Rise Of Rosters For Policy Cases Raises New Issues

This article originally appeared in the July 1997 issue of Consensus, a newspaper
published jointly by the Consensus Building Institute and the MIT-Harvard
Public Disputes Program.

Washington, D.C. — Government’s rising use of
consensus, public consultation, and mediation processes has been accompanied by a growing
number of rosters to help federal and state agencies find neutrals for environmental and
policy cases. In contrast to other public ADR activity, these rosters’ operations
have stimulated little objective scrutiny or systematic commentary (but considerable
speculation and sub rosa grumbling). This may change as an increasing number of
agencies — including some with policy-making and enforcement responsibilities —
establish and make routine use of rosters and similar devices.

These rosters differ greatly in their contexts and purposes, as well as in their usage,
exclusivity, openness, and operating philosophies. Some are well-planned, while little
forethought has gone into establishing others. The word “roster” conjures up
many images, ranging from an administrator artfully matching neutrals with disputants all
the way to a bureaucratic black box in which cronyism, or biases, play shrouded roles. At
this early stage in policy rosters’ history, policy neutrals, as well as those who
administer and use the rosters, should focus on promotion of “best administrative
practices,” information sharing among managers, and self-examination regarding how
these rosters are established and run.

Government agency involvement
While some of the longest-lived ADR rosters operate under the auspices of private
not-for-profit organizations (such as the American Arbitration Association), an increasing
number are being sponsored, and sometimes operated, by federal and state agencies. Some,
like the Federal Deposit Insurance Corp., themselves list neutrals deemed capable of
handling typical regulatory or management disputes.

The U.S. Dept. of Labor announced in February a new plan for expanded enforcement ADR
using neutrals from “a roster of qualified persons,” and stated that it “is
considering entering into an agreement with a qualified nation-wide contractor . . . who
would handle the administration of the roster.” State dispute-resolution agencies in
Florida, Massachusetts, Washington, and Oregon have established rosters for environmental,
land-use, or policy mediation. Several state farmer-lender and agricultural mediation
programs maintain rosters, and a few have begun to extend their activities to
environmental and policy cases.

Other agencies use devices that operate like rosters but are technically mechanisms for
expedited acquisition of neutrals’ services under government procurement systems. The
Environmental Protection Agency (EPA) and the Army Corps of Engineers each uses an
umbrella contract with a prime contractor that helps assign cases among several
subcontractors. The General Services Administration (GSA) is establishing a supply
schedule listing mediators for civil rights cases. EPA is now considering supplementing
(or possibly replacing part of) its system with a nationwide roster of environmental
neutrals.

Several of these rosters do not extend far beyond circulating a list of candidates.
Others rely on active administrators who perform an “in-take” role, educate
parties on their process needs and options, convene disputants, hand-pick neutrals,
perform training, or advise neutrals on tactics.

For agency policy cases in particular, a more active advisory role can significantly
improve a program’s effectiveness because much may be unclear early on — issues,
affected parties, their levels of commitment, and the appropriate process. Since most
agencies’ personnel even now do not fully understand how to use third-party resources
effectively, a policy roster system will almost necessarily devote some resources to
encouraging sound use by program managers and attorneys.

In multi-party policy cases, especially, an agency may miss out on possibilities for
meaningful agreements even before a process is chosen if there is no active, experienced
administrator who can probe and help sponsoring agency personnel explore their process
options thoughtfully and realistically. Such active administration — or some form of
early consultation with neutrals to design appropriate intervention — will presumably
increase in significance as agencies increasingly employ community involvement,
collaborative planning, or other activities emphasizing public participation and consensus
outcomes.

Various approaches
Rosters and roster-like contracting vehicles take a variety of approaches to dealing with
users and neutrals. A few are quite selective to assure quality. Others place relatively
low, or even no, formal hurdles before would-be listees, but often provide extensive
advice to parties, suggestive of the New York clothier Sy Syms’ motto: “An
educated consumer is our best customer.”

Quality may also be addressed by offering mentoring to new recruits, additional focused
training, or telephone advice for volunteer neutrals. Other approaches include requiring
adherence to codes of ethics, removing those who are never selected, periodically
discussing with neutrals trends and problems, or simply not selecting neutrals found
unfit.

A few go further, soliciting questionnaires from parties, making party evaluations
available to prospective users, getting case reports from neutrals, or following up when
parties’ assessments indicated patterns of behavior needing improvement. An
occasional program has developed formal complaint or advice-giving procedures for assuring
that listed neutrals perform adequately and ethically.

