Federal Register: May 5, 2003 (Volume 68, Number 86)
DOCID: FR Doc 03-10959
FEDERAL MEDIATION AND CONCILIATION SERVICE
Federal Mediation and Conciliation Service
CFR Citation: 29 CFR Part 1480
RIN ID: RIN 3076AA10
NOTICE: PROPOSED RULES
DOCUMENT ACTION: Proposed rule.
SUBJECT CATEGORY:
Access To Neutrals Initiative
DATES: Written comments must be submitted to the office listed in the addresses section below on or before July 7, 2003.
DOCUMENT SUMMARY:
The Federal Mediation and Conciliation Service is proposing a new regulation to establish an Access to Neutrals Initiative. The main function of the Access to Neutrals Initiative is to provide a Registry of Neutralsa list of individual dispute resolution providers who have documented their qualifications according to criteria outlined in the regulation in the categories of ADR experience, ADR education/training, substantive education in the content area and experience in the content area. The proposed Access to Neutrals Initiative also includes informational, ethical and continuing education requirements for individuals on the Registry of Neutrals as wellas a consumer complaint process. The proposed regulation provides for clients to access the Registry by Web site or by request from FMCS.
SUMMARY:
Access to Neutrals Initiative; Registry of Neutrals,
SUPPLEMENTAL INFORMATION
The Federal Mediation and Conciliation Service (``FMCS'' or ``the Agency'') is experiencing rapid growth in demand for its mediation and related alternative dispute resolution (ADR) services that may soon exceed the Agency's capacity to provide these services through its inhouse staff of 200 professional mediators. Requests for ADR processes by other federal agencies, state governments, political subdivisions of states (agencies, cities, school districts, etc.) and other entities have added to FMCS' original mission to provide assistance in labor collective bargaining. Clients seek mediation and ADR services from FMCS for many types of disputes in addition to labor, including employment, public policy and multiparty regulatory negotiation disputes. Even greater numbers and different types of clients may seek assistance from FMCS in the future because of the leadership and credibility of FMCS in the area of dispute resolution. To meet the anticipated surge in demand, FMCS is proposing this regulation to provide its expanding base of clients with ready access to a pool of professional, privatesector neutrals equipped to handle workplace and organizational disputes arising outside of the labor/collective bargaining arena.
The Access to Neutrals Initiative (ANI) embodied in the proposed
regulation would establish a registry of highly qualified private sector neutrals,
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screened and selected by the Agency according ot established standards,
designed to meet the anticipated rise in demand for services. The
registry would be an open resource designed to assist clients by giving
them the tools to make their own informed selection from a broad base
of professionals. FMCS will also utilize this registry to refer or
appoint neutrals or panels of neutrals at the request fo the Agency's
customers. To ensure that these neutrals meet the historically high
standards set by FMCS, the regulation contains an evaluation and
credentialing component as well as a provision to monitor indicators of
the neutrals' performance on cases obtained through FMCS referral.
Neutrals who wish to participate on the registry would submit education and experience background information to FMCS for a determination of whether the applicant met the standards established by FMCS. For inclusion on the registry, neutrals would have to agree to abide by the informational, ethical and continuing education requirements established by FMCS, and to participate in a consumer complaint process. In addition, the registry would be subject to a procedure for checking the ongoing effectiveness of the overall program. In order to maintain the qualified pool of neutrals and increase the value of the registry, FMCS will work with universities and training providers to establish and/or expand alternative dispute resolution programs. Finally, in maintaining the registry, FMCS would leverage its existing computer networkbased resources to maximize the advantages afforded by technology, streamline program administration, and provide excellent customer service.
The Agency developed the proposed regulation in keeping with its longstanding mandate to foster the use of effective conflict resolution processes. FMCS was established in accordance with the labor policy of the United States, which promotes and encourages the amicable resolution of employment disputes. Pursuant to Title II of the Labor Management Relations Act of 1947 (Pub. L. 80101), as amended, (LMRA) the Agency has the obligation to ``assist parties'' to settle disputes ``through conciliation and mediation.'' (29 U.S.C. 173(a)) Under the Administrative Dispute Resolution Act of 1996 (Pub. L. 104320) 5 U.S.C. 571 et seq. (ADR Act), Congress conveyed authority upon FMCS to ``develop procedures that permit agencies to obtain the services of neutrals on an expedited basis.'' 5 U.S.C. 571(c)(2). FMCS's rule making ability in this area is subject only to consultation with ``other appropriate Federal agencies and professional organizations experienced in matters concerning dispute resolution.'' 5 U.S.C. 571(c).
