Frequently Asked Questions About the ADR Program
On this page:
- What is Alternative Dispute Resolution?
- Does the NRC have a general policy statement regarding the use of ADR in its programs?
- Does the NRC use ADR techniques in matters other than in enforcement?
- When was the Office of Enforcement's ADR program established?
- Were public stakeholders involved in developing OE's ADR program?
- What were the potential advantages of having an ADR program as part of NRC's enforcement program?
- What were the potential disadvantages of having an ADR program as part of NRC’s enforcement program?
- Are there other federal agencies using ADR?
- Has there been an audit of the ADR program since its establishment?
- What form of ADR did the NRC select as the means to resolving disputes?
- Who administers OE's ADR program?
- What is the role of the mediator?
- Is the mediation process confidential?
What is Alternative Dispute Resolution?
Alternative dispute resolution (ADR) is a term that refers to a number of processes, such as mediation and facilitated dialogue that can be used to assist parties in resolving disputes. The Administrative Dispute Resolution Act of 1996 (ADRA) encourages the use of ADR by Federal agencies and defines ADR as "any procedure that is used to resolve issues in controversy, including but not limited to, conciliation, facilitation, mediation, fact finding, mini trials, arbitration, and use of Ombudsman, or any combination thereof." These techniques usually involve the use of a skilled third party neutral, and most are voluntary processes in terms of the decision to participate, the type of process used, and the content of the final agreement. Federal agency experience with ADR has demonstrated that the use of these techniques can result in more timely and more economical resolution of issues, more effective outcomes, and improved relationships.
Does the NRC have a general policy statement regarding the use of ADR in its programs?
In August 1992, the NRC issued a general policy statement (57FR36678) on the use of ADR to resolve issues in controversy concerning NRC administrative programs. The Commission encourages and supports the use of ADR where appropriate. The Commission acknowledges that the various forms of ADR processes present options in lieu of adjudicative or adversarial methods of resolving conflict in the areas of enforcement, licensing, rulemaking among others.
The NRC policy statement may be found on the ADR webpage under the Historic Documents/Commission Papers tab.
Does the NRC use ADR techniques in matters other than in enforcement?
NRC regularly uses collaborative "roundtable" and facilitated public meetings to discuss rulemaking, policy issues, and environmental impacts of proposed agency actions. In licensing and enforcement proceedings conducted under the Atomic Energy Act of 1954, as amended, the Commission encourages settlement of issues proposed for litigation and provides for the use of settlement judges in its rules of practice at 10 C.F.R. § 2.338.
The Office of Small Business and Civil Rights offers ADR through mediation for equal employment opportunity complaints to NRC employees and applicants for employment. The ADR process does not replace existing Equal Employment Opportunity (EEO) discrimination complaint procedures, but supplements them in an effort to resolve claims of employment discrimination. Employees may request mediation at the pre-complaint and/or formal complaint stage (after filing a formal complaint but prior to requesting an Equal Employment Opportunity Commission (EEOC) hearing). The Agency will use mediation, provided by contractors, as the primary form of ADR at both the pre-complaint and formal stage of the discrimination complaint process.
For more information on that program, go to the Office of Small Business and Civil Rights internal webpage on its ADR program.
When was the Office of Enforcement’s ADR program established?
The Commission established OE’s ADR program in August 2004 with the issuance of a revision to its enforcement policy to include an interim policy on the use of ADR in enforcement program for discrimination and other wrongdoing cases.
The Commission’s policy statement may be found on the ADR webpage under the Historic Documents/Commission Papers tab.
Were public stakeholders involved in developing OE’s ADR program?
In December 2001, the NRC announced its intent (66FR64890) to evaluate the use of ADR in the NRC’s enforcement program and sought public comment on several issues that it believed to be pertinent in deciding whether an enforcement specific ADR policy would be needed. After receiving public comment and holding several workshops, the staff concluded that there is a role for ADR in the enforcement program. (SECY-03-0115) Thereafter, on two occasions, the staff sought public comment on the pilot ADR program before it was finalized in August 2004.
Documents relating to the public’s involvement may be found on the ADR webpage under the Historic Documents/Public Participation and Commission Papers tabs.
