Finding and Hiring Quality NeutralsWhat Every Government Official Needs to KnowModerators Christopher Honeyman, Consultant Panelists ©1996 Christopher Honeyman and Charles Pou, Jr. Originally published 1996 jointly by U.S. Environmental Protection Agency; Federal Deposit Insurance Corporation; Federal Mediation and Conciliation Service; Department of Health and Human Services (Division of Alternative Dispute Resolution Services, Departmental Appeals Board); Department of Justice, Office of the Senior Counsel for Dispute Resolution; Department of State, Office of the Dispute Resolution Specialist; Department of the Treasury, National Office of Appeals; and Wisconsin Employment Relations Commission. Contents Introduction II. The economics of outside and within-agency providers III. The procurement process and related issues IV. Nuts and bolts: Getting the right people V. Are quality controls readily available? Annotated Bibliography Appendix: Tasks, Skills and Performance Criteria of Mediators Finding and Hiring Quality Neutrals: What every government official needs to know Introduction When should neutrals from the private sector, from within the agency involved in the dispute, or from another agency be used? What policy, budgetary, conflict of interest and other issues arise? What is your agency's perspective? Beginning in mid-1994, the Administrative Conference of the U.S. and the Inter-agency ADR Working Groups sponsored an attempt to address these and related questions. This monograph examines the main questions that were put to the panel in four successive discussions over more than a year. The monograph is constructed approximately in the form of a transcript, and draws heavily from transcriptions of two workshops held during the 1995 annual conference of the Society of Professionals in Dispute Resolution. But some of those who had much to contribute could not be present at every meeting of the group. In order to take advantage of their perspectives, and for purposes of clarity, the discussion has been edited and reorganized, and some comments (particularly Philip Harter's), made at sessions that were not recorded, have been added back in. The edited "transcript" attempts to capture the essence, not necessarily the sequence, of a complex and multi-faceted discussion. Sponsoring this working group was among the last of a long series of contributions to the dispute resolution field by the Administrative Conference, which ceased to exist as an agency of the Government on October 31, 1995. We would like to express our gratitude to the Conference's management and staff for their forward-looking response to a difficult situation. Thanks are also due to the William and Flora Hewlett Foundation and the Wisconsin Employment Relations Commission, without whose joint support Christopher Honeyman's involvement in this group would not have been possible. The reader should note, however, that the opinions of all of the participants are their own, and are not necessarily those of the U.S. Government agencies represented, or of the Foundation or the Commission. Who's TalkingBy definition, a document which has as its intended audience a wide spectrum of government officials must anticipate that many will not "know the players without a scorecard." Not only is a reputation for expertise in ADR often made within a relatively closed environment, such as a single department; but explaining the background of the person speaking is sometimes a necessary prerequisite to a real understanding of why his or her opinion logically ought to differ from your own. The short bios which follow may help the reader place the panelists' views in perspective. Christopher Honeyman Charles Pou, Jr. Deborah S. Dalton Donald Greenstein Philip J. Harter Eileen Barkas Hoffman Robert Jones Charlotte Kaplow Neil H. Kaufman Robert P. Myers, Jr. Suzanne Goulet Orenstein Part One: Ten perspectivesThe issues involved in finding and hiring quality neutrals for government disputes are many and varied. We have tried to address them by deliberately soliciting contrasting points of view, which emerge from differences in role, experiences and agency (or non-agency) setting. In the course of several discussions spaced over more than a year, we found that the act of stating everyone's biases first helped others to recognize the reasons for the differing terms in which different actors viewed these problems. But beyond that being candid, and to some degree self-critical, helped to define a larger area of common ground than had been thought to exist. As in the discussions which led to this monograph, we believe it is best to begin here with a short statement of where each participant is "coming from." Like much of the rest of this document, the statements which follow are slightly refined versions of those recorded at two workshops conducted by the group at the 1995 annual meeting of the Society of Professionals in Dispute Resolution, amplified by some remarks noted at earlier discussions. Though what follows has been edited (primarily to convert spoken English into more readable form) no attempt has been made to go beyond the somewhat rough-and-ready content characteristic of a discussion which is still evolving. The reader is therefore requested to bear in mind that the statements of all participants reflect the state of our understanding, and are subject to change as that understanding develops. We have no illusions about being definitive, and hope merely to be useful. Bob Jones: For the last two years I chaired a twenty-member Commission that SPIDR as an
organization re-formed. There was an original Commission, formed in 1987, that
delivered its report in 1989, and so it had been three or four years in the interim where
SPIDR did not have a clear focus on some work going on on qualifications. And this was a
period of time, starting in the early 90's, where there was a lot of activity at the state
level, at the federal level, on policies, with legislatures doing various sorts of things,
described in various ways, by various practitioners. And there were lots of new
practitioners, and new sectors, new applications, new areas, and a lot of change. The
organization thought they needed to reconvene their Commission. This time around we had 20
members. We had 3 Canadian members, we had 17 practitioners in the U.S. covering the whole
range of contacts from labor and employment to environmental to family, so it was a very
broad group, reflective of the broad number of sectors within the organization. And we worked for a couple of years as we were groping to figure out what we could do of value and of use and of guidance to this organization and others in the field. That resulted in, a couple of months ago, the 1995 Commission on Qualifications Report. It's not simple and straightforward and prescriptive as such, and therefore it's hard to describe what in fact it contains in five minutes. But let me just say briefly in terms of the organization of the report, our judgment was that there was a very poor framework for the discussion of qualifications, especially when you had to cross over boundaries from one sector to another or from one process to another. And so one of the things we focused on, and it was really a matter of necessity within the group of 20 that we had, was to come up with a way to have a conversation where we could begin to get at issues and not fall apart in the first instance. So part of the report's suggested framework is that there are a series of fundamental questions to ask. Whether you have an existing program or whether you're about to launch a program, there are a series of considerations to look at as you go through that. So the thought was to offer this out as a framework for guidance in this dialogue—an important dialogue but a difficult one. The second part of the report has recommendations, and these are addressed to all audiences. They're addressed to practitioners, they're addressed to dispute resolution organizations or programs, such as programs within governmental entities. And there are recommendations for trainers, there are recommendations for consumers and for government policy makers and legislators. The Commission tried to tease out recommendations that could be directed in terms of guidance for different audiences. They are broad recommendations. There's not a whole lot of prescription in them, but underlying them is a commitment to competence as a concept. That needs to get defined and there needs to be a process for defining that. It's linked to quality, and part of that premise was that in order to get to that analysis you needed to bring a broader group of "stakeholders," as we call them—practitioners, users, policy makers, program administrators—to collectively work on the question of how to organize a qualification system; how to go through that; and how to apply and tailor it to your particular context. That problem of context was the other thing that I will say, briefly, a couple of words about. We had about maybe 10 or 12 contexts represented on our Commission. It was very difficult having conversations about what applies in a family context in terms of competent practice, and what applies in a public policy environmental multi-party/stakeholder, or in an international context. So one of the things we suggest is context is really very very important and if you begin to take the view that you can propose some universals that cut across, you immediately are going to run into problems. It's our suggestion as a policy matter that you need to define the context, the goals of the program, etc., and tailor your system to fit that context. We also came up very strongly that we're not suggesting that everyone stop and disband everything you've got just because there's a new way of doing this. I think recently we had a conference in Florida and several people from the federal level came down to this Governor's conference and Neil Kaufman offered for that crowd the notion of "ready, fire, aim." I think that's the notion of reviewing and refining as an ongoing process. You never get it right out, and if you can recognize that, and build that into the policy and the framework, you need to invest in that ongoing learning process because that is how these programs evolve. I'll just make a point about the multiple paths to competence. We asked everyone, early on in our group, to tell the story of "how you became a neutral practitioner." We had 20 stories and not a single one of them fit any model, any sense of standardized approach. Some came to the field from such wildly different things, like running a sporting goods store to being a labor negotiator. The point is that we realize that competence is acquired in different ways. To try and standardize that and limit the paths—one, we don't know enough to do that and, two, there's a richness in the multiple kinds of experiences. But competence needs to be defined at some level, in terms of protection for the user, but also for the integrity of the field itself. Those are very general overview kind of propositions; I encourage you to look at the report. SPIDR as an organization is going to be trying to figure out what this report means, for itself. Chris Honeyman: For this quick overview, I'd like to focus on what mediation is and on what "quality" means in a mediator. In a research and development effort called the Test Design Project, we drew up a methodology, and the definitions which are shown (in Appendix A) are from that document. The excerpts start with a list of tasks of mediators, which resulted from a long and involved discussion among many sectors of the field. We had judges involved in this discussion, as well as people who represent membership organizations, people who have studied the field for years as scholars, and mediators of many kinds and descriptions. But neither that list nor any of the "skills" lists which follow is complete. Every one has to be tailored for a particular program by the people running that program. The Methodology is about how to think your way through that process. There are, for example, programs in which "following procedure" is meaningless. These are programs which are so new that to follow procedure would mean in practice to apply models from somewhere else that have absolutely no applicability—and therefore that criterion may be inappropriate for a certain program. There are other programs in which we've had the objection that "oral communication" should not be specified as a knowledge, or skill, because the program deals with deaf people. So the task list—what the program wants the mediator to do—varies somewhat from program to program. The Methodology excerpts (Appendix A) continue with some descriptions of some
of the qualities that we thought went into "good" mediation. And again, the
