May 2002

The Supreme Court ruled Monday that the landmark Americans with Disabilities Act does not override company seniority systems and that disable workers are not necessarily entitled to reasonable accommodations for positions intended for more senior workers, according to published reports.

The ADA makes it illegal to discriminate against the disabled and requires employers to offer reasonable accommodations.

There was some recourse in the decision for disable workers, however, when the Justices said disabled workers can show "special circumstances" that make exceptions reasonable.

Attorneys for Robert Barnett argued that the civil rights law that allowed disabled golfer Casey Martin to ride in a golf cart on the PGA Tour is the same principle that should have been used to allow Barnett, because of his back injury, his first choice of jobs at US Airways over his more senior co-workers.

The Supreme Court threw out a lower court's finding and sent the case back for further review on a 5-4 decision.

US Airways had appealed the lower court's finding, asking whether it was legal for the ADA to trump its own seniority system. In agreeing with US Airways, Justice Stephen Breyer wrote that the ADA does not normally require that assignment and that it was up to individual employees to show why their case would grant an exception.

Barnett sought a transfer after injuring his back loading luggage at San Francisco International Airport in 1990. He was moved into the mail room, but employees with more seniority later asked for the same position and under seniority rules would be able to bump Barnett into a less desirable job, according to published reports.

Barnett sued in 1994 under the ADA and won in lower courts.

Source: FPMI Communications

April 2002

An ombudsman for the Environmental Protection Agency's hazardous waste office who has feuded with senior officials within the agency recently submitted his resignation after charging the agency transferred him to a job whose only requirement was to answer the telephone, according to published reports.

Robert Martin held the $118,000-a-year job as ombudsman for EPA's hazardous waste office. He has been involved in disputes with senior EPA officials dating back to the Clinton administration. According to published reports his job includes complaints about the handling of the Superfund toxic waste cleanup program. A federal court rejected a lawsuit challenging his transfer to the EPA's office of inspector general. Then EPA-Administrator Christie Whitman said at the time of the transfer that the move would, among other things, give Martin more independence.

However, Martin said the move was an exercise designed to get him out of the way because he had become a problem to the department. Martin said in published reports that while he was recently out of town on EPA business, the locks of his office were changed and his files and computer taken. He claimed that his new position would be "untenable", with no independence while being barred from talking to the media or members of Congress about EPA activities.

During the Clinton administration Martin disputed levels of cleanup at Superfund toxic waste sites. Hugh Kaufman, a senior EPA investigator, was ordered to no longer work with Martin, which prompted Martin to file a whistleblower complaint, according to reports.

Martin and Kaufman also had run-ins and disagreements with Bush political appointees over complaints from lawmakers about Superfund cleanups.

Source: FPMI Communications

April 2002

Cari M. Dominguez, Chair of the Equal Employment Opportunity Commission recently announced the posting of a new federal sector web page containing the most comprehensive information available on Alternative Dispute Resolution programs for federal government agencies. The federal sector ADR web page, which can be accessed at www.eeoc.gov/federal/adr/, provides information about ADR for federal agencies and stakeholders and serves as a clearinghouse for related ADR information.

"This new federal sector ADR web page will serve as a valuable online resource for federal managers, employees and applicants alike," said Chair Dominguez. "It will assist federal agencies in implementing and improving their internal ADR programs. We've had overwhelming success with mediation in the private sector. We hope to build upon this success in the federal sector."

The development and issuance of the federal sector ADR web page is part of Dominguez's Five-Point Plan a strategic framework to improve EEOC's overall operations. The centerpiece of the plan is promoting and expanding the use of mediation and other types of ADR to enable positive solutions to complaints of employment discrimination in the private and federal sectors.

EEOC is expanding the use of ADR in the federal sector through piloting the use of a number of types of ADR in the hearings units of its field offices to determine which types are most efficient and cost effective at the hearings stage of the federal sector complaint process. EEOC is also offering mediation at the appellate stage of the federal sector complaint process through the federal sector appellate settlement team pilot program.

On March 28, 2002, Dominguez announced the implementation of an ADR program with the U.S. Postal Service to improve the processing of discrimination complaints by Postal workers nationwide. Under the initiative, virtually all requests for hearings before EEOC administrative judges involving bias cases against the Postal Service will first go through mediation.

The federal sector ADR web page contains specific information for individuals and federal agencies, including details on pilot programs and contacts. Among the information links available are:

• ADR fact sheet
• ADR questions and answers
• ADR program development and review (includes types of ADR techniques, sample ADR forms, guidance on program development, and ADA/Rehabilitation Act accessibility issues)
• ADR clearinghouse (includes statutory and regulatory documents, sources and training for neutrals, training for managers, ethical standards and confidentiality, ADA/Rehabilitation Act mediation standards, and ADR video tapes).

