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Alternative Means of Dispute Resolution

Alternative Dispute Resolution is a method of settling disputes outside a courtroom.  Controversies in administrative actions can be resolved through alternative means of dispute resolution.[i] Alternative means of dispute resolution is not limited to arbitration and mediation.  The means extends to all voluntary means of dispute resolution.[ii] The methods include arbitration, mediation facilitation, mini trials, and use of ombudsman.  In arbitration parties to a dispute refer dispute to one or more persons by whose decision they agree to be bound.  On the other hand in mediation parties to the dispute accept a solution suggested by a third party.  Facilitation is a settlement process in which the parties present their respective cases to a panel of officials who represent each party and who have authority to settle the dispute.  Ombudsman is a person who acts as a trusted intermediary between government and private individuals.

The Federal Administrative Dispute Resolution Act describes arbitration as a common means of dispute resolution in administrative proceedings whenever all parties consent.  The Federal Administrative Dispute Resolution Act restricts resorting to alternative dispute resolution methods in the following circumstances:

  • when a matter significantly affects persons or organizations who are not parties to the proceeding,
  • when a matter involves significant question of government policy,
  • when full public record of the proceeding is important, or
  • when an agency must maintain continuing jurisdiction over the matter.

Alternative dispute resolution is also refused for maintaining the precedential value of a decision and for maintaining established policies of special importance.[iii]

An individual who aids the parties in resolving a dispute is known as neutral.  A neutral must have no conflict of interest with the issue in controversy.  A neutral must not voluntarily disclose any confidential communication made to him/her in dispute resolution proceedings.  Additionally s/he should not be compelled to disclose confidential communication by discovery or compulsory process.  However, disclosure is allowed when:

  • a communication is made by a non party, provided all parties to the proceedings, both neutral and non-party, agree in writing to disclose the communication,
  • a communication has already been made public,
  • a communication is required by statute to be made public, or
  • a court determines that disclosure is necessary to prevent injustice, violation of law, harm to the public health or safety.

The general rule is that a confidential dispute resolution communication between a neutral and a party is exempt from disclosure under the Freedom of Information Act.  However, such a confidentiality provision has no effect:

  • on the information and data that are necessary to document an agreement reached or order issued pursuant to a dispute resolution proceeding,
  • on gathering information for research or educational purposes, in cooperation with other agencies, governmental entities, or dispute-resolution programs, so long as the parties and the specific issues in controversy are not identifiable, and
  • in a communication made to resolve a dispute between a neutral in a dispute resolution proceeding and a party to or participant in such proceeding, so long as such dispute-resolution communication is disclosed only to the extent necessary to resolve such dispute.

However, the provision does not prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented in the course of a dispute-resolution proceeding.[iv]

In arbitration, the disagreeing parties agree to be bound by the decision of an independent third party.  Arbitration as an alternative means for dispute resolution can be used where parties consent.  The subject matter is submitted by a written arbitration agreement.  The officer or the employee of the agency should possess authority to enter into agreement.  The Federal Arbitration Act empowers the arbitrator to regulate the course and conduct of arbitral hearings, administer oaths and affirmations, and compel the attendance of witnesses and production of evidence at the hearing.[v] An arbitration agreement is enforceable under the Federal Arbitration Act.[vi] Any person adversely affected or aggrieved by an award made in an arbitration proceeding conducted under the Administrative Dispute Resolution Act may bring an action for review of the award pursuant to the Federal Arbitration Act.[vii]

[i]The Federal Administrative Dispute Resolution Act. 5 USCS § 572

[ii]5 USCS § 571, USCS § 572

[iii]5 USCS § 571

[iv]5 USCS §  574

[v] 5 USCS § 575

[vi]5 USCS § 576

[vii]5 USCS §581

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