overall description of any quality you're looking for may vary from one program to the
next, and this is part of the process that Bob was talking about. There is, for instance,
a whole philosophical branch of the field that believes that it is not part of the
responsibility of a mediator to "generate options." Among those groups,
"generating agreements" is also not typically considered to be part of the
responsibility of the mediator—it's supposed to be the mediator's job to create
conditions under which the parties can do that. So our "variant 1" list
is not appropriate for everybody; and we tried to lay out some examples of what evaluation
scales might look like for some programs which were following other doctrines. I would like to draw your attention to the last item in the list of basic skills, "substantive knowledge." We came to the conclusion after long discussion that we didn't want to press for programs to require substantive knowledge in the initial selection of the mediators, because we had concluded that it is quite common for a mediator to be effective with the parties, if the person has the other skills, even if the person knows nothing at all about the kind of dispute that this is. Mediators learn as they go.(1) Charles Pou: The Administrative Conference has been involved in giving advice and some degree of assistance to agencies on questions of finding and selecting neutrals for about 10 years. I guess it really got a little more intense with the passage of the Administrative Dispute Resolution Act back in 1990. We were given a number of relatively formal responsibilities, some of which we've picked up on with alacrity and some of which we've quite frankly proceeded very slowly on. Also a lot of informal advice giving and consultation with agencies. One of the things that we have the responsibility for is establishing and administering a roster of neutrals for federal agencies. We have taken a very distinctive view about what's appropriate there, and indeed it's a view that some people have disagreed with us on. Personally, and I think institutionally, we are very reluctant to take the position that we can predict who is likely to be competent in the future in a variety of processes and a variety of milieus with a lot of different types of parties. So while the Act authorizes, indeed some would say directs, the Administrative Conference to develop standards for neutrals, we have not developed those standards because frankly we don't think that we're qualified. We're starting to see some things in the field like the second SPIDR Commission report that are getting some thoughtful analysis, and I think the field frankly is not quite ready to make those types of broad prescriptive determinations in advance. It's not just a question of what you are competent at doing; it's also a question of what the—perhaps unintended—consequences of credentialing are. I think any types of standards, of necessity, are exclusive and I think in a field that can pride itself on being inclusive and open to people from a lot of different backgrounds, it would be really tragic to start to set standards too high or too strenuous in the name of competency. I think there are other ways to get to competency. We at ACUS have tried to stress the old Sy Sims notion that an informed consumer is our best customer. The more you know, the better able you are to ask questions about what you need in a particular type of case, the better you will be able to get a neutral who suits your needs in that particular case. Indeed the Administrative Dispute Resolution Act is very, very open—I think reflecting the Conference's perspective—and really relies more on what the parties want in any particular case than anything else. To try and help agencies along those lines we've developed guidance documents. We have put on a number of round tables and seminars, brown bags, including some of the things that Chris really has taken the lead in putting together and moderating. Our basic idea is that the more people in the government know, the better able they'll be to make intelligent decisions without the need for some type of specific criteria. There have been agencies, in particular FDIC and RTC, that have seen a need, for their own purposes, to develop those kinds of criteria, and I think they've really done it in a very thoughtful way. But I think that's because of their particular situation, and Charlotte Kaplow can talk more about that. We are still of the view that there are just too many types of disputes and too many types of agencies out there for meaningful criteria to be developed across the board for the whole government. One thing we have tried to do in addition is to keep agency dispute resolution
specialists who've been appointed under the Act apprised of some of the recent innovations
that have been going on, like Chris' Test Design Project. I think there's really some very
thoughtful advice that is being developed. My view is that giving people that advice,
making it available to them in a way that they can then incorporate it into what their
agency does, makes a lot more sense than for some central part of the government to start
issuing rules or guidelines about who you can or can't hire in particular situations. Don Greenstein: Through the leadership of Charlie Pou at the Administrative Conference there was a working group that was put together about two and one-half years ago. Neil Kaufman and I jointly organized the "sharing of neutrals" pilot project. It was based on the idea that within the federal sector, there were a number of individuals who had training as mediators which came from outside local court programs and community based programs, who could be utilized to mediate internal federal disputes with the idea that on a collateral duty basis an employee from one agency might be tapped to help mediate disputes at another agency. The program, which started a year ago in August, just completed its first year. It was very slow to get started but we did have a pool of approximately 30 trained facilitators most of whom had over 100 cases under their belt in outside programs. The idea was then to set it up as a co-mediation model with individuals who had a minimum of 20 hour training course to be co-mediated through at least 5 mediations; and then the idea would be that those individuals could become lead mediators. The program has had over 30 cases which have been mediated over the past year. It was originally set up to be geared towards EEO, employment discrimination type cases. I'd say over 80 percent of the cases that have been mediated have been in that area. We've had some other contract and other issues come up. The program was set up on the same model that Charlie talks about for his roster at ACUS, as being inclusive rather than exclusive. A minimal amount of training, the idea was that the agency that was contacting with a request for a neutral would have a choice of individuals and could select on their own. We have available information packets, which contain most of the information about the program as well as the forms needed for applying to participate. The program recently went nationwide, and it is no longer a pilot but an ongoing sharing of neutrals program. We're always looking for more neutrals to participate. But we have had a number of individuals from the outside call asking to participate; the problem there is that we are being exclusive in that area. Our feeling is that we've set up a program in the federal sector and we want individuals who have federal experience. We have taken in retired federal employees to act as neutrals, but otherwise it's on a collateral duty basis. These retired federal employees are volunteering their time. Suzanne Goulet Orenstein: RESOLVE works closely with the U.S. EPA. I should note that Debbie Dalton is here. Debbie and I are the partners who have shaped the work, integrating outside facilitators and mediators into the EPA use of dispute resolution, which as many of you know, is quite extensive. EPA is in the forefront of doing regulatory negotiations and settlement of lawsuits that are enforcement cases. We've pioneered introduction of mediation into various kinds of environmental disputes. Environmental disputes have a couple of features that make them particularly amenable
to bringing in outsiders. They are very visible, very controversial issues where people
don't trust each other. Where environmental groups are suing agencies and have long
histories of disputing, using outsiders has been pretty—in at least some
cases—productive, and I think EPA was wise in looking at why it was necessary to
bring in outside mediators. And they're very very skilled at making some of those
determinations. I think it would be best for me to use my remaining 2 1/2 minutes just to talk about the perspective of the outside neutral, because Debbie will talk about contracting issues that go into trying to work with a government agency when you're an outside neutral. For us, a primary concern in preserving neutrality is making sure we have the confidentiality protection in every contract that we sign with the government. The cost of responding to the RFP's that come out alone is pretty significant. We've spent upwards of 40 thousand dollars at times bidding on the contract that's going to be awarded; that means you have to be an organization that has a cash flow, that has a rate structure that covers those costs in some way. EPA's been very good at helping us understand how to build our rates so that we can recover all of the costs of doing business with them, and we've really matured on that front. I think another contracting issue that we have to deal with, and that we pay a lot of attention to is this quality control issue that several of you mentioned. Our contract is set up—and I should have said this earlier so that it doesn't look like we're doing all the work—our contract is set up to be a bit like a roster. We are a prime contractor, which is the way the federal government contracts, and we have 65 individuals who are in 19 organizations who are subcontractors. So we play a role with EPA in sending work to mediators around the country and making sure that we're matching a mediator with a dispute: Working with the agency to develop the qualifications for each mediation project, and then finding the best person in the country to meet that. Some of you know me from the past. I started out in the mediation business in 1979 as
the director of a community mediation program, and I feel like I have been matching
mediators and disputes since those days—and those skills still apply in the
management of this EPA contract. We try to do training for our subcontractors; we have an
annual meeting to bring the subcontractors together with EPA; we recently brought a bunch
of facilitators together to talk about some common problems on one kind of project; so we
take our quality control seriously. But a better term for it might be to call it support,
for the people who are doing the work to meet the needs of the agency, to help them
understand the needs of the agency, and likewise to help the agency understand the needs
