Factors in Government ADR. The settlement of disputes
can be complex, and can
become more complex when government agencies or institutions are parties
(directly or indirectly). ADR is complex alone and the following factors should be
considered when planning ADR processes in which government agencies
participate:
- Laws
applicable to and defining government participation. Even
a list of such laws and regulations is beyond the intent of this
website. The implications of these laws and regulations must
be directly addressed to make Government ADR processes function
efficiently and without surprise.
- Confidentiality.
Due to Open Meeting laws and regulations, and other statutory
implications (such as FOIA), the issue of confidentiality of
settlement negotiations involving government entities is much more
complex. Often, specific standards and agreements are needed
to clarify the parties' understandings.
- Public and
private sessions. Similar to the issue of confidentiality,
the question is often presented as to whether negotiations to be
conducted in public session (thereby perhaps reducing candor) or
privately (perhaps raising concerns of side deals that prevent
citizen input).
- Scope of
process. Because governmental agencies often have broad
authority, the "scope" of the ADR process, if desired, can
become quite large. This calls upon participating parties to
assess the proper scope (i.e., "What size of problem do we wish
to tackle in this ADR process?").
- Multi-party
mediation. Inevitability, government ADR processes include
more than two parties. Multi-party negotiations are
complicated and may lead to the formation of coalitions. ADR
processes should therefore be designed to anticipate this issues.
- Ratification.
Often, the governmental negotiators will have only 'recommendation
authority'. Final approval will require that any agreement be
presented to senior administrators or governing boards for final
approval.
My experience with agencies/institutions.
I have worked in ADR processes (facilitation and mediation) with in
disputes involving, among others the following entities: Corps of
Engineers, National Park Service, USDA, Forest
Service, Bureau of Reclamation, many Western States, Fish & Wildlife Service, Department of
Agriculture, EPA, State of Colorado, US Army, Department of Justice,
Department of the Navy, Colorado AG's office, Colorado Department of Public Health and
Environment, Water Quality Control Commission, and numerous Cities and
Counties in Colorado and elsewhere. My experience
includes disputes that were administrative or were initiated on court ADR
order.
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Copyright ©2006 Joseph P McMahon
Jr. All rights reserved
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