Case Studies of Establishing ADR Systems
ADR for Water Planning and Permitting
Major legislation in 1997 and 2001 changed the process of planning and regulating the use of water in order to incorporate local leadership, participation, and control. The State Water Plan now includes input from all sixteen regional water planning groups, wherein the information is compiled into a single plan by the Texas Water Development Board. Over eighty locally controlled Groundwater Conservation Districts (GCDs) are further responsible for implementing planning and permitting programs to conserve, preserve, protect, recharge, and prevent waste of groundwater. The Center and several Fellows recognized that the newly-formed governmental entities responsible for planning and permitting the use of a precious resource - water - would be in need of alternative dispute resolution systems for resolving conflicts. Litigation over groundwater withdrawal permits has already proven costly to GCDs, some of which have modest financial resources.
In the summer of 2002, the Center began a project involving the development of ADR systems for GCDs. As the project evolves, it may include providing information and support for legislative changes, drafting model ADR rules, developing pilot programs, and identifying and training low-cost qualified neutrals throughout the state to assist GCDs with controversial permitting matters. Additionally, the Center has embarked on an effort to educate decision-makers at the regional water planning groups, GCDs and appropriate state agencies about the benefits of using ADR in the water planning and permitting process. The Center is also exploring training opportunities for the members of the regional water planning groups and GCDs focusing on convening, interest-based negotiations, and participation in collaborative processes.
Texas Intergovernmental Shared Neutrals Program
The Center facilitated the development of a governmental mediator pool to increase the availability of inexpensive impartial third parties for mediation of workplace disputes and continues to support this effort through the Texas Intergovernmental Shared Neutrals Program (TISNP). This idea arose from participants in the Center’s 1996 Employee Grievance Dispute Resolution Working Groups who emphasized a need for a source of impartial third parties that is easily accessible, cost-effective, and knowledgeable about the government sector. The purpose of the Working Groups, attended by eighteen governmental organizations, was to explore and develop the integration of appropriate dispute resolution processes, such as mediation, in their employee grievance systems.
Participating members of TISNP’s pilot project that began January 1, 2002 include the State Office of Administrative Hearings, coordinator of TISNP, the Center, the Department of Public Safety, Austin Independent School District, City of Austin, Texas Department of Health, Texas Department of Human Services, Texas Building and Procurement Commission, and the Texas Commission on Environmental Quality. An advisory council established the criteria for the development and use of the mediator pool, including setting qualifications of pool mediators, training requirements, and procedures governing pool mediations. Essentially, the participating TISNP agencies have agreed to contribute mediators into a “pool” that can be called upon to mediate a dispute upon request of a participating member. Through this sharing of resources, the agencies have access to mediator services for their employment disputes. Likewise, each participating agency allows their employee the option to mediate their workplace dispute through the pool, as well as through any existing internal program. At the conclusion of the one-year pilot project, the advisory council will evaluate how effective the project has been and whether and how it should be continued in the future.
Children’s Justice Act Mediation Pilot Projects
The Texas Legislature enacted legislation in 1997 that limited temporary foster care for children to twelve months in an effort to reduce temporary custody for prolonged periods and multiple placements, all of which increase trauma in a child’s life. To support these accelerated timelines, the Children’s Justice Act Project awarded federal funds to the State of Texas to explore the use of mediation to resolve Child Protective Services cases more expeditiously, to protect the integrity of the foster care delivery system, and to meet the goals of family reunification and child safety. The Center assisted the Texas Department of Protective and
Regulatory Services, the administrator of the CJA Project, in developing a plan to increase the use of mediation in CPS cases statewide.
Mediation of CPS cases generally involves issues such as placement of the child, rehabilitation services, visitation, permanent custody, child support, termination, and adoption. The Center continues to provide consultation and independent evaluation services for the mediation pilot projects. Evaluation is necessary in any systemic change and the information is useful for: making decisions and reauthorizing existing projects; implementing, operating, and improving new mediation pilot projects; identifying areas of training and education; and building a case for local funding when grant funds are exhausted.
The Center’s annual reports continue to find a high rate of satisfaction among the mediation participants, including parents and their legal counsel, the child’s attorney and/or guardians ad litem, prosecutors, CASA volunteers, and CPS case workers and their attorney. In fact, the reports find that most mediation participants and judges assess mediation as more effective and a successful alternative to the traditional CPS case management process.
Informal Dispute Resolution and Arbitration of Nursing Home Enforcement Cases
The Informal Dispute Resolution process allows providers operating long-term care facilities to challenge standard violations or deficiency findings received during facility inspections or surveys. In 2001 the Texas Legislature transferred the IDR function from the Texas Department of Human Services to the Texas Department of Health and Human Services to provide independent review (S.B. 1839 and S.B. 527). The Center has provided dispute resolution consultation services to HHSC to assist their efforts in developing new IDR procedures and guidelines.
Legislation further required the Department of Human Services to use binding arbitration for certain enforcement cases involving nursing homes. The 1995 legislation provided that the State Office of Administrative Hearings was to develop rules for administering and managing the arbitrations. SOAH sought assistance from the Center in creating the arbitration system, which was formally established in January 1996. A number of nursing home arbitrations have been completed by SOAH. The rules, found at 1 TAC Chapter 163, are one of the only applications of the binding arbitration process in Texas government.
Dispute Resolution Clauses in General Building & Procurement Commission Contracts
In 1994, one of the Center’s earliest projects was providing assistance to the General Services Commission, now the Texas Building and Procurement Commission, in developing an ADR clause for state construction contracts. Considering that the TBPC spends about one third of all money spent by the state of Texas, development of a means of resolving disputes that arise under TBPC contracts could produce substantial savings for taxpayers. The Center worked with legal staff at TBPC to craft a state-of-the-art ADR clause that provided for negotiation, mediation and then arbitration of disputes, pursuant to statutory authority for TBPC to engage in arbitration. The Center has continued to work with the TBPC to refer qualified impartial third parties needed under the clause and has assisted TBPC in resolving numerous state construction disputes.