The agency that oversees the formal procedures by which government agencies operate is about to tell those agencies to stop being so bound by procedures.
The Committee on Administration of the Administrative Conference of the United States on Wednesday decided to pass on to the full organization a recommendation that the government find more flexible ways of handling disagreements with business -- particularly ways that can keep controversies out of court. "Too many agencies now act pursuant to procedures that waste society's resources and litigants' time and whose formality can reduce the chances for consensual resolution," says Conference Chairman Marshall J. Breger.
The 100-plus members of the conference are to vote on the recommendation June 19, and are expected to approve it.
ACUS will be calling on Congress to give the agencies more authority to move to binding arbitration in disputes, and on the courts to place more weight on the outcome of less binding procedures, such as mediation. But even within the existing laws, says Phillip J. Harter, who drafted the recommendation, there is a lot agencies can do to reach settlements with companies short of turning to the courts or court-like procedures run by administrative law judges within the agencies.
Already companies stung by the high costs of litigation are turning to alternative ways of settling disputes. More and more, the government is using different techniques. Under the Federal Insecticide, Fungicide and Rodenticide Act, for instance, Congress told chemical companies that if they cannot work out how much one should be paid by the use of another's test results in the safety approval process, they should take the matter to arbitration. The Federal Mediation & Conciliation Service, until recently concerned almost exclusively with calming labor disputes, was asked to come up with the arbitrators.
In five states -- Massachusetts, Rhode Island, Virginia, Wisconsin and Texas -- the law requires any business wanting to open a new dump site to sit down and negotiate with the local community all of the details of how the facility will be operated. And even without a law making conciliation mandatory, a lot of environmental disputes are being settled via negotiation in such jurisdictions as California, Colorado and New Jersey, a new study from the Conservation Foundation has found.
The author of that study, Gail Bingham, runs the foundation's dispute resolution program. She went back to 1973 and traced 160 instances since then when mediation or some related approach was used to try to settle an environmental contretemps. More than 75 percent of the time, she says, the parties were able to come up with a compromise.
The idea of moving away from the established methods of determining a winner in such disputes is not without controversy. That's why the Justice Department and other federal agencies are less than enthusiastic about the Harter recommendations.
For instance, in ACUS hearings last month, Small Business Administration chief administrative law judge Marvin H. Morse, had doubts about the claims that less formal proceedings would be less costly. In some situations, he warned, the alternatives "may well require greater, not lesser, resource utilization in terms of personnel, facilities, travel and perhaps psychic cost than traditional on-the-record dispute resolution."
And even proponent Bingham has doubts about the argument that mediation is a cheap and speedy way to an end. The 160 cases she analyzed did not prove that point, she said. In some cases, the talks dragged on for years. And the median case took almost six months to reach settlement -- a few weeks less than the average time it takes to dispose of the 90 percent of environmental litigation that does not get to a full trial.
That doesn't discredit the idea of encouraging alternatives to litigation. It merely means that those working in the field have to come up with better criteria for selecting those disputes that are better handled in a more informal way. The ACUS action will be a step toward developing such standards.