Frequently Asked Questions about the Use of Alternative Dispute Resolution in Resolving Title VI Complaints
- What is alternative dispute resolution?
The term alternative dispute resolution (ADR) is used to describe a range of techniques that can help ADR participants settle disputes more efficiently than by resorting to litigation or administrative processes. The goal of ADR is for people to work collaboratively to develop and consider alternatives that can lead to a mutually satisfying resolution of their issues. ADR is based on the idea that people who are involved in a controversy are the ones best able to develop a reasonable and enduring solution because they best know their own needs and interests. All ADR techniques involve a neutral third party – often called a mediator or facilitator – a person who assists others in designing and conducting a process for reaching agreement. ADR can result in outcomes that litigation and/or administrative processes may not otherwise achieve. Typically, all aspects of ADR are voluntary, including the decision to participate, the type of process used, and the content of any final agreement. This last point means that participants in an ADR process cannot be forced against their will to reach a resolution of their dispute.
- Why is the EPA offering ADR as an informal resolution option for Title VI complaints?
The Environmental Protection Agency’s (EPA) Office of Civil Rights (OCR) investigates and resolves complaints alleging discrimination by the EPA’s financial assistance recipients. A “recipient” as defined in the EPA’s regulations is “any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance.”
Under the EPA’s nondiscrimination regulations, recipients of EPA financial assistance are prohibited from taking actions that are intentionally discriminatory or that have a discriminatory effect. Neutral policies or practices that result in discriminatory effects violate the EPA’s Title VI regulations, unless it is shown that they are justified and that no less discriminatory alternatives exist. Individuals who believe they have been discriminated against by an EPA-funded recipient may file a complaint with the EPA. A complaint is then evaluated for whether it meets the EPA’s jurisdictional criteria. Based on that assessment, the EPA will: 1) accept it for investigation, 2) reject it, or 3) refer it to another federal agency to evaluate.
Once the EPA accepts a complaint for investigation, the implementing regulations provide that the agency must “attempt to resolve complaints informally whenever possible.” Accordingly, the EPA will entertain, at any point during the process, offers to informally resolve the complaint, and will, to the extent appropriate, facilitate an informal resolution process and the involvement of affected stakeholders.
ADR, as an informal resolution option, offers Title VI complainants and recipients several advantages. First, ADR participants have much greater control over the process for resolving their dispute. Second, ADR participants interact through direct discussions with each other, and have an opportunity to share information, clarify misunderstandings, and develop a range of creative options that could lead to a solution. Third, ADR participants may be able to develop a solution much faster than through traditional administrative processes. Finally, and perhaps most importantly, participants in an ADR process have far greater control over the outcome of their dispute than they would in an administrative process; they can tailor the resolution to fit their needs and interests and reach solutions that may not otherwise be available through a traditional Title VI settlement.
- How would ADR generally work in environmental civil rights disputes?
The complainant and the recipient learn about ADR and make a decision whether to try it for their dispute. Sometimes one will ask the EPA whether ADR is possible in a particular dispute and request that the EPA discuss this option with the other. Sometimes both the complainant and recipient ask the EPA to use ADR. At other times, the EPA may approach the complainant and recipient and suggest the use of ADR to resolve their dispute when the agency believes that ADR could produce a mutually satisfactory outcome. In deciding whether to try ADR to reach a resolution of a Title VI complaint, complainants and recipients should remember that participation in ADR is voluntary and all phases of the process are confidential.
Once the complainant and recipient agree to consider ADR, the EPA undertakes a convening process for the dispute. For Title VI cases, the convening process involves the use of a convener, a neutral third party, who is an EPA employee. This individual helps the complainant and recipient get ready for participation in an ADR process by providing education about the process and assisting them in selecting a mediator or facilitator. The EPA works with several mediators and facilitators, who have been trained in Title VI issues and are contractors, not EPA employees.
