Promoting the Alternative to the Alternative to Courts, by Renée M. Landers

by Guest Blogger — Tuesday, Dec. 13, 2016

renee-landersIn A Report to the President-Elect of the United States 2016, the ABA’s Section of Administrative Law and Regulatory Practice calls attention to the opportunity to enhance to the efficiency of, and satisfaction with, the outcomes of agency adjudications by expanding the government’s commitment to using ADR techniques. Any discussion of ADR in the context of agency adjudications is somewhat ironic as agency adjudication is inherently an alternative to judicial proceedings conducted in courts.[1]  When used with reference to agency adjudications, ADR techniques provide useful alternatives to typical agency hearing processes.  In this context, perhaps, the “A” in ADR really should be A2 or A2DR!

Agency adjudications serve the useful purpose of diverting large numbers of disputes over benefits, payments, permits, and enforcement proceedings from courts to agencies thus conserving judicial resources, potentially allowing for the application of more specialized expertise in a given category of cases or familiarity with a particular statutory scheme, and providing the possibility for less costly and less time-consuming resolution of contested matters. Backlogs in concluding adjudications plague Social Security disability claimants, veterans seeking benefits, and people awaiting immigration removal determinations, among others, and ADR techniques might be useful in addressing these delays. Similarly, used to resolve agency adjudications, ADR has the potential to focus on interests not positions and, perhaps, to expand the range of remedies or agency responses that may be available to bring a matter to a conclusion in a way that fosters greater confidence in the acceptability of the outcome. Also, agencies use ADR techniques to address workplace conflict or FOIA matters though ombuds programs and increasingly are refining the use of ADR in multi-party regulatory matters.[2]  As the Report notes, “the use of mediation, arbitration, minitrials, settlement judges, and other techniques can provide more efficient and more satisfying resolution of agency adjudications than formal hearings.”  Recent draft recommendations relating to informal adjudications from the Administrative Conference of the United States similarly advise that “Agencies should encourage and facilitate ADR.” [3]

In one’s life and legal career, certain issues have a way of re-emerging as an area of focus. When I first entered law teaching in 1988 at my alma mater, Boston College Law School, I was happy to be enlisted to teach a section of a first-year course called Introduction to Lawyering and Professional Responsibility (ILPR) which, as its title implied, attempted to provide students with connections to actual lawyering tasks and the inevitable professional responsibility considerations inherent in routine law practice. In addition to the lawyer’s role in client interviewing and counseling, drafting pleadings, and preparing for summary judgment motions, ILPR explored the use of ADR techniques in resolving disputes. Thus, when I arrived as a Deputy Assistant Attorney General in what was then the Office of Policy Development at the U.S. Department of Justice (now, Office of Legal Policy) in late 1993 as the Clinton Administration was getting its feet under it, because I was familiar with the literature on ADR, the lead role in developing new policies to encourage greater use of ADR in resolving government litigation fell to me. This work on ADR was part of a more expansive Civil Justice Reform project created by Attorney General Janet Reno to consider more carefully how the government’s thought leadership and prosecutorial authority could be used more constructively. With the help of colleagues, I assembled a team of appointed and career lawyers to plan a new DOJ policy to encourage the use of ADR in appropriate cases. Janet Reno’s issuance of an order “Promoting the Broader Appropriate Use of Alternative Dispute Resolution Techniques” on April 6, 1995, was the culmination of those efforts. As timing sometimes is everything, I was literally in the hospital delivering my son when the AG announced the order.

I have been thinking about that period in my career a great deal recently since Janet Reno’s death on November 7 and in the context of the transition to the new Administration led by Donald Trump. Although the transition after the 1992 election had ended months before I arrived at Main Justice, as soon as it became known in the ADR community that I was working on the issue at DOJ, looking back, I experienced a mini-transition of sorts as I reached out to people within the litigating components of DOJ and the ADR community within and outside the government. Through this work I became familiar with ACUS–unfortunately, immediately before its defunding by Congress in 1995. Litigators famously seek government work to try cases, so the ADR project encountered some institutional resistance. The career lawyers in DOJ and the Attorney General who saw possibilities in using a different approach in the right cases were an effective counterbalance to that inertia. I remember the founder of one of the respected private ADR firms encouraging the work by noting that changing the culture of government litigators on ADR would be a way for me to make a difference through my work in government.

Although last year in an article in Resolving Conflict, the Newsletter of the Interagency Alternative Dispute Resolution Working Group of the U.S. Government, the Office of Dispute Resolution at DOJ established by the AG’s 1995 order, stated that DOJ “was an early advocate for ADR,”[4] the timing of the order belies that claim. As the Section’s Report to the POTUS-Elect indicates, the Administrative Dispute Resolution Act was originally enacted in 1990 and its reauthorization process culminating in its permanent reenactment in 1996 coincided with these efforts within DOJ to focus on the use of ADR. The original act certainly pre-dated the AG’s order. And certainly the perception of many in the ADR community I encountered in that period of deliberation and research during 1993 to 1995 was that DOJ was definitely a hurdle to the use of ADR in government litigation. These facts suggest that DOJ was not necessarily early to join the ADR movement. One notable exception to this early institutional ambivalence was the work of the Community Relations Service of DOJ, established by the Civil Rights Act of 1964 to use conciliation to help communities resolve conflict.[5] The larger point in reciting this history is that the Act provides a Congressional imprimatur for the use of ADR techniques to complement the traditional processes of agency adjudication.

