These comments do not reflect the official position of the Dispute Resolution Section of the ABA, however, they are shared by many members of the dispute resolution community.
Dear Commissioner McNeive:
Please accept my comments to the FMCS proposed rule to establish an Access to Neutrals Initiative. I am Secretary of the Section of Dispute Resolution of the American Bar Association, an active mediator, and an Adjunct Professor of Law at Georgetown University Law Center. These comments do not reflect the official position of the Dispute Resolution Section of the ABA, however, they are shared by many members of the dispute resolution community.
Creating a roster of qualified professional neutrals to serve the public is a laudable goal and the FMCS should be commended for devoting the time and resources of its staff to expand the use of dispute resolution in the federal sector. However, the success of the Access to Neutrals Initiative will depend on the quality of the neutrals on its roster. As drafted, the proposed rules would unnecessarily discriminate against and disqualify many qualified neutrals in the private sector. I urge the FMCS to reconsider its proposed rule.
I. Disqualification of Advocates
The most significant issue relates to the disqualification from the roster of advocates, which as defined in section 1480.4, appears to include any person who also represents parties in employment disputes. See Section 1480.5(g)(2). Numerous fellow agencies have established rosters of neutrals to serve the needs of the public and their fellow agencies, including the Administrative Conference of the United States, the Resolution Trust Corporation, the Federal Deposit Insurance Corporation, the United States Institute for Environmental Conflict Resolution, the Environmental Protection Agency, the General Services Administration, the United States Postal Service, and the Library of Congress. None have taken the exclusionary path that the FMCS proposes. Party autonomy is a central tenet of dispute resolution.
If parties do not want to retain the services of a neutral who has represented a client in a dispute, than that would be their choice. It seems quite paternalistic to eliminate from consideration a vast number of mediators who are extremely well qualified and have a long track record of resolving many employment disputes.
The definition of ¡°advocacy¡± is also sufficiently vague as to allow arbitrary exclusion from the roster of individuals who provide any consultation to agencies on systems design, or even provide early neutral or fact-finding services. It would not seem reasonable or logical to exclude such professionals from the roster, if that is what the FMCS intended.
Perhaps the opposition of the FMCS to including advocates relates to its historical and core mission of mediating labor disputes in the private unionized sector. In disputes between union and management, a neutral could not be from either camp. Now that the private unionized labor force has fallen below 15%, the FMCS should recognize that parties are more comfortable hiring neutrals who practice in the subject area of their dispute and have good process skills. The neutral’s credibility is her coin. A neutral that cannot behave neutrally will not be selected in the future. It would seem preferable to allow the marketplace to function than to eliminate a class of neutrals.
II. Qualification Criteria Unrelated to Services Being Offered
The proposed rule states:
Clients seek mediation and ADR services from FMCS for many types of disputes in addition to labor, including employment, public policy and multi-party regulatory negotiation disputes. Even greater numbers and different types of clients may seek assistance from FMCS in the future because of the leadership and credibility of FMCS in the area of dispute resolution. To meet the anticipated surge in demand, FMCS is proposing this regulation to provide its expanding base of clients with ready access to a pool of professional, private-sector neutrals equipped to handle workplace and organizational disputes arising outside of the labor/collective bargaining arena. 68 Fed. Reg. 86 at 23634 (emphasis added).
As indicated in the above language, the rule, as proposed, clearly anticipates that the roster would be available to parties seeking neutrals for non-employment cases. Yet the point system that will be used to qualify neutrals for the ANI roster prefers neutrals with employment experience. Indeed, it appears impossible for a mediator who does not possess employment experience to qualify for inclusion on the ANI roster. If the roster will be used to serve consumers of non-employment disputes, then the criteria for qualifying for it should be expanded and not restricted to those neutrals who possess employment experience.
III. Roster Criteria Appear to Favor Current and Former FMCS Staff:
While I believe that the FMCS goals are genuine, skeptics have suggested that the proposed rules are intended to favor current and former FMCS staff. To counter this impression, the FMCS should take every possible measure to gain the public confidence for its roster. If it is the case that present and former employees would almost always qualify for inclusion on the roster after completing the application, then this should be explicitly stated. An accepted best practice of dispute resolution providers is to provide full disclosure of its panel. See CPR-Georgetown Commission on Ethics and Standards of Practice in ADR, Principles for ADR Provider Organizations, Principle II.a. & b, (May 1, 2002), http://www.cpradr.org. If the public believes that the roster has been tilted to favor a particular class of providers, then the roster may not be fully utilized.
IV. The Purported Need for the Roster is Unsupported by Data
The proposed rule states that the agency “is experiencing rapid growth in demand for its mediation and related alternative dispute resolution (ADR) services that may soon exceed the Agency’s capacity to provide these services through its in-house staff of 200 professional mediators.” Id. Yet, no data supports this conclusion. It seems logical that as the percent of the unionized labor force has declined, the demand for FMCS services would also decline. However, it does not logically follow that the demand for FMCS non-unionized labor services has risen so substantially that existing providers are unable to meet the demand. It would be helpful if the rule set forth the historical demand for services (both unionized and non-unionized), the change in the demand, and the change in the type and subject matter of the services requested.
It is accepted wisdom that the federal sector has been a significant consumer of mediation services. There is plenty of room in the field of dispute resolution for expanding access to qualified neutrals. Setting out a better case for the need for the roster would lay to rest concern by some in the private sector that FMCS is re-inventing itself to compete with services already provided by the private sector.
V. If FMCS is Creating a Roster for Government-Wide Use it Needs to Submit its Rule to the OMB Regulatory Review Process by Other Agencies
The proposed rule would create a roster that appears intended to serve a broad array of consumers with issues that transcend many governmental agencies. Indeed, the reference to regulatory negotiation seems to embrace the notion that the ANI roster would be available for government-wide service for all agencies. 68 Fed. Reg. 86 at 23634. Regulations that implicate the mission of other agencies must be submitted to an internal regulatory review process overseen by the Office of Management and Budget in which all affected agencies have an opportunity to provide comment on the proposed rule. It appears that FMCS has not submitted the proposed rule to the internal review process.
VI. The New Rule Does Not Address Important Contracting Issues
In addition, the FMCS could expand the utility of its roster by addressing contracting issues. The Administrative Dispute Resolution Act of 1996 (¡°ADRA¡±) revised the Contract Disputes Act and the Federal Acquisition Regulations so that it would be easier to hire a neutral (the analogy is made to hiring a court expert). In addition, the ADRA states that FMCS should assist agencies by providing access to and efficient procurement of neutrals. The proposed rule doesn’t include any provisions regarding procurement of neutrals. For example, it doesn’t include that those registered would be placed on a GSA schedule or could be hired through interagency agreement. Perhaps, if the plan was to establish a “federal umbrella contract” (such as GSA has with many providers of government services) agencies would have an easier way of inviting the right neutral (with the correct level of substantive and procedural expertise) to the table. However, none of these procurement issues are addressed in the proposed rule.
VII. The FMCS Failed to Consult Adequately with the Dispute Resolution Community
Although, the FMCS conducted focus groups to solicit input on the design of the ANI roster, it appears not to have reached out significantly to an important source of potential roster panelists — members of the Dispute Resolution Section of the American Bar Association. The Dispute Resolution Section of the ABA is the largest membership organization of dispute resolution professionals in the world. It is apparent that much work will need to be done to administer and evaluate the ANI program. The Section would welcome the opportunity to work with FMCS to improve its program.
Very truly yours,
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