of the mediators. Deborah Dalton: As Suzanne will tell you, one of the biggest problems that we've had in the eight years of having a contract with EPA is that we've changed contracting officers, on average, at least twice a year over the years that I've managed this contract. It is a continuing problem within EPA to keep our contracting officer educated and flexible enough to be able to manage a contract that is not your typical government contract. I have available selected portions of the request for proposal that we put out in the fall of 1993 for dispute resolution firms to bid on. The full document is about three times that thick by the time you add in all of the standard federal acquisition regulation provisions. In the sample, I left out most of the cost submission requirements in there and just put in the substantive statement of work, the technical evaluation criteria and the instructions for preparation of the technical portion of the proposal which I thought were pieces that were more useful to our audience. Contracting officers at your own agency will know what portions of the RFP to include and how to request the cost documentation that best pleases your agency. I've managed this contract and the preceding contracts for about eight years now. The contract has grown. The first year that I managed it, it probably carried less than five hundred thousand dollars worth of services in the first year, and I don't think we even used that much. The contract for the latest contract year (March 21, 1994 to March 21, 1995) used in excess of three million dollars worth of services. Training, mediation, facilitation, public participation services, in all more than 65 delivery orders were placed on the contract. We now have about 96 delivery orders on this contract which are managed by one and a half people in my office, plus a contracting officer who manages 12 other contracts, and Suzanne and her staff, so we work pretty hard at this. I'm also available to talk to people about other kinds of issues that we've had with regard to managing dispute resolution services between agency users and the mediators. Philip Harter: I come with multiple hats. I suppose foremost is my own self-interest as a private provider of dispute resolution services to government agencies. A significant portion of my practice is wrapped up with designing, convening, or mediating issues involving at least one government agency. Oftentimes it is the agency alone which retains me, but in some instances that responsibility is divided between an agency and private companies. My second perspective is from the vantage point of one who has been deeply involved in developing both the theory of the administrative use of dispute resolution techniques but also the implementing legislation. From this perspective, I am interested in enhancing the system by which the Federal Government offers the responsible use of dispute resolution processes. Finally, as an administrative law junkie, I am also interested in how ADR fits into the broader administrative process. I would love to say that each of these perches yields precisely the same view, but t'ain't so: they're not always fully consistent with one another and at times they are in outright disagreement with each other. Charlotte Kaplow: The FDIC is slightly different from other government agencies, in that we are a government-chartered corporation funded by insurance premiums paid by insured depository institutions. There are thus fewer constraints on the FDIC's ability to hire outside neutrals. In addition, the FDIC had a massive amount of litigation with outside parties. At the time we started with ADR, we decided that we needed to develop some sort of system for finding neutrals. Between the FDIC and the RTC, we had a hundred and twenty thousand pieces of litigation pending around the country. So we figured we were going to need a lot of neutrals. We didn't just need mediators, we use arbitration, we use neutral expert fact finding, we have done minitrials, so we were looking for a broad range of neutrals. But we wanted them to have some background in commercial type dispute resolution. We didn't feel that somebody who had done a lot of family work or community work was going to be able to make the jump to huge commercial disputes. We looked at context, as the Second SPIDR Commission report in the end recommended, and what we needed were people that had some expertise in the kinds of disputes which we see the most. We then tried to figure out how we were going to come up with these neutrals, and we looked at the literature, and at the time there were a couple of trial performance-based reports—one out of Wisconsin, one out of Massachusetts—where they had actually done performance-based qualification. They'd given people a problem, they put them up on a stage or whatever and had them mediate and then they were evaluated. And indeed the first SPIDR report was out at the time that we were looking for a way to do this. And it also recommended performance based qualification. But that's very expensive when you're trying to do it nationally, and we didn't see how we could do that. So we looked for something else. The SPIDR report suggested that an experience-based qualification test might be an alternative to the performance based test. Then we had to decide: How do you evaluate experience? We didn't think it was education, and we came up with some ideas and then we pulled in what we called our blue ribbon panel, which was a group of professionals in various areas of dispute resolution. We had some government people. We had Charlie Pou, we had Debbie Dalton, we had some outside providers. We had Linda Singer and Michael Lewis on the panel. And we had some academics. We had Frank Sander come in and give us some advice. And they came up with some standards that we could use to try and qualify neutrals for an FDIC/RTC roster, and we published a report. What we decided was that experience-based criteria were things like the total hours or time spent as a neutral; the number of cases that had been handled; the diversity of both substance and process; and the dollar amount—we see a lot of big dollar amount cases; and multi-party experience because we also see a lot of cases where there are a lot of different parties; and then the complexity of the cases, multi-issue type cases. We also had, because we thought Congress had told us we had to, a qualification standard for women and minorities. We just recently discovered we're unconstitutional, so we are in the process of redoing our standards to reflect the fact that the Supreme Court has said you can't give points to qualify women and minorities for a roster. At the time we made the determination to give points for women and minority status we believed we were complying with our Congressional mandate, but we now think it may be unconstitutional so we made some changes. I want to mention the fact that the FDIC also does use internal neutrals. We have trained mediators in-house who have done disputes in the past involving what we called "controlled entities." When we take over a bank, we inherit its litigation; if you take over 50 banks, you're liable to have litigation between 2 or more of the banks. We mediate all of those types of disputes that come under controlled entities, so we also have used internal neutrals and we are going to continue to use internal neutrals, and indeed we are in a process of talking about developing an internal roster of neutrals and doing some co-mediation the same way that they're doing the inter-agency shared neutrals program. Then we're hoping we'll have people to offer to the shared neutrals program. Eileen B. Hoffman: FMCS is a major provider of dispute resolution. In the beginning, when the Department
of Labor was founded, we were the U.S. Conciliation Service, doing labor mediation, and we
had a roster of arbitrators. So we had private citizens on a roster of arbitrators, but
fully paid and staffed mediators. (We called them conciliators then.) When we became
independent of the Labor Department in 1947, we inherited that same idea of full-time
federal employees providing mediation and a roster of private citizens doing arbitration. What's happened is the field has moved and we've been moving with it, from helping Navajo and Hopi Indians in land disputes, to resolving EEO complaints and dealing with other kinds of reg negs and other administrative disputes. In recognition of that, the Administrative Dispute Resolution Act of 1990 named us as one of the in-house agencies to assist ACUS and the government generally in providing neutral mediation services and other services for disputes—a whole range of disputes called, briefly, administrative disputes. We'll have an extension in the form of an amendment that was just introduced by Senator Grassley and Senator Levin from Iowa and Michigan respectively, a Republican and a Democrat, called the Administrative Dispute Resolution Act of 1995. This wisely does not have a sunset provision, so we don't have to keep going round and round. Basically what that Act said was—to Federal agencies—it's okay to do this. Up till then, there were a number of general counsels who said, "if it's not in the law maybe we shouldn't be doing it" and therefore the ADR Act made ADR an "okay thing to do" and encouraged its use. Some of the fruit of that you see around here—dispute resolution specialists in the room, who now have these titles and, hopefully, commensurate responsibilities and respect. The Act created an industry out of what FMCS is trying to do, and we're very pleased to see that. FMCS has reorganized itself to deal with these changes. ADR is now an integral part of a mediator's job. John A. Wagner, Director of ADR Services in Washington, DC and his excellent staff, as well as our 200 mediators throughout the country, provide the services. There's been a change in our work load, in step with changes in the labor movement.
Much of our time is still resolving crisis-type labor disputes, but what we're doing
increasingly is teaching, training and other kinds of alternative dispute resolution, be
it in the form of "partnerships" between federal unions and management,
grievance mediation or things like systems design, negotiated rulemaking, policy dialogues
and facilitation. There are lots of different terms for it, but the essential change is
having people look at what they're doing in a slightly different way. Actually our people
have found that to be skills-enhancing. The labor-management community is looking at us as
more of a full service operation, and we're getting involved in areas beyond the labor
area. I see an interesting and important cross-fertilization going on. What we are
learning is that you can transfer skills in certain types of disputes to other areas. But when we can get into substance versus content, I do think a grounding not only in
process, but in some substantive knowledge is critical for certain types of disputes, not
only for your own legitimacy but also for creating options and devising better ways of
helping the parties resolve their problems. Just recently in the area of unfair labor
practices we were named by the National Labor Relations Board to mediate some outstanding
charges of unfair labor practices. We're doing it cautiously in this one case. We would
like people to resolve their problems without going through the whole litigation cycle. If
we can be of assistance in that area, it's something we would favor. We also have a
roster, as I mentioned earlier, of arbitrators—there in the labor arbitration area it
at least seemed easier to reach a consensus about who should be on that roster in terms of
content, hearings, cases, which Charlotte mentioned. In the ADR area it may be harder. In conclusion, the mechanism for our mediation in the alternative dispute resolution
area is through inter-agency agreements. We've heard earlier about contracting, which is
one approach, full-time employment, which is another, but there can also be inter-agency
agreements, whereby our agency signs an agreement with another federal agency to provide
this service. It avoids some of the other hassles that were mentioned about contracting. Neil Kaufman: I'm going to tell you something about myself that even those who've heard me talk before don't know. Most of you know me as a mediator, but I am also "Chief Administrative Officer" for the Departmental Appeals Board of the Department of Health and Human Services. The reason I tell you that is because that in a sense represents my bias and what I'm in this discussion for, which is to talk about collateral duty. We've accomplished promoting ADR in the federal sector with no resources, no budget for it, and we've done it through collateral duty. Hence, not only am I Chief Administrative Officer, not only do I run our ADR effort, but I have other duties. I believe ADR can be advanced without a lot of resources, without a whole lot of contracting out. We've done it by people taking on additional work, by using people who already have skills. And there are a lot of people in the federal sector who already have specific skills. That's true for Washington, DC in particular, because D.C. has some very good community programs. We just tapped into that resource. Also, we had people who were skilled trainers who could go out and train other people in the organization. Robert Myers: Since I am the Dispute Resolution Specialist at the State Department, you may be surprised to hear that "we don't have any conflict at the State Department." At least that was a common attitude I encountered when I started about a year ago. Fortunately, I was able to convince the Under-Secretary of State for Management that we needed to comply with the ADR Act by putting together an ADR program, and that I should be the person to do it. In fact, he asked why it hadn't been done already, and instructed me to go out and do it as quickly as possible. But, he made it clear that, given budgetary stringencies, I would have to draw on existing resources; he also instructed me to begin in the EEO area. So I had certain prescriptions to deal with right from the outset. I had no money and I was told basically to pilot my effort in the EEO area. My major resource would be the men and women of the Department of State. I began by talking with a number of ADR experts, several of whom are in