Government Dispute Resolution Acts

Compiled for PCI by Charles Pou, Jr.

As ADR advances into the mainstream, a growing number of jurisdictions have passed legislation specifically addressing ADR use by agencies, courts, and other governmental bodies. The trend has resulted in a rich body of legislative approaches and thinking from which helpful insights and guidance can be gleaned.

While much of this legislation may prove useful in stimulating beneficial state activities, there is some portion that has been poorly informed and even detrimental. People who draft, comment on, or introduce ADR legislation should be mindful that implementing better dispute handling is a process, not an act.

Legislation is merely a starting point in this process. ADR legislation can be very useful if it recognizes this, creates a flexible framework for setting that process in motion, and provides resources, education, design, and evaluation that supports and promotes quality results. Conversely, ADR statutes that seek to obtain results without thought to quality program design and implementation will probably lead to programs that get little use by potential clients. In the worst case, laws that inflexibly mandate particular, inappropriate uses that are inconsistent with ADR processes’ strengths and governmental realities can produce harmful outcomes.

What Legislation CAN Do

(Excerpted from Charles Pou Jr., “Legislating Flexibility”, Dispute Resolution Magazine, Summer 2001)

Broad-based ADR legislation, rather than a patchwork approach spread across a number of statutes, can effectively address a number of important issues in governmental ADR. Specifically, it can:

  • Create a statutory framework that promotes thoughtful, consistent policy toward agencies’ use of ADR;
  • Raise agencies’ (and especially agency lawyers’) awareness of and comfort with innovative dispute resolution methods;
  • Reflect an appropriate general balance between prescription and flexibility in employing these processes, protecting sensitive communications, acquiring neutrals’ services, and assuring judicial oversight;
  • Address issues for which specific safeguards or enhanced certainty can promote fairness, prevent abuse, or encourage appropriate ADR use (e.g., an ADR Act’s prohibition against requiring an agreement to use arbitration as a condition of awarding any contract or benefit; or meshing ADR procedures, such as confidentiality protections, with those prescribed under other laws);
  • Assign responsibility – both within agencies and more broadly – for ADR implementation;
  • Afford a basis for regular legislative oversight of agency dispute resolution initiatives;
  • Require agency personnel to focus on use of ADR case-by-case in selected settings (e.g., the 1995 Federal Acquisition Streamlining Act’s provisions requiring a response whenever ADR use is offered).

What Legislation CANNOT Do

Excerpted from Charles Pou Jr., “Legislating Flexibility”, Dispute Resolution Magazine, Summer 2001

Though useful, legislation cannot single-handedly create a bureaucratic atmosphere conducive to implementing its directives. For example, it cannot:

  • Assure adequate resources for improved dispute resolution;
  • Significantly affect agencies’ substantive or other priorities;
  • Establish high-level champions or mid-level leaders who support and reward ADR “worker bees,” or even assure that the proper individuals are the ones designated as worker bees;
  • Create an administrative structure – either within an agency or on a broader interagency basis – that provides useful tools and mutual support (e.g., joint educational programs, shared neutrals programs, joint rosters, expert advice-giving);
  • Create a structure that enables people in different agencies who are interested in improved dispute resolution to interact with each other and with outside experts, and that encourages and enables agencies to follow best practices;
  • Assure inclusive, high-quality program design is undertaken when a new program is established (e.g., early, meaningful outreach to affected interests; attention to finding an ideal location for the program, as opposed to turf-based decision making; establishing acceptable, ethical programs; obtaining adequate neutrals; seeking feedback and rigorous evaluation of program outcomes and administration);
  • Achieve an appropriate level of education and dispute resolution awareness among all, or even most, of the relevant actors within an agency – including players on the outside who can also influence process decisions;
  • Address a broad range of real-world obstacles such as structural barriers within bureaucracies, certain segments of bureaucracies that are adept at co-opting new innovations to suit their narrow goals, and unforeseen interactions between dispute resolution legislation and other laws that have divergent goals or inconsistent processes.

State Dispute Resolution Acts

Below is information and links to Governmental ADR Acts passed in Texas, New Mexico, Utah, and Virginia. Each establishes and encourages the use of ADR procedures by those states’ government agencies.

TEXAS Dispute Resolution Act

Texas“The Act explicitly works to supplement, not replace or limit, all existing dispute resolution practices and procedures used by Texas agencies. The legislation is permissive in application, not mandatory, and does not alter application of the Texas sovereign immunity doctrine. It is based in part on the federal Administrative Dispute Resolution Act, enacted in 1990 and permanently reauthorized in 1996, which promotes the use of ADR in federal agencies in a government-wide, systematic manner. The GDR Act builds by reference upon key provisions of the Texas Alternative Dispute Resolution Procedure Act (ADR Procedures Act), first passed in 1987 to guide ADR use for all civil disputes; in fact, the two acts are so closely intertwined that a simultaneous reading of both is necessary to fully understand the GDR Act.”

