Report on Barriers to the Use of ADR in States and Approaches for Overcoming Them

The Policy Consensus Initiative’s (PCI) purpose is to assist in establishing and strengthening the use of dispute resolution and consensus building in states. To that end, PCI convened a Work Group of individuals from around the country to analyze barriers to greater use of ADR (Appropriate Dispute Resolution) processes at the state level and to find ways to overcome them. The Group had its first meeting in March, 1999. Over the next year, the Group will work to develop tools for advocates of ADR processes in different states to better manage the legal, practical, and procedural obstacles they face.

What follows is a brief summary of the barriers identified by the Work Group and ways for addressing them. Discussion on these points was informed by a 1998 survey of state dispute resolution centers about barriers they face, research on prior published works about barriers, and the Work Group members’ experiences.

Work Group Members

  • Michael Asimow, Professor, UCLA Law School
  • Mary Barrett, Sr. Asst. Attorney General, Washington State
  • Lisa Bingham, Indiana Conflict Resolution Institute, Indiana University
  • Andrew Bowman, Work Group Reporter
  • Chris Carlson, Co-Director, Policy Consensus Initiative
  • Bill Drake, Executive Director, Western Justice Center
  • Phil Harter, The Mediation Consortium and University of Vermont Law school
  • Bob Jones, Director, Florida Conflict Resolution Consortium
  • Fredie Kay, Director, Massachusetts Office of Dispute Resolution
  • Charles Pou, Mediator, The Mediation Consortium
  • Richard Reuben, Fellow Program on Negotiation, Harvard Law School
  • Ed Sherman, Dean, Tulane Law School
  • Bruce Stiftel, Professor of Urban and Regional Planning, Florida State University

Barriers to Greater Use of ADR Processes

The Group’s work resulted in a list of common barriers that fall into five broad categories:

  1. Lack of Information and Negative Perceptions
  2. Budget and Procurement Problems
  3. Identification and Qualification of Neutrals
  4. Organizational and Bureaucratic Impediments
  5. Legal Issues, Uncertainties and Lack of Support

These issues were identified in the state center survey results and in discussions and interviews with Group members. Some of the categories overlap and some of the issues might belong in more than one category.

I. Lack of Information and Negative Perceptions

  1. General informational barriers. An obvious barrier is the lack or insufficiency of information among state decisionmakers about the ‘basics’ -- ADR processes, how they work, where and when they should be applied and what advantages and disadvantages they have. Several state center survey respondents indicated this was a ‘serious’ or ‘very serious’ barrier to their activities.
  2. Perceptions that ADR is inappropriate for public disputes. This perception was noted as a barrier for private stakeholders, less so for government officials, in the state center survey. Concerns typically underlying this perception were that traditional processes worked best and the association of ‘confidentiality’ meant ‘back room’ deals were being made.
  3. Problematic systems design. The Work Group discussed how an improper design of a dispute resolution system can create a barrier to ADR approaches. If a system is not designed in consultation with all stakeholders, the resulting system may ignore important interests and actually result in negative perceptions about ADR and negative experiences with the processes.
  4. Lack of Cost-Benefit Information. One of the thorniest barriers identified both by the Group and the state centers was the lack of cost-benefit analyses of ADR process applications. While most felt producing accurate cost-benefit studies was a goal plagued with theoretical and practical pitfalls, most also agreed that this information would be the most persuasive to elected officials making budget decisions about starting and maintaining ADR systems and programs.

II. Budget and Procurement Problems

  1. Lack of budgeting for ADR processes. This commonly cited barrier needs little explanation.
  2. Procurement procedures. State center respondents to the survey indicated that procurement policies in government agencies were a significant barrier, and Group members who work with government agreed. Procurement policies were described as often overly cumbersome and restrictive. A related problem was the lack of clear authority to pay for ADR services and uncertainty about which funds/accounts were appropriately usable for ADR.

III. Identifying and Qualifying Neutrals

  1. Identifying qualified neutrals. While insufficient supply of qualified neutrals was specifically noted as not being a barrier, many state center respondents indicated that their lack of a means for identifying qualified neutrals was a problem. Ensuring a way of securing quality neutrals for managing governmental disputes is a difficult task.
  2. Credentialing for neutrals. Group members discussed some of the problems that can arise from individuals serving as neutrals without experience in government disputes, and also some of the pitfalls of credentialing. The lack of recourse for participants with negative experiences and lack of ‘official’ certification for experienced neutrals can cause fears and negative perceptions about using ADR processes.