this room, about how to get an ADR program up an running. I quickly came to the realization that we would need mediators and somehow would have to train them. I had no money, but FMCS was kind enough to offer us Pete Swanson. Together with Pete, we developed a mediation course to be given at the Foreign Service Institute. The key thing I want to focus on in this very brief session is: How did we identify trainees with high potential to become quality mediators? We were not certain what selection criteria to use, but as we looked around, the best criteria we could find were Chris Honeyman's—his knowledge, skills and abilities list—slightly modified. (We found that there were a couple of skills we could not test for, such as integrity and emotional stability. You might want to refer to the Test Design Project's Methodology for a discussion of those kinds of issues.) We decided to interview each one of the candidates who volunteered for the course. We asked them to send us a resume and to participate in a half hour interview, in which a role play consumed most of the time. We gave them a small conflict to resolve in any way they could, using their natural problem solving skills. We didn't expect them to perform as mediators. We just wanted to see what their style was and we then graded them on a scale of 1 to 10, using the modified Honeyman criteria. We think that the interview and criteria worked remarkably well. Indeed, Pete Swanson said that our group was the best he ever had trained. I heard something earlier that I wanted to pick up on, and I hope that we are not "unconstitutional" too, but one of the things we were looking for, above and beyond the normal skills that you need in a mediator, was diversity. Diversity in an ethnic and racial sense, but also in a vocational sense: We wanted men and women from all corners of the State Department—Civil Service, and Foreign Service, white collar and blue collar, high ranking and low, with a wide variety of functional skills. We did quite well, but we did not get either the very low ranking people or the crême-de-la-crême (supposedly) of the Foreign Service. This is something we will be working to improve next time around. Finally, since we felt that there would be a need for our mediators to also serve as "catalytic agents" we looked for people, some at least, who could go from the training and be able to spread the word about ADR throughout our organization. In that spirit, we also sought participation by our colleagues in AID, ACDA and USIA, with the idea of getting their agencies more actively involved in ADR and, in the longer run, perhaps forming our own in-house shared neutrals program. We stayed in-house for our training because our options were constrained by a lack of money, but also because we believed it was important to inculcate ADR skills into our workforce. With money, we might have on occasion hired professional mediators from the outside. We also considered using the shared neutrals program, but it was just starting at that point and wasn't yet taking cases. So we were really forced to go in-house, and to use people that would do mediation as a collateral duty. Now we're up and running; we mediated about a dozen cases and we have begun to use the shared neutrals program, as well the Dispute Resolution Board at the Department of Agriculture. In terms of identifying and selecting quality people for training as neutrals, I hope that the State Department will in some sense serve as a "guinea pig," because we did compile some statistics using Chris' criteria. It will be interesting to see if the people who best met the criteria in the interview become high quality/best mediators over time. Already, our top rated person has been selected as a member of the shared neutrals program, while the person ranked lowest in the interview process failed the course. While this may be anecdotal information, we think that it tends to validate both the Honeyman criteria and our selection process. Our problem now is how to "certify" our trainees. They are presently co-mediat-ing with experienced mediators. The question that bedevils us is: How does one decide when people are fully-fledged? Should we ask a blue ribbon panel to use the Honeyman criteria and grant certification accordingly? That is where we are in terms of trying to identify, train and certify quality mediators at the State Department. If anyone has any ideas about certification, I would like to hear from them. Part Two: Hard questions, tentative answersThis group has now grappled on several occasions with some quite tricky problems. The following section is based primarily on the group's answers as given at the September, 1995 SPIDR workshops noted above. They are subject to change as the discussion develops and as more perspectives come into play. I. Are there conflict of interest problems, confidentiality
problems, or other concerns that affect whether neutrals who are federal employees of
other agencies—or of your own agency—can be acceptable or usable as a neutral? We started with the hardest case, the "inside the agency" question. Here, the
mediator is drawing a paycheck from the same agency within which the case occurs. We asked
Suzanne Orenstein to make the case against using an internal neutral. Orenstein: I mentioned earlier, in environmental disputes there are probably some barriers to getting at the nitty gritty parts of the dispute if you were to use an internal agency person, when people are in dispute with the agency. That's why I've thought that one of the criteria for using an outside neutral is to look at the level of controversy and the agency's involvement in that controversy. If the agency is a party in an intense dispute, you probably are going to have trouble getting the kind of frank communication you need to settle disputes through mediation using an inside person—but that's my "outside" view. Honeyman: Okay, but wait a minute. You're starting to distinguish types of cases here, right? Orenstein: Yes, I am. But I have to say, in response to Neil's earlier comment, that folks working inside the agency on disputes is necessary—great in lots of situations. It is not, however, free. We, as taxpayers, are paying our government employees to do that, and I don't think we should assume that the services are free. Honeyman: Would you expand a little bit on the kinds of conflict of interest perceptions that you're afraid of? Orenstein: Again it depends on the context. Who's in the dispute, what their knowledge is of the workings of the agency, and so forth. However, if agency personnel are mediating disputes that involve their colleagues, you're going to have trouble establishing trust, the trust that's necessary for people to confide private things and really settle a situation. I have never worked in the EEO area and it seems to me that that is an area where this is happening and it does not seem to be a barrier from what I've heard, so I'd be curious to hear from those who have that kind of experience. On the environmental side, we've been fortunate that we have done a lot of work as outsiders, and there have been examples where internal people have been extremely helpful. It's not verboten, it's not necessarily in playing a mediating role. At EPA we have people who are doing process design and beginning to bring the parties together. The key is, if you move to an outside person, that you have a good partnership between the internal and external people. You need outside people when the level of distrust is very high; when the parties are giving up legal options or avenues in the settlement; when you're trying to provide confidentiality or protect it; when you're looking for a special kind of substantive expertise; and when the agency is integrally or publicly involved in the dispute. Honeyman: Okay. The other end of that spectrum, the "use people from inside the agency concerned, and even the sub-department concerned," is represented, I think, by two people here, Neil and Bob. Let's start with Neil. Kaufman: In response to Suzanne's comment that it's not free—it's not free, but it's very
cheap, you ought to see my paycheck! And it's very good, I might add. So I did overstate
in my initial comments. I don't think that inside people can do everything, by any means.
And I don't think that's realistic. But I wanted to represent the opposite of the idea
that all you need to do is: "We want to design a system, let's get an outside
contractor." You don't have to do that. There are other ways to approach this. In terms of the conflict of interest, I think that in a small agency it may be more of a problem with the kinds of cases that you're referring to—EEO—than for a large agency. And so I think you do have to be aware of that. And I think you have to make sure—you have to also realize that whether there's some conflict, if you put it before the parties and they say don't worry about it, we want to mediate anyhow, then you can proceed. And that's occurred as well. Honeyman: Can you come up with some idea of numbers of cases that have been handled through this internal system? Kaufman: We've handled hundreds of EEO cases internally, and we've never had an internal person
say they didn't want to use our services because we were part of the agency, except once.
We did have it once. And the person wasn't terribly familiar with our organization. One aspect of our organization that may distinguish it, and this may be something that you all will find might be different for you, is that we're already postured as a neutral within the department. And it's a very large department. And we're there almost like a court. So we have a reputation already for neutrality. Yeah, I get my paycheck from the federal government. Nevertheless, our job is to resolve conflict and we have over the years developed a reputation for neutrality, so I think that helps us. Honeyman: Are you dealing primarily with EEO issues in this program, or are there contracting and other kinds of issues that come before you? Kaufman: We have a wide variety of cases. We mediate grants cases (things like Medicaid in a state-run program, and Head Start). We also mediate enforcement actions, contract disputes and non-EEO workplace disputes. Honeyman: Bob? Myers: Our agency is pretty small and everybody seems to know everybody else, so there is a problem of both confidentiality and trust. Interestingly enough, it cuts both ways. In the first place, we've not had a lot of cases, but so far we've done pretty well in terms of people buying in and staying with our in-house system. Frankly, I thought our people would say, "No way I'm going to put my Foreign Service career on the line, using a mediator from Agriculture who doesn't understand what an embassy is, and what an ambassador is, and what foreign policy is. My career is on the line here, you know." Yet, both cases that we sent over to Agriculture settled. So we are offering both an in-house option and a choice of going outside the agency to either the shared neutrals program or Agriculture's Dispute Resolution Board. As I mentioned in my opening remarks, the other thing we're looking at is training mediators in-house who are not from the State Department, but who work in sister foreign policy agencies like AID, ACDA and USIA. Those people would not formally be part of our personnel system. Since many of our complainants are fighting Personnel, they may be reluctant to trust an insider as a neutral. But if we can offer a mediator who is from a sister foreign policy agency. someone who has served in an embassy overseas and understands what an ambassador is and what foreign policy's about, he or she generally should be acceptable. So we are actively developing this option. Neil said something interesting to Suzanne, to the effect that the service provided should not only be cheap, but the crucial thing, he said, is that it be good. If it's good, then that's okay. The jury's still out for our group; we've just trained them, and it's going to take time to know whether our people are good. One of our trainees has been accepted by the shared neutrals program, and it appears that most of the others will emerge as good mediators; they seem to establish the trust that you need. Therefore, we've avoided the conflict of interest problem, at least so far. Audience member: It seems to me that there are 3 different categories of cases. In one, you have disputes within an agency, between an employee, for example, and the agency. A second is inter-agency disputes, and the third is between the government and a private party. Certainly, in any of those three cases, if both parties consent, I don't think you have a problem. We're talking here about mediation, which is a consensual process where nobody has to agree unless they want to agree. I