In accordance with the ADR Act, FMCS has consulted with the Federal Interagency ADR Working Group, a group created by the ADR Act with representatives from federal agencies having an interest in the implementation of ADR in the federal sector. In 2000, Gary Hattal, Director of the FMCS Institute, and Richard Giacolone, Director of ADR/ International Affairs at FMCS, consulted with the Federal Interagency Working Group about the establishment of a Roster of Neutrals by FMCS.
In addition, FMCS held three external focus group meetings to identify concerns and gather recommendations concerning how standards for referral of privatesector neutrals could be established and utilized. The focus group members included practitioners, members of academia, staff members of ADR centers and members of the FMCS staff. The first focus group met in October of 2000 and centered on qualifications standards for neutrals. The second focus group met in June of 2001 and centered on the processes to be used in vetting neutrals. The final focus group met in February of 2002 to review the initial report and recommendations complied by the University of Arkansas. Following receipt of a draft report and recommendations from the University of Arkansas on the three external focus groups, an internal focus group consisting of the Deputy Director, a Regional Director, a Director of Mediation Services, the Director of Education and Training, the Director of ANI and two field mediators, was convened to review the draft report and make recommendations to the Agency Director. Based on the information developed through the University of Arkansas report and the recommendations of the internal focus group, FMCS developed the proposed regulation. FMCS will continue to convene focus groups in the future to review and refine the ANI.
The Registry of Neutrals will be administered through the supervision of the Agency Director, the ANI Director, and the Neutrals Committee. The Committee membership will be at the discretion of the Director. A continual evaluation program will be developed; it will utilize focus groups and other evaluation tools to make recommendations on revising the ANI.
The proposed ANI will be selfsustaining. FMCS will establish an application and listing fee for individuals who wish to be placed on the Registry; there will also be a fee for those who request that FMCS appoint a neutral from the Registry or provide a list of neutrals from the Registry. The funds generated by these fees will be used for the purpose of covering the costs associated with the ANI.
The ANI regulation contains ten (10) subparts and two (2) Appendices. They are as follows:
Subpart A addresses the policy pertaining to administration of the ANI, the authority for implementing this regulation and sets forth the definitions of terms to be utilized in the regulation. Consistent with FMCS policy on neutrals, individuals who are included on the Registry of Neutrals cannot be engaging in work as an advocate in the area of labor relations.
Subpart B outlines the standards and requirements for individuals listed on the Registry of Neutrals, as well as the responsibilities of FMCS. The subpart also sets forth that the neutral is not acting in a capacity as an employee of the federal government, that he/she has a direct relationship with the parties who are employing him/her to conduct the case and that the neutral does not retain a right to be listed on the Registry. The subpart also addresses the criteria an individual must satisfy to be included on the Registry. The application process requires an executed application and a review of the individual's fulfillment of requirements in the form of awarded points for education/training and experience. Applicants who meet the requirements will then be recommended to Director of the Agency for possible inclusion of the Registry.
Subpart C addresses the process by which the clients of FMCS will select neutrals from the Registry of Neutrals. A computerized system will be established from which information on neutrals will be listed; customers will be able to sort the neutrals by several different categories, including but not limited to geographical area, experience and fees charged. Selections from the Registry of Neutrals may be made by either obtaining information from the computerized system or through contacting FMCS. A fee will not be charged for obtaining a neutral from the computerized system; a fee equivalent to the fee for obtaining a panel of arbitrators from FMCS will be charged for obtaining a panel of neutrals or for appointing a neutral from the Registry of Neutrals.
Subpart D addresses fees charged by the FMCS to listed neutrals and the method by which neutrals may bill
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clients. FMCS will charge an application fee and a listing fee for
neutrals on the Registry of Neutrals. Repeated complaints concerning a
neutral's fees will be reviewed by FMCS and may be considered in determining if the neutral shall remain on the Registry.
Subpart E requires all listed individuals to advise FMCS of changes in his/her information and/or fee structure and comply with requests for documentation by the ANI. FMCS will supply pertinent information to prospective clients for selection purposes.
Subpart F establishes a complaint procedure for the ANI.
Subpart G outlines the collaborative process with educational programs to establish standards for preaccreditation. FMCS will work with educational institutions and training facilities to review the programs' number of contact hours, experience of classroom instructors, and method of instruction to determine if the program will be preaccredited by FMCS. Educational institutions and training facilities will participate in this program on a voluntary basis; the institutions will pay a fee to cover the preaccreditation expenses.
Appendix A sets forth the application fee, the listing fee and the fee for preaccreditation of ADR programs to be charged by FMCS.
Appendix B sets forth the point system for determining whether a neutral meets the standards for the FMCS Registry of Neutrals.
Submit copies of electronic comment to pmcneive@fmcs.gov. See SUPPLEMENTARY INFORMATION for other information concerning electronic filing.
FOR FURTHER INFORMATION CONTACT
Peggy A. McNeive, Telephone: (816) 3746215; Fax (816) 3746026.