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Chapter 7: Alternative Dispute Resolution

Introduction

Alternative Dispute Resolution or "ADR" refers to techniques for the resolution of disputes outside full-blown court proceedings. Over the years, numerous types of ADR have developed – arbitration, appraisal, conciliation, convening, early neutral evaluation, evaluative mediation, facilitation, fact-finding, med-arb, mediation, mini-trial, moderated settlement conference, negotiation, ombuds, partnering, special master, summary jury trial, and rent-a-judge, among others. This chapter focuses on two of them – mediation and arbitration – and addresses some basic issues for ADR programs within administrative law settings:

qualifications and training of "neutrals," confidentiality of proceedings, and scheduling. Although a couple of agencies have begun to use mediation in the administrative hearing process, see Appendix B: Integrating Mediation into the Hearing Process, what follows includes a basic introduction to the topic for the uninitiated.

Dispute resolution is often described as a spectrum varying by who controls the outcome, with negotiation (result entirely due to parties' efforts on their own behalf) on one end, and litigation (result determined by an outside party) on the other. Mediation (assisted negotiation) falls on the negotiation side of the spectrum, and arbitration, employing a third party decision-maker, falls near the litigation end. Each named process occupies an indefinite band on the spectrum: just as "blue" describes numerous gradations on a theme, so does "mediation," creating potential confusion for those who seek precise definition. Generally, most forms of ADR promote voluntary settlement by encouraging negotiations among the parties. ADR processes also lend themselves to great flexibility in constructing a program: casual, structured, mixed, matched, or modified to suit a time, place, or case.

Mediation

Mediation is negotiation assisted by a neutral third party. The neutral's role is to help the parties reach a mutually satisfactory agreement, not to act as decision-maker. The mediator's approach can vary considerably. "Facilitative mediation" helps the parties build consensus and focus on their underlying interests. "Evaluative mediation" helps the parties understand the strengths and weaknesses of their cases.

Mediation is informal and flexible; both the process and the result may be crafted and fine-tuned on the spot as needed. Resolutions of mediated disputes are unlikely to be of the winner-take-all variety. They may also address underlying non-legal issues. Mediation is ultimately voluntary. Even when a tribunal orders one or more initial sessions, it cannot command agreement; thus either or both parties may end mediation.

Mediation works best when the parties are willing to make compromises and reach a meaningful agreement. The parties or their representatives should have the authority to make such decisions. No one is anxious to see a carefully negotiated settlement summarily overturned by the boss or the board.

Mediation is particularly appropriate when the parties have an ongoing relationship and thus must continue to coexist. It can also work well when the case is complex with many possible resolutions, or when poor communication between the parties has caused the dispute.

Mediation begins with a joint conference of the parties and the mediator. The mediator explains the process, hears brief presentations from the parties, and asks questions in order to clarify issues. The mediator may then meet privately with each party and may use "shuttle diplomacy" to help the parties reach a resolution. The process concludes with (or without) a settlement agreement. Often mediation may succeed in resolving a number of issues in a dispute, leaving the balance for later litigation.

Arbitration

In arbitration, the parties submit their dispute to a neutral decision-maker whom they have selected. Decisions may be binding or non-binding. Binding arbitration is generally final, with limited grounds for appeal. However, when a judge mandates arbitration, the result is non-binding unless the parties agree otherwise. Arbitration may be required by statute, or it may be elected by the parties. An agreement to arbitrate, like any contract, lets the parties determine the questions to be arbitrated and the remedies the arbitrator may administer.

Arbitration may be appropriate when the decision-maker should have subject-matter expertise, or when a large number of cases with relatively low stakes will produce no decision of vital importance to any one party.

Arbitration is conducted like an informal judicial trial, but it dispenses with the formal rules of civil procedure and evidence and the full-bore discovery that draw out the time and expense of most litigation. As in a trial, the neutral hears arguments and reviews evidence. However, the arbitrator may determine procedure for the hearing, and his or her decision need not include facts or reasons underlying the award.

Neutrals: Qualifications and Training

Neutrals are as varied as the contexts in which they serve and the disputants who select them. They may come from within the agency or they may be outsiders.

An insider who is familiar with the peculiarities of an environment may be able to focus as readily as the disputants on the issues at hand. On the other hand, an outsider's independence may free him or her of any hint of institutional bias. Substantive expertise may be essential in understanding the parties' positions when the subject matter of the dispute calls for it. Legal expertise may be essential when important legal rights are at stake, as in a divorce, but so is a non-legal viewpoint, to help focus on underlying non-legal issues, so even a divorce dispute may be co-mediated by an attorney and a non-attorney.

