2001 ALTERNATIVE DISPUTE RESOLUTION PLAN

 

NEW MEXICO ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT

 

December 31, 2000

 

 

I.                    Executive Summary

 

II.                  Introduction

 

A.     The department believes that certain core values are a fundamental part of any effective ADR program. We hereby adopt the set of core values included in Attachment 1, and will abide by their principles.

 

B.     Doug Bland, Director of the Mining and Minerals Division, is currently designated as EMNRD’s ADR Council Representative. His duties include attending Council meetings, coordinating actions or responsibilities of EMNRD to the Council, sharing Council information as appropriate with the Cabinet Secretary and other members of the department, assisting the Council in carrying out it’s mandate contained in Section 3 of Executive Order 00-08, and assisting other agencies in their effort to expand the use of ADR.

 

Doug Bland is also currently designated as the department’s ADR Coordinator. These duties include: developing and submitting annually the ADR plans described in Section 2 of Executive Order 00-08, becoming more familiar with ADR, where and how it might be used in EMNRD and regularly exploring, encouraging and facilitating the use of ADR in the department, and working with EMNRD Personnel staff and other Divisions in their effort to effectively utilize ADR to improve program implementation.

 

C.    There is no ADR oversight body in EMNRD at this time, and we have no immediate plans to establish one.

 

 

III.                Current Agency Status of ADR Use

 

A.     Existing Applications.

 

EMNRD currently uses ADR in a wide variety of ways; some formal and some informal.

 

1.       Complaint procedures. Policy and Procedure OFS – 103, EMNRD’s Conflict Resolution and Complaint Policy, was modified on October 16, 1997 to include mediation as a voluntary first step in addressing formal complaints. This has proved a successful way to resolve the complaint in a significant percentage of these cases.

 

2.      Conflict resolution policy. Policy and Procedure OFS – 103/A was approved on June 3, 1998. This policy, titled “General Conflict Resolution”, extends the availability of agency employees trained in conflict resolution to other types of conflict besides formal complaints. These situations include personnel conflicts outside of the formal complaint process, and meetings and hearings where trained neutral mediators or facilitators can assist with conflicts.

 

3.      Internal negotiation and consensus building. The department uses other forms of ADR within the agency, and in specific programs involving entities other than agency staff. Within the agency, informal negotiation is common practice when disputes arise between staff members, between staff and supervisors, and between managers. Consensus building is also used within teams, programs or bureaus to address issues they have in common. Largely, the frequency and procedures used in these processes is left up to the staff and managers who use them.

 

4.      Regulatory negotiation. EMNRD has regulatory programs that impose requirements on certain industries, including the issuance of permits for environmental protection such oil and gas drilling permits, mining permits and logging permits. These programs are managed under sets of regulations, which are modified from time to time. The department uses regulatory negotiation and consensus development processes when developing proposed regulations and when implementing them to ensure compliance. This usually includes numerous discussions and policy dialogues between this agency, other affected state, federal and local agencies, industry representatives, and interested members of the public. Regarding developing or modifying regulations, this process often can result in a proposal that the parties can live with, and hopefully addresses the major concerns of the parties. This helps limit appeals of the regulations that are adopted. Regarding implementation, meetings and discussions usually result in agreement on a process or permit language that the agency and the regulated entity can follow to ensure compliance.

 

5.      Community outreach and consensus building. EMNRD has numerous programs that affect communities across the state. Our citizens often have strong opinions regarding natural resource management and protection, and appreciate having a voice in these issues. Management of the State Park system impacts communities in every corner of the state, and visitors to New Mexico often develop impressions of our state based in part on their experiences at State Parks. We recognize the importance of public input when making decisions that affect our communities. Communicating with key public representatives or groups, which may involve holding public meetings, is becoming more important to many of our programs. Building consensus surrounding contentious issues is an important tool that helps address the needs of disparate interests in our communities.

 

B.     Existing Resources Within EMNRD

 

·        The department has held 3 sessions of formal mediation training. The first 2 were 16-hour introductory courses, followed by a complimentary 24-hour course, which resulted in staff receiving 40 hours of training in 1997. A few of these staff have received additional outside training including seminars and apprentice work, and have served as mediators in various settings. Three would qualify as trained mediators. They are used for in-house mediations, and may be available on a limited basis as mediators for other agencies. We do not have any price agreements or other formal relationships with outside ADR professionals. In 2000, the department offered a 2-day introductory mediation training.

 

In 2000 we offered a 2-day facilitation training. These staff would not qualify as trained facilitators, and there are no other staff who would qualify. Out of necessity, many staff and managers are experienced at facilitating internal and public meetings and hearings, but most have not had any formal training. In most cases, however, they do not act as a neutral as they represent the department as one of the parties.