Once selected, the mediator or facilitator will first conduct confidential interviews with the complainant and recipient to assess the causes of the dispute, to identify the persons or entities that would be affected by the outcome of the dispute, and help them to consider the best way to deal with the dispute. This phase of the process is often called a situation assessment. Once the situation assessment is completed for a case, the mediator or facilitator will provide an oral or written report, recommending whether or not to proceed with an ADR process and what type of process to use. If the mediator or facilitator recommends the use of ADR and the complainant and recipient agree, the EPA may sponsor the ADR process.
In the Title VI context, mediation and facilitation (these terms are often used interchangeably) are processes in which a neutral third party (the mediator or facilitator) assists the complainant and recipient in reaching a mutually satisfactory resolution of a Title VI complaint. The mediator or facilitator helps the disputants to communicate clearly, to listen carefully, and to consider creative ways for reaching resolution. The mediator or facilitator makes no judgments about the people or the situation, and issues no decision. Any agreement that is reached must satisfy the complainant and recipient. The exact details of the mediation or facilitation process will vary depending on the needs of participants.
- How are mediators and facilitators selected?
Mediators and facilitators are selected through a consensus of the participants in the ADR process. If the ADR participants have been working with a convener, the convener may help them identify the qualities they believe to be important in the selection of a mediator or facilitator, and then help them identify some potential sources for mediation or facilitation services. Often, ADR participants narrow the list of candidates to two or three and then arrange to interview them in-person or on the telephone. It is important to remember that the mediator or facilitator must be accepted by all ADR participants.
- What is a mediator’s or facilitator’s role in an ADR process?
Mediators and facilitators have no authority to determine the outcome of a dispute, unlike judges in a court of law or officials in an administrative decision making process. In an ADR process, the neutral third party’s role is to assist participants in collectively analyzing the issues involved in their dispute, effectively communicating their needs and interests, developing options for a resolution, and reaching agreement, if possible. Mediators and facilitators have no stake in the substantive outcome of the process.
- Who pays for the mediator or facilitator?
The EPA will pay for the mediator’s or facilitator’s services in Title VI cases where both the complainant and recipient agree to try ADR. EPA’s contract for ADR services covers a broad range of services including meeting rooms/facilities, and time and travel expenses for the mediator/facilitator. It can also provide training and technical assistance if such needs are identified by the mediator/facilitator. The EPA does not provide travel expenses for ADR participants. Though ADR participants must invest time and resources to participate effectively in the ADR process, the EPA’s sponsorship of the ADR process is still a significant value to the participants in terms of both time and money in that it can avoid lengthy investigations by the EPA, in-depth interviews, and attorney’s fees, among other resource considerations, and may lead to a more satisfactory resolution more quickly than in the administrative process.
- Who can participate in an ADR process for a Title VI complaint?
Typically, a good situation assessment, as described above, will ask the question of everyone interviewed, “Who needs to participate in an ADR process for it to have a chance of success?” Most often, in the Title VI context, the ADR participants will include only the complainant and recipient, but others may also be invited to participate as a result of the situation assessment in some cases.
- If the complainant and recipient choose to try ADR, what happens to the Title VI complaint?
The decision to try ADR to resolve a Title VI complaint is completely voluntary for complainants and recipients. If they agree to attempt ADR to resolve their dispute, the EPA will move the complaint into an “on hold” status and the regulatory timeframes for the EPA to complete its investigation will be tolled during the convening, situation assessment, and mediation or facilitation processes (i.e., the duration of the ADR process). If the ADR participants reach a mutually acceptable agreement that resolves the complaint, the EPA will require the Title VI complainant to withdraw the complaint as part of the agreement. EPA must also approve the agreement before it is executed. Alternatively, if they choose to try ADR and the complaint is not resolved through ADR, the EPA will proceed with its investigation.
- What procedural safeguards exist in ADR?
