New Mexico Environment Department
ADR Implementation Plan
I. Executive Summary
The mission of the Environment Department is to promote the highest quality of life throughout the state by promoting a safe, clean and productive environment.
The Environment Department intends to focus its efforts to implement an organized approach to alternative dispute resolution in 2001 on two main areas:
· Permitting Actions & Financial Assistance to Communities; and
· Personnel Friction.
Various forms of ADR have been used in an ad hoc manner throughout the Department for a number of years. Both personnel disputes and community disputes over permitting actions are occasionally resolved through some form of mediation or facilitated process. However, these approaches have not been fully incorporated into the culture or daily life of the Department or made part of our “standard operating procedures”.
The Environment Department began actively embracing ADR to resolve permitting and other resource allocation disputes several years ago when the need became apparent at the community level. Very often, permitting related issues and concerns that are presented to us extend beyond our jurisdiction and include such issues as zoning, land use, traffic management, controlled growth and community quality of life. Because our actions exacerbate these issues, they are often presented to us for resolution. We intend to take a leadership role in facilitating the resolution of these disputes for communities by using a combination of mediation and facilitation techniques and bringing the necessary parties together both prior to disputes rising to a formal level and once the disputes arise. This will require training of staff throughout the Department in mediation and facilitation. In addition, we intend to address personnel friction throughout the Department by providing specialized and focused training to supervisors and managers in basic conflict intervention techniques in an effort to reduce the number of formal personnel complaints and improve overall employee morale and productivity.
A number of Department employees have already received training in facilitation, collaborative strategic planning and basic mediation. These efforts will continue, expanding to the broadest possible population within limited resources. An ADR oversight body, comprised of Department employees and community representatives reflective of the parties and interests frequently involved in disputes and familiar with ADR applications, will provide guidance, leadership and technical assistance as we implement our plan. Cost savings will be calculated through a combination of hard costs saved on permitting or other action related disputes (based on worst-case estimates) and reports of improvements in community relations. General employee satisfaction along with tracking of the number of personnel grievances will be used to determine personnel related savings.
II. Introduction
A. Provide an affirmative statement to adopt the attached Core Values.
The Environment Department will adopt the core values provided by the ADR Advisory Council.
B. Provide a general outline of the duties of the Council Representative and the Agency Coordinator in the agency’s ADR program.
At present, the Council Representative and the ADR Coordinator are the same person. This individual will be responsible for shepherding the Department's ADR program along, developing increased capacity among employees to serve on the Department's oversight body and coordinate the delivery of neutral services as well as take over the duties of the Council Representative and the ADR Coordinator.
C. Role and responsibilities of any ADR oversight body within the agency.
The Department's ADR oversight body will serve as a visionary body, providing guidance on training and ADR applications, developing and implementing the ADR program, developing marketing materials to inform others of the Department's ADR program and offering technical review and assistance on specific ADR requests and applications.
III. Current Agency Status of ADR Use
A. Identify existing applications already occurring within the agency (if any).
1. Negotiated Rulemaking.
2. Bureau level settlement of enforcement actions below the Administrative Hearing level.
3. Voluntary compliance and correction of Notices of Violations, and community outreach and education.
4. Employment mediation and the use of the Employee Assistance Program (EAP)
5.
Senior department managers who have received training and experience in ADR tools.
6. Partnership Agreements with industry and tribal interests (e.g. the Occupational Health and Safety Bureau’s Voluntary Protection Program, Safety and Health Recognition Project, and the Underground Storage Tanks program's compliance and remediation efforts).
7. Informational and input meetings with the general public and interested parties (e.g. permit issuance) that go beyond traditional public hearings
8. Collaborative interagency initiatives including:
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- Cerro Grande Fire restoration efforts and the work of the Interagency Flood Risk Assessment Team (IFRAT);
- The Department’s Lead Program;
- Southwest Strategies, a coalition of federal natural resource management agencies in Arizona and New Mexico which is bringing multiple perspectives, including state, tribal and local government perspectives, to bear on resource management issues. The Environment Department is participating in this initiative as well as providing facilitation services through our price agreement.
