ADR and Administrative Responsiveness: Challenges for Public Administrators

Abstract

In recent years, alternative dispute resolution (ADR)(1) has received a great deal of attention at the federal level. The Administrative Conference of the United States (ACUS), whose mission is to promote improvements in the efficiency, fairness, and adequacy of federal agency operating procedures, held conferences, conducted research, and published recommendations promoting the use of ADR by federal agencies throughout the 1980s. This interest in ADR stems from the observation that dispute resolution techniques can eliminate delays, reduce demands on government, and produce more cost-effective and more satisfying results than traditional administrative procedures or litigation (Susskind, Babbitt, and Segal, 1993; Dukes, 1993). A diverse set of agencies and departments--some in response to ACUS' urging and some on their own initiative--have used ADR approaches such as negotiation, mediation, fact finding, and minitrials to resolve a wide variety of controversial public issues.(2) Congress responded to this growing interest in ADR by passing the Negotiated Rulemaking Act (public Law 101-648) and the Administrative Dispute Resolution Act (Public Law 101-552) in 1990. The Negotiated Rulemaking Act establishes a structure for using consensus-based negotiations to develop federal regulations. The Administrative Dispute Resolution Act (known as the federal ADR act) is more comprehensive in scope. It directs each agency to: designate an in-house dispute resolution specialist; provide ADR training for agency personnel; review all programs for ADR opportunities; adopt dispute resolution policies; and examine grant and contract language to identify means of promoting ADR over litigation (Madigan, 1992; Susskind, Babbitt, and Segal, 1993). The successful implementation of the Administrative Dispute Resolution Act faces a number of challenges. The act provides no budgetary support for ADR, and existing budgeting procedures often encourage the use of litigation (Susskind, Babbitt, and Segal, 1993). Although ACUS has provided guidance, agency officials will have to learn a number of new skills including identifying disputes that are potential candidates for ADR, selecting the appropriate ADR process for specific situations, and choosing third-party neutrals who can work with the disputants. Although ACUS recommendations and the Administrative Dispute Resolution Act address the important issues of confidentiality, representativeness, and accountability, federal officials will have to grapple with the reality of these challenging aspects of ADR (Amy, 1990; Hamilton, 1991; Susskind, 1981). Successfully implementing the Administrative Dispute Resolution Act also will involve confronting deeper issues associated with the traditional practice and context of public administration and the culture of professionalism. Stephenson and Pops (1991) have questioned whether administrators have the capacity--in terms of education, training, and role--to participate effectively in ADR. In recent years, numerous federal agencies have provided ADR training in specialized workshops or as part of more broadly focused leadership development programs. However, more challenging than providing training and technical assistance will be overcoming the barriers of professionalism: the resistance generated by traditional norms and role expectations. Professionally trained government officials may find it difficult to reconcile' ADR--often perceived as political bargaining--with their existing norms and procedures for technical or scientific decision making. Negotiating with members of the public may be viewed as being unprofessional (Freemuth, 1989; Manring, 1993; Stephenson and Pops, 1991). Public officials also may fear that ADR will mean a loss of decision-making authority (Bingham, 1986; Meeks, 1985; Susskind and Cruikshank, 1987). In this article, I examine one such issue that inevitably accompanies the use of ADR but receives little direct attention: the relationship between ADR and administrative responsiveness. …