(From: The University of Texas School of Law / Center for Public Policy Dispute Resolution, Public Resource Series #3, September 1998, Commentary on the Government Dispute Resolution Act and the Negotiated Rulemaking Act, p.12)

CHAPTER 2009:
Alternative Dispute Resolution for use by Governmental Bodies

Includes:

SUBCHAPTER A – General Provisions
2009.001 – The Government Dispute Resolution Act
2009.002 – Policy
2009.003 – Definitions
2009.004 – Agency Contracts; Budgeting for Costs
2009.005 – Sovereign Immunity

SUBCHAPTER B – Alternative Dispute Resolution
2009.051 – Development and Use of Procedures
2009.052 – Supplemental Nature of Procedures
2009.053 – Impartial Third Parties
2009.054 – Confidentiality of Certain Records and Communications

CHAPTER 2003
State Office of Administrative Hearings

Includes:

SUBCHAPTER A – General Provisions
2003.001 – Definitions

SUBCHAPTER B – State Office of Administrative Hearings
2003.021 – Office

SUBCHAPTER C – Staff and Administration
2003.042 – Powers of Administrative Law Judge
2003.047 – Natural Resource Conservation Division

NEW MEXICO Dispute Resolution Act

New MexicoThe Governmental Dispute Resolution Act “encourages state agencies to use alternative dispute resolution techniques (such as mediation, facilitation, negotiated rule making, public policy dialogues, etc.) in addressing issues and concerns coming under agencies’ jurisdictions.”

The Act authorizes and encourages state and local governments to use ADR to address conflicts and make government more effective. While the bill does not authorize appropriation of funds directly, it allows agencies to request authority to move money around in their budgets for ADR purposes.

In addition, the Act stipulates that each executive branch agency will designate an ADR coordinator who will report to the head of the agency. Agencies are responsible for developing plans for implementing ADR and training managers and staff.

Article 8A -- Chapter 12.8A
Governmental Dispute Resolution Act

Includes:

SECTION 12-8A-2 – Definitions
SECTION 12-8A-3 – Alternative Dispute Resolution; authorization; procedures; agency coordinators
SECTION 12-8A-4 – Agency budgets; contracts for services
SECTION 12-8A-5 – Effect on other laws
SECTION 1-2-2.1 – Administrative complaints; procedures

UTAH Dispute Resolution Act

UtahAccording to the Act, agencies may use ADR to resolve disputes or issues involving any of the agency’s operations, programs, or functions, including formal and informal adjudications, rulemaking, enforcement action, permitting, certifications, licensing, policy development, and contract administration with the consent of all the parties. Any ADR procedures developed and used by an agency must be consistent with the requirements of the Administrative Procedures Act.

Agencies that use ADR procedures must develop agreements with stakeholders that provide for the appointment of ADR providers or neutrals, and set forth how costs and expenses will be apportioned among the parties.

Title 63 -- Chapter 46c
Governmental Dispute Resolution Act

Includes:

SECTION 63-46c-102 – Definitions
SECTION 63-46c-103 – Alternative Dispute Resolution, authorization, procedures, agency coordinators, contracts
SECTION 63-46c-104 – Effect on other laws

VIRGINIA Dispute Resolution Act

VirginiaThe Act authorizes use of ADR by local governments and legislative and executive branch agencies in a variety of areas. It also creates the Virginia Alternative Dispute Resolution Council, which provides training opportunities, assists agencies in developing DR and consensus building programs, and develops recommendations for using and improving DR processes within government. The Council serves as an advisory council to the Secretary of Administration.

Under the Act, state agencies are required to adopt policies to address the use of dispute resolution proceedings within the agency and for the agency's programs and operations. Each state agency must designate a dispute resolution coordinator.

Title 8.01 -- Civil Remedies and Procedure
Chapter 20.2 -- Court-Referred Dispute Resolution Proceedings

Includes:

SECTION 8.01-576.4 – Scope and definitions
SECTION 8.01-576.5 – Referral of disputes to dispute resolution proceed
SECTION 8.01-576.6 – Notice and opportunity to object
SECTION 8.01-576.7 – Costs
SECTION 8.01-576.8 – Qualifications of neutrals; referral
SECTION 8.01-576.9 – Standards and duties of neutrals; confidentiality;
SECTION 8.01-576.10 – Confidentiality of dispute resolution proceeding
SECTION 8.01-576.11 – Effect of written settlement agreement
SECTION 8.01-576.12 – Vacating orders and agreements

Title 8.01 – Civil Remedies and Procedure
Chapter 21.2 – Mediation

Includes:

SECTION 8.01-581.21 – Definitions
SECTION 8.01-581.22 – Confidentiality; exceptions
SECTION 8.01-581.23 – Civil immunity
SECTION 8.01-581.24 – Standards and duties of mediators; confidentiality
SECTION 8.01-581.25 – Effect of written settlement agreement
SECTION 8.01-581.26 – Vacating orders and agreements

Additional DR Legislation Resources

Selected General ADR Legislation

  • Administrative Dispute Resolution Act, 5 U.S.C. Secs. 571-584 (general provisions, confidentiality, administrative arbitration); 5 U.S.C. 556© (ALR authority); 9 U.S.C. 10 (arbitration, judicial review); 41 U.S.C. 604-607 (contract disputes); 29 U.S.C. 173 (FMCS authority); 28 U.S.C. 2672 (tort claims); and 31 U.S.C. 3711 (a)(2) (government claims).
  • Negotiated Rulemaking Act, 5 U.S.C. Secs. 561-570.
  • National Conference of Commissioners on Uniform State Laws, and the University of Pennsylvania Law School, Uniform Mediation Act, February 2001.

Other References