- The Western Regional Air Partnership, a coalition of representatives of states, tribes, industry and public interest groups in the west focusing on solving regional haze issues in the west without resorting to a command and control approach.
9. ENLIBRA, an initiative sponsored by the Western Governors Association which strives to bring a “common sense and balanced approach” to resource management. As an example of ENLIBRA in use, the Environment Department, along with the State Engineer’s Office and the Energy, Minerals and Natural Resources Department, sponsored the first New Mexico Water Summit which was an effort to engage water regulators and water users in a dialogue that gave greater voice to users. The Summit was held in October 1999.
10. Collaborative Strategic Planning methods employed by all bureaus.
B. Identify existing resources already present within the agency - employees trained in ADR techniques
1.
2. Approximately 40 employees have participated in facilitation techniques training.
2. Approximately 40 employees have participated in participatory strategic planning training.
3. More than 100 employees have received training in the Systematic Development of Informed Consent (SDIC), a program that offers multiple tools in the presentation and explanation of regulatory issues to affected interest groups and the general public.
4. Approximately 30 employees have received training in a public involvement program called Citizen Participation by Objectives (CPO), the follow up course to SDIC.
5. The Department has initiated skills development in basic conflict management skills. Regular one-day workshops began in November 2000 for any employee who wants to learn these basic skills. This training will be expanded to focus on supervisors and managers and their needs.
6. The Department, along with the Human Services and Energy, Minerals and Natural Resources Departments, is sponsoring the New Mexico Public Servant Leadership Program, a four month series of classes teaching facilitative leadership skills to state employees. This is still a pilot program involving only the three agencies. It is also the first program of its kind in the United States.
- ADR techniques already being used;
- Process improvement efforts began more than a year ago in response to the integration of the Department’s various databases (called the IDEA Project).
- Extensive employee participation was involved in designing the Department’s IDEA Project.
- The Deputy Secretary is frequently called upon to mediate legal or complex personnel disputes.
- other tools for accessing ADR services
- The Department utilizes the Employee Assistance Program (EAP) to help employees who are dealing with difficult personal situations.
- The Department entered into price agreements with local and regional mediation/facilitation professionals on whom programs call for various assistance including strategic planning and community dispute resolution.
- anything else
- Approximately 25% of Department staff have participated in some form of conflict management skills training.
- The organizational culture of the Department has been evolving toward one of collaboration and participative decision making over the last three years.
IV. Identification of at Least Three Types of the Most Recurring and/or Disruptive Conflicts within the Agency
A. Provide a brief description of three types of conflict and how they might benefit from the application of some form of ADR.
1. Permitting Actions: (e.g. Intel, La Luz, CR Minerals, Constructors Inc, WIPP, Camino Real, Wagon Mound,). Frequently, the agency, operating within its own narrow jurisdiction, approves a permitting action where there are other issues at play within the community. Through our actions these other issues are aggravated and result in challenges from the community, the applicant or others to our decisions. Usually the concerns of the community lie outside our jurisdiction and make it difficult or impossible for us to resolve on our own.
2. Resource Allocation: A number of the Department’s programs make money available to communities for water, waste water treatment and solid waste infrastructure (including solid waste transfer stations and landfills – things no one seems to want close to their home). Often, making these funds available exacerbates existing struggles within or between communities. Again, resolving these disputes lies outside our jurisdiction.
3. Personnel Issues:
A. PAD reviews. There are a number of general communication issues surrounding the Performance Appraisal and Development evaluation process. Many of the difficulties include failure to effectively communicate defined and measurable expectations clearly that are under the control of the employee; unrealized expectations of and by the employee;communicating constructive criticism in a positive way; and the perception that anything less than an “exceeds expectations” is a “bad review”.
B. Co-worker Friction. This category covers the full range of issues from work habits to personal habits; from sharing scarce resources to dealing with unavoidable irritations throughout the workday. Supervisors and employees frequently don’t appear to have the language and/or conflict management tools to resolve these struggles.
