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<xTITLE>Mediating With Uncle Sam</xTITLE>

Mediating With Uncle Sam

by Phyllis Pollack
September 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       My husband is a customs lawyer. He specializes in import-export law and international trade. Thus, for the most part, he represents importers who are at odds with U.S. Customs and Border Protection (“CBP”); that is, the U.S. Government. When the issue winds up in federal court, he is dealing with an Assistant U.S. Attorney or an attorney in the Department of Justice, Civil Division, Commercial Litigation Branch.

       Being a mediator, I always recommend that he use mediation to resolve his cases. His response is that he is dealing with the Government, and it does not mediate.

       Well, a recent  unpublished study proves him wrong. Conducted by Lisa Blomgren Bingham, J.D., Tina Nabatchi, Ph.D., Jeffrey M. Senger, J.D., and Michael Scott Jackson, M.P.A. and entitled “Dispute Resolution and The Vanishing Trial: Comparing Federal Government Litigation and ADR Outcomes”, the study concluded that when ADR was used in civil cases handled by the U.S. Attorney’s office, 65% of them settled. In contrast, when the U.S. Attorney’s office did not participate in ADR, only 29% of its cases settled. Further, “[s]ignificantly more cases settled when ADR was voluntary than when it was mandatory (71% v. 50%), and tort cases settled with more frequency than employment discrimination cases (73% v. 60%)” (p.1). (There are no statistics provided for Customs cases!) The next finding provides strong support for the use of ADR:

      “AUSAs [Assistant United States Attorneys] spent an average of $869 in neutral fees and estimated that the process saved $10,735 in litigation expenses per case. AUSAs spent an average of 12 hours preparing for ADR and 7 hours in the ADR process per case, which they estimated saved 88 hours of staff time and 6 months of litigation time per case” (p. 1).


       When one litigates against the Government, one might assume that the Government has an unfair advantage. Well, the study found that the “ADR outcomes were not significantly different than litigated outcomes, indicating that the process was neutral, favoring neither private parties nor the government” (p. 1).

       To conduct the study, the researchers first obtained general information about all civil cases handled by the U.S. Attorneys’ offices throughout the United States between 1995 and 1998. They then created a database limiting it to those matters in which ADR had been used. They further categorized these cases in terms of types of cases and disposition. In the end, the database contained 15,288 cases (pp. 23-29). Of these, 14,777 went through the traditional litigation process while 511 cases participated in ADR (p. 29).

      After reviewing the data, the researchers found several interesting things in addition to their conclusions noted above. First, they found that ADR was used most often in Federal Tort Claims Act (FTCA) and in Employment Discrimination cases. More specifically, FTCA suits comprised 39% of all the cases in the database but 66% of those using ADR. Similarly, Employment Discrimination cases comprised 22% of all cases in the database, yet 30% of those cases using ADR. Together, these two types of cases made up 96% of the 488 cases using ADR, but only 60% of the cases following the traditional litigation process (p. 30).

       The researchers also found that “ADR was used disproportionately often when the government was a defendant in the lawsuit” (p. 31). More specifically, 96% of the cases used ADR in which the government was a defendant (p. 31).

       The researchers also examined the “macrojustice” or “fairness” of the ADR process: did a particular dispute resolution process favor one side or the other?:

     ” Issues of macrojustice take on a heightened importance when the federal government is a litigant. If the government received better results in ADR than in traditional litigation, private parties would be reluctant to use ADR with the government, because they would fare better in court. Conversely, if the government did worse in ADR than in litigation, government counsel would choose not to participate in the process. . .”  (pp. 32-33).

       What the researchers found was that the ADR process did not change the outcomes that would otherwise result from litigation. The relief obtained in the ADR process was about the same as would have been obtained at trial. “. . . ADR did not have the macrojustice effect of altering traditional legal remedies in these cases” (p. 36).

       Lastly, and to no surprise, the researchers found that the sooner the ADR process was used during the life of a case, the less time it took for the case to reach final disposition (p. 37). Thus, where ADR was introduced within the first 90 days after the case was filed, the case took an additional 92 days to resolve such that the complete life of the case was 150 days. In contrast, where ADR was first introduced within 91 to 180 days after the case was filed, it took on average another 190 days to resolve it: the total life of the case was 339 days or almost a year
(p. 37).

       In conclusion, ADR works in federal court, even when the government is the other party to the lawsuit, and the results obtained using ADR do not differ significantly than those obtained after a trial.

       Now. . . if I can just convince my husband to use mediation in his cases against the government. . . .

       . . . Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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