April 2002

WASHINGTON, D.C. -- At an awards ceremony held today in the Old Executive Office Building, the Air Force received the award for having the best new alternative dispute resolution program in the entire Federal Government.

ADR refers to resolution strategies that permit the Air Force and its suppliers to resolve contract controversies without litigation. This award marks the fourth national award given to the Air Force for its outstanding achievements in using ADR and specifically recognizes the Air Force for what it has achieved in resolving contract disputes since January 2000. Dr. Marvin R. Sambur, Assistant Secretary for Acquisition, accepted the ADR Award on behalf of the Air Force from Angela Styles, Administrator of the Office of Federal Procurement Policy

Among the reasons the Air Force received this coveted award include the fact that ADR helps to avoid millions of dollars in interest and litigation expenses by reaching conflict resolution in months rather than years, as is often the case with litigation. In addition, payments made to contractors in ADR proceedings since January 2000 are consistent with historical averages for cases resolved before the Armed Services Board of Contract Appeals -- indicating that reduced cycle time was not achieved by ignoring the merits of each case.

After signing ADR agreements with 17 corporations and 88 programs, every contract controversy raised by a signatory to an Air Force ADR agreement was resolved through the use of ADR -- leading to a dramatic reduction in litigation at the ASBCA.

The Air Force made a commitment to all of its defense contractors to resolve disputes cooperatively. Large and small-business defense contractors joined the Air Force in resolving 70 disputes involving over $170 million using efficient and effective ADR techniques.

Over the past several years, ASBCA judges have provided ADR services in contract appeals with a 97 percent resolution rate. According to Chairman Williams of the ASBCA, "it is clear beyond doubt that ADR works as advertised and the ASBCA is committed to making our judges available to provide ADR services."

Sambur said, "this program is an excellent example of the flexibility and innovation the Air Force needs to foster and support its Agile Acquisition initiatives." The Air Force Agile Acquisition initiative is intended to dramatically improve the time, cost and process for acquiring and fielding weapon systems to warfighters.

Sambur also praised the efforts of several senior Air Force leaders in helping make this an award-winning program. He praised Darleen Druyun, Principal Deputy Assistant Secretary for Acquisition and Management, "for her vision, leadership and commitment to making ADR a priority for the acquisition community."

Sambur also thanked Mary Walker, General Counsel of the Air Force, and Maj. Gen. Thomas Fiscus "for the outstanding partnership forged between the Office of the General Counsel and the Judge Advocate General's Department in supporting this program."

Joe McDade, Deputy Dispute Resolution Specialist, credited the hard work of the men and women of the Directorate of Contract Dispute Resolution and the commitment of our acquisition and contracting communities as being the key to the success of this program. McDade stated, "in my opinion this program is an example of the Air Force at its best -- strong leadership and vision from the top and extraordinary work by the field."

The Air Force worked with a group of senior Government and Industry officials to jointly develop an ADR guidance manual and is currently working on a large-scale joint training effort to promote the early identification and resolution of issues in controversy. Details regarding these and other ADR Program efforts are available on the web at http://www.adr.af.mil.

April 2002

The newly appointed Federal Service Impasses Panel met in Washington D.C. to begin formal work, according to a press release from the Federal Labor Relations Authority. Department of Labor Solicitor Eugene Scalia administered the oath of office and presented the Commission of Presidential Appointment to Chairman Becky Norton Dunlop and to members Richard Barber Ainsworth, Andrea Fischer Newman, and Joseph Carter Whitaker.

The Panel is the component of the FLRA that resolves impasses between Federal agencies and unions representing employees arising from negotiations over conditions of employment.

Referring to the underlying purpose for the congressional establishment of the Panel and the President's vision for improving Government, Chairman Dunlop noted, "I look forward to working with Members Ainsworth, Newman, and Whitaker in promoting a citizen-centered, results-oriented perspective that focuses on efficient and effective government."

Breaking from the work of the two-day agenda, the panel Members and panel staff greeted representatives of federal agencies and unions during an open house hosted by FLRA Chairman Dale Cabaniss. "I very much enjoyed meeting the many representatives who took the time to stop by and visit, as did the other Panel Members," Dunlop said.

