Taking a slight turn: My History in Conflict and Alternative Dispute Resolution
I wanted to share a brief history of how I moved into the world of conflict resolution and Alternative Dispute Resolution. I share this story not about me so much as about how powerful each of our personal stories can be in context to the changing world of our political times, the profession, and when we are clear about our personal goals and aspirations.
My first introduction into the formal ADR world came at a challenging transition in my life. I had decided to leave my position as Associate General Counsel at Verizon to move into a private practice. I was in a small firm and the chemistry between the principal partner and me did not work out. With a young daughter and a second child on the way I decided to move with a colleague and friend from Verizon into the federal government.
At the time that I entered federal practice as counsel at the Federal Energy Regulatory Commission (FERC) in 1990 Congress had just passed the Administrative Dispute Resolution Act (ADRA) and the Negotiated Rule Making Act (REGNEG).
These two seminal pieces of legislation served as a platform for much of my work and career advancements for the next eighteen years.
ADRA and REGNEG turned into the blue print for a cultural change in federal administrative procedures. ADRA required every federal agency to appoint a Dispute Resolution Specialist who would have the charge of implementing the Act, require that a systems design be implemented that fits the needs of each agency, and that staff be trained in all aspects of the program. I had the honor of serving as a Dispute Resolution Specialist for my agency for most of my years of federal service.
My work at the FERC had its foundational core education and training of Staff, Federal employees and the Private Sector executive leadership. My introductory training was a week-long intensive program sponsored by the Office of Personnel Management’s Executive Training Center where I had the privilege to sit in for Dave Cook the General Counsel.
I would not have expected at that point I would have wound up as one of the lead faculty for the Executive Training Center teaching mediator ethics, confidentiality, and multiparty mediation just a few years later.
I did learn and promote the importance for federal agencies to invest in their work force in this area to build capacity and knowledge of how ADR practices can have positive impacts in employment disputes, contract disputes, and other regulatory dealings.
Out of this preliminary work I was detailed to a small federal agency known as the Administrative Conference of the U.S. (ACUS) The detail involved my working as part of a team with some pioneers in the Federal Dispute Resolution world including Phil Harter, Les Adelman, Frank Carr, Charles Pou, John Settle, Neil Kaufman, Richard Miles and many more senior dispute specialists who worked to change the federal administrative culture from a litigious world to one that was focused on weighing alternatives and resolving conflict.
With this goal in mind, one major project focused on working with Senior Counsel from 24 Federal Departments including all cabinet agencies to commit to using ADR to resolve all contract disputes that arise pre and post a final contracting officer’s decision. This effort ultimately lead to a change in the Contract Dispute’s Act making it a requirement for contracting officer’s to enter into ADR prior to formal litigation. This change that was implemented in 1995 serves as a foundation for clause drafting that focuses on a stepped approach such as: executive negotiation, mediation, and then arbitration. At the administrative level, a hearing board certainly can be seen as substituting for arbitration, albeit not binding.