Alternative Dispute Resolution and Environmental Enforcement: A Noble Experiment or a Lost Cause?

Richard H. Mays

Editors' Summary: Alternative dispute resolution (ADR) is an umbrella phrase that includes a variety of techniques designed to avoid expensive and time-consuming litigation. ADR techniques such as mediation and arbitration have been used successfully for years to resolve disputes among private parties. However, attempts to apply ADR to environmental enforcement cases have met with resistance from the federal government and the private sector. Even a memorandum from EPA Administrator Lee Thomas transmitting EPA's new ADR guidance document and strongly encouraging agency officials to promote the use of ADR in enforcement cases has had little impact. The author, a former EPA senior enforcement attorney who participated in the development of EPA's ADR guidance, examines the need for ADR in environmental enforcement and the obstacles to its use. He concludes that ADR should play a key role in environmental enforcement as EPA's docket of judicial and administrative cases continues to grow, but that support from government and private sector leaders is essential to overcome the obstacles to the use of ADR.

Mr. Mays is an attorney employed at ICF Incorporated, a national environmental consulting firm headquartered in Fairfax, Virginia. He is a proponent of the use of alternative dispute resolution techniques. Mr. Mays was formerly Senior Enforcement Counsel and Acting Assistant Administrator for the U.S. Environmental Protection Agency in Washington, D.C., where he participated in the development of EPA's Guidance on the Use of Alternative Dispute Resolution Techniques in Environmental Enforcement Cases. This article is written by Mr. Mays in his private capacity, and the opinions expressed herein are solely his own.

[18 ELR 10087]

On August 14, 1987, Lee M. Thomas, Administrator of the U.S. Environmental Protection Agency (EPA), issued to his Assistant Administrators and 10 Regional Administrators a memorandum regarding the use of alternative dispute resolution (ADR) techniques in environmental enforcement actions.¹ One purpose of the memorandum was to transmit the Agency's new comprehensive guidance on the use of ADR in EPA enforcement cases (the Guidance).² A second purpose was to strongly encourage the recipients of the memorandum to promote the use of ADR in their programs and regions, and to seek out current cases in which it might be used. The Administrator concluded that he expected each regional office (where the vast majority of enforcement cases are developed) to nominate by September 4, 1987, at least one case wherein ADR might be used.

Notwithstanding this highest level and unusually strong appeal that stopped just short of a directive, the response has been almost nonexistent. Where there has been response, it has been pro forma: to recommend a small number of cases, some of which were not enforcement, but defensive cases, and others without substantial merit or hopelessly fouled up.³ If Lee Thomas were a judge, he could hold the recipients of the memorandum in contempt for violation of his order.

One would think that an agency whose regional enforcement [18 ELR 10088] personnel have chronically complained of resource limitations and work overload, and whose enforcement responsibilities are growing faster than the number of people to fulfill them, would eagerly embrace ADR techniques,⁴ with their promise of efficiencies in time and money. That it has not is mystifying to persons not familiar with EPA's enforcement program and its various and conflicting organizational interests, and is frustrating to those persons who are familiar with it. Nor have the corporations that constitute the bulk of EPA's enforcement targets evidenced widespread interest in promoting use of ADR, despite its obvious benefits to them.

Various forms of ADR have been used to resolve disputes in private commerce for many years. While they have been utilized to resolve some environmental disputes, such as siting of power plants and highways and development of environmentally sensitive areas,⁵ the use of ADR to resolve an environmental enforcement action is new. That use goads a cow that many environmental enforcers and other zealots hold sacred: the premise that an environmental violator should be subjected to the most excruciating and expensive form of punishment available — the judicial lawsuit. For others, the objections to use of ADR are more pragmatic, personal, or institutional. There are many such objections, and the use of ADR in environmental enforcement faces a difficult infancy. This article will examine the need for ADR in environmental enforcement and the obstacles to its use.