"I am confident that I speak for all of the Panel members in saying that we look forward to working with agencies and unions to resolve bargaining differences, when those differences cannot be resolved by other means. The broad range of experiences that our Members bring to their positions and their commitment to public service will complement the process of promoting ways for agencies and unions to work together to meet their particular interests," she said.

Source: FPMI

April 2002

Angela Styles, the administrator for federal procurement policy at the Office of Management and Budget, recently presented the first Federal Procurement Alternative Dispute Resolution Awards at a ceremony in the Eisenhower Executive Office Building.

The awards program recognizes innovative, non-litigious conflict resolution practices such as arbitration and mediation. ADR provides an effective and expedited process for resolving contract disputes allowing agencies and contractors to maintain long-term solution-oriented relationships.

The 2002 awards, based on the recommendations of a distinguished panel of federal and private sector ADR professionals, were presented to:

* U.S. Army Corps of Engineers * U.S. Department of Transportation --Federal Aviation Administration * United States Air Force * Northrop Grumman Corporation

The awards program was established by the Office of Federal Procurement Policy in coordination with the Procurement Executives Council and the Interagency ADR Working Group chaired by the attorney general. Jay Stephens, the associate attorney general and William Haynes, general counsel of the Department of Defense, made remarks prior to the presentation of awards.

Source: FPMI

April 2002

O'Neill v. Home IV Care, Inc., 2002 WL 181758 (Mich. App. 02/05/02)

Trial court's consideration of a mediation evaluation, which occurred prior to jury trial, in determining amount of award for attorney fees was in error. Due to the importance of secrecy concerning mediation evaluations as well as the lack of final judgment, a judge must not consider a mediation evaluation, after a jury trial, in determining whether or not to assess costs or award attorney fees and in determining the amount of the award. Available online at: www.icle.org/michlaw/oview.cfm?caseid=22642821

April 2002

Isaacson v. Isaacson, --- N.J.Super. ----, --- A.2d ----, 2002 WL 362666 (N.J. App. 03/08/02)

One individual should not be appointed to serve as both mediator and guardian ad litem in the same case. The inherent conflict between a mediator's obligation to respect the requirement of confidentiality and a guardian ad litem's duty to serve the best interests of the children precludes the same person from serving in both capacities simultaneously. For instance, if the issue for mediation is not resolved, the issue may have to appear before the court. Should the judge request input from the guardian ad litem (who is also the mediator), a conflict arises concerning the bar against a mediator participating as witness in any related court proceeding. In addition, the neutrality of a mediator also serving as guardian ad litem may be compromised. Available online at: http://www.judiciary.state.nj.us/opinions/A3519-99.htm

April 2002

WASHINGTON - Cari M. Dominguez, Chair of the U.S. Equal Employment Opportunity Commission (EEOC), today announced the implementation of an Alternative Dispute Resolution (ADR) program with the U.S. Postal Service (USPS) to improve the processing of discrimination complaints by Postal workers nationwide. Under the initiative, virtually all requests for hearings before EEOC administrative judges involving bias cases against the Postal Service will first go through mediation.

"I am enthusiastic about this innovative partnership," said Chair Dominguez. "This is a creative use of a powerful tool - mediation - to settle differences in a timely, cost-effective, and mutually satisfactory way. Introducing mediation at this stage of the process is a win-win."

Anthony J. Vegliante, Vice President for Labor Relations at the U.S. Postal Service, said: "Mediation at the hearing stage provides another opportunity to empower parties to a dispute to recognize each other's points of view and to be recognized. Working with the EEOC on this initiative is something that we do gladly and with a commitment to further improve our process for the benefit of all our employees."

Under the nationwide program, EEOC administrative judges will issue a Mediation Order to the parties and provide a copy to the local USPS ADR coordinator. Receipt of the Mediation Order will serve to notify the Postal Service ADR staff of the need to schedule the case for mediation. USPS will provide an expert external mediator to conduct the mediation session, which will typically be completed within 90 days of issuance of the Mediation Order. The role of the mediator is to facilitate discussions and assist the parties in resolving the dispute.

Reaching an agreement is strictly voluntary on the part of participants. The mediator has no authority to mandate a resolution of the case and will inform the EEOC administrative judge of the outcome within 10 days of the mediation, as well as provide a copy of any resulting settlement agreement. If a mediated resolution is not reached, an EEOC administrative judge will proceed to process the complaint in accordance with the federal sector regulations (29 C.F.R. Part 1614).

Cases that will be excluded from the program include class and systemic complaints, those involving Equal Pay Act claims, and cases involving conduct by the complainant of a criminal nature (such as Postal Service "inspector" cases). In addition, in rare circumstances, EEOC administrative judges may determine that good cause exists for not requiring the parties to participate in mediation.

