission on Qualifications (1995). Second report: Ensuring competence and quality in dispute resolution practice. Washington, DC: Society of Professionals in Dispute Resolution.

Test Design Project (1995). Performance-based assessment: a Methodology, for use in selecting, training and evaluating mediators. National Institute for Dispute Resolution.

2. The following is designed to adapt the Test Design Project’s work into a form more accessible to lawyers and other mediation clients, and is the best available short guide. 

Alaska Judicial Council (1995). A consumer guide to selecting a mediator. Washington, DC: State Justice Institute.

3. The Project’s Methodology and the SPIDR Commission’s Second Report are based primarily on the following papers and other works. This list includes both the direct precursors of those documents (noted with *) and a selection of critical papers and relevant ancillary reading, from a wide range of perspectives.

Note that all documents listed as published by Negotiation Journal in 1993 appeared together; the Journal’s October, 1993 issue devoted a special section to ten papers discussing the Project’s Interim Guidelines for Selecting Mediators (1993). The 1995 Methodology was designed to take those and other critiques and commentaries into account, and superseded the Interim Guidelines.

Bush, R. A. B. (1993). “Mixed messages in the Interim Guidelines.” Negotiation Journal 9: 341-348.

Bush, R. A. B. and Folger, J. P. (1994). The promise of mediation. San Francisco: Jossey-Bass.

Cobb, S. and Rifkin, J. (1991). “Practice and paradox: Deconstructing neutrality in mediation.” Law & Social Inquiry 16 (1): 35-62

Dingwall, R. (1993). “Does caveat emptor alone help potential users of mediation?” Negotiation Journal 9: 331-334.

Friedman, G. and Silberman, A. (1993). “A useful tool for evaluating potential mediators.” Negotiation Journal9: 313-316.

Greatbatch, D. and Dingwall, R. (1989). “Selective facilitation: Some preliminary observations on a strategy used by divorce mediators.” Law and Society Review 23: 613-641.

*Honeyman, C. (1988). “Five elements of mediation.” Negotiation Journal 4: 149-158.

*Honeyman, C. (1990a). “On evaluating mediators.” Negotiation Journal 6: 23-36.

*Honeyman, C. (1990b). “The common core of mediation.” Mediation Quarterly 8: 73-82.

*Honeyman, C., Miezio, K., and Houlihan, W.C. (1990). “In the mind’s eye? Consistency and variation in evaluating mediators.” Working Paper No. 90-21, Program on Negotiation at Harvard Law School.

*Honeyman, C., Peterson, N., and Russell, T. (1992). “Developing standards in dispute resolution.” A paper presented at the 1992 conference of the Law & Society Association.

Honeyman, C. (1993). “A consensus on mediators’ qualifications.” Negotiation Journal 9: 295-308.

*Honeyman, C. (1995). “Two out of three.” Negotiation Journal 11: 5-10.

*Honoroff, B., Matz, D., and O’Connor, D. (1990). “Putting mediation skills to the test.” Negotiation Journal 6: 37-46.

Kolb, D. and Kolb, J. (1993). “All the mediators in the garden.” Negotiation Journal 9: 335-340.

Landsberger, H. A. (1956). “Final report on a research project in mediation.” Labor Law Journal 7 (No. 8): 501-507.

*Matz, D. (1993). “Some advice for mediator evaluators.” Negotiation Journal 9: 327-330.

McEwen, C. (1993). “Competence and quality.” Negotiation Journal 9: 317-320.

Menkel-Meadow, C. (1993). “Measuring both the art and the science of mediation.” Negotiation Journal 9: 321-326.

Morris, C. and Pirie, A., eds. (1994). Qualifications for dispute resolution: Perspectives on the debate.Victoria, British Columbia: UVic Institute for Dispute Resolution.

*Riskin, L. L. (1994). “Mediator orientations, strategies and techniques.” Alternatives to the High Cost of Litigation 12, 9: 111-114.

*Riskin, L. L. (1995). “Understanding mediator orientations, strategies and techniques: A grid for the perplexed.” (Draft). Columbia, MO: Center for the Study of Dispute Resolution, University of Missouri-Columbia.

Salem, R. (1993). “The Interim Guidelines need a broader perspective.” Negotiation Journal 9: 309-312.

Shaw, M. (1993). “Selection, training and qualification of neutrals.” A working paper for the National Symposium on Court-Connected Dispute Resolution Research. Wash-ington, DC: State Justice Institute.

