External-Facing Conflict Prevention, Management and Resolution Services for the Public

The federal government has a long history of promoting and using conflict resolution services to proactively address and resolve disputes with private actors. The scope and use of services range from the adjudication of claims, to addressing matters involving regulatory and administrative rule actions, to using collaboration and consensus building to engage the public and promote transparency in decision making processes.

Below is additional information on the variety of contexts and services where conflict prevention, management and resolution services are used.

New! Administrative Conference of the United States Report on ADR in Agency Adjudication

In 2021, the Administrative Conference of the United States published a report on Alternative Dispute Resolution in Agency Administrative Programs. This report studies how federal agencies use and might better use different types of ADR —including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use of ombuds—in the programs Congress has entrusted them to administer. It also addresses the use of ADR to resolve disputes before the initiation of a formal agency adjudicative proceeding or litigation involving the agency’s enforcement authority. Click here to read the full report

Administrative Enforcement Cases

Alternative dispute resolution is widely used for administrative enforcement cases. Most Administrative Law Judges offer mediation as a voluntary option for parties to resolve the matter. Generally, the mediator is an Administrative Law Judge or staff member of the Administrative Law Judges Office.

Community Relations Services

The Community Relations Service (CRS), a component of the Department of Justice (DOJ), serves as “America’s Peacemaker” for communities in conflict by mediating disputes and enhancing community capacity to independently prevent and resolve future conflicts. CRS is the only federal agency dedicated to working with community groups to resolve community conflicts and prevent and respond to alleged hate crimes arising from differences of race, color, national origin, gender, gender identity, sexual orientation, religion, or disability.

Environmental Dispute Resolution

Environmental Collaboration and Conflict Resolution (ECCR) is a process whereby neutral, third-party facilitators work with agencies and stakeholders using collaboration, negotiation, structured dialogue, mediation, and other approaches to prevent, manage, and resolve environmental conflicts. In 1998, Congress amended the Udall Foundation’s enabling legislation to establish the U.S. Institute for Environmental Conflict Resolution, now called the John S. McCain III National Center for Environmental Conflict Resolution (National Center).

In 2005, the Office of Management and Budget (OMB) and the President’s Council on Environmental Quality (CEQ) issued a joint policy memorandum expressing their support for the use of ECCR in environmental, natural resources, and public lands issues or conflicts. The memorandum urged Federal agencies to increase their effective use of ECCR and build institutional capacity for collaborative problem solving, providing them with guidance for doing so. On September 7, 2012, OMB and CEQ reinforced the importance of ECCR by issuing a new memorandum.

In May 2018, the Federal Forum on Environmental Collaboration and Conflict Resolution issued a report that identifies quantifiable benefits of government use of ECCR – including cost reduction, improved relationships, and better outcomes that avoided litigation – and makes recommendations on improving the effective use of ECCR, including within the context of federal infrastructure permitting. Pursuant to the OMB-CEQ Policy Memorandum on ECCR of September 7, 2012 each year the National Center compiles a report on the federal department and use of ECCR. In the FY 2019 report, includes information from 12 Federal departments and agencies. Collectively, they sponsored and/or participated in 451 ECCR cases or projects, of which approximately 29% were completed in FY 2019.

Federal Procurement

In 1999, the Interagency Alternative Dispute Resolution Working Group‘s Contracts and Procurement Section published the first edition of this guide. Brigadier General Frank J. Anderson, USAF, then the Chair of the section, observed that ADR “is quickly and quietly gaining momentum as the conflict management tool of choice for resolving contractual disagreements.” The momentum continued to build through the years. Today, as the 34 chapters of this revision show, ADR is firmly embedded as a normal part of protest and dispute resolution processes for federal procurement matters. It is part of the acquisition policies at nearly every agency and is incorporated into the rules or regulations governing the practice before protest and dispute forums. Many agencies also have standing programs to encourage and facilitate using ADR at the lowest possible level of conflict. Click here for the Second Edition of the Electronic Guide to Federal Procurement Alternative Dispute Resolution (ADR).

Freedom of Information Act

The Office of Government Information Services offers mediation, ombuds, conciliation and facilitation services to resolve disputes between FOIA requesters and Federal agencies. To learn more about the Mediation program go to https://www.archives.gov/ogis/mediation-program.

Labor Management

The Federal Mediation and Conciliation Service was created by Congress in 1947 with the explicit objective of “assisting parties to labor disputes in industries affecting commerce to settle such disputes through conciliation and mediation.” Today, FMCS provides comprehensive conflict prevention and resolution services to the federal, public and private sectors in five major areas: collective bargaining mediation; grievance mediation; relationship development training; ADR services to federal government entities; and education, outreach and advocacy. In FY 2021, FMCS mediated 2,788 collective bargaining cases, 1967 grievance mediations, 1,169 federal ADR cases, conducted 1,284 training programs and provided 10,544 arbitration panels.

Litigation

Under the Administrative Dispute Resolution Act of 1996, all of the federal agencies have the authority to develop ADR programs for resolving administrative disputes before actual litigation is commenced with the filing of a civil complaint in federal district court. After a lawsuit has been filed, the Department of Justice represents the federal agencies in court.

Once a complaint has been filed in federal court, the Alternative Dispute Resolution Act of 1998 requires that each federal district court develop an ADR program so that litigants have an option of settling a case with assistance of a neutral – for example, a mediator or an early neutral evaluator. In addition to court-annexed ADR programs, parties may decide to hire a private neutral for assistance in settlement negotiations. Sometimes the parties are looking for a neutral with expertise in a particular substantive area, or they are seeking a longer ADR process for an unusually complex or contentious case.

The local federal court rules relating to ADR vary from district to district. View a compendium of all of the local District Courts’ rules for ADR. Additional resources can be found at Court ADR Across the United States, a compendium of court ADR resources for state and federal courts throughout the country.

Negotiated Rulemaking

In 1990 Congress passed the Negotiated Rulemaking Act. The Negotiated Rulemaking Act of 1996 made the Congressional endorsement of the process permanent. Negotiated rulemaking is a consensus-based process through which an agency develops a proposed rule by using a neutral facilitator and a balanced negotiating committee composed of representatives of all interests that the rule will affect, including the rulemaking agency itself. Negotiated rulemaking is intended to provide a means through which agencies and stakeholders can reach a consensus outcome prior to issuing a notice of proposed rulemaking.

Additional information about Negotiated Rulemaking can be found at Negotiated Rulemaking: In Brief published by the Congressional Research Service in 2021. In addition, in 1995 ACUS published the second edition of the Negotiated Rulemaking Sourcebook.

Ombuds

Many federal agencies have Ombudsman’s Offices for the public which serve as independent, impartial, and confidential resources to help the public informally resolve issues arising from that agency activities. For more information abut external facing Ombuds offices see the Coalition of Federal Ombudsman.

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