C. Staff/Management Friction. This often presents itself as a disagreement or difference of professional opinion between supervisors and technical staff on technical or regulatory issues. Staff may feel like they have a lack of involvement in and/or understanding of the decision making process.
B. Identify the interests, existing procedures and other factors that impact these conflicts.
- Interests. These frequently include economic, political, environmental, social justice, and real and perceived public health issues, as well as fairness in access to resources and information, and the transparency of the Department’s decision-making processes.
- Complicated procedures. The formal hearing process for issuing permits and for developing regulations is typically too complex for many interested parties to understand. These procedures often don’t provide for a sense of “meaningful” involvement in the permitting or regulation development process.
- Culture of unyielding enforcement. Many of the Department’s enforcement personnel view their role as “black or white” with little room for the application of independent judgment.
- The need to save face. Many employees, supervisors and managers fear failure and embarrassment for decisions that may need to be modified or changed. They often fear acknowledging that mistakes were made and are unsure how to take responsibility for those mistakes.
- Lack of trust. The history of relationships between the Department and industry, the Department and communities, the Department and environmental advocacy groups, the Department and other agencies and within the Department frequently gets in the way of effective decision-making.
A. What one area of conflict do you intend to address with your ADR program in the next calendar year and why?
We intend to take a three-pronged approach to two areas of conflict:
1. Permitting Actions/Financial Assistance to Communities
The Department is statutorily obligated to take action on permit applications. Certain aspects of those actions, including the rejection or granting of the permit, the permitting process itself, or the operation or mere presence of the permitted entity might be controversial on several levels within a community. While the Department has little or no control over many of the local issues that may be involved such as zoning or lack of zoning, appropriateness or morality of the permitted facility, the “Not In My Backyard” or “NIMBY” syndrome, etc., it must fulfill its obligations within the law and bear the enmity of those opposed. Through the skillful application of appropriate ADR techniques, public consent may be gained where public consensus is elusive, mutual understanding promoted, and “over my dead body” opposition may be ameliorated and litigation avoided.
In an effort to reduce the burden on the Department's General Counsel's Office, we will apply an evaluative tool to identify those disputes appearing on the Department's legal docket for possible resolution. Most of the conflicts moving through the General Counsel's Office eventually resolve through some alternative to litigation. Many of these, however, may be resolved earlier through a systematic evaluation of these cases.
As a preventative approach, we intend to develop skills and utilize the same evaluative tool at the program level to identify potential permitting or other conflicts that may arise as a result of our actions and apply ADR intervention prior to the need for formal legal intervention.
2. Personnel Friction
Many personnel struggles arise because supervisors and managers do not have the necessary language and intervention tools to resolve these disputes. Sometimes these struggles rise to the level of a formal dispute; other times they simply sit and fester, aggravating other issues and individuals until they either erupt or merely undermine employee morale and productivity. Managers and supervisors will receive training in basic conflict intervention skills along with increased expectations to address these low level personnel struggles at the earliest possible point.
B. What is your intended impact of ADR on these conflicts?
The Department hopes to realize three outcomes:
1. We hope to improve relationships with regulated communities and with the communities affected by those whom we regulate. As ADR methods are applied at the program levelparticipants will gain a better understanding of the perceived and actual issues impacting communities. This should translate into better addressed concerns resulting in a better informed public and, hopefully, a less contentious situation. Where success can’t be measured by the achievement of consensus it may be measured by informed consent, or reduced litigation.
2. We hope to eliminate a number of disputes already on the docket of the General Counsel earlier than would otherwise occur.
3. We hope to improve the conflict intervention skills of Department managers and supervisors. Observable results would include a reduction in the number of formal personnel complaints (relating to evaluations, disciplinary actions, etc), as well as a reported improvement in employee morale.