In addition, an interrelated set of legal, practical, and design issues merit attention
in any effort to establish and operate a policy roster. Further issues of acquisition and
ethics arise when agencies seek to mesh a roster-like structure with pre-qualified
neutrals and expedited contracting methods. For example, an agency’s decision on a
threshold issue — who will run a roster — is likely to affect central matters
like the roles of the administrator and roster oversight. And, while most rosters have
historically been operated by “neutral” entities that are not parties to
disputes, this may be changing. The more closely a roster is tied to an entity that is a
party, or a contractor answerable to an agency/party, the less comfortable others may be
in accepting active management or subjective case-matching, and the greater will be the
need for steps to enhance acceptability.

How to instill trust
These steps can include careful, inclusive design up-front, subsequent feedback and
evaluation, “transparent” procedures, or oversight. Also, the circumstances
under which any entity is creating a roster are unique, and the entity will probably learn
much that it needs to know only after it has operated one for a while. Thus, it should
select an initial pilot, or a design that either permits incremental implementation or
allows the roster to be easily “retrofitted.”

Any roster must be one that parties of diverse backgrounds will trust. Agency-sponsored
rosters in particular are more likely to be employed if they use knowledgeable, credible
persons to provide case-specific guidance, are flexible in their operation, and explicitly
take into account the concerns of non-agency parties. Given the numerous issues (for
example: quality, credentials, access, administration, fairness, and design) that converge
as ADR and rosters of neutrals come to play enhanced roles in agencies’
decision-making, concrete steps will be needed to ensure that any roster they use operates
fairly and efficiently.

A few roster sponsors have already moved toward putting these notions in action, by
bringing in a group to advise or work with it to develop rosters, admission standards, or
procedures. Several professional groups have begun to consider some of these performance
and ethical issues in other contexts, and their learning should prove useful as new policy
rosters are established.

The SPIDR Qualifications Report No. 2 noted
the importance of defining and setting forth the elements of competence in the context of
an agency’s caseload and involving input from affected stakeholders in establishing
qualifications standards. It called for agencies to bring in a diverse array of
perspectives (at least through focus groups) as sub-rosters of different specialties and
criteria for listing are established and operational guidelines and procedures developed.

Several ideas are worth bearing in mind by agencies establishing or employing roster
mechanisms for obtaining neutrals in policy cases. These entities should:

• Put basic systems-design axioms into practice by involving affected parties meaningfully
  in developing any roster (or similar system for neutrals’ services), so as to assure
  that structure and operation are broadly acceptable and meet all users’ needs.
• Draw explicitly on recent learning and advice from SPIDR and other thoughtful sources on
  qualifications and successful use of consensus processes. This would include the SPIDR
  Environmental/Public Disputes Sector competencies for policy neutrals and Best
  Practices for Using Mediated Approaches to Develop Policy Agreements: Guidelines for
  Government Agencies.
• Consider supplementing an agency roster with a capacity to serve as a central
  clearinghouse, guiding users to data on other potentially useful rosters (state, federal,
  and even private).
• Be creative in using non-agency sources to extend limited in-house resources in
  advice-giving and other roster administration activities.
• Develop “sub-rosters” focused on different kinds of disputes or neutrals’
  activities, rather than a single roster covering all.
• Establish listing criteria for categories of neutrals that balance potentially
  conflicting goals: the desire for inclusivity as well as expanding the ranks of available
  practitioners, and the need for ensuring quality and a reliable flow of work to listees.
• Assure that any persons chosen to operate a roster run it in a neutral manner that
  avoids any appearance of conflict of interest, self-dealing, or preferred access to
  opportunities for work.
• Assure that a roster administrator has the credibility, process knowledge, and access to
  resources needed to perform the advisory and other roles necessary for success.
• Encourage active roster administration, particularly in cases where the need for a
  specific consensus or ADR process is unclear or where the goals, parties, or groundrules
  need consideration before a neutral is selected.
• Examine ways in which a roster complements, and may help take advantage of, flexible
  acquisition practices under the Federal Acquisition Streamlining Act, the Administrative
  Dispute Resolution Act, and other authorities for expediting and simplifying procedures
  for acquiring neutrals’ services.

Sharing ideas
Above all, those who establish and run rosters for policy and environmental cases should
begin to work together, sharing information and addressing common concerns. They could
discuss such matters as the ways in which they design their roster systems, admit
neutrals, provide panels to parties, assure quality practice, organize and handle data,
and meet fairness and resource management concerns.

If they do so, they enhance the chances that the trend toward an increasing number of
rosters, wherever located, can serve to further, and even improve, the use of ADR and
consensus methods. If not, the alternative is likely to be even more cynicism and grousing
than public agencies and roster managers have heard to date.

                       

Charles Pou, Jr.

Charles Pou, Jr. is a partner in the Washington, D.C., dispute resolution firm of Harter & Pou , and is currently a consultant to the Environmental Protection Agency on roster matters. He served as director of the Dispute Resolution Program at the Administrative Conference of the U.S. for more than… MORE >