 

·        The department does not have any funds dedicated for contracting ADR neutrals, or for ADR training at this time.

 

·        In addition to the techniques outlined in III.A above, staff in the department occasionally use the State Employee Assistance Program.

 

·        Individual programs occasionally have been able to utilize outside-contracted ADR services, primarily meeting facilitators, when other involved parties have agreed to pay for these services. In these cases, the parties involved (including State agencies) recognize the benefit of such services and seek ways to obtain them.

 

IV.               Three Areas of the Most Recurring and/or Disruptive Conflict

 

A.     The three areas of conflict most commonly experienced by the department include: 1) internal disagreements between EMNRD staff, 2) regulatory negotiation involving developing and implementing regulations, and 3) community interaction surrounding the department’s programs.

 

1.    Internal staff disagreements. The Energy, Minerals and Natural Resources Department has approximately 450 employees, located in Santa Fe and over 35 field offices across the state. Any agency this size must expect disagreements to arise between staff, between staff and supervisors/managers, and between supervisors/managers. Such disagreements can be associated with business decisions, of a personal nature, or personality conflicts that cross all boundaries. It is essential that mechanisms be in place to address these conflicts. As described in III.A above, the department already uses several forms of ADR to address these situations. Even though this form of conflict will not be our target focus for 2001, we intend to continue to considering and implementing ways to improve conflict resolution between EMNRD employees. We recognize that managing conflict of this nature can provide for a more productive and satisfied work force. Conflict can also provide for an avenue to identify areas of employee concern, which can in turn allow these concerns to be discussed and addressed. Sometimes openly working on solutions rather than “sweeping the problem under the rug” is a more effective way to keep employees happy, and conflict can have a positive result if it brings these issues out in the open.

 

2.      Regulatory negotiation Several divisions in the department, including the Oil Conservation Division, the Mining and Minerals Division and the Forestry Division have regulatory programs that involve issuing permits to certain industries, and otherwise impose regulatory requirement on them. Implementing a regulatory program involves two main processes that can generate significant conflict. They include developing regulations that must be implemented, and ensuring the regulated public complies with the regulations. ADR can ensure that the needs of the public and the regulated community are identified, properly considered and addressed where appropriate in these processes. Often the needs of the parties involved are different and even conflicting, so ADR techniques can be quite useful in resolving these issues in a way that can satisfy as many needs as possible. This minimizes dissatisfaction and formal appeals, including litigation. This area of conflict also will not be our target focus for 2001, but these programs are encouraged to continue to refine and improve ADR use as a means of resolving these issues.

 

3.      Community interaction All divisions in the department, with the possible exception of the Administrative Services Division, include extensive interaction with the public in communities across the state. The State Parks Division manages 31 parks in every corner of the state, all of which impact local communities. The Forestry Division issues logging permits and manages forest and wildland fires, which generate emotional responses in affected communities. The Oil Conservation Division manages oil and natural gas development across the state, impacting numerous communities and their local economies. The Mining and Minerals Division regulates mining operations and safeguards abandoned mines around New Mexico, often generating considerable controversy between conflicting interests. The Office of the Secretary includes activities surrounding the Waste Isolation Pilot Project, which has created very polarized views among our citizens. The Energy Conservation and Management Division maintains programs that impact many diverse segments of our population, and must prioritize projects that results in some dissatisfied citizens.

 

All these programs must address the needs and desires of affected members of the public and their communities to the greatest extent possible, or we are not carrying out our mandates to the best of our abilities. In order to accomplish this, as a department, we must seek out ways to improve our interaction with our communities and their residents. This will require improving our relationships and building new ones. It will require a careful investigation of how we currently interact, and how that interaction can be more effective. A program or initiative that meets the needs of all affected parties is an effective program.

 

B.     1. The parties involved in internal staff disagreements include all employees in EMNRD. Existing procedures for addressing these conflicts are outlined in III.A and IV. A above. Other factors that impact these conflicts include personality types, management styles, programmatic requirements and organization structure.

 

 

2.      The parties involved in regulatory negotiation include EMNRD staff, the regulated industry, interested members of the public, and other affected agencies. Most regulatory programs have established formal and informal procedures for obtaining outside input, however this can almost always be improved through the use of additional ADR techniques. Other factors that impact these conflicts mirror those identified in the previous paragraph.

 

3.      .The parties involved in community interaction include EMNRD staff, other agencies and interested citizens and their communities. As with regulatory negotiation, many programs have established procedures for obtaining input from the public. Again, this process can almost always benefit from additional efforts to truly identify and meet the needs of these constituents. The same factors mentioned above also apply here.

.              