C. How will you evaluate the results of your program (how will you know you are having your intended impact)?
For permitting related actions, we will begin by establishing a baseline of the number of permitting and related conflicts we have had over the last five years and estimate the hard and soft costs associated with those disputes. For some, we will describe in detail the nature and source of the conflicts. After a year of implementing these ADR techniques, we will evaluate the quality of the conflicts we take on and the hard cost results. We may also compare the historical number of conflicts per action against the current number.
For personnel related matters, a simple tracking of the number and severity of personnel complaints rising to the level of a formal grievance will give quick feedback. Over time, employee satisfaction surveys, already begun, should begin to reveal an improvement in overall employee morale.
VI. Implementation Plan/Methodology for Addressing the Target Focus
A. Identify the internal and external resources that are available for addressing your focus, including:
· What funds you have/will make available to address the target;
We don’t have a Department-wide training budget. One of our challenges is to determine the amount of money allocated for training in each Bureau and determine how to provide resource equity across the Department.
· What staff you have/will make available to address the target and how.
For addressing permitting or other actions that have risen to a formal complaint, it may be difficult to rely on Department staff to intervene. These disputes may be too positional or Department staff may not be viewed as neutral (and they may not be neutral). For permitting or other regulatory complaints that are still percolating or that staff identify prior to a complaint actually surfacing, program staff may be appropriate to serve as facilitators, either in their own programs or in other programs elsewhere in the Department
For personnel matters, supervisors and managers will receive training in an attempt to allow them to resolve the majority of personnel matters within their own programs. Where such efforts are not successful, staff who have been trained in formal mediation from elsewhere in the Department or from other governmental agencies may be needed.
We still need to identify the mechanisms by which these individuals can be drawn on. Continued awareness training and educational opportunities (mediation, facilitation, leadership, etc), should create more ideas for application and consequently new opportunities for individuals to serve in neutral capacities.
· What level of ADR knowledge, training and expertise you have available on your staff;
Several members of senior management have well-developed skills in mediation and alternative dispute resolution. A significant percentage of staff who have received basic skills training are capable of assisting more experienced staff in ADR techniques. The total number of staff who have received formal ADR training (in mediation and facilitation), is still relatively small, however.
· Training resources;
Internal resources include senior management trained and experienced in various ADR techniques as well as teaching ADR techniques, a price agreement allowing access to trainers, relationships with other public agencies utilizing ADR processes, practitioners in the region, and relationships with a number of experts in the ADR field (through the agency’s work in collaborative strategic planning, community facilitation and ENLIBRA). Specific training topics we hope to address in the coming year include:
Ethical decision-making;
Systematic Development of Informed Consent;
Leadership development through the New Mexico Public Servant Leadership Program;
Routine workshops on mediation skills to manage conflict; and
Negotiation skills.
B. Describe the training approach you intend to take to support your program (this section should address the following items at a minimum):
· General awareness training for agency staff, managers and outside interested parties and stakeholders;
Monthly day-long workshops introducing basic conflict management skills to interested employees and supervisors;
Public open-houses around the state focusing on various permitting processes and the formal public hearing process (educating stakeholders in Department processes); and
Presentations and recommendations to the Department’s oversight boards on the use and potential applications for ADR.
· General skills training for managers and supervisors;
Basic ADR and communication training (one or two day sessions);
Use of a “decision tree” for determining which situations may be appropriate for ADR applications;
Ethical decision-making and communication of linkages between values and decisions;
Inclusion in management PADs the use of ADR to resolve disputes as well as managers' participation in ADR training.
· Advanced skills training for agency neutrals (those providing conflict or other ADR intervention applications);
We hope to be able to provide at least one course per calendar year meeting the full 40 hours for mediation training and the full 32 hours for facilitation training. Developing the structure to ensure mentorship opportunities may be more difficult. Available resources for advanced training and mentorship mayinclude accessing the City of Albuquerque’s mediation and community facilitation program, the Bernalillo County Metropolitan Court mediation program, the NM Court of Appeals mediation program and individual networking opportunities that may arise.
