December 2001: Volume 9, Issue 4
Legislation Drafted for ADR in Administrative Settings
Mediation and other forms of alternative dispute resolution (ADR) are flourishing in Virginia's courts, and now there is an initiative to increase the use of ADR in administrative settings. While several state agencies have successfully used ADR, there has been no official and general statewide promotion of ADR like that in the courts. That may be about to change. Draft legislation has been developed by a group which includes Bar representatives, the Virginia Mediation Network, and the informal assistance of state agency representatives.
The core concept of the proposed Virginia legislation reflects the approach taken in the Federal Administrative Dispute Resolution Act, enacted in 1990. That law stopped just short of mandating ADR government-wide, instead setting in place provisions which enabled and encouraged agencies to use maximum use of ADR. In less than a decade, the bi-partisan Federal legislation resulted in a remarkable increase in use of mediation and other forms of ADR throughout the Federal government.
The proposed Virginia Administrative Dispute Resolution Act would work as follows.
Generally, any public body in Virginia (including state agencies) would be authorized to use "dispute resolution proceedings" such as mediation, facilitation, use of ombuds, and other forms of ADR (excluding arbitration) "if the parties agree." The law does not cover Virginia courts, for which there are already statutory provisions on ADR. A public body has discretion to participate or not participate in ADR, and the exercise of this discretion is not subject to court review.
Each state agency would be required to adopt a policy on use of dispute resolution
proceedings within the agency and for the agency's programs and operations. Each agency would be required to designate a "dispute resolution coordinator" to help implement the law. Agencies would have to review existing policies and regulations for ways to encourage use of ADR.
The law would specifically authorize "neutral-sharing" (i.e., cross-agency use of state employees as neutrals). At the Federal level, this approach has helped overcome cost and administrative barriers to use of ADR, and has laid the ground work for increased acceptance of ADR. Properly managed "neutral-sharing" programs deal with perceived loss of neutrality by assuring that employees do not mediate in their own back yards.
An Interagency Dispute Resolution Advisory Council would advise the Secretary of Administration, conduct training, publish educational materials, report on use of ADR, and make recommendations on changes to the law. The Council would consist of agency dispute resolution coordinators and non-State employees appointed by the Governor (including representatives from the Virginia Mediation Network and state bar organizations).
The proposed law contains provisions designed to protect the confidentiality of communications in dispute resolution proceedings while meshing confidentiality concerns with the provisions of the Virginia Freedom of Information Act.
Anyone interested in obtaining the latest draft of the law may contact the Virginia Mediation Network or the Virginia Bar Association Joint Committee on Alternative Dispute Resolution.
John Settle is a certified mediator and President of SETTLEment Associates, LLC, a firm providing mediation services and training. John is President-Elect of the Virginia Mediation Network.
[Editor's Note: The following Draft of the proposed legislation excludes ¶1. Short
Title and ¶2. Definitions - as used in this Act.]
This page last modified: October 18, 2002