think it's difficult to perceive a conflict of interest situation in that kind of a situation unless the mediator violates the confidentiality aspect of his or her responsibility. However, when you're talking about the government and a private party, I think as a practical matter there are going to be relatively few cases where private parties are going to be happy having—unless it's statutorily mandated—are going to be happy having a neutral provided by the federal government. Harter: I pretty much agree with Suzanne Orenstein and want to underscore her analysis. Before revisiting that, however, I'd like to address the specific question. It seems to me that there is generally no particular conflict of interest problem if the neutral is from a program that is independent of the issue in controversy, whether from the agency in the dispute or another. So long as the neutral does not report to anyone involved in the dispute and is not tied up in the specific, factual matters then it should be satisfactory so long as all the parties are aware of the neutral's regular duties and approve of the neutral serving in that capacity. After all, that is pretty much the same system we have for administrative law judges: They are employees of the agency whose cases they will be adjudicating, but they may not be answerable to anyone who has prosecutorial duties. Employing someone from within the same agency may be a bit dicey if the parties do not have the opportunity to object. It would strike me, for example, that it might not be entirely unreasonable for someone to be a bit concerned that a neutral might be steeped in the prevailing "culture" of the agency and hence not fully sympathetic to their cause. But, absent those unusual cases, there is probably not a major problem for routine cases. And, although the current provisions of the ADR Act do not extend full confidentiality to government employees since the Act does not exempt neutrals from FOIA, one can make a reasonable argument that the neutral's notes are not "records of the agency" subject to FOIA when the employee is performing collateral duty. Picking up on Suzanne's point, large, major cases involving policy may present a special situation that needs some special thought. First, if the issue involves the policy of the agency, any employee of that agency is necessarily under the direction of someone who is involved—the agency head. While that may be more theoretical than real, the example indicates two concerns. One, those outside the agency may nevertheless feel the relationship between the neutral and the agency is too close since the issues transcend a few individuals. And two, the neutral should be someone from outside the part of the agency—the entire subagency—that is involved with the issue since the person at the top of that section will likely be involved in making the final decisions and it would be inappropriate for someone who directly or indirectly reports to that person to serve as the neutral. Thus, one of the measures is the degree of controversy: The larger, more policy-oriented, more agency wide, the more appropriate it would be to go outside the agency—to someone in the private sector or someone from another agency. Another, related concern, is that large disputes often take a long time to resolve. The question then becomes whether someone who is being a neutral on the side, in addition to their specific duties, will have sufficient control over their time to perform the duties throughout the process. A private provider is paid to do so. Also, in some disputes the neutral may be called upon to do things that might be very difficult for an agency employee to perform. For example, senior officials may need to be contacted, or people from other agencies in situations where there would normally be a chain of command that would prevent—or at least discourage—the agency employed neutral from doing that. Lastly, one needs to think about the long run: Being a neutral, like most activities, improves with practice and experience. The agency needs to make sure that using its own employees, or those of other agencies, is likely to build a cadre of experienced professionals, or whether those neutrals may not be available after a year or so. If the types of cases and those who are mediating them will build that corps, then this is not a concern. If however, there is likely to be a significant turnover, then I would worry about that. In sum, for specific, fact-based issues, I surely see nothing wrong with using agency personnel and indeed I see some positive benefit. As the issues get more complex and more policy oriented, I see problems with staying inside the agency. Greenstein: The Department of Justice was slow to sign on to sharing of neutrals, because the agency represents various federal client agencies in EEO cases. There's a real concern at the agency about whether it should exclude litigation attorneys that might be involved in representing agency clients in these cases, so that there wouldn't be a potential conflict of interest. What the agency has done is to exclude some attorneys from the civil component and U.S. Attorneys' offices which handle EEO litigation. Internally for EEO disputes, the Department set up its own internal roster of neutrals (and I was very much against it at first, specifically raising the issue of how is an individual from the Department going to be viewed as neutral.) The EEO office noted that if the parties agree on the mediator, then there's no bias. After some experience I'm tending to agree with that position, and have participated in a few EEO internal disputes involving other components of the Department. I come from the Tax Division, I'm presently in the Associate Attorney General's Office. At the outset I acknowledged that I came from the Tax Division, within DOJ. There was never an issue raised related to the fact that I was a DOJ employee. In the sharing program, though, the individuals come from outside the given department and specifically bring with them their federal experience. We had a number of different cases where we specifically had to tailor to the diversity that was spoken about earlier, and for the type of case where we'd have a high level federal executive that was involved in the dispute, we needed to find a mediator of the same stature, so that there was some credibility to it as well as a perception of neutrality to all participants. Pou: I'd just like to make a couple of points to follow up on some things that were said already. My favorite point on the whole question of neutrals and what works in different situations is, it all depends. I mean there ain't no right answer that will apply across the board, and I think Suzanne made a good distinction. Any time you have a major policy issue where people at or near the top care strongly about what the outcome may be, you can't have somebody inside the organization playing a neutral role, because they're going to get pressure either directly or indirectly that is hard to ignore. I also think that those are not the run-of-the-mill cases. In those cases you have to have somebody from outside and you probably have to have somebody with a lot of experience in that particular situation. I also think that there's a lot of cases, though, that are very controversial and involve members of the public, where you can use inside people. FMCS and our agency worked with the Labor Department to put together a program; the fact that Labor is a big agency and has a lot of different components, so that you can bring people from OSHA to do cases for another part of the agency, made a difference, and made those people more acceptable to the outside parties. I think you could not possibly make that work at EPA, which is a small, cohesive agency, and which (some feel) has kind of an "bastion" mentality vis a vis the people they regulate. It really can depend on the kind of agency culture, on the agency. And on the location of the neutral. Neil makes an excellent point about their being perceived as neutral. I think somebody from the Office of General Counsel, as opposed to the Departmental Appeals Board, would probably not be perceived as neutral. So I think there are resources within certain agencies that make use of in-house neutrals possible, just as there are other agencies where, based on their structure and their mission and their culture, it will never work. Any particular answer that tries to be all things and cover the waterfront misses the point—that acceptability to the parties in the particular case is critical; that is really a very individualistic thing. Honeyman: Let's give an illustration of that, if I may, because at the last meeting Tom Louthan, who represents the Internal Revenue Service, spoke up with something I frankly would never have expected to hear, which was that apparently they have a system now in which there is some acceptability of internal people dealing with large tax cases. Mostly, the public of the United States is not viewed as having a high level of trust for the Internal Revenue Service, so I thought this was very interesting. Louthan: Chris, recently we published Announcement 95-2, 1995-2 I.R.B. 59, which has the guidelines for our test of mediation for cases in the Appeals administrative process. In February, we held a public hearing to get feedback on the program. The mediation test should begin in the late Fall. Many of these cases involve ten million dollars and above, and we were seeing that they were going to litigation—you know what that costs. Maybe we could take an extra step in our appeals procedure where we could try to settle the case without litigation. You might have heard of the Apple Computer Corp. case. In that case, the agreement-to-arbitrate proposal was 4 pages long. Well, a year later and 100 pages, they hadn't signed the agreement to go to arbitration. So we felt, yes, there is a great possibility that mediation can be successful because it is a much quicker process. We're talking about a factual dispute where the parties are really far apart, not for a case where they're close together, and we had a billion dollar case concerning valuation of property, and the first thing we heard at the hearing was that a draft agreement to mediate would help the parties negotiate. We have developed exhibits which give the parties everything they need to get started. We expect that the mediation process can be concluded in two or three months for these tax cases. At the public hearing we got feedback not only from the people in the field that were going to use it (and believe me, there are a lot of skeptics out there, you need to involve them) but also from the taxpayers. They're the most important part, those 2 people—the taxpayer and the person that's in the field—they're really the disputants. It was also at the public hearing that the idea for using Appeals mediators arose. Honeyman: But did, in fact, this become acceptable, to use an inside person as a mediator? Louthan: When we held the public hearing it was clear that some people strongly felt we could
use an internal person from Appeals. That would be someone either that was well respected
and versed in the particular industry, and that had mediation skills—or sometimes
maybe it's a communication problem between the 2 disputants—maybe you don't need the
industry expertise. I think, the 2 parties that are involved in the dispute have to feel
good about having that person as a mediator. You can't force someone to have a particular
mediator. That's the cornerstone of the program. So they can either come
"inside" or "outside." This is a decentralized decision by the
region—it's not controlled at the national office. The two parties to the dispute get
together and discuss who would be a good mediator. We heard from several people, we could
use the appeals person as the mediator. So we were obviously encouraged by that because as
long as the mediator discloses what any potential conflict could be and the parties know
about that potential conflict, if they agree to that person being the mediator, this is