Silbey, S. (1993). “Mediation mythology.” Negotiation Journal 9: 349-353.

*SPIDR Commission on Qualifications (1989). “Qualifying neutrals: The basic principles.” SPIDR Commission on Qual-ifications Report. National Institute for Dispute Resolution.

*Test Design Project (1993). Interim guidelines for selecting mediators. National Institute for Dispute Resolution.

B. Other documents on quality

The mediation training manual noted here is a first-generation working tool specifically tailored for Government agency internal neutrals. The Russell paper, produced by two testing firms cooperating with the Test Design Project, includes the most thorough available explanation of what is involved when and if quantifiable, validated selection tools are desired. And the SPIDR sourcebook reprints a number of organizations’ quality control materials which are not otherwise easy to obtain.

Federal Mediation and Conciliation Service, Administrative Conference of the U.S., and Department of Health and Human Services (1994). Mediation training: Instructor’s manual, participants’ manual, roleplays and exercises.

Russell, T. L. (1993). “Final report to the National Science Foundation on phase 1 of the mediation skills assessment project.” Alexandria, VA: Human Resources Research Organization.

Society of Professionals in Dispute Resolution, Commission on Qualifications (1993). Qualifications sourcebook compendium. Washington, DC: SPIDR.

C. Government agency dispute resolution and negotiated rulemaking

The following are specific to Government alternative dispute resolution. Note that the Harter articles listed below are reprinted in the Sourcebooks. (“Negotiating Regulations” is in the Negotiated Rulemaking Sourcebook; “Points on a Continuum” is in Sourcebook: Federal Agency Use of ADR.)

Harter, P. J. (1982). “Negotiating regulations: A cure for malaise.” Georgetown Law Journal 71:1, 2-113.

Harter, P. J. (1986). “Points on a continuum: Dispute resolution procedures and the administrative process.” Administrative Conference of the U.S.

Administrative Conference of the U.S., Office of the Chairman (1995; Pritzker, D. M. and Dalton, D. S., eds.).Negotiated rulemaking sourcebook (2nd Ed.)

Administrative Conference of the U.S., Office of the Chairman (1987; Millhauser, M. S. and Pou, C., eds.).Sourcebook: Federal agency means of alternative dispute resolution.

Administrative Conference of the U.S., Office of the Chairman (1992; Pou, C., ed.). Federal administrative procedure sourcebook.

Appendix: Tasks, skills and performance evaluation criteria of typical mediators(2)Tasks of a mediator (samples)

A. Gathering Background Information

1. Read the case file to learn about the background and disputants.

2. Gather background information on a case from negotiators or other mediators (e.g. settlement patterns in similar cases).

3. Read legal or other technical materials to obtain background information.

4. Read and follow procedures, instructions, schedules and deadlines.

B. Facilitating Communication

5. Meet disputants and make introductions.

6. Explain the mediation process to disputants.

7. Answer disputants’ questions about mediation.

8. Listen to disputants describe problems and issues.

9. Ask neutral, open-ended questions to elicit information.

10. Summarize/paraphrase disputants’ statements.

11. Establish atmosphere in which anger and tension are expressed constructively.

12. Focus the discussion on issues (i.e. not personalities or emotions).

13. Convey respect and neutrality to the parties.

C. Communicating Information to Others

14. Refer disputants to specialists (e.g. alcoholism counselors) or other services, or bring such specialists into the mediation process.

15. Refer disputants to sources of information about their legal rights and recourses. 

D. Analyzing Information

16. Help the parties define and clarify the issues in a case.

17. Help the parties distinguish between important issues and those of lesser importance.

18. Help the parties detect and address hidden issues.

19. Analyze the interpersonal dynamics of a dispute.

E. Facilitating Agreement

20. Assist the parties to develop options.

21. Assist the parties to evaluate alternative solutions.

22. Assess parties’ readiness to resolve issues.

23. Emphasize areas of agreement.

24. Clarify and frame specific agreement points.

25. Clearly convey to parties, and help parties understand, limitations to possible agreement.

26. Level with the parties about the consequences of non-agreement.

F. Managing Cases

27. Estimate the scope, intensity and contentiousness of a case.

28. Ask questions to determine whether mediation service is justified or appropriate.

29. Ask questions to determine appropriate departures from usual practice for a given situation.

30. Terminate or defer mediation where appropriate.

G. Documenting Information

31. Draft agreements between disputants.

Knowledges, Skills, Abilities, and Other Attributes (“KSAOs”)(3)

