effort for attorney preparation and litigation support. The disruption to management was becoming unbearable.
Alternative dispute resolution appeared to be the best solution to this problem. Initial efforts using ADR focused on the mini trial, which enabled disputing parties to present their best cases in abbreviated form to a key decision maker in an organization and then use that information to promote subsequent negotiations.
The mini trial enables decision makers with authority and knowledge of broad organizational goals to settle disputes, review the relevant facts of a case, and determine how the case might fare in court. Thus, decision makers are better prepared and willing to negotiate out of court rather than pursue years of expensive and time-consuming litigation.
As the Corps experimented with ADR processes including facilitation, mediation, dispute resolution panels, and non-binding arbitration, the successes multiplied and the construction industry began to take notice. It became evident that if decision makers were prepared to resolve issues, they could apply the same mindset to avoiding disputes before they occurred.
The Corps of Engineers was fortunate that in early use of the mini trial it received a supportive report from the Department of Defense Inspector General, which led to the continued use of ADR in hundreds of cases. In addition, Congress enacted legislation in 1990 encouraging the use of ADR whenever possible.
From its initial efforts, the Corps of Engineers developed project partnering, a prevention and avoidance strategy where parties come together at the beginning of contract performance to agree on processes for avoiding disputes. This new way of conducting business moved the agency from a traditionally adversarial relationship to a more collaborative ethic of trust, cooperation, and teamwork.
The Corps of Engineers realized that if it were to adopt ADR, it had to change the prevailing culture and mindset of litigation. Managers had to understand the concepts of ADR and change their dispute management strategies. Internal criticism posed a problem for negotiated settlement because there were those who felt that their integrity or experience was in question or that funds and resources were being wasted.
However, the Corps’ early experiences in ADR enabled great strides in promoting collaborative resolution disputes by establishing a multifaceted program designed to institutionalize ADR as part of the agency’s management tool kits. At the same time, the Corps began a program of external communications with people in the private sector. The Clinton administration then supported the program for the entire government.
ADR is most effective when managers are adequately trained to make responsible decisions and resolve disputes efficiently. Therefore, the Corps began organizational transformation with a two-step ADR training program for managers, engineers, acquisition executives, and attorneys. It also supported decision makers and advocated ADR as a management tool for collaborative decision making and enhanced business relationships.
The ADR training program began with the agency’s top level managers and decision makers and was followed by regional training programs for senior and mid-level employees. The regional meeting included a comprehensive five-day, collaborative training session and a problem solving course covering ADR philosophy, methods, and applications. The Corps also offered an additional two-day executive ADR seminar for all Corps executives and commanders and four joint workshops with the Association of General Contractors (AGC), which subsequently adopted partnering as one of its key missions.