acceptable. Honeyman: Now that actually is an important point. This goes to the ethical requirements on neutrals. About ten years ago within SPIDR, there was a major wrangle over how to design a system of ethics. The long and the short of it was in the end, what the organization decided after a good deal of soul searching was that disclosure was the key. The requirements that are built around ethics now are not prescriptive, for the most part they hinge on the notion that everybody has got some kind of a point of view, that you cannot have a truly neutered object as a mediator. Therefore, the most important thing is to tell the parties what you're going to do to them, and then they have a chance to go somewhere else if they can't live with that. Audience member: A question with regard to confidentiality and the statutory I.G.s and mediation, anybody? Pou: As a matter of fact, the I.G. at the Department of Agriculture is trying to get hold of a lot of records from the various farmer lender mediation programs, particularly the one in Texas which seems to have somehow caught their attention. The Administrative Dispute Resolution Act, which covers most of what takes place in the federal government, had, when it was introduced, a strong confidentiality provision. There were some people who didn't like the idea that that confidentiality provision could create an exception to the Freedom of Information Act, and they basically stuck in a clause at the last minute that said that this is not an exemption to FOIA. As a practical matter what that means is that there's a real incentive in some agencies' eyes to use neutrals from the private sector, who are not as likely to be subject to the Freedom of Information Act, as opposed to people from inside the government who are agency employees because, arguably, documents in their possession might be agency records. I think there are good arguments that that's not the case. But confidentiality has been a concern. The version of the Act that Senator Grassley introduced last week cures this and actually makes the confidentiality provision a FOIA exception. In terms of IGs under the Act, there's nothing about IGs' access or Congress's access or anybody else's access that is any different from the general public's access. The Act states very explicitly that parties and neutrals shall not disclose except....., and it doesn't say, you know, anything special about making provision for Congress or IGs; that was intentionally done. Dalton: As someone from an agency who went through a year of providing information to congressional committees, one of the design aspects that you may want to build into any kind of mediation system is one that's built into the multi-door courthouse mediations, which is that at the end of the mediation the mediator destroys any personal, private, confidential records. If you have that as a design provision, then you have no records to provide. It's in there. They can't criticize you for not providing records that you don't keep. Pou: The issue is not always about records alone, but also about being able to interview the mediator. II. What are the economics of using outside contractors, and to what extent are these different from using mediators shared among agencies? Are there other cost considerations than fees? We asked Charlotte Kaplow to address this first, because FDIC had used a variety of sources of neutrals. Kaplow: We haven't actually used the shared neutral program, but we do use internal mediators;
we have had an agreement with FMCS to provide neutrals; and we contract outside. And one
of the things that we did—we ran a pilot project in New England where we gave the
parties a choice of neutrals, both from the private sector and FMCS neutrals. What we
discovered was because the FMCS neutrals were so much cheaper than the outside
neutrals—they averaged about $50 an hour and the outside providers were anywhere from
about $125 to $250-$300 an hour—in smaller cases that were not complicated, people
chose the FMCS neutrals. In complex cases that involved big dollar amounts, they went for
outside providers. So, it really does depend on the case partially, the kind of economic
determinations people make. If you've got a small case and you can get somebody for $50 an
hour, you're going to use them whether they're a government person or not. If you've got a
big dollar amount case, your concerns about neutrality become heightened, I think. Honeyman: Suzanne, I seem to recall that this was an issue that was close to your heart. Orenstein: This $50 an hour I have to come back to. I actually don't know for sure how FMCS charges its fees. At $50 an hour, whether that includes all of the subsidy to the staff that comes with a government budget, a government office, a government-provided computer, etc..... I think there's a perception that the private sector is paying people exorbitant salaries and charging for exorbitant overhead. All we do is charge the government for the cost of putting an employee in the workforce. And I think the federal government doesn't calculate things the same way that the private sector does, so that if you did a similar calculation that you might not have the disparity between $50 an hour for a person from FMCS and an outsider. The other thing is that I definitely know, because public employees' salaries are public, what their salaries are—and our salary scale is not as good as the federal government. I think it's a matter of how you count up the fees and how you count up the rates. On the other hand, somebody selling the service for $50 an hour is going to, you know, sell, and that's a reality of the market that we have to think about. Hoffman: A correction please—FMCS charges $55 an hour plus overhead of 20%, as well as travel and expenses. The federal government does charge overhead costs. Dalton: The rates on my contract, which are fully loaded rates including salary, benefits, vacation, office space, electricity, you know, the whole thing 'cause they're outside contractors, vary from $110 to about $210 an hour with an arithmetic mean of about $150 an hour. Honeyman: So you're talking about buried costs, in other words, that are disappearing into somebody else's budget? Orenstein: They're subsidies. Or, you know, the way the federal government charges for rent is very different than the way the private market—in the way they allocate it to each employee is probably very different, that's all. Harter: There are two distinct issues here: one is the amount paid to the neutral and the other is the transaction cost of obtaining the neutral. As for the first, as a private practitioner, I am quite concerned that agencies seem to think because someone is already on the government's payroll that there is no cost in using their services as a neutral. In fact, Congress appropriated funds to pay that person to perform specific duties that are, I gather by definition given the drift of this discussion, independent of serving as a neutral in the particular dispute. The costs include not only that person's salary, but also their office space, secretary, vacation time, retirement and medical programs, and so on. Last time I looked, the package was about 1.2 times the salary. Thus, to get a rough idea of what the neutral actually costs the government, you need to divide their annual salary by 2,000 to put it in hourly terms and then multiply by 2.2—that is the figure that needs to be compared to hiring someone on the outside. At least, that is the cost of the government of providing those services. I appreciate that someone in an agency is not particularly concerned with that since their own program would not have to pay that amount—in essence it would receive a subsidy. But, in terms of public policy, we do need to think about it when deciding what is in the best overall interests of the government. So understood, my strong guess is that many providers outside the government are fully competitive on a fully allocated cost basis. The second item is the transaction cost of obtaining the services of a neutral. An agency can use its own employees by means of a simple phone call or some other minor administrative duty. Agencies can share employees via inter-agency memoranda that are quite trivial to implement. The transaction costs can be measured in pennies (well, almost). But to get someone outside, if for anything but the most minor matter, significant costs are incurred. Even if the procurement can be done short of a full request for proposals, multiple bids are required, much paper work, many phone calls, loss of control by the program office, and generally at least six weeks if not more. For larger cases, a full bore RFP is required that is expensive for the agency to prepare and process and expensive for a practitioner to respond. And it takes time; lots of time. And imposes lots of rigidity. And incurs lots of expense. The transaction costs are something that clearly need to be addressed. Many of us had hoped they were when Congress supposedly streamlined the Federal Acquisition Process, but so far that seems to have happened only in our dreams because it surely has not penetrated any contracting shop that I am aware. As far as I know, FDIC could be used as a model for a procedure to greatly reduce these costs. After some studying and an advisory group, they put together criteria that would be used to determine whether someone had the requisite experience and expertise to be on a roster. Once there, the agency can select off the roster without significant additional transaction costs. A similar situation could be developed by an agency or by a central agency that could, in turn, be used by other agencies. Honeyman: Don, it seems to me that there is some kind of costing that must take place in the
shared neutrals project, and people may not know how it works. How do you account for the
value of the time that one agency is giving to another, if it gets out of balance? Greenstein: The program has just completed its initial year, and what's written into the program is that there would be accountability. It's called "shared" because the idea is that an agency's time used, of a mediator, would be compensated back by offering individuals who were trained to facilitate/mediate similar cases for other agencies. We've been keeping track of that, thanks to the HHS computer system, of the hours of the mediators involved. At this point, we're just tallying that up. I think, in terms of dollar amount my sense is we will not be looking at the dollars spent by one agency, because there a difference in the employment level of the individuals involved. We have people from GS 11 up to SES involved in the sharing program. Honeyman: So you don't try to account for salary differences? Greenstein: We're counting on an hour for hour basis, and that's our only accountability. At this point it's a collateral duty and it's with approval of a supervisor from the agency where that individual's employed. Kaufman: I hate to do it, but I was actually going to agree with Suzanne. I think that what she
says does represent a reality that's out there; but there's also the reality that there is
this federal government, there are a lot of people working in it, and a lot of the people
are more productive in that they have a collateral duty that's interesting and that they
enjoy. So that's part of the picture as well. What you're saying is true, however. Honeyman: So you have a distinction there. It sounds to me like you've got two different versions
of costs that are being paid somehow. You've got costs that somebody is deliberately
burying. And then you've got costs that are sunk costs—in the classic free-market
sense, that there are things that you've already had to pay for, because you hired
somebody on a salary and they're there for the year whether they do any work or not. So,
that's a sunk cost, and if they can be given a collateral duty there's no extra out of
pocket expense. Audience member: My question is whether you're contracting in some sense for a management function from this outside organization, or whether you're contracting directly with individuals and management remains inside? Dalton: We do, in our contract, have a management function that we're paying the prime
contractor for. On every delivery order that's released out to our prime contract, there
are hours for the prime contractor to manage the roster, to manage the quality assurance
over the product that's coming in, to manage the billing. Part of that is because at EPA
we have exactly three FTE's that are devoted to this, and we could not manage a roster of
18 or 36 contractors to provide these services on more than 100 work assignments going out
in a year. It just would be—on the kind of resources we have we could not do it. And
