Through the FMCS alternative dispute resolution (ADR) program, mediators assist

federal agencies and others in institutionalizing mediation and other forms of conflict resolution as an alternative to costly litigation. After consultation with federal agencies, FMCS provides such services as conflict resolution systems design and evaluation, education, training, and mentoring. Through our "train the trainer" programs, FMCS educates agency personnel in conflict resolution skills so they, in turn, can train others. FMCS mediates disputes both within agencies (e.g. age discrimination and other fair employment complaints, whistleblower complaints) and between agencies and their regulated public (e.g. public policy, regulatory, or environmental disputes). FMCS has even helped design "peer mediation" programs for school children and teachers to assist in reducing violence in school. It has also assisted Congress in providing public policy dialogues about controversial issues.

Besides mediating labor disputes which may involve Indian tribes, FMCS has extensive experience in working with Indian tribes on a number of ADR projects. In twenty months, through facilitated negotiations, Indian tribes and the federal government were able to resolve issues that had been unresolved for over twenty years. The Indian Self Determination Regulatory Negotiation in 1996 involved 63 people representing 48 Indian tribes over ten federal agencies and offices, and resulted in the largest negotiated rulemaking every conducted. By adhering to a consensus process, the participants designed a regulatory framework that years of typical negotiating had failed to accomplish. The process became a model for future dialogues with Indian tribes. The result was an easy to understand set of procedures for tribes and tribal organizations who wish to contract with the federal government to provide health services, education, and construction projects. A detailed account of this project is attached to this statement. Another example of a negotiated rulemaking involved Native American Housing, to

produce, by consensus, a comprehensive regulation that deals with the implementation of the Native American Housing Assistance and Self-Determination Act of 1996, which changed the method of providing housing assistance to Indian families living on reservations and in other traditional Indian areas by providing grants directly to Indian tribes or their tribally designated housing entities.

In those efforts, we have used a team of mediators, who have worked throughout the United States-and have built up some experience and expertise in this area. Indeed our agency's efforts with tribal self-determination, self-governance, housing, and other issues, shows that through negotiations and facilitation, tribal leaders, concerned parties, and those affected by the actions of tribal governments, can find common ground and develop innovative solutions, rules, and regulations.

General Comments and Recommendations on the Legislation

We salute the application of alternative dispute resolution to resolving the issues of state/tribal negotiations and federal mediation of tax disputes. We have seen the increase use of these processes to avoid costly litigation, come out with better solutions, and enhance the negotiation process. FMCS generally supports the model proposed for establishing

intergovernmental negotiations procedures and the establishment of an intergovernmental alternative dispute resolution panel. We do, however, have some concerns about the structures and procedures as proposed in the legislation which we have articulated below. Our recommendation for creating an appropriate design would be to convene a body of affected

stakeholders (tribal, state and federal representatives) to jointly create both the process and the

structures needed for resolving these issues through negotiated rulemaking, or some similar process. FMCS would certainly be willing to facilitate such proceedings.

Under Section 101 of S.2097, FMCS would provide the mediation and other dispute resolution services to assist negotiations, and under Section 103, would assist the newly formed Intergovernmental Alternative Dispute Resolution Panel. We have a few questions for clarification about this legislation but in general support the goal and mission and would look forward to working on this project.

Specifically, there should be some clarification in the negotiation process; is it binding or non-binding in nature? It appears that negotiated agreement would be binding if the parties so agreed, but the language in Section 102 (c)(2)(A) and Section 102(e) may be confusing. We also wonder if the mediation in the negotiation stage mandatory or optional? We recommend mediation remain optional because mandatory mediation tends to be ineffective. We also recommend that other processes such as fact finding and early neutral evaluation be made available in the negotiation stage. Clarification is also needed on how the process of negotiation is actually convened. We recommend the parties notify the Secretary of Interior of the dispute, and the Secretary would then inform the parties of the options available under the negotiation phase including mediation/facilitation. If the parties so choose to use mediation, then the Secretary would request a panel of three mediators form FMCS. If the parties chose alternatives, FMCS would assist in securing those services.

Clarification is also needed in the process of mediator selection by the Secretary. It

appears that each party may strike one candidate, thereby leaving only one remaining for the Secretary to choose. However, the language is ambiguous in that it states the Secretary will then

choose a remaining mediator from the list. This implies more than one mediator is left to choose. FMCS recommends the wording be changed to "...the Secretary shall appoint the remaining

unchallenged mediator?" Section 102(c)(3)(C).

We have a concern over the period allowed for the negotiation process to continue. Currently, the proposed legislation allows for a one year period followed by extensions at the parties discretion. Should a maximum length be instituted? FMCS recommends limits be placed on how many extensions should be allowed, otherwise parties have no incentive to settle in a timely fashion, and mediators ability to leverage deadlines is compromised.

As to the Panel process, it appears the process as described would allow for mediation to occur both in the negotiation phase and the panel phase of the process. Mediation is most effective when it is offered at an appropriate and timely moment in the life of a dispute. However, because every dispute is different, the most appropriate timing for mediation may vary from situation to situation. If the parties are required to go to mediation prior to approaching the panel, it may render mediation in-effective. We recommend the process be flexible enough to allow the parties to choose the appropriate time for mediation to occur, and then for it to be offered once. On a case by case basis, the Secretary could then determine if a second attempt would be appropriate.

Clarification may also be needed on how long panel members would be expected to serve. We would also ask, is it mandatory that a case at impasse in the negotiation phase go before the panel? FMCS would recommend that parties be allowed to present before the panel only those issues which the parties could not agree on in negotiations. Also, the process for making panel decisions is unclear. How would they make a determination? Is this by majority

vote? Consensus process? Is it envisioned that the panel would request FMCS to provide mediation services for their own deliberations?

Lastly, for clarification purposes, all references to the Administrative Conference of the United States (ACUS) should be stricken as it no longer exists.

Conclusion

FMCS would be pleased to assist in this dispute resolution effort and would be pleased to work with the committee to deal with any dispute systems design issues. We think that there should be some clarification about the finality of the decision of the Panel and the role of the new Commission. Since our Agency primarily provides mediation and has a roster of arbitrators, we would need to create an internal mechanism to oversee the services of factfinders, early neutral evaluators, and others to provide the full panoply of dispute resolution services. I am enclosing materials about our work for the benefit of the Committee and would be pleased to answer any questions now or at a future time.