ADR Technique: Mediation and Facilitation

How the ADR System Works
The Office of the Dispute Resolution Service (DRS) has two major functions: to perform ADR services; and to promote the use of ADR both within and outside the Commission. The promotion of ADR includes making presentations to other FERC offices and to outside entities that do business with the Commission, offering and supporting training in ADR skills, and cooperating with various government agencies and other organizations in advancing the use of ADR. The DRS is not involved in the Commission's decisional processes, does not advocate positions, and does not conduct investigations.

The DRS has been active in a wide variety of issues in its casework, such as environmental concerns, contractual disagreements, landowner disputes, and billing discrepancies in all areas of the Commission's regulatory responsibilities. The DRS can become involved either when the Commission assigns a case to the DRS, when entities contact the DRS for help to initiate ADR processes in a dispute, or it may be contacted by another office in the Commission to consider a case for ADR. Complaint filings are required to state whether ADR has been tried and are reviewed to determine whether ADR under the Commission's supervision should be considered.

The DRS communicates with the parties about exploring the use of ADR as soon as possible after a case is assigned-often the same day. If an interest exists, the DRS will convene the parties where it acts as a guide, helps the parties understand the process, gets the process started, and aids in the selection of a third party neutral. It recommends that final ADR design be completed with the selected third party neutral. The neutral may be from the DRS staff or another individual, either within or outside the Commission. While the DRS does not maintain a roster of third party neutrals, it does provide sources of where neutrals can be found (e.g. the Commission's administrative law judges, and the rosters maintained by groups such as the American Arbitration Association and the U.S. Institute for Environmental Conflict Resolution).

Background/Objective
The Commission regulates key aspects of the electric power, natural gas, and oil pipeline industries, and proceedings before the Commission involve environmental and resource protection interests of American Indian tribes, state and federal resource agencies, and numerous non-governmental organizations. Prior to 1999, most litigated cases were resolved through informal adjudicatory procedures. Some cases were set for formal, lengthy trial-type hearings; others were addressed in Commission orders. ADR, while conceptually supported, was used on an ad hoc basis and was viewed as a complement to more traditional decision-making approaches. The emphasis was on reaching agreements based on positions, not on interests. The DRS was established in February 1999, after a comprehensive review of Commission processes.

The initial goals of the ADR program were to: expand and champion use of ADR to resolve disputes within and outside of the Commission; move dispute resolution from post-filing period to pre- filing period; improve outcomes through consensual decision-making; help create cultural change (internally and externally); develop an ability to coordinate with all offices; be accepted as independent and neutral; commit full time to ADR duties; and comply with the Administrative Dispute Resolution Act (ADRA).

Duration/Current Activity
As noted above, the DSR was established in 1999. Beyond its direct mediation and facilitation work, it participates in numerous partnerships with other government ADR offices and other entities. Among these is the U .S. Institute for Environmental Conflict Resolution, which aids parties in resolving environmental conflicts that involve federal agencies or interests. The DRS staff also participates on the Steering Committee, which consists of ADR professionals and experts from over 26 federal agencies, coordinates multi-agency ADR initiatives, promotes best practices for federal ADR, and conducts discourse on and disseminates information regarding federal policy on ADR. The Director of the DRS oversaw the preparation of a briefing paper by members of the Committee on ADR use in the federal sector. In addition, DRS staff participates in the Shared Neutrals Program run through the Department of Health and Human Services.

The DRS periodically conducts informational workshops for members of the industries that the Commission regulates that train corporate staff of jurisdictional companies in the fundamentals of interest-based negotiation. Currently, DRS staff is developing a training program in cooperation with a non-profit organization and a national training provider to advance the use of ADR for members of the electric utility industry. Twice a year, DRS staff provides professorial training support in ADR and Conflict Management at the OPM Executive Training Center in Sheppardstown, West Virginia. The DRS continues to explore additional outreach and training opportunities for the electric and natural gas corporate sectors, is planning additional training programs for its staff in advanced negotiation and conflict management skills, and is in the process of developing a comprehensive ADR evaluation program.

Rules Governing the Program
Besides their ADR training, DRS staff members must understand the Commission's policies and practices related to the industries that it regulates, a comprehensive knowledge of ADRA, the Commission's dispute resolution regulations and policies, judicial and Commission precedents involving matters relating to the FERC's jurisdiction, and comprehensive knowledge of federal, state, regional, tribal or local governments, and the private sector dealing with public institutions, as necessary to a particular dispute resolution process. At all times, the use of ADR is voluntary, and a party may decide to drop out of the process at any time.

Contact
Richard Miles, Director, Dispute Resolution Services, FERC, 8881st Street, NE, Room 52-57, Washington, DC 20426; Telephone: (202) 502-8702; Fax: (202) 502-2730; Email: Richard.miles@ferc.gov.