· Training for Council Representatives, Agency Coordinators and others involved in your program.
These individuals must understand when it is useful to apply ADR and when it is not and how to take advantage of unique opportunities for applications that exist in the public realm. In addition, these individuals need information on policy and program development, marketing and situational assessment.
C. Describe any marketing materials you have/will make available to announce your program. Please attach copies if available.
None yet.
D. Describe how you will incorporate the following six essential components into your program:
1. Adherence to a code of ethics (either the one provided or another with a copy attached);
The Department plans on developing its own code of ethics for neutral services. Until this code is developed, however, we will rely on the Code of Ethics provided to the degree it is applicable.
2. Provisions for maintaining the confidentiality of the ADR process or, if confidentiality cannot/will not be provided, how participants will be so informed;
Any ADR program will have to abide by all federal and state laws, rules and regulations concerning the confidentiality of material received. Parties involved in any process will be informed of these provisions. Neutrals will be expected to use appropriate judgment in the sharing of information and will receive training in applying appropriate standards in developing this judgment. Personnel related matters will be held in confidence to the degree possible and only neutrals displaying appropriate judgment will be used.
3. Minimum training standards for neutrals providing employment or other types of mediation (national standards are 40 hours of classroom training from a recognized trainer and 20 hours of hands-on experience with an experienced mediator) as well as provisions for future refresher training opportunities;
The Department will adhere to the minimum training standards recommended.
4. Minimum training standards for neutrals providing facilitation (32 hours of classroom training by a recognized facilitator training organization and 20 hours of hands-on experience with an experienced facilitator) as well as provisions for future refresher training opportunities;
The Department will adhere to the minimum training standards recommended.
5. Impartiality of your ADR system and of the neutrals you will use;
Neutrals will receive training in maintaining neutrality and an unbiased approach.
6. Degree to which your program will be voluntary or mandatory and the rationale for your decision.
Initially, our program will be voluntary with a heavy emphasis placed on the value of participation (improved relationships, enhanced communication among the parties, etc). Use of ADR methods and techniques may be made a requirement in the job assignment portion of the manager’s PAD.
E. Describe the distribution of responsibilities in your agency for implementing and overseeing your ADR program.
· If you will have an oversight body, who will serve on this body and how will they receive and provide feedback on the program’s effectiveness?
Weintend to establish an oversight body that will reflect the parties to be served by the Department's ADR initiatives. The role of the body will be to hear and evaluate requests for ADR intervention, assist in determining the best approach to take in implementing ADR and assign responsibility for implementation. The body will monitor efforts and progress, measure results and prepare annual summary reports of success.
F. Describe the mechanism or procedure for utilizing ADR.
· What steps will interested parties utilize to access the program and what will the timeframe be for those steps?
For permitting and regulatory disputes, the Department will establish priority criteria for addressing conflicts involving permitees, industry, communities, advocates and other stakeholders. Regulatory involvement, resource availability, desired outcome and our ability to be effective will have to be considered and carefully weighed and agreed upon.
At the bureau level, at least one individual will be trained to work with other staff in reviewing and assessing potentially difficult permitting or compliance cases for ADR through the use of a “decision tree” which will help to determine a situation’s appropriateness and readiness for intervention. If the situation is determined to be appropriate for ADR and will require resources beyond those available within the Bureau, the case will be forwarded to the Department’s ADR oversight body for review. If ADR continues to seem appropriate (because of its precedence, the extent of involved parties, the potential long term effects of a protracted legal struggle, etc), and department-wide resources are needed, the
oversight body will provide technical, logistical and resource acquisition services to the bureau.
For matters already on the docket of the General Counsel, each will be reviewed using the same “decision tree” logic. In instances where ADR appears to have a reasonable chance for resolving the matter, the same resource and logistical support will be provided.
For personnel matters, each manager will receive training in basic conflict intervention skills. Through these skills, managers can then either attempt to resolve a dispute at the program level or seek the assistance of a neutral through the ADR oversight body. In addition, employees seeking intervention may contact the ADR oversight body, in confidence, and receive assistance in securing mediation services.