so our agency, because we have had access to contracting money, has been able to do this. We've considered for a long time what other backup systems we would have to go to were we to get major cuts in our contracting budgets, and one of the primary backups that we would go to would be FMCS because of the fact that, again, their costs are buried. What FMCS charges in its $50 an hour is the same thing any federal employee sees on his or her paycheck. I don't know about others, but EPA's paychecks tell me how much I make per hour, and that's basically what FMCS charges. I did some investigation into these rates at one point. The federal government does not figure in overhead, they do not figure in the vacations, they do not figure in rent and lights and electricity and phone service and rugs and carpets; all this other kind of stuff is not in there. If these overhead items were to be figured in—it increases the cost quite considerably, into the 80 to 100 dollars an hour range, and that still doesn't cover everything. When you're looking at collateral duty, whether you're looking at collateral duty within your own agency or borrowing from someplace else in the federal government, you have to look very carefully at how much collateral duty you're expecting this person to do, and whether or not that person really is sitting around doing nothing for that number of hours or can make up their own work in their spare time. Most of your mediations will occur on workday time, so that means that this person is going to have to make up their own work, or be excused from their own work, for the necessary number of hours. EPA does not have a mediation program in personnel, grievances or EEO. If and when we
do it, we may in fact go to a collateral-duty program to start it up. Those programs
traditionally have a little less money to go outside anyway and usually require
significantly fewer hours of a mediator's time than large public policy, enforcement or
Superfund cases. Most of those cases involve time in excess of 100-200 hours per case,
which is a lot of time for somebody to do on collateral duty. I dare to say that most of
the cases on the shared neutrals program are nowhere near that amount of hours per person
on one case. A collateral duty person may get up to a couple hundred hours in a year or
two if they're really good, and are really interested, and have nothing else to do. I
don't know about your agency, mine's facing a 34 percent cut under this Congress and the
number of collateral duty people that are going to be available may be very small. Audience member: Follow-up on that. In terms of the economics of putting out that RFP, what was your time cost of developing and getting the first round of your RFP and your actual contract with RESOLVE? Dalton: The RFP that I handed out is the third such RFP that I have written and released. So the economics of putting together the third version, what with computers and block and move and erase functions, didn't take me as long as it did the first time. It's a matter of iterations, it's a matter of getting smarter over time and making the program bigger over time. It took us two years from the time I started the paperwork to the time we awarded the most recent contract under a really rush provision because our previous contract had run out four months earlier. And it was not a lot of fun. It takes a lot of effort. I'd say that I was probably working on it a third of my time over the two years and we probably had a contracting specialist working 20 percent of his time. It doesn't take two years to do what it is you have to do under the Federal Acquisition Regs but there's a lot of do something and wait, and do something else and wait, and then do something else and then just wait for the in box to get to you. Audience member: The organization where I work has a proposal in with OMB. I don't know if any of you've heard of the "franchise fund," but basically there is a law which is authorizing a pilot, if you will, for six agencies to operate as a fee-for-service, and it's intended to be an efficiency measure, I believe. And I have been involved in pricing, how we would price ADR services and, including overhead it was running about, and including benefit factors, it was running about half what you're talking about. Of course that's not paying Washington, D.C. rent, because we're operating out of another city. That would make a big difference. Honeyman: Did you include supervisory time and those kinds of overhead charges in calculating that? A Yes. III. The procurement process, and related issues Honeyman: Let's move on to the circumstances where a clear preference emerges for in-house people, cross-agency sharing or outside contractors. One of the questions that's come up is: Is the RFP process a real barrier to using outsiders? I guess we go back to Debbie once again. Dalton: The RFP process is a horrible barrier. The Federal Acquisition Streamlining Act will help quite a bit. However, it hasn't helped at this point yet. Our RFP, as I said, was about an inch and a-half thick. It required an incredible amount of time to read and analyze it, to obtain the information needed and to analyze the information. Suzanne has already said that it cost them about $40,000 to bid the contract. We sent out over 100 copies of the RFP to everyone we could think of, every firm we could think of that was listed anywhere, every dispute resolution journal, just about any place that we could send it out, and we got very few responses back in the way of interest, and we got very few bids because it did take such an effort to bid this contract. The other thing that you will find is that most dispute resolution organizations do not read the Commerce Business Daily. It is not on their daily reading list. Most of them don't have a clue even where to go and look at it, they don't sign up for the same kinds of Commerce Business Daily bulletins that the defense industry would, to be informed that there is a new contract coming out. So you have to do the leg work with regard to sending out the RFP to potential bidders. We in fact sent out the abstract of the RFP to the hundred organizations and asked them to respond back, and then we also sent the RFP out to those organizations that we thought might bid it. Our contract, of course, was a very large one. We were doing it for the whole agency. We weren't doing it for one specific case or one specific kind of case. It is an umbrella RFP that provides dispute resolution services for the entire agency for just about anything we could think of, and so it did require a teaming effort on the part of anybody who was interested, or a very large firm. Pou: I'd just like to point out that that's a horrible burden and nobody should have to go through it more than about once in a life time. But I think it's also fair to point out that that's the exception rather than the rule, in terms of the way agencies get neutrals. The RFP process is a term of art; the federal contracting process is really the question, does the federal contracting process get in the way. There are different levels of formality depending on the size of the contract, and a lot's going to depend on that. A contract under $2,500, which may be the rarity, you can do pretty much what you want to hire someone. If it's a "small purchase" which, depending on what agency you're with, is anything from $2,500 to $100,000, it's considerably less formal and you don't have to go through nearly as much. Honeyman: $2,500 and below would pay for a couple of days, and a lot of cases have been resolved in that or less. Pou: Especially if you're splitting the cost. That's a $5,000 contract if somebody from outside the government's paying half of it. So I think that there is more flexibility with the smaller purchases, and the recent Federal Acquisition Streamlining Act purported to make it even easier. Depending on who your contracting officer is and what agency you're with, it may well be easier. But the fact is that many contracting officers don't like it to be too easy for you. So they have their own agenda. I think it may well be that the forthcoming amendments to the ADR Act will say "and we meant it when we tried to simplify the process and make it very clear that you could pretty much hire who you want when you want without competition, at least in certain circumstances." But right now it's an obstacle; it's not an insuperable barrier, except in the biggest cases, but it's really a pain. Audience member: Has anyone in the community put out guidelines? Not even guidelines, so much as just general advice on these smaller pieces and what to say to your contracting officer to get their attention about the costs and all of that? Pou: We've given informal advice and Debbie's working on something right now that would do that. But also the Justice Department is about to put out some interpretive guidance on competition in contracting that may be very helpful to agencies. Greenstein: We're in the process of putting together guidance that's going to go out to all Department of Justice attorneys for hiring and acquiring neutrals for their own cases. Specifically, how to go about it with the new guidelines in mind. Justice is trying to put something out that'll be easy for attorneys to understand, to use in hiring neutrals from the private sector. As an aside that goes along with this, Justice has in place, for those of you that don't know, a new order from the Attorney General that was issued April 6th, under which the ADR office was created. Orenstein: I just would like to bring us back to why you go outside, why you stay inside, and de-couple a little bit the procurement barriers from the purchase of the service that you need. I think that when you're dealing with the government it is hard to get through the procurement process, but it's not going to be impossible. And Charlie is right, the RESOLVE contract is atypical, it's just big. You're not going to have that many big things. The bigger the case, the more you're going to have to go through in terms of procurement, and that seems to make sense. On the other hand, I don't think it's a good idea for people to think that we should have inside-government mediators because procurement is too difficult or because people are too expensive, or the resources aren't there. You need to think about who do we need, and then what resources do we have and how do we get them? And putting aside self-interest and so forth, I think there are some circumstances where you need an outside person and there are lots of people who are very good at winding their way through the procurement process, and I think it would be worth investing time and figuring out how to do that. Pou: I would like to second that. I think that you put a crimp on the public's buy into the use of ADR with the government if you limit yourself to internal neutrals, because a lot of people are, for whatever reasons (mostly perception) not going to enter into any ADR process with the government that involves a government neutral. We don't want to limit the use of ADR in the government, so you have to get around the procurement issues and use outside neutrals, or you're really limiting the use of ADR with the public. Honeyman: Charlotte, can you just comment on what you at FDIC did in that regard? Kaplow: We're not appropriated. We don't have as much of a problem with that kind of a thing as
your normal government agencies. The money for a lot of our neutrals comes out of the
receiverships that we administer, so we have not had that kind of problem. And our
contracting people have been very helpful. We have an ADR steering committee and it has on
it somebody from contracting who works with us so we could overcome the problems. Honeyman: So you felt like you could just hire whoever— Kaplow: Yes, and we do, again, we do very small things. We hire a neutral for a case. We split the costs. So we rarely have anything over $25,000, and we do a PAV for that because we can. (Purchase Acquisition Voucher.) Audience member: We've gone through some of the problems of the procurement process and from the Department's viewpoint I sense that there may be a view that there is some resistance on the Federal Government's part to hire outside neutrals and that there is some bias there. My experience is that the parties decide exactly how this process will unfold, and it's been my experience that once the attorneys decide and the clients decide that this thing should be resolved, then the question is how, internal versus external. Are there biases internally? Once we decide that we should handle it externally, we
decide how the costs are going to be allocated and then the procurement process has been
very easy, very simple, because we're dealing with small purchases. And the Office of
General Counsel, at least at the Department of Veterans Affairs, we have a good
relationship with our procurement people because we service in-house counsel as well as
litigators, so we've been able to work things out. We've been able to work things out;
maybe the Department of Veterans Affairs is a little different, and I don't want to say
that it's a very simple process, but it's not a complicated process either. We've resolved
multi-million dollar contract disputes involving prime contractors and a number of
sub-contractors—resolved them in a couple of days, using an outside neutral, and
there was no resistance internally once we decided that we had to get this thing resolved.