1. Reasoning: To reason logically and analytically, effectively distinguishing issues and questioning assumptions.

2. Analyzing: To assimilate large quantities of varied information into logical ideas or concepts.

3. Problem Solving: To generate, assess and prioritize alternative solutions to a problem, or help the parties do so..

4. Reading Comprehension: To read and comprehend written materials.

5. Writing: To write clearly and concisely, using neutral language.

6. Oral communication: To speak with clarity, and to listen carefully and empathetically.

7. Non-verbal communication: To use voice inflection, gestures, and eye contact appropriately.

8. Interviewing: To obtain and process information from others, eliciting information, listening actively, and facilitating an exchange of information.

9. Emotional stability/maturity: To remain calm and level-headed in stressful and emotional situations.

10. Sensitivity: To recognize a variety of emotions and respond appropriately.

11. Integrity: To be responsible, ethical and honest.

12. Recognizing Values: To discern own and others’ strongly held values.

13. Impartiality: To maintain an open mind about different points of view.

14. Organizing: To manage effectively activities, records and other materials.

15. Following procedure: To follow agreed-upon procedures.

16. Commitment: Interest in helping others to resolve conflict.

Performance Evaluation CriteriaSample Scales for Evaluating Mediators’ Capabilities

The sample evaluation scales which follow represent different programs’ potential adaptations of the tools described in Performance-Based Assessment: A Methodology… and its predecessor publication Interim Guidelines for Selecting Mediators. The variations correspond to the differing goals, resources, values and expectations of sharply varied settings characteristic of different dispute resolution programs. 

Set A: The “settlement-oriented” approach

1A. Gathering information: Effectiveness in identifying and seeking out relevant information pertinent to the case.

3 Asked neutral, open-ended questions. Listened to disputants describe problems and interests. Summarized and paraphrased their statements. Identified and addressed hidden issues. Clarified the issues. Demonstrated an understanding of the scope, intensity and contentiousness of the case. Gathered information through incisive and, where necessary, uncomfortable questions.

2 Asked at least the obvious questions. Case data was used, but did miss some issues or avenues of questioning. Generally appeared to discover and comprehend the case facts, though not with great depth or precision. Missed at least some aspects of the underlying facts, reasons, or interests of one side or the other. Missed some aspects of agreement possibilities for either side.(4)

1 Asked few or mostly irrelevant questions. Appeared at a loss as to what to ask in follow-up questions. Was easily overwhelmed with new information or trapped by faster thinkers. Disorganized or haphazard questioning, filled with gaps and untimely changes in direction. Did not explore the settlement possibilities for both sides on most or all issues.

2. Empathy: Conspicuous awareness and consideration of the needs of others.

3 Established atmosphere in which anger and tension were expressed constructively. Conveyed respect and neutrality to the parties. Questions were neutral and open-ended, listened respectfully. Voice inflection, gestures and eye contact used appropriately. Remained calm and level-headed. Recognized emotions and responded appropriately. Demonstrated an open mind. Was able to restate and reframe disputants’ statements and issues in ways both parties could understand. Helped parties improve their understanding of each others’ concerns.

2 Listened to others and did not antagonize them. Conveyed at least some appreciation of parties’ priorities. Helped when asked, but missed opportunities to volunteer.

1 Came into the discussion abruptly to challenge others. Disregarded others’ warnings. Saw others’ problems as of their own making and did not want to be bothered.

3. Impartiality:

3 Manner of introductions and initial explanations showed equal respect for all disputants. Listened to both sides. Asked objective questions, conveyed neutral atmosphere. Demonstrated that he/she was keeping an open mind. Non-verbal communication did not favor either party.

2 Generally showed respect for all disputants, but questions and non-verbal communication sometimes showed he/she was more comfortable with one party than the other. Maintained a balance, but showed a better understanding of one party’s goals and beliefs than the other’s.

1 Asked misleading, loaded, or unfair questions exhibiting bias. Engaged in oppressive questioning to the disadvantage of one of the parties.

4A. Generating Options: Pursuit of collaborative solutions, and generation of ideas and proposals consistent with case facts and workable for opposing parties.

3 Generated, assessed and prioritized alternative solutions. Assisted the parties to develop their own options and to evaluate alternative solutions for themselves. Avoided commitment to solutions early in process. Recognized underlying problems as opposed to symptoms. Invented and recommended unusual but workable solutions consistent with case facts. Vigorously pursued avenues of collaboration between the parties.