· What organizational impediments exist to the successful implementation of your ADR program?
Appropriations, funding requirements, and allowable expenditures are very often specific to media program or contaminant source or are otherwise very restrictive. It is not clear to what level of community involvement the Department is willing to insert itself. Furthermore, conflict intervention and resolution skills are not skills the Department has fostered among its managers. Such a change in values will take time to percolate throughout the organization.
Impediments that exist outside the agency include a history of general mistrust of the Department, stakeholder unfamiliarity with the ADR process, and community members who are “locked” into adversarial roles for interacting with the Department.
· How will you reconcile your ADR program with any laws, procedures, rules and regulations?
Existing rules, laws, and regulations will govern all ADR activities. A code of ethics will be adopted and honored under penalty of personnel action. Confidentiality will be maintained to the extent possible according to existing statutes and rules and parties will be so informed.
VII. Evaluation and Continuous Process Improvement
A. What type of information on your program will you/do you gather, share, and maintain? How will you maintain records on neutral training and development? Specifically:
1. The number of mediation cases conducted and the percent achieving resolution;
2. The number of cases using formal facilitation including conflict management and collaborative decision-making;
3. The number of regulatory negotiations conducted for rule promulgation;
4. The number of arbitrations;
5. If none of the above apply, any significant ADR uses.
Information we anticipate being able to gather includes the number of identified potential ADR applications within each bureau, the number of actual situations identified for ADR, the number of meetings and the estimated number of hours involved in preparing for those meetings (calculated) hard and (estimated) soft costs
associated with those activities and the resolution (and its satisfaction to the parties). Some of this information can be collected as numerical data, other information will be collected as narrative descriptions. Included in our process will be some type of “debriefing” through which we hope to identify lessons learned for future applications.
B. How will you obtain feedback on the quality of the program, the quality of the neutrals and the parties’ satisfaction with any outcomes? What about follow up?
Interim reviews will be conducted at least every six months.
We hope to gather the above information from each bureau monthly. In addition, we may implement a feedback report given to participants and staff on the usefulness of ADR in the specific situation and to hear feedback on their overall satisfaction with the process (as separate from the final outcome) and their willingness to request or engage in the process in the future.
C. How will you estimate cost savings?
1. Agency borne non Risk Management Division traditional dispute resolution costs;
2. Agency borne non Risk Management Division ADR costs;
Several years ago, the US Postal Service was able to determine the cost of fully contested employment related cases and uses that number as a benchmark for calculating the cost savings for employment cases resolved short of full, formal litigation. We believe we can do the same for fully contested permitting, enforcement and compliance actions (cases where the action is appealed to the appropriate oversight board or district court). Costs such as staff and attorney time can be calculated relatively accurately; costs relating to delays of agency action, added friction in an community as a result of earlier actions; etc, are more difficult to calculate.
Costs associated with earlier resolution of personnel matters may be more difficult to calculate except in those cases where a formal complaint is resolved through ADR prior to a final administrative or court hearing. General employee satisfaction and improved morale can be tracked over time and might translate into less employee turnover, lower absenteeism and greater "productivity" although "hard dollar" calculations may be difficult to accomplish.
Capitalization costs for the program will also be important to include in any overall estimates of savings. These costs will include setting up tracking mechanisms, initial and continuing training of internal neutrals, the use of professional neutrals, etc.
3. Estimated cost savings from Section A above.
An annual report on your ADR program is required. What trends will you monitor? How will you/do you use the information gathered through statistics and feedback to improve your ADR program and processes? What type of results do you plan on reporting in your December 31, 2001, report?
We hope to have summary information and statistics along with estimated cost savings available along with narrative information describing various situations and their resolutions/non-resolutions along with lessons learned.
We hope to see a reduction in the quantity and improvement in the quality of cases referred to the General Counsel’s Office for legal intervention, improved regulatory hearing processes and better relationships with the public, industry and the regulated community.