When I left DOJ to become Deputy General Counsel of HHS in early 1996, I encountered a robust group of professionals committed to the use of ADR in resolving the myriad payment and other disputes arising from HHS-administered programs. I took the leap then and completed the training course in Basic Mediation Skills in 1996.

In addition to urging that the new Administration expand the commitment to using ADR in agency adjudications, the Report to the POTUS-Elect also recommends that the Administration give prominence to this commitment by issuing an executive order to express support for the use of ADR techniques. The Report notes that Executive Order 12866 encourages the use of negotiated rulemaking, an approach that augments the typical notice-and-comment rulemaking process with a collaborative approach to developing proposed rules. While a presidential memorandum of May 1, 1988, urged each federal agency to promote greater use of ADR techniques to reach a more “consensual resolution of disputes and issues in controversy involving the United States, including the prevention and avoidance of disputes”, as well as negotiated rulemaking, an Executive Order building on this foundation would elevate the attention to, and perhaps the use of, ADR techniques in agency adjudications.

In light of this history, the wisdom of the Section’s support for greater incorporation of ADR techniques in the resolution of agency adjudications seems self evident. As the AG’s 1995 order reaches the mature age of 22 along with my son this April, the positive effect of greater embrace of ADR by litigants and courts in cases involving the government seems beyond dispute. Promoting this commitment through more expansive use of ADR techniques in agency adjudications and having the President affirm the government’s interest in resolving disputes with and among citizens in a less adversarial and more constructive manner by issuing an Executive Order would be fitting tributes to this legacy of Attorney General Janet Reno and the potential for improving the delivery of justice in agency adjudications.

These ideas were not new when the Congress adopted the ADR act in 1990 nor when the AG issued her order in 1995. I grew up in Springfield, Illinois, eight blocks from the home where Abraham Lincoln resided when he was elected the nation’s 16th President. In addition to his success in politics, Lincoln was an accomplished lawyer, and aspiring lawyers and less experienced practitioners often sought his advice. In Notes on the Practice of Law prepared in about 1850, he wrote:

Discourage litigation. Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often a real loser—in fees, and expenses, and waste of time.  As a peace-maker the lawyer has a superior opertunity of being a good man.  There will be business enough.

Never stir up litigation.  A worse man can scarcely be found than one who does this.[6]

These timeless sentiments are as good advice for the government on the precipice of a new Administration as they were when lawyers and judges rode the circuit from courthouse to courthouse in 1850.

 

Renée M. Landers is a Professor of Law and Faculty Director, Health and Biomedical Law Concentration, at Suffolk University Law School, Boston. Landers currently serves as Chair of the ABA Section of Administrative Law and Regulatory Practice.

 

[1] For examples of use of ADR to resolve government litigation, see https://www.justice.gov/olp/settlements-achieved-through-adr.  For more information about Department of Justice resources, the DOJ website provides comprehensive information at https://www.justice.gov/olp/resources.

[2] See, e.g., Jennifer M. Gartlan, The Collaborative and Facilitative Processes Committee:  The Cutting Edge of Government ADR, Resolving Conflict, Newsletter of the Interagency Alternative Dispute Resolution Working Group of the U.S. government, Issue 4 – March 2016.

[3]Administrative Conference of the United States, Informal Agency Adjudication Committee on Adjudication Proposed Recommendation for Committee, ¶ 12, draft of November 3, 2016.

[4] Joanna Jacobs, Report from the Litigation Section, Resolving Conflict, the Newsletter of the Interagency Alternative Dispute Resolution Working Group of the U.S. Government, p. 8 (Issue 2–February 2015).  For information about the Interagency Alternative Dispute Resolution Working Group see https://www.adr.gov/.

[5] Congress extended the mandate of CRS to include hate crimes in 2009.  https://www.justice.gov/crs/about-crs.

[6] Abraham Lincoln, Speeches and Writings 1832 – 1858, Library of America (1974) p. 245 -246.

 


This post is part of the Symposium on the ABA AdLaw Section’s 2016 Report to the President-Elect. An introduction to the symposium is here, and all of the posts are collected here. The views in this post, which expand upon the recommendations set forth in the Report, are the author’s own and do not necessarily reflect the views of the ABA AdLaw Section. The full Report is available here.

Cite As: Author Name, Title, Yale J. on Reg.: Notice & Comment (date), URL.

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