Several procedural safeguards exist in ADR. At the beginning of an ADR process, the mediator or facilitator will work with the participants to establish ground rules for the process. The ground rules vary from one ADR process to another depending on the needs of the participants involved, but usually address such issues as confidentiality, good faith participation, information exchanges, the role of the neutral third party in the process, and rules for decision making (participants in ADR processes often decide to make decisions by consensus). All participants in a mediation or facilitation must agree to the ground rules and the neutral third party is responsible for ensuring they are followed. In addition to the ground rules, the ADR participants have an important role in selecting the mediator or facilitator, who serves at the pleasure of the ADR participants throughout the process and can be removed at will by any ADR participant. Neutral third parties hired under EPA’s ADR services contract are required to perform in accordance with ethical codes applicable to the practice of ADR professionals, such as the Model Standards of Conduct for Mediators (September 2005), adopted by the American Arbitration Association, American Bar Association, and the Association for Conflict Resolution, and to maintain the confidentiality of communications, notes, and ADR work products as provided by federal law. The ultimate safeguard for ADR participants is that anyone can withdraw from the process at any time without penalty if they determine that they cannot meet their interests and achieve a satisfactory outcome.
- What confidentiality protections exist when ADR is used to address Title VI complaints?
Confidentiality is a critical component of successful ADR processes. Confidentiality protections provided by federal and state laws allow the participants in the ADR process to freely engage in candid, informal discussions about their interests to reach the best possible resolution. Confidentiality allows participants to speak openly without the need for posturing or fear that statements made during an ADR process will be used against them later. At the same time, the public may have an interest in particular Title VI complaints. Thus, the complainant and recipient should work with their mediator or facilitator to craft rules regarding confidentiality in the ADR process that are sensitive to the need to open lines of communication among them while at the same time being appropriately responsive to the legitimate interests of the greater community to understand what is happening within the ADR process.
As mentioned above, a common ground rule developed at the outset of the ADR process concerns confidentiality. Under federal law, neutral third parties are prohibited from disclosing communications made and information shared during an ADR process unless there is a written agreement among the participants and the neutral third party allowing disclosure, the information is already publicly available, the information must be made publicly available by law, or a court orders that the information be released. Likewise, under federal law, participants in an ADR process are similarly prohibited from disclosing most communications made and information shared during an ADR process. States often have laws addressing confidentiality in ADR as well, and they should be considered in developing ground rules for the process.
Typically, participants in ADR agree not to disclose information communicated between the neutral third party and a particular participant, between individual participants, or during joint sessions unless all participants agree to release particular information. If appropriate, the participants may also agree on how they are going to indicate progress in the ADR process to the public. The EPA will not use information created or exchanged during a Title VI ADR process in investigating a complaint, unless all participants in the ADR process agree to provide such information to the EPA or unless the information is otherwise available to the EPA.
- How are inequalities in bargaining power and resources addressed during an ADR process?
In ADR processes, some participants may feel that they are at a disadvantage in terms of their ability to negotiate or address technical issues. Where participants agree to try ADR to resolve their Title VI dispute, the EPA will assist participants who feel disadvantaged in these ways by offering training in how to effectively participate in ADR processes and expert technical advice. EPA can provide ADR training and technical advice during Title VI ADR processes either through a contract or by engaging appropriate EPA staff. In addition, an important role for the mediator or facilitator is to assist all participants in maximizing their influence during the ADR process. The most important factor for ADR participants to keep in mind is that to be effective in an ADR process, each must be able to articulate what it wants out of the process.
- What is the effect of reaching agreement in ADR for a Title VI complaint?
If the complainant and recipient in a particular Title VI complaint reach an agreement through an ADR process, they will write and sign an agreement binding them to abide by the terms of the agreement. The EPA must approve this agreement before it is executed. If they reach a mutually acceptable agreement resolving the complaint, the EPA requires that the agreement must include a term binding the Title VI complainant to withdraw the complaint as part of the agreement. The EPA will then close the Title VI complaint with prejudice, that is, the decision is final and OCR will not investigate a complaint filed by the complainants on the same grounds.