Document Type

Article

Publication Date

Summer 2024

Abstract

This Article studies how federal agencies use and might better use different types of alternative dispute resolution (ADR)-including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use of ombuds-in the programs Congress has entrusted them to administer. The use of ADR by the executive branch of the federal government to resolve disputes with or among private actors has deep historical roots. ADR related to managerial agency matters such as employment or procurement is well-established across the government and performed under a uniform set of laws. Much less has been known, however, about the scope and reach of ADR in the execution of government programs entrusted to agencies by Congress, including regulatory enforcement, adjudication of claims, and administering benefits or reimbursing services such as provider fees. This Article begins to fill that gap.

Today, at least three dozen federal agencies publicly promote the use of ADR for their administrative programs. This Article presents that data for the first time. The project considers five fundamental aspects of agency ADR practice: the selection and implementation of the appropriate type of ADR and associated procedures; the qualifications and selection of agency ADR personnel; training of ADR staff; ADR case management practices; and interagency mechanisms to facilitate ADR and support agency ADR personnel.

Taken together, the Article makes three contributions. First, it lays out the legal framework for modern administrative-program ADR in federal agencies, along with some historical comparisons. Second, using an extensive and original qualitative empirical study, it describes agency ADR practices across the executive branch along five critical dimensions of ADR administration. Third, it develops conclusions and recommendations surrounding the uses of ADR in our administrative state.

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