Audience member: Yes. I'm a contracting officer and I'm on a taskforce to write a proposal to bring mediation into my agency. I want to assure that the FASA provisions are in that proposal. And I had to do it as a contracting officer—if I had to go two years to get an RFP, they'd fire me. Honeyman: When FASA says you can use something less than full and open competition to acquire the
services of neutrals, how do you define that? What do you have to do? Could you just go
out and hire whoever you wanted then and there without doing anything further? (Two audience members:) That's our interpretation, but we think there are contracting officers out there who have different interpretations. Audience member: That's been our experience as well. Sometimes the parties decide on, agree on, who the
neutral would be, looking at a number; and then we may approach three or two, but the
process is really not that complicated using the less than full and open competition. I
don't think that you should consider hiring a neutral any differently than hiring a claims
consultant or some other specialty that we normally hire, and maybe it helps if you
emphasize that this is no different. It's not; the product may be slightly
different but the process in hiring or utilizing specialty-type people is not different. Pou: I think it is fundamentally different in a couple of ways. I mean this is the only law that I know of involving a government agency that requires the consent of somebody outside the federal government, and as to which half of the pay is going to be given by somebody from outside the federal government. To me, that makes it a fundamentally different situation, and I think there ought to be procedures that recognize that the agency needn't undertake even the small purchase, three-bid type of approach that you're talking about. It should be simplified. Dalton: The other difficulty that I can foresee as someone who manages outside contracting for an agency is sorting through the volume of letters, brochures, flyers etc. from potential service providers. We've had a lot of complaints over the years from people who are not on our contract about the fact that they are not on the contract and that we're being unfair because we're not spreading the work around to every SPIDR member who could conceivably qualify to do the work. Somehow people in the outside world think that the federal government has some positive duty to give them work. What happens with a lot of agencies is you find somebody you like, and you repeatedly go to those people—and that's going to happen under FASA, it just is going to happen. People get comfortable with particular mediators, whether that's a good idea or a bad idea is something that a whole other group than SPIDR is debating, but I think it's going to happen and you're going to have to deal with the fact that some people are going to come bouncing into your contracting officers and complain about the fact that you are basically limiting the field. I think it's a big problem. The other thing I was going to say is that one of the things that I see as a problem in the profession from the shared neutrals program and the collateral duty program is the same thing that professionals who practice on the outside have had to overcome over the last 10 years, which is how do you exist as a profession if you give your services away for free? Ten or fifteen years ago a lot of the professionals in the mediation field, particularly public policy and a lot of the community mediation, were working for free. They were giving their services away and it's been a very difficult transition to make it into a career that pays the rent. These mediators were being funded by the courts, by the government, by volunteers, by whatever, and it's taken an awful long time for the profession to become something that you could practice as a living and get paid for, other than by teaching negotiation. And I think that's one of the problems that we're regenerating here when we have a shared neutrals program. We're saying that federal government people can practice it as collateral duty and that the Congress need never give us FTE's to do this because it's good government policy. And I think that we should not forget that in constructing our programs, because if we let the Congress get away with thinking that we're all going to volunteer to do this forever then they're never going to give us what we need, which is professional mediators inside the agencies. Honeyman: Bob, I'd like you to state, if you could, as Chairman of the SPIDR qualifications commission, whether SPIDR as an organization is taking a position on behalf of independent contractors, or whether it has moved away from that public perception of its role and now considers the internal folks and the people participating in the shared neutrals project as equally entitled to SPIDR's, a share in SPIDR's policy making and the like. Is there tension within this organization among different groups of people, many of whom are vying for the same work? Jones: You need to kind of parse out some issues about what level you're dealing with here; the internal issues within an agency in terms of disputes that arise within that agency; the next suggestion was inter-governmental from fed to state to state to local and the inter-governmental issues; and then the issues from government to private. I think on each level there this conversation gets changed and there are different questions to be addressed. I mean I've been struck on the second level, this inter-governmental level, that there are some very interesting, innovative "peer" notions about how to get a job done in terms of bringing governments together to work on policy issues, etcetera. How you are able to rely upon this notion of peers within intra-governmental issues is another, to me, interesting issue. Honeyman: I have to take a leaf from Sherlock Holmes and say that the key there is the dog that did not bark. What you didn't hear from Bob is the important thing. That is that there are a number of individual members of SPIDR who would be offended, or see it as a threat to their livelihood, that the shared neutrals project is becoming something that is a fixture, and that the internal agency procedures that are being done at Health and Human Services and other agencies are also becoming a recognizable and probably fairly long-lasting feature of the landscape. That, however, does not appear to be reflected in a "get lost" perspective by SPIDR as an organization, which Bob to some extent represents in this context. And I think that's important, because of the origins of this organization and the perceptions that you might get by talking to individual members. I think it's fairly clear that the organization as a whole is now taking a broader, more encompassing view of what membership might reasonably entail. IV. Now for some nuts and bolts: How are you going to do this? "Who ya gonna call?" We asked Charlotte Kaplow to begin a run-down for people who may never have dealt with this before. Kaplow: I think you do have to distinguish the FDIC and our ability to do things with a little less formality. We have our roster. When we have a dispute where we're going to need a neutral, we have the parties come up with criteria for what they're looking for in a neutral, you know, they want "a mediator from Texas who has commercial real estate background" and we pull up a panel and we submit the names to both parties, both the FDIC attorney and client and whoever's on the outside. They then go through a regular process of interviewing or whatever they want to do and they'll narrow it down to one neutral. They may, in the process, have interviewed those people and talked to them, and we do have on the roster the rates that people are charging which we ask people to keep current. And they're called. It isn't really a contract between the FDIC and a neutral, it's an agreement to mediate a dispute and the mediator is decided on. We insist that the costs be split. The FDIC will not foot the bill for the whole thing. Honeyman: So, we have here a slightly special case, and we already know the EPA is a special case because of the huge size of this one contract. Who else has got an independent contracting arrangement going? Tom? Louthan: What we do is the IRS does not maintain a list and I think we've gone over the reasons for that. We don't think it's appropriate to foster any one person's career. So we look first to the Administrative Conference! All of the contacts that we get from people, we recommend that they go through the procedure to be on the list for the Administrative Conference. Also, we'd look to any other organization in the country, the Center for Public Resources or the Center for Dispute Settlement. We don't have any guidelines concerning the outside people, except that again our focus is on the two disputants picking that outside person. But the contracting is done by my office to take the pressure off the regions. We have a budget for that and we go through the procurement process for them. Pou: I'll say, first, better stop relying on the Administrative Conference. I think the small purchase process is what most agencies tend to use. I don't think they need to go to even that level of formality. Basically that just requires the agency to get three bids, even telephonically, which can be done fairly expeditiously. And some agencies I think even streamline it a little bit beyond that. No matter whether it's a small purchase or not, there's this kind of hurry up and wait syndrome. One thing where some parts of the government like the Administrative Conference have had the advantage is that we just don't have the bureaucracy, so that we can do it a little bit more quickly. And, OSHA for instance, has asked us on a couple of negotiated rulemakings to basically take over the contracting process so they didn't have to deal with the in-house contracting people that they would ordinarily have gone through. I think that there's some real future prospect in that for agencies that are willing to do that kind of streamlined approach. I think if I were in the private sector looking to get some current information on agencies that might be hiring, I would start reading the Commerce Business Daily. You can get it on line. You can get focused on what you really care about. Agencies that do contracting regularly have lists of people who are interested in particular types of contracts and if private providers can get on those lists, then presumably they will get notified from time to time of opportunities as they arise. But I think Debbie's right that there seems to be a perception on the part of private people that even with small purchases where you really legally only have to get three bids, that they should have been contacted anyway and if you didn't, you did something that was, if not illegal, at least immoral in their eyes. And I think whatever the agencies can do to try and open it up a bit so that people at least find out about opportunities, even if they're not given a chance to bid every single time, would be a good step in the right direction. There are a lot of agencies out there that haven't done nearly as much as they could to get the word out to people who might be interested. ACUS has probably been guilty of that as much as anybody. Honeyman: Let's look at the other side of this coin. The mechanisms for getting hold of people inside the government are not necessarily obvious either. Let's start with Bob, who's been dealing with this very recently and has now got—I was interested because you said that you were using people from USAID and from the Department of Agriculture. Let's start there. Why Agriculture? Myers: Well, for the obvious reason that they had an existing Dispute Resolution Board and one of our people did not want to use an in-house mediator and wanted to have someone they felt was more disinterested. And so we asked them if they would like to try the Department of Agriculture's Dispute Resolution Board? They agreed. These are also cases—this addresses a different issue slightly, but what we have found is—I don't know how much you know about the Dispute Resolution Board at Agriculture—it's a pretty tough process. It's not pure mediation, per se, and we found that for our more impacted cases, cases that have been around for 8, 10 months and were going nowhere, that our lawyers really liked the idea of putting it in that context and having them resolved there. And we were pleasantly surprised that they did resolve there. I wasn't convinced that they would, necessarily. Honeyman: So as a matter of internal government economics, how does this work? Do you owe Agriculture some time or? Myers: Okay, on that case, I mean there's no such thing as a free lunch I suspect, but Agriculture, to get us interested in their process, said we'll take six of your cases for free so you can become familiar with our process. I think that the fact that the FMCS gave us Pete Swanson for free to train on one occasion was done with the reasonable expectation that later on they'll be able to charge us for that kind of training. I think that's reasonable. But we were at a point where we couldn't pay. I think Agriculture over time will expect us to pay. And also I think we should, going back to the earlier question, we will go out of the building for mediators. And one thing I heard in that discussion that didn't get addressed specifically is I think we have a shared interest here. You said it specifically. Getting the word out is part of what we all want, I mean certainly in the SPIDR context we're all interested in that and the idea of keeping it in-house and to yourself is really not very smart or forward looking so I think we all have an interest in this, in getting outside people involved in the process when they're needed. Honeyman: Pursuing the mechanisms within your agency for another moment, you are providing people at various different salary levels from various different parts of the organization. Is there any kind of internal costing that you're required to do? Myers: No. Honeyman: So, their time is free to you, from your point of view? Myers: Yes. But with the conditions that we discussed earlier. Obviously there are costs, we are paying for them, but we're not being asked to account for those costs. Honeyman: What I'm looking for is a contrast or comparison to another agency that is also using inside people. Tom, I guess, in your system is there some kind of accounting that you're required to do for the value of people's time? Louthan: Because this was focused on at the public hearing, and it's the policy of the National Director of Appeals to support the use of the Appeals mediator to assist the resolution of a case with a taxpayer, we would keep track of the results for evaluation purposes. We also have a built in evaluation program that we use. You want to see how those people are doing and keep track of hours and of costs—travel cost, et cetera. Honeyman: But that's also an interesting thing because you're dealing with big time cases here, cases where there's a lot of money at stake, right? Okay. The agency has said it's prepared to eat the travel costs and just quietly lose that somewhere in the budget, is that right? For the internal people. Louthan: Yes. I guess you're focusing on a very big issue here that you might get to the situation where you cannot use outside contracting because of budget concerns. So it's important that you develop the people in your own organization, because besides going to court this may be the only option they have, of using the internal person. Honeyman: Okay, but these are big cases in which it is worth everybody's while to have somebody travel in order to get the right person to the right case. Right? |