2 Interrelated at least some proposals and compromises with ideas of other party. Worked well with solutions parties suggested, but did not pursue inventive or collaborative solutions. Appeared to comprehend case facts/problems as they developed, though not with great depth. Allowed collaborative problem solving, but did not stimulate it.

1 Prematurely tried to come up with solutions, pushing to judgment prior to establishing essential facts. Ideas were ineffective and unworkable. Waited for things to happen. Blocked efforts at seeking collaborative solutions.

5A. Generating Agreements: Effectiveness in moving the parties toward finality and in “closing” an agreement.

3 Assisted the parties to evaluate alternative solutions. Clearly conveyed limitations to possible agreement and consequences of non-agreement for each party. Emphasized areas of agreement. Clarified and framed points of agreement. Asked questions to highlight unacceptable and unworkable positions. Consistent use of reality testing. Effectively broke apparent impasses. Showed tenacity throughout. Packaged and linked issues to illustrate mutual gains from agreements.

2 Choices of what to present and manner of presentation did not compromise goals of resolution. Generally but not always at ease with situations presented. Points and comments were sufficiently well organized and presented, but not particularly forcefully. Avoided getting at some tough issues, thus sidestepping putting self and others in difficult situations at the cost of missing possible opportunities for joint gains.

1 Did not initiate suggestions; required considerable help from the parties. Presentations not well related to goals of resolution. Was difficult to understand or unclear in expression. Had little or no impact and did not persuade. Appeared flustered and uncomfortable most of the time. Readily withdrew when challenged or questioned. Little or no confidence expressed.

6. Managing the interaction: Effectiveness in developing strategy, managing the process, coping with conflicts between clients and professional representatives.

3 Had effective techniques for redirecting parties’ focus away from sullen or otherwise unproductive colloquies. If humor was used, the use was appropriate to both the situation and the parties’ cultural perceptions. Maintained optimism and forward movement, emphasized progress, showed tenacity. Showed a good grasp of each party’s essential requirements to reach agreement vs. areas of flexibility. Made all decisions about caucusing, order of presentation, etc., consistent with rationale for progress toward resolution. Managed all client/representative relationships present effectively. Gave appearance of being ready to cope with any exigency.

2 Generally recognized signs that discussion had turned sour, took action to try to redirect it. Not always effective at lightening the atmosphere. Demonstrated a minimum understanding of each party’s requirements for agreement and areas of flexibility. Controlled process, but decisions did not reflect a strategy for resolution. Did not dominate, but was not overwhelmed by, factual or legal complexities. Did not allow bullying by clients or representatives.

1 Made little or no effort to provide perspective on the parties’ problems or to engineer lighter moments. Showed little or no grasp of the parties’ basic requirements for agreement or areas of flexibility. Encouraged discussion of issues or proposals with little relevance to potential agreements. Decisions on procedure and presentation were unjustified. Was confused or overwhelmed by factual or legal complexities. Allowed clients or representatives to control process in ways counterproductive to resolution. 

7. Substantive knowledge: Competence in the issues and type of dispute.

Substantive knowledge can be specified at several levels. The Methodology makes a distinction between the degree of knowledge expected of an “expert” and that reasonably to be required in a new mediator, and therefore treats this quality somewhat differently from others.

The authors recognized that programs vary in their ability and desire to mount extensive training programs, and that some programs would use selection tools advocated in the Methodology only after a period of training, while others would only train mediators that had already passed muster. Moreover, programs may reasonably decide that initial lack of substantive knowledge is less important if a given mediator is judged to be a “quick study.” For these reasons the Methodology does not advocate the use of a substantive knowledge scale in a selection test, and defines the need for substantive knowledge as arising by the time of assignment of the mediator’s first case.

Such a new mediator needs enough knowledge of the type of parties and type of dispute to be able to 
a. facilitate communication; 
b. help the parties develop options; 
c. empathize; 
d. alert parties (particularly pro se parties) to the existence of legal information relevant to their decision to settle.

The new mediator will also require knowledge of the program’s procedures for finalizing agreement, and of what options are open to the parties for resolving the dispute if no agreement is reached.

