Guidelines for Agency Dispute Resolution Coordinators

Overview of Agencies' Uses of DR Processes

The term "Dispute Resolution" refers here to a collection of approaches that allow parties to engage in collaborative decision making. Agencies should use the term carefully because it can be off-putting when parties do not think they are involved in a conflict or dispute. Other ways to describe these approaches include "joint problem solving," "collaboration," and "consensus building."

DR in this context includes a range of processes-from informal to formal; from unassisted negotiation to facilitated collaborative decision making; from mediation to simple fact finding; early neutral evaluation, and/or arbitration. They include parties acting alone to resolve a conflict through informal negotiation, or parties who seek assistance from a facilitator or mediator to help them resolve conflicts or issues. Parties may also ask a fact finder or arbitrator to resolve the dispute for them.

DR processes can be used both proactively and reactively. A proactive approach begins when an issue is known to be contentious, and early involvement of key parties can help manage any inevitable conflicts and build consensus on solutions. Reactive approaches are responses to contentious issues that have developed into full-blown disputes.

Agencies use a variety of collaborative problem solving and dispute resolution processes. DR Coordinators are responsible for promoting the appropriate steps and processes an agency should follow, and should become highly familiar with the range of DR approaches that are available. There are numerous books and articles describing these processes and their use in government settings. See the Resources on DR Coordinators and Their Roles in this guide for a listing of some of these references.

Dozens of state and federal agencies have established dispute resolution programs. For a listing of state agency DR programs, see PCI's on-line Directory of State Dispute Resolution Programs. (2) For federal listings, see the Office of Personnel Management's Alternative Dispute Resolution: A Resource Guide.

Agencies use dispute resolution processes both internally (to resolve workplace disputes or to address intra-agency issues collaboratively) and externally (to work out agreements and mediate disputes over policy formulation, implementation and enforcement). Process assistance, such as mediation, has also proven extremely valuable for intergovernmental issues, as well as with inter-agency policy issues.

While mediation typically occurs in the context of specific disputes involving a limited number of parties, facilitated processes are used to develop and implement broad policies and typically involve numerous participants who represent a number of interests. The latter are often termed consensus processes, policy dialogues, or negotiated rulemakings. "Process assistance" has also been useful in numerous settings where full consensus may not be practicable. These include facilitated processes to promote information exchange or collaboration in connection with inter and intra-agency work groups, or for purposes of involving the public.

PCI's Practical Guide to Consensus offers advice on assessing the potential for, and the use of, consensus processes. Also useful is the Oregon Dispute Resolution Commission's Collaborative Approaches: A Handbook for Public Policy Decision Making and Conflict Resolution.

Consensus processes have been employed since the mid 1970s to develop scores of potentially controversial federal and state rules, policies, and legislative proposals addressing environmental problems, regulating health and safety concerns, and allocating scarce budgetary or other public resources. An example of one such state process is featured in a PCI-produced video titled Building Consensus: Transportation Rulemaking in Oregon (2000). Also useful are: Jim Arthur's A Guide to Negotiated Rulemaking and Pilot Rulemaking; Matt McKinney's Negotiated Rulemaking: Involving Citizens in Public Decisions; and the Texas Negotiated Rulemaking Deskbook.

Agencies have found DR assistance to be especially helpful in government contracting both before hand, in setting up provisions to use DR in contract clauses, and later in resolving contracting disputes. An agency may seek the assistance of a neutral in determining what the substantive outcome should be through a process like early neutral evaluation, fact-finding, mini-trial or settlement conference. The neutral assists the parties in a structured exchange of information. After the presentation of information, the neutral may advise the parties on the strengths and weaknesses of their respective positions. The neutral helps the parties understand how a situation is likely to play out; the downside risks as well as the upside possibilities from the perspective of a disinterested, knowledgeable third party. Such a neutral can help the parties gain an understanding that will let them negotiate more realistically and effectively even when they do not have assistance.

There may be instances when an agency wants to set up a mechanism, like arbitration, for a neutral party to make the decision about how a dispute will be resolved. The parties agree in advance to abide by the neutral's decision. The decision may be quicker, cheaper, or more expert, than one provided by a court or judicial officer.

There also are processes (e.g. ombuds, partnering) that focus on improving information flow, or on building cohesive relationships, or constructive relations between parties, so problems can be detected early and dealt with to prevent escalation. Recently, a number of state agencies that oversee large construction projects have employed partnering procedures. Partnering is a process in which parties to large, ongoing contracts establish at the outset a collaborative approach to avoiding and addressing conflicts in order to reduce the number of claims and adversarial proceedings. Some useful examples include: a federal report titled Parterning for Success: A Blueprint for Promoting Government - Industry Communication and Teamwork; CPR's Procedures and Clauses links; and the U.S. Air Force's ADR site on contracting. The 1996 Report of the Dispute Avoidance and Resolution Task Force of the American Arbitration Association is another useful tool.

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