Basic ADR training commonly consists of a 25- to 40-hour course of classroom instruction followed by practice or apprenticeship with an experienced co-mediator. In New York State, Community Dispute Resolution Centers (CDRCs) provide 25 hours of training toward certification in ADR that is required of its own volunteer neutrals. Some agencies, such as the Department of Public Service, pair all or some of the CDRC training with their own in-house ADR training for administrative law judges. The Government Law Center at Albany Law School has conducted ADR workshops and training for the Department of Environmental Conservation, the Department of Public Service, and other agencies, including hearing officers and lawyers. Because some states require 40 hours of training before neutrals may be certified to practice there, the National Association of Administrative Law Judges, the National Conference of Administrative Law Judges, and the American Bar Association offer a 40-hour ADR course specifically for ALJs every few months in different areas of the country.

New York State's CDRCs provide several types of mediation training: basic training for mediators, continuing education for community mediators, and special issue and advanced mediation training, which may be offered in conjunction with other state and local agencies. Basic training, required for its own all-volunteer mediator corps under Section 849-b(4)(b) of the Judiciary Law, includes 25 hours of classroom training by a Unified Court System certified trainer with a state-approved curriculum and training manual. Class work is followed by observation and apprenticeship in order to earn initial certification by the local CDRC director. To maintain certification, each year a mediator must complete six hours of in-service training. The New York State Dispute Resolution Association and the Unified Court System hold training sessions and conferences for CDRC staff and volunteer mediators, including in-depth seminars and workshops. The mediator must also lead or co-mediate at least three mediations per year to maintain certification.

Confidentiality

Mediation works through open discussion. The mediator, having no coercive power to command candor, works instead to facilitate it. Because people will not reveal information, strategy, or business or personal secrets if they fear they will be used against them, part of the mediator's job is to assure confidentiality of the proceedings through promises by all present.

Legal protection of confidentiality is also important, lest a party be confronted with its own secrets at trial after a failed mediation. An agency may adopt rules of confidentiality, as the New York State Department of Public Service has done with regard to settlement discussions. Chief Judge Judith Kaye's ADR Task Force proposed in 1996 that the confidentiality rules it had recommended for the Uniform Court System serve as a guide for a future statute applicable to ADR broadly within the state. That report states:

(g) Confidentiality in mediation. (1) Except as otherwise expressly provided by law or court rule, all materials of the mediator are confidential and not subject to disclosure in any judicial or administrative proceeding. Any communication relating to the subject matter of the mediation made during the mediation session by any participant, mediator, or any other person present at the mediation session shall be a confidential communication.

(2) If this subdivision conflicts with other laws or public policies compelling disclosure of materials or communications, the issue of confidentiality may be presented to the court to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order, or whether the communications or materials are subject to disclosure. In making such a determination, there shall be a strong presumption by the court in favor of confidentiality. The mediator shall not be called as a witness at trial.

Intersection of ADR and Litigation Scheduling

An example of ADR's flexibility is the variety of ways that it may intersect with a hearing on the merits. Mediation and its siblings (negotiation and settlement conference) may turn up at any point in a dispute–before the case is officially filed, later at the courthouse steps or even well into litigation. There may be reasons to delay the proceeding for mediation: when an issue in a case in progress depends on the outcome of a negotiation; when all parties request a delay; when experience with similar cases indicates a high probability for settlement; or due to calendar pressures, such as when other cases contend for limited administrative resources. Some tribunals set a calendar when the case is filed – a window of opportunity for mediation, with a deadline to meet before the hearing on the matter begins. Others like the NYS Department of Public Service opt for maximum flexibility to avoid procedural impediments to good faith negotiation. Still others do not delay the hearing.

In an administrative agency context, confidentiality issues may arise where one ALJ serves both as mediator and as presiding judge. Thus, if negotiations should fail on an issue that was peeled off for mediation with a particular judge, the same issue could soon reappear before the same judge in a litigation context. Agencies have devised various approaches,

among them, assignment of separate judges to ADR and litigation tracks in the first place, and waiver of confidentiality by the parties when agreeing to one judge for both tracks.

Conclusion

Policy, resources, environment, history, or other considerations can influence nearly every aspect of ADR program design and implementation, allowing the creation of a program that corresponds to general or even unique needs. However, certain aspects of ADR are edging toward standardization. Guidelines emerging in the areas of confidentiality and training or certification of neutrals bear watching amid the continued growth of ADR in a multitude of contexts. State agencies use ADR in many ways; for two examples, see Appendix C.

 
 
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