The program has already been phased into EEOC field office hearing units in Florida, Pennsylvania, Michigan, Indiana, and parts of Texas. Full implementation at all EEOC field offices nationwide is expected by January 2003. EEOC projects that approximately 3,500 complaints per year against USPS will be processed through the mediation program once fully implemented.

Under Executive Order 12067, EEOC provides lead coordination to the efforts of federal agencies to enforce EEO laws. The Commission enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin; the Age Discrimination in Employment Act; the Equal Pay Act; the Rehabilitation Act of 1973, which prohibits discrimination affecting individuals with disabilities in the federal government; Title I of the Americans with Disabilities Act, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments; and sections of the Civil Rights Act of 1991. Further information about the Commission is available on its Web site at www.eeoc.gov.

March 2002

President Bush has appointed Becky Norton Dunlop as Chairman, and Richard Barber Ainsworth, Andrea Fischer Newman, and Joseph Carter Whitaker as members of the Federal Service Impasses Panel. The Panel is the component of the Federal Labor Relations Authority that resolves impasses between federal agencies and unions representing employees arising from negotiations over conditions of employment.

Panel Chairman Becky Norton Dunlop currently serves as vice President of external relations for the Heritage Foundation, overseeing strategic outreach and communications to public policy institutions, state government officials, and business and community leaders. She previously served as a senior official in the Reagan administration as deputy assistant to the president for presidential personnel and director of the president's cabinet office. She also has previous executive experience with the departments of Justice and Interior. Her term will extend through January, 2005.

Richard Barber Ainsworth is a private sector executive with extensive experience in business, investment management and strategic planning. His term will also extend through January 2005.

Andrea Fischer Newman is currently head of governmental affairs for Northwest Airlines. She has significant experience in labor-management negotiations and addressing employee disputes. She also served with the Reagan administration as a special counsel for the assistant secretary of defense for acquisition and logistics and as a deputy assistant to then-Vice-President George Bush. Newman's term will end January, 2007.

Joseph Carter Whittaker has extensive experience at all levels of the construction industry, including negotiations and collective bargaining between management and unions. Currently he serves as CEO of Whittaker Construction, a 70-year family business. Whittaker will serve a term ending in January 2007.

Source: FPMI Communications

March 2002

New York, NY, -- Major U.S. insurance companies have agreed to resolve inter-insurer disputes relating to the September 11 acts of terrorism through unfacilitated negotiation and mediation, rather than in court.

The CPR Inter-Insurer Dispute Resolution Commitment for Disputes has been signed by CNA, Chubb Group of Insurance Companies, Allstate Insurance Co, Fireman’s Fund Insurance Companies, Great American Insurance Company, Kemper National Insurance Companies, Nationwide Insurance Company, REM (on behalf of Home Insurance Company) and Royal & SunAlliance USA. Including these entities’ affiliates, over 60 companies have joined the effort.

“As U.S. Secretary of the Treasury Paul O’Neill has pointed out, the insurance industry stands to be particularly hard hit by the horrific events of September 11,” said CPR President Thomas J. Stipanowich. “The CPR Commitment to mediate was developed to avoid the expense, delays and uncertainties of litigation at a time when quick resolution of disputes between insurance companies is crucial.”

For signatory companies, the CPR Commitment covers disputes of any nature related to the terrorist attacks that occurred in New York, Pennsylvania and Virginia on September 11. It applies to all claims arising under all policies of insurance. Participants agree to mediate such disputes, but do not give up their rights to arbitrate or litigate.

Royal & SunAlliance Vice President Brian C. Stahl said, “Many losses of unprecedented size and complexity have arisen from the terrorist attack of September, and it is inevitable that insurers, striving to meet their obligations to policyholders, will inevitably come into dispute with one another. The CPR Commitment is a rational means to resolve these disputes without the high cost and frequent unintended consequences of litigation. Royal & SunAlliance urges all insurers to sign the Commitment to facilitate our industry’s ability to focus its efforts on responding to policyholders needs.”

Robert C. Buckley of Fireman’s Fund Insurance Company notes, “Fireman’s Fund believes in the benefits of ADR and fully supports the effort to bring ADR to the resolution of disputes arising from the September 11th disaster.”

The text of the Insurance Commitment and other information can be found on CPR’s web site, www.cpradr.org.

The CPR Institute for Dispute Resolution is a widely respected alliance of 500 global corporations and leading law firms at the forefront of resolving business and public disputes through mediation and other forms of dispute resolution. www.cpradr.org