The Need for ADR in Environmental Enforcement

Contrary to popular perception and political rhetoric, EPA's enforcement program in the last four years has been the most active in the Agency's history. EPA's docket of active cases pending in U.S. district courts has expanded from a low of 325 in 1983 following the departure of Anne Gorsuch Burford as Administrator, to approximately 800 in October 1987. In the last three years, EPA has referred a total of 905 new cases to the Department of Justice (DOJ) for filing in the U.S. district courts. However, during that same three-year period, only 476 cases — slightly more than one-half of those initiated — were concluded through settlement, court order, dismissal, or other disposition.⁶

Obviously, if this imbalance between cases opened and cases closed continues, as it undoubtedly will barring another major downturn in enforcement effort by EPA or a major infusion of new enforcement personnel at EPA and DOJ (both of which are unlikely), the number of unresolved cases will continue to grow into a stagnant backlog. This, in turn, will result in cases being dismissed or settled for less than their original worth due to stale evidence and loss of prosecutorial interest, undermining the credibility and effectiveness of EPA's entire enforcement program.

Not only is the number of cases growing, but the time required to bring cases to closure is growing as well — evidence that the backlog may be stagnating. In 1985, filed cases that were concluded in that year had been pending in court an average of 456 days. By 1987, the average number of days filed cases had been pending before conclusion had increased to 513.⁷ When the time spent before filing for case development, prefiling negotiations, and the review of the case by EPA Headquarters and DOJ is added (on which reliable records are not maintained), the average time between discovery of a violation and settlement might easily be three to five years or more. Even after this delay, approximately 95 percent of EPA's judicial cases are settled rather than tried.⁸

The potential for development of a stagnant backlog is not limited to the Agency's judicial enforcement program. For the last three years, EPA has issued between 2,500 and 3,000 administrative complaints annually.⁹ In many of those cases, the recipient of the complaint is entitled to a hearing before an administrative law judge.¹⁰ EPA has no reliable tracking system to determine how many of or how long these administrative cases are pending or concluded, so it is difficult to demonstrate the need for ADR techniques in administrative cases. However, many of these cases are quite similar in the number of issues and costs of compliance to the judicial cases, and many require the same length of time to conclude as judicial cases. There is no question that some of EPA's administrative cases could benefit from the application of some forms of ADR.

Aside from statistics, the nature of many environmental cases lend themselves to the use of ADR, especially those in the older, "mature" programs where the issues become how to apply relatively well-established law to the facts of the case.¹¹ Many environmental cases are a morass [18 ELR 10089] of factual and expert evidence involving studies, sampling and analysis protocols and results, and expert testimony on the technical significance of those results and the remedies available to correct the problem. Other cases involve whether certain cleanup work was necessary at a site to eliminate a release or threat of release of a hazardous substance, and whether the amounts charged by government contractors for that work were reasonable and not inconsistent with the National Contingency Plan.¹² These issues are addressed by technical testimony of engineers, hydrologists, toxicologists, botanists, and other scientists, and by columns of work invoices and cost figures.

Many judges faced with already crowded dockets cringe at the appearance of environmental cases on their docket, and either exert extraordinary pressures on the parties to settle or, as is increasingly the case, appoint a special master to weed through the studies, sampling and analysis results, expert testimony, and pleadings.¹³ The Department of Justice generally frowns on the use of special masters, and has issued a policy to its attorneys and the U.S. Attorneys setting out restrictions under which they may agree to the appointment of a special master.¹⁴

Special masters can be very expensive for the litigants,¹⁵ but in complex and high-stakes cases, they may be worth the price to obtain a speedier resolution than might otherwise be obtained from the court without the assistance of a special master. ADR can achieve some of the same purposes as a special master and with less expense, if only the parties to the dispute would voluntarily choose to employ the services of a third-party neutral early in the dispute.

While ADR should play a major role in environmental enforcement, there are cases in which the use of ADR will not be desirable, although in theory it could be used in any case. The cases in which ADR will not be desirable are those that should be tried before a court because (1) there are important precedential legal issues that need resolution; (2) an injunction or other court-supervised relief is necessary and the parties do not have the time for or interest in negotiating a consent decree; or (3) the conduct of one of the parties is so egregious as to make it in the public interest to subject that party to the most visible trial and punishment available. However, cases in these categories constitute a relatively small number of the total that are filed in U.S. district courts each year. Those substantial numbers of cases that are not in those categories, but that nevertheless are handled as judicial cases, may be draining both government and private sector resources to the detriment of those that truly deserve judicial attention.¹⁶

Impediments to ADR in Environmental Enforcement

While it is clear that ADR is not a panacea for all delays in enforcement cases nor a substitute for the judicial process in all cases, it is also equally clear that in certain types of cases, the use of some forms of ADR makes much more sense than other alternatives. EPA, DOJ, and various private sector groups acknowledge this and endorse the use of ADR in environmental enforcement.¹⁷ Ninety-five percent [18 ELR 10090] of the environmental enforcement cases are settled, indicating that settlement, rather than litigation, is the goal of the action. All of these things being true, then why isn't ADR being more actively utilized by EPA, DOJ, and the private sector?