IV. Organizational and Bureaucratic Impediments

  1. Organizational culture and resistance to change. Overcoming organizational inertia to initiate a new process can be extremely challenging, particularly in government. Group members and state center respondents identified this as a very serious barrier, linked fundamentally to informational issues.
  2. Lack of internal/interagency coordination among government entities. The most seriously rated of all barriers identified by the state centers, this issue alludes to the difficulty in effectively implementing and running a ADR program within or between agencies when there are communication problems. Group members discussed federal and state experiences with this barrier and noted the difficulty of obtaining interdepartmental cooperation within an agency and of building relationships between agencies involved in a similar topic area. Since such cooperation can be a prerequisite to establishing a program, this barrier is a key one to overcome but very challenging.
  3. Lack of incentives and disincentives. Both state centers and Group members alluded to decisionmaking preferences embedded in agency procedures, statutes, and practices against ADR approaches. This barrier also relates to organizational culture, legal issues, procurement problems and informational/perception issues, but highlights the need of in-depth organizational scrutiny to identify barriers to ADR before systems are contemplated.
  4. Lack of a persuasive leader. As Group members recounted stories of ADR programs that had tried to get off the ground in different contexts, a key ingredient for success was existence of a high-profile leader supporting the program. State centers similarly identified certain leaders as being critical to successful program initiatives, budget fights and legislative votes.
  5. Lack of support at highest and mid levels. Overcoming organizational predispositions against ADR requires allies at the highest level, to make the decision to initiate ADR, and also at the mid-level, to manage and see programs through to the end. Without support, progress is difficult.

V. Legal Issues, Uncertainties and Lack of Support

  1. Uncertainty about authority to use. Notably, a majority of respondents to the state center survey indicated that this issue was not a barrier to them. However, for a significant minority such uncertainty was a very serious barrier. Most likely this result indicates that in some states the issue has been resolved, but in others it remains a problem. Group members discussed that in the numerous states in which there has been little effort to develop ADR, and in other states where there has been no legislation passed or case law on point, uncertainty about authority may pose a serious barrier.
  2. Assorted legal issues. Group members and state centers identified several legal issues which constitute barriers. Key among them is confidentiality of ADR processes relative to open government laws. Other problems were authority to settle cases, authority to pay for ADR services, ex parte communications and conformance with requirements of traditional decisionmaking procedures.
  3. Legal community. Group members discussed the role that the legal community plays in supporting or opposing ADR approaches. While support for such approaches is far greater now than it has been, without active support for ADR from lawyers involved in government disputes there will still be significant barriers to greater use.

Ideas for Overcoming Barriers

The Working Group discussed a number of ways to help state advocates for ADR processes better manage the barriers identified above. Some of the ideas considered include the following.

Building Leadership for the Use of ADR Processes

  • Work with ADR leaders at the state and federal level to get them more involved in addressing the barriers.
  • Network with elected and appointed officials and private associations to promote ADR processes and integrate them into governance systems and activities.
  • Partner with groups whose members are typically involved in state government use of ADR (e.g., National Association of Attorney Generals) to help them include ADR in their publications, meetings, professional development activities, etc.

Developing and Disseminating Information and Materials

  • Develop case studies and success stories about successful ADR process applications for dissemination to states.
  • Develop model statutes and/or model clauses for state legislation, including a brief statute authorizing ADR use in agencies.
  • Develop state level executive orders for adoption by governors promoting ADR like Clinton’s executive orders have.
  • Develop series of guidance documents providing treatment of legal problems (e.g., confidentiality) and practical/cultural issues (e.g., evaluating ADR systems) commonly encountered in state government.
  • Co-author publications with other groups whose members are typically involved in state-level disputes.
  • Develop methods for assessing the effectiveness and efficiency of ADR processes to answer the kinds of questions policymakers ask.

The Group is now taking its next steps. The Group agreed in its March meeting to create a "toolbox" for state government advocates that will include a range of helpful documents, such as draft contracts for hiring third parties, model RFPs for government entities, and other forms typically used by state agencies involved in ADR processes. The Group is also considering developing "guidance documents" and model legislative language for special legal and practical issues and producing a short publication that could be used to inform and educate neophyte decisionmakers about the benefits of ADR approaches.

If you would like additional information about this effort, please contact PCI.