V.        Target Focus for Calendar Year 2001.

 

A.     The Energy, Minerals and Natural Resources Department will focus its 2001 ADR program on conflicts surrounding community interaction. The department has already made significant progress on addressing conflicts between department employees through the inclusion of mediation in our complaint process, and the encouragement of ADR use at all staffing levels. Regulatory negotiation is currently being used, although improvements will be pursued in the future. Conflict surrounding community interaction is widespread throughout the department, and is an area we feel can benefit from a concentrated effort towards improvement. Of the three identified areas of conflict, ADR use has been less aggressively pursued in the arena of community interaction, and the department wishes to focus its efforts here in 2001. The department currently incurs direct and indirect costs associated with these disputes. Direct costs include a wide variety of costs associated with litigation, as well as time and resources spent dealing with dissatisfied members of the public. One of the largest indirect costs associated with a disgruntled public is the damage done to the relationship between the community and this agency. In most cases, this will affect future activities with these same parties. The benefits of a good working relationship are often realized in many ways, and results in faster, more effective and more satisfactory accomplishments. Good working relationships can mean the difference between outside interests either putting up roadblocks or clearing the way for the agency to move forward with its efforts. Following is a brief description of division-specific targets for 2001 in the area of community interaction

1.      Mining and Minerals Division. MMD currently experiences conflict between mine operators and the environmental community with respect to interpretation and implementation of environmental permitting regulations. Mine operators generally wish to do the minimum work necessary to comply with regs to minimize their costs. Environmentalists prefer strong protection measures, even if it costs the operator more. MMD’s task is to balance these interests and do our best to address all needs.

2.      Oil Conservation Division. OCD will address conflict between the petroleum industry, land owners and regulators. In specific, cleanup standards for oil spills and areas impacted by excessive salt are being developed. OCD is participating in a working group organized by the NM Oil and Gas Association to address these issues, and will assist where possible to resolve conflicts.

3.      State Parks Division. Parks will address the ongoing conflict between members of the public interested in developing and using State Park lands for recreation, and other citizens whose primary interest is in preserving these lands. The goal of resource preservation inherently includes limiting impacts to these lands, and generally also includes restricting visitation and development within the parks.

4.      Forestry Division. Forestry is currently developing a plan to address forest health issues surrounding 20 communities across the state to better protect against danger from forest fires. Part of this plan requires dispute education and resolution between those with differing interests, including local residents and decision-makers, and state and federal land management agencies responsible for forest management. Forestry will modify and use the Incident Command System to address actions necessary to take proactive steps to assist communities in improving local resident and government responsibility, and to better coordinate government agency action at all levels.

 

B.     Overall, the intended impact of improved ADR use in activities involving communities is to more comprehensively identify the issues and concerns of citizens in those communities. Then, the department will increase efforts to seek creative ways to address as many of those concerns as possible, while still accomplishing the department’s goals. In addition, individual programs will identify specific impacts that may apply only to their program.

 

C.    The department will evaluate the results of ADR use, including activities associated with the target focus for 2001, as outlined in section VII of this plan.

 

.VI.      Implementation Plan/Methodology for Addressing the Target Focus

 

An internal ADR team will be formed to develop a strategy for increasing ADR use in community activities. The team will be responsible for investigating and adopting uniform practices for ADR use, when appropriate. The team will also consider provisions to allow staff to assist other divisions where appropriate. This information, and other information developed by the team pursuant to this document or under its direction, shall be incorporated into the department’s 2001 ADR Plan as an attachment no later than June 30, 2001. Many of the specific issues discussed below will be addressed in more detail in the attachment.

 

A.     Internal and external resources.

·        The ADR team will identify training funds available for ADR training. Currently, the department has about $185,000 dedicated for all training needs, divided unevenly between the divisions.

·        Even though there are common threads across divisions regarding addressing conflict associated with community interaction, each group will need to identify which staff will need to become more familiar with ADR techniques appropriate to their situation. This will include some program managers and those who are responsible for interacting with the public. Training neutrals who can mediate or facilitate meetings and specific conflicts is a common goal for all divisions.

·        Currently available ADR knowledge, training and expertise is discussed above. In addition to formally trained staff, others have informally developed these techniques as a necessary part of their jobs, and we should further develop these skills.

·        Training resources are discussed above. Specific topics we hope to address in 2001 include additional mediation and facilitation training, negotiation skills, and consensus building techniques.

B. Training approach for 2001.

·        General awareness training will be pursued for agency staff, managers, and where appropriate, for outside interested parties and stakeholders.

