Electronic Guide to Federal Procurement ADR
It is critical that you institute an ADR training regimen to support your agency’s overall ADR program. The training should be educationally sound. The curricula and instructors, whether contracted with a private vendor or obtained in-house, should be appropriately qualified. Obtaining basic outlines and other information from another agency can be helpful, but any training program should conform to the agency’s individual needs and ADR practices. It is also important to establish a system to measure training progress and success, in order to support requests for future funding of ADR training efforts.
It is advisable that you establish a one-year training plan that includes training goals and that you schedule a plan review at the end of the first year, to determine whether those goals are still valid and to revise the training goals as necessary for the succeeding year. Finally, your training program needs the support of those executives, managers, and other employees in your organization who have the authority to allocate resources. Determine who they are, how ADR may relate to their responsibilities, and how you can gain their support before you launch your training program.
SECTION IV CONTENTS
- Targeting the Training
- Types of ADR Training
- Scheduling Classroom Sessions
- Choosing an ADR Instructor
- Federal Government Procurement ADR Training Courses
Targeting the Training
The first step in designing any ADR training program is to determine the target audience. “Customers” for training may include:
- financial managers
- potential neutrals
- attorneys and legal staff
In short, anyone in an organization may be a potential candidate for ADR training. The content of any ADR training will have to be tailored specifically to the trainees and to the type of role they may play in ADR.
Good ADR training programs are those that change specific behavior of specific people in terms of their perception of and willingness to engage in ADR. Generally, if people are trained in skills they have little chance to use, they become frustrated and reluctant to use the system at all. For example, it is counterproductive to train managers to be mediators if they will probably never function as neutrals. On the other hand, educating managers about the functioning of their agency’s ADR program helps demystify the program and leads to its acceptance and use.
Types of ADR Training
There are three types of ADR training:
It is helpful to think of ADR training as a pyramid, with awareness training at the base, user skills training at the midlevel, and neutrals training at the top. The neutrals are at the pyramid’s pinnacle; they need the most training, but they are substantially fewer in number. Those who need awareness training are largest in number and form the base of the triangle.
Awareness training describes the agency’s ADR program and serves as an ADR marketing and public relations tool. ADR has the potential to affect a wide variety of employees in an organization. Thus, awareness training must be broadly targeted.
Awareness training is an ongoing effort. Its goal is to have agency employees understand your particular ADR program and how the program may help solve agency problems. Success stories (your own, or borrowed) are excellent material for awareness training. Awareness training need not and ought not be confined to the classroom. Many ADR awareness training messages may be delivered outside the classroom, onsite, in the workplace. Those messages can consist of quick “sound bytes.” Whether delivered inside or outside a classroom, each “sound byte” should contain information that will encourage an interest and participation in the program.
Free your imagination before planning your awareness training campaign. A special meeting featuring the ADR program is not the only way to educate agency employees about what ADR is and why it should be used by them. What about the in-house news letter? The in-house mail system? The creation of an agency ADR web page with targeted awareness training messages?
One caveat in terms of ADR awareness training. Do not promise that ADR will transform the world. Acknowledge its limitations. By the same token, stress that ADR is a useful tool to help solve agency problems; show how it has worked in some circumstances and may in others. Emphasize to stakeholders how use of the ADR program can and will save them both time and money.
User Skills Training
ADR user skills training focuses on the “how to” skills that are needed in ADR. Most user skills training courses incorporate awareness training — in the form of a review of the ADR program and its benefits — at the beginning of a skills-training session.
User skills training should conform to the agency’s ADR program. For example, there is little gained from teaching users how to handle binding arbitration if your agency has not implemented regulations permitting binding arbitration in procurement matters.
There should be a mechanism by which the “ADR Program Office” is notified when a dispute arises and ADR is to be used, so that it can provide users with any specialized skills training that may be necessary to support their ADR efforts. This should not involve taking over the dispute resolution process, but rather it should entail coaching the parties through the process. For example, in mediation, you might assist in the business analysis of the problem and in the exchange of information to help your users see that interest-based negotiations and open communications with the contractor could significantly shorten the traditional discovery period.
Healthy ADR programs evolve. As the agency becomes comfortable with venturing into new ADR areas, provide additional user skills training in the specific procedures that will be used. If, for example, agency management becomes convinced that partnering may be tried on a big contract, arrange for partnering skills training for the government integrated product team followed by a joint training session for government and contractor employees.
