Will the New Era of ADR in Federal Administrative Agencies Occur at the Expense of Public Accountability.doc
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1、Copyright (c) 1997 Ohio State Journal on Dispute ResolutionOhio State Journal on Dispute Resolution199713 Ohio St. J. on Disp. Resol. 167LENGTH: 15224 wordsNote & Comment: The Administrative Dispute Resolution Act of 1996: Will the New Era of ADR in Federal Administrative Agencies Occur at the Expen
2、se of Public Accountability?NAME: Jonathan D. MesterSUMMARY: . The head of any agency that is a party to an arbitration proceeding conducted under this subchapter is authorized to terminate the arbitration proceeding or vacate any award issued pursuant to the proceeding before the award becomes fina
3、l by serving on all other parties a written notice to that effect, in which case the award shall be null and void. . TEXT:*167No man is good enough to govern another man without that others consent.-Abraham Lincoln 1I. IntroductionOn October 19, 1996, President Clinton signed into law the Administra
4、tive Dispute Resolution Act of 1996. 2 The Act provided for permanent reauthorization of the Administrative Dispute Resolution Act of 1990, 3 which sunset on October 1, 1995 4 pursuant to its original enactment period of six years. 5 Senator Carl Levin, sponsor of the bill, lauded the new Act as a f
5、urther way for agencies to listen, find creative solutions and avoid the sometimes unnecessary big bills and bad blood that come with courtroom battles, and to save both time and money and increase citizen satisfaction with government. 6 Given the tremendous proliferation of federal cases in which t
6、he government is a party, reauthorization of the ADR Act is certainly a welcome continuation of ADR in an area in need of more expedient adjudication methods. 7 *168While maintaining many of the same provisions of the 1990 Act, the new law enacts two major changes designed to further agency use of A
7、DR in suits with private parties. 8 Section 8 permits the use of binding arbitration, removing the thirty-day opt-out provision in the 1990 Act, which allowed agencies to unilaterally vacate an arbitration award if the agency found the arbitrators decision to be disadvantageous to the government. 9
8、Section 3 broadens the confidentiality of ADR proceedings by exempting any dispute resolution communication between a party and a neutral from the disclosure requirements of the Freedom of Information Act (FOIA). 10 Together, these provisions greatly enhance the incentives for parties involved in ag
9、ency adjudications to utilize ADR.This Note asserts that although each of the new provisions of the 1996 Act should attain their intended effect of increasing the use of ADR in agency adjudications, this progress is likely to occur at the expense of public accountability. The use of binding arbitrat
10、ion will result in private arbitrators adjudicating public policy issues, a result which, albeit constitutional, 11 raises serious questions regarding the ability of a private arbitrator to properly make such determinations in accord with our nations basic values. 12 Additionally, the exemption of a
11、ll ADR communications between the neutral and the parties conflicts with the purpose and intent of FOIA to provide public disclosure of all government documents except as *169 specifically provided in nine exemptions to FOIA. 13 While these changes will undoubtedly lead to a new era of ADR use in th
12、e federal government, this Note posits that the 1996 Act may have gone too far due to its potentially devastating effects on public accountability.Section II of this Note presents a brief overview of past use of ADR in federal agencies, including its use and limitations under the 1990 Act. Section I
13、II explores the effect that the binding arbitration provision will have on agency use of ADR and demonstrates that, despite the Acts attempt to exempt public policy issues from the purview of the arbitrator, such issues will inevitably be decided by private neutrals with undesirable results. Section
14、 IV focuses on the new FOIA exemption by examining recent FOIA cases which exemplify the willingness of courts to include ADR communications within FOIAs disclosure exemptions, thus rendering the new Acts FOIA exemption superfluous and susceptible to abuse.II. The Use of ADR in Federal Agencies to D
15、ateThe use of ADR methods in agency adjudications commenced even before the 1990 Act. Numerous agencies subscribed to the ADR movement of the 1980s by experimenting with ADR programs such as nonbinding arbitration, mediation, mini-trials and negotiated rulemaking. 14 Success stories include the Fede
16、ral Deposit Insurance Corporation (FDIC), which used ADR techniques to solve disputes regarding creditors, valuation and liability, 15 as well as the Army Corps of Engineers, which used mini-trials to settle various contract claims. 16The 1990 Act resulted in further use of ADR in agency adjudicatio
17、ns. Mediation became especially prevalent in the 1990s, particularly in equal employment opportunity claims against the federal government. The use of mediation by the Air Force Civilian Appellate Review Agency resulted in the settlement of more than half of its equal employment opportunity *170 com
18、plaints. 17 The Federal Aviation Administration also implemented mediation for use in equal employment opportunity claims. 18 Nonbinding arbitration was also utilized by several agencies, particularly in environmental disputes 19 and in claims faced by the Army Corps of Engineers. 20 These and other
19、 success stories 21 convinced Congress as well as the Bush and Clinton administrations that permanent statutory reauthorization of ADR mechanisms was essential to the ongoing effort to streamline government. 22Despite these achievements, however, there were several perceived shortcomings in the 1990
20、 Act that limited the use of ADR in agency adjudications. The biggest impediment was the nonbinding arbitration clause, which granted agencies thirty days to vacate an arbitrators decision. This trap door provision of the 1990 Act was inserted during the hearing stage in order to allay concerns that
21、 the establishment of a binding arbitration award by a private party would raise constitutional issues over the adjudication of public disputes by unelected, unappointed private arbitrators. 23 Under the Bush Administration in 1989, the Department of Justice (DOJ) opined that binding arbitration of
22、agency *171 disputes potentially violated the Constitution in several ways. 24 First, binding arbitration violated Article II under the Appointment Clause, because arbitrators often are not federal employees, and thus are not authorized to make such policy determinations. Moreover, binding arbitrati
23、on was thought to violate separation of powers, since the Act in effect permitted Congress to legislate the use of private parties in potentially executive roles. 25 DOJ also found binding arbitration to be contrary to Article III in that adjudicative powers were conveyed to persons outside the judi
24、cial branch. Finally, DOJ indicated a potential due process problem because of the higher due process protection generally accorded private parties subject to a federal suit brought by the federal government. 26In 1995, however, DOJ changed its position concerning the constitutionality of binding ar
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