·        Skills training for managers and supervisors will be recommended in the areas of communication, ADR techniques and effective listening

·        Advanced training for agency neutrals will also be offered

·        Specific training needs for ADR Council Representatives and Agency Coordinators will be evaluated and offered as appropriate. Some of this training may be pursued through the ADR Council

C. The use of marketing materials will be evaluated and addressed in the addendum to be filed June 30.

D.    EMNRD will address the following six essential components in its plan:

1.      The department commits to adhere to the Code of Ethics outlined in Attachment 2 as applicable.

2.      Confidentiality is a fundamental component of certain types of ADR. The department will be using various types of ADR that incorporate confidentiality, including mediation and certain aspects of negotiation, discussion and consensus building. However, other techniques necessarily preclude confidential discussions during portions of the process. These include negotiation and consensus processes designed to address the needs of multiple parties. Sharing of information will occur with the knowledge and consent of the parties. In some cases, laws and regulations require certain information and documents be public information, which can not be held confidential.

3.      Minimum training standards for practicing mediators will include 40 hours of classroom training and 20 hours of hands-on experience with an experienced mediator.

4.      Minimum training standards for practicing facilitators will include 32 hours of classroom training and 20 hours of hands-on experience with an experienced mediator.

5.      Impartiality of neutrals is another fundamental component of successful ADR application. This concept is stressed in training for neutrals, and will be emphasized by the department. Any follow-up evaluations of ADR sessions should include a discussion of impartiality.

6.      The degree to which ADR use in community interaction is voluntary or mandatory will depend on the use. This issue will be addressed in more detail in the addendum, however, individual programs will need to consider how ADR will be approached. Most ADR is voluntary by nature. Certain processes may be required by regulation, even though this is not the case currently in any EMNRD programs.

E.     The distribution of responsibilities for implementing and overseeing ADR use in community interaction has not yet been determined. However, it is likely that this distribution will vary between divisions. At this time, and oversight body is not planned.

F.     Mechanisms and procedures for utilizing ADR are outlined below.

·        The department and its divisions will need to establish procedures to inform interested parties about how we envision ADR will be used in community interaction, and what steps are necessary. Again, this may vary from program to program, and may be either formal or informal. Formal ADR might be established as a first level appeal of a decision. Informal use of ADR might be identified as a specific element in the decision-making process.

·        Certain organizational procedures or requirements may be impediments to ADR use. These may include specific regulatory or policy-driven methods currently used to address issues that may preclude or discourage ADR use. Careful thought should be given to identify ways to insert ADR into these processes, or change the processes if appropriate. A fundamental change in the way we look at performing our mission will be necessary to fully integrate ADR into our programs. Outside impediments include a lack of awareness and experience regarding State government using ADDR effectively.

·        Creative thinking can almost always come up with ways to reconcile apparent problems with using ADR in a process that already is somewhat structured and does not presently include ADR. If such problems are not easily resolved, changes in regulations or policy may be needed.

VII.             Evaluation and Continuous Process Improvement.

A.      EMNRD will gather information on various types of ADR use during 2001. Some of this information will be statistical, and some will be narrative descriptions. Information collection will include at a minimum:

·        Records on number of staff trained as neutrals, type of training, and other activities that assist in their development.

·        The number of mediation cases conducted and the percent that achieve resolution.

·        The number of cases using formal facilitation including conflict management and collaborative decision-making.

·        The number of regulatory negotiations conducted for rule promulgation;

·        The number of arbitrations.

·        Other significant ADR uses, particularly those associated with our target focus for 2001, community interaction.

B.     Feedback is essential to understanding the effectiveness of specific ADR applications, and how to make it more successful in the future. The addendum to this plan should identify how feedback will be obtained, and should include evaluations of the process, neutrals used, and the parties’ satisfaction with the outcome. Follow-up procedures should be established for certain applications, including mediations.

C.    Currently no annual ADR report is prepared by the agency. In the future, an annual report will be included as a component of the department’s annual ADR Plan update. The annual report will summarize the data collected, and evaluate the effectiveness of ADR use. Trends regarding types of ADR used, perceived impact on ‘getting things done’, number of staff trained, and frequency of ADR use, among others, will be developed. The data and trends will then be used to identify ways to improve our ADR use, and refine our ADR plan to more effectively guide us in developing better ways to carry out our mission.

D.    Cost savings are a tangible benefit of ADR use. While estimating cost savings is not an exact science, EMNRD will estimate cost savings where possible. Actual expenditures will need to be compared to estimated costs associated with unresolved disputes. Expenditures include staff time spent in ADR sessions, costs associated with outside services utilized such as legal or neutral services, and training costs. Costs not incurred, or cost savings, are not as easily identified. Mechanisms exist to estimate costs saved if litigation or other forms of known conflict are avoided. The ADR Council will investigate this and provide guidance to agencies for their use in the future. Less tangible benefits that result from ADR use include improved relationships between affected parties, which promotes more effective activity management in the future between these parties. It is important to remember that other benefits result from ADR use in addition to possible resolution of the issue at hand. These include providing experience to those involved regarding alternative ways to deal with conflict that can then be applied to a variety of other unrelated situations, both professional and personal.