The groups of people in an agency that should be provided user skills training are defined by the way the agency acquires goods and services, as well as by the types of ADR procedures included in its ADR program. If the agency procures by using integrated product teams (“IPTs”), and the acquisition ADR program primarily revolves around mediations, the skills training should concern mediation, and the IPTs should be trained as a group. If the ADR program contemplates mini-trials, the contracting officers, procurement attorneys, and the part of management that will hear the presentation, must have training concerning mini-trials. The manager(s) will need awareness training about mini-trials; the contracting officer(s) and attorney(s) will need skills training on how to make effective mini-trial presentations after they have had a dose of awareness training.
There are some skill-sets required for almost all ADR procedures. One is the ability to conduct interest-based negotiations. A basic skills course should teach interest-based negotiation skills. As interest-based negotiation techniques are taught, it is worthwhile to keep tying the principles back to the ADR procedures of your program. The instructor should also take care to weave in the idea of open communication with the contractor, since open communication is a part of acquisition reform. Similarly, the user-training student should leave the class understanding that ADR does not abrogate the necessity for a business analysis of issues to justify a settlement.
Neutrals training imparts the skills necessary to serve as an ADR neutral. It provides simulated, hands-on experience. It requires a comprehensive knowledge of both ADR and federal procurement principles.
It is generally more cost effective for a government organization to contract-out for training of its neutrals, since the private sector has years of experience in providing this sort of training and first rate mediation trainers are well worth their cost. Agencies may also establish and enforce certification and continuing education requirements as part of its neutrals training program. ADR programs cannot afford to skimp on quality in this area. Of course, a decision that an agency ADR program will engage only non-agency neutrals will alleviate the necessity of establishing and maintaining an in-house neutrals training program. For detailed information about the availability and selection of experienced neutrals for the resolution of contract controversies, see Guide Section V.
Scheduling Classroom Sessions
Awareness training requires the least amount of student time. Neutrals training requires the most. This fact is usually reflected in the length of training sessions. It is usually best to begin with a short awareness training session focusing on: (1) an overview of the ADR program; (2) the problems ADR can solve; and, most importantly, (3) how ADR can relate positively to performance of the students’ individual work responsibilities. Follow-on sessions should be scheduled to provide skills training. Generally, an instructor who has one day or less with the students will present only awareness training. A course of two days or more will usually include awareness training, and some skills training. Some practitioners believe user skills training can be as short as four to six hours and still be effective. Neutrals training requires, at a minimum, several days.
Choosing An ADR Instructor
Of the three types of training, awareness training requires the presenter to have the greatest general knowledge of your agency and specific knowledge of your acquisition ADR program. Thus, awareness training lends itself least well to being contracted out. Even if your ADR budget is ample, it is probably better for the program, as well as being more cost-effective, for an agency employee to present ADR awareness training training. Provided he or she is an effective speaker and is knowledgeable about your ADR program, an agency employee will usually have more credibility with the target audience.
If you do hire an outside public-relations professional to present ADR awareness training, find someone who has an in-depth knowledge of ADR, and who is a dynamic and entertaining speaker. Make sure to brief that person thoroughly about the unique aspects of your agency’s ADR program, and have someone knowledgeable available during the training session, to help field questions about the program.
Federal Government Procurement ADR Training Courses
At present, the following procurement ADR training course is available to all agencies for a fee:
21st Century Government Contracting: Achieving Effectiveness and Efficiency through Alternative Dispute Resolution: A Workshop in Creative Problem-Solving. Two day, highly interactive workshop that addresses interest-based negotiation, partnering, third-party assisted ADR procedures, and ADR processes in the various government contracts forums – Boards of Contract Appeals, General Accounting Office, Federal Courts. Contact:
Ms. Meg Hogan, Director of Business Operations,
Naval Center for Acquisition Training
TEL: (757) 443-2361; FAX: (757) 443-2343
The Department of the Air Force and the Army Corps of Engineers both provide training on an “as requested,” “as available” basis at no cost to other agencies. In addition, several other agencies, including the General Services Administration, the Department of Veterans Affairs, the Department of Health and Human Services, and the Securities and Exchange Commission have created in-house training courses for their own contracting personnel. See Agendas.
On to Section V