What were the potential advantages of having an ADR program as part of NRC’s enforcement program?
Stakeholders who participated in the evaluation and development of the ADR program and supported the use of ADR cited the following potential benefits of using ADR:
- Establish better relations between the licensee community and the NRC and to establish an atmosphere of cooperation
- Eliminate an often adversarial and counter-productive atmosphere in the pre-decisional enforcement process
- Obtain a fuller development and understanding of the underlying information and issues
- Arrive at better and more acceptable solutions to enforcement issues
What were the potential disadvantages of having an ADR program as part of NRC’s enforcement program?
Stakeholders who participated in the evaluation and development of the ADR program but objected to the use of ADR believed that ADR would only provide another opportunity for the industry to weaken NRC enforcement efforts. In addition, those stakeholders believed that NRC resources should be used to fix what was wrong with the enforcement process rather than to devote resources to the use of ADR.
Are there other federal agencies using ADR?
NRC Participates in ADR Programs Sponsored by Other Agencies. Some conflicts involving the NRC may be resolved by ADR programs administered and controlled by organizations outside the NRC. The Federal Labor Relations Authority uses its Settlement Judge Program to mediate conflicts between federal agencies, unions and employees. The Merit Systems Protection Board provides a Mediation Appeals Program as an alternative option to litigating federal employee appeals of agency personnel actions. The Office of Special Counsel also offers a mediation program to help resolve complaints of prohibited personnel practices.
The NRC Office of Administration manages the agency’s acquisition program and participates in ADR to resolve contract disputes. The Civilian Board of Contract Appeals recommends a variety of ADR techniques to shorten and simplify the formal proceedings normally used to decide disputes between federal agencies and government contractors (see Rule 54). The Government Accountability Office provides several ADR programs to resolve bid protests lodged by private entities competing for government contracts.
Other agencies such as the Environmental Protection Agency, Security and Exchange Commission and the Federal Energy Regulatory Commission also use ADR in their enforcement programs.
For additional resources on ADR throughout the Federal Government, go to www.adr.gov.
Has there been an audit of the ADR program since its establishment?
In 2006, the staff conducted an evaluation of the program. In 2007, the NRC’s Office of Inspector General (OIG) conducted an audit on the NRC’s ADR Program and in 2008, OIG conducted another audit on NRC’s Contract for Alternative Dispute Resolution Services.
These documents may be found on the ADR webpage under the Historic Documents/ADR Program Evaluation and OIG Audits tabs.
What form of ADR did the NRC select as the means to resolving disputes?
The NRC has elected to use mediation. Mediation is an informal process in which a trained neutral (the "mediator") works with parties to help them reach a resolution. The mediator, who has no stake in the outcome and no power to make decisions, uses consensus-building skills and knowledge of negotiation to help parties find solutions. The mediator focuses the attention of the parties upon their needs and interests rather than on their stated positions. Mediation gives parties an opportunity to discuss issues, clear up misunderstandings, be creative, find areas of agreement, and reach a final resolution of the issues.
Who administers OE’s ADR program?
Cornell University’s Scheinman Institute on Conflict Resolution ("Cornell") is under contract with the NRC to act as the neutral program administrator for the program’s day-to-day operation, including handling mediation process logistical matters and working with parties to select a mediator. Cornell uses a network of independent mediators who help the parties find ways to reach a common understanding and settle their disputes.
What is the role of the mediator?
The mediator is neutral. In other words, he or she has no stake in the outcome of the mediation and does not have any power to make decisions that may bind either party. The role of the mediator is to facilitate communications between the parties and provide an environment where the parties have an opportunity to address their differences. The mediator uses consensus building skills and knowledge of negotiation to help the parties find ways to overcome any misunderstandings and reach a common understanding on issues. The mediator does not act as legal counsel nor provide legal advice to any party. Each party should consult an attorney or other professional if any question regarding the law, the content of a proposed agreement, or similar issues arise.
Is the mediation process confidential?
With limited exception (e.g., intent to commit violence or court order), the mediation process is confidential regardless of the mediation outcome. The mediator is prohibited from discussing the mediation proceedings, testifying on anyone’s behalf concerning the mediation, or submitting a report on the substance of the discussions.