Set B: The “transformative” approach

The three scales which follow are examples of adjustments which a given program might make to the sample scales above. In these, a number of qualitative statements have been redrafted to fit a hypothetical program which is less interested in settlement of the immediate dispute and more focused on the potential of mediation to transform parties’ relationships. They would replace scales 1A, 4A and 5A.

1B. Generating Information: Effectiveness in assisting the parties to bring out information pertinent to their concerns.

3 Asked neutral, open-ended questions. Listened to disputants describe problems and interests. Summarized and paraphrased their statements without distortion. Helped the parties to define and clarify the issues. Demonstrated an understanding of the scope, intensity and contentiousness of the case. Succeeded in generating information about the most sensitive issues.

2 Asked at least the obvious questions. Showed some awareness of parties’ less-articulated concerns, but did miss some issues or avenues of questioning. Generally appeared to comprehend the case facts, though not with great depth or precision. Missed at least some aspects of the underlying facts, reasons, or interests of one side or the other. Missed some aspects of relationship-building possibilities for either side.

1 Asked few or mostly irrelevant questions. Appeared at a loss as to what to ask in follow-up questions. Was easily overwhelmed with new information or trapped by faster thinkers. Disorganized or haphazard questioning, filled with gaps and untimely changes in direction. Did not explore the possibilities for improving relationships and mutual understanding between the parties.

4B. Assisting the Parties to Generate Options: Pursuit of collaborative solutions, with focus on helping/teaching parties so that they come up with ideas themselves.

3 Assisted the parties to develop their own options and to evaluate alternative solutions for themselves. Helped the parties avoid commitment to solutions early in process. Demonstrated commitment to setting aside mediator’s values and allowing full play to parties’ own values. Recognized underlying problems as opposed to symptoms. Helped parties to see beyond the frames of reference in which they arrived at the dispute. Vigorously pursued avenues of collaboration between the parties.

2 Made at least some attempts to get parties to think about their dispute on a deeper level. Showed parties how at least some proposals and compromises interrelated with ideas of other party. Worked well with solutions parties suggested, but was not inventive at pursuing collaborative solutions. Appeared to comprehend case facts/problems as they developed, though not with great depth. Allowed collaborative problem solving, but did not stimulate it.

1 Failed to lead parties toward greater mutual understanding. Tried to come up with solutions individually, without letting parties have control over their fate. Ideas for collaboration-building were ineffective and unworkable. Blocked efforts at seeking collaborative solutions.

5B. Generating Improved Relationships: Effectiveness in moving the parties toward the ability to relate better to each other and third parties.

3 Assisted the parties to evaluate alternative solutions. Helped the parties to understand limitations of possible immediate agreements and consequences of a superficial approach for each party. Emphasized areas of improved mutual understanding. Clarified and framed issues which pointed to continuing failure to understand each other. Showed tenacity throughout. Helped parties to package and link issues to demonstrate mutual gains from agreements and from improved mutual understanding. Progress of discussion demonstrated that mediator had helped improve the way the parties viewed each other.

2 Choices of what to present and manner of presentation did not compromise goals of relationship-building. Generally but not always at ease with situations presented. Points and comments were sufficiently well organized and presented; but not particularly forceful. Avoided asking some significant questions, thus sidestepping putting self and others in difficult situations at the cost of missing possible opportunities for improved understanding between the parties.

1 Did not initiate help; was inert rather than actively listening. Presentations not well related to goals of relationship building. Was difficult to understand or unclear in expression. Had little or no impact. Appeared flustered and uncomfortable most of the time. Little or no confidence in the parties’ ability to improve their future relationship expressed.
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Notes
1.Participants in the sessions were given copies of the Methodology. At 58 pages, the full text is too long to include in this monograph, but it contains many caveats and much practical advice which make it near-essential reading for anyone who hopes to think through “quality” in his or her own agency’s context. Its full title is Performance-based assessment: a Methodology, for use in selecting, training and evaluating mediators. 

2.All samples excerpted from Performance-Based Assessment: A Methodology, for use in selecting, training and evaluating mediators (Washington, DC: NIDR, 1995.)

3.“Knowledge” refers to legal or procedural subject matter. Knowledges are not listed here because they are specific to the situation (e.g., type of mediation program, state law), and because for some types of program little or no substantive knowledge is required prior to selection.

4.For this as well as each succeeding scale, an additional statement at the “2” level would be: “Generally succeeded at some aspects listed under (3) above, but failed at others.” At the (1) level, a similar addition: “Generally failed at most or all aspects listed under (3) above.”