Notwithstanding the official pronouncements and policy statements, there are impediments to the use of ADR on both the government and private sector sides of environmental enforcement. Some of these impediments have to do with basic human nature — the interests and motivations of those people most directly affected and who are required to implement ADR — while others are institutional. Government and the private sector both share these two broad categories of impediments, but the manner in which they are manifested in each is quite different. It will be far easier to remove the institutional impediments than those involving human nature.

Impediments from the Government Perspective

The Mission Factor

Protection of the environment is a very consuming occupation, and those engaged in environmental enforcement soon become caught up in carrying out the mission of the agency that they are representing. This is as it should be and, indeed, is one of the compensations of working for a governmental regulatory agency. Frequently, however, many of those persons tend to view themselves as the "white hats," and the objects of the enforcement action as the "black hats," on whom the greatest punishment and most expensive process should be levied. In some cases, the violation is so egregious that this approach is entirely justified. In others it may be carrying righteous indignation to an extreme, and may actually work against the interests of the government. Lawsuits and administrative proceedings, while necessary in some circumstances, are expensive and resource-intensive for the government as well as for private parties, and they require a commitment of the valuable time of the limited number of government enforcement personnel, preventing them from attending to other violations.

The "Macho" Factor

Closely related to the "Mission" factor, this is demonstrated by the attitude on the part of some environmental enforcement personnel that the most severe punishment (including the process used to administer the punishment) is always appropriate for a violation, and the implication that anyone who doesn't agree with that view is not a good environmentalist. Since most people in enforcement want to be known as good environmentalists, the person advocating the hardest line usually prevails in discussions about which procedures to employ.

Fear of Losing "Control"

This is an impediment found primarily in the attorneys who handle enforcement cases, and who consider themselves master negotiators and advocates who control a case. That they are those things is not in question, but their role as advocates, frequently with strong personalities and opinions, supports the need for a third-party neutral at an early stage in many of the cases. Advocates frequently do not have the objectivity to enable them to acknowledge or think through the positions of the opposing party, or to seriously consider negotiations until late in the development of the case. Those same attorneys who will willingly file suit and thereby effectively turn over control of the case to a U.S. District Judge or a Special Master, will not consider bringing in a mediator or arbitrator because they do not wish to "lose control" of the case, when by doing so they could retain greater control of the case for a longer time than when suit is filed. This attitude reflects a basic misunder-standing of ADR procedures, which brings us to the next impediment.

Lack of Understanding/Training about ADR

This factor is a problem not limited to government enforcement personnel, but includes the private sector as well. Many people involved on both sides of enforcement cases seem to be unaware of the differences between mediation, arbitration, and other forms of ADR.¹⁸ EPA and DOJ have the advantage of being able to identify all of their attorneys and to communicate with them relatively easily, which should make it easier for those agencies to educate and train their enforcement representatives. However, little is being done at either EPA or DOJ to educate enforcement personnel on the types or advantages of ADR, or how to use the various procedures of ADR. Nor are EPA and DOJ making much of an effort to reach out to the private sector in their cases to interest them in utilizing ADR.

Lack of Institutional Incentive to Use ADR

The incentives for environmental enforcement established at EPA do not favor, and in some ways may prejudice, the use of ADR. While quotas are not assigned by EPA to its regional offices requiring them to develop a certain number of enforcement cases, the regional offices are required to give EPA Headquarters a projection of how many judicial and administrative enforcement cases or orders will be developed and issued during the forthcoming calendar quarter. If those projections are missed substantially or frequently, the regional office management receives a rebuke from Headquarters. This system works well in driving development of the traditional administrative and judicial enforcement cases, but may cause a regional office to forego use of ADR to settle a case when an administrative order or judicial action is needed to meet the region's projection of enforcement actions for the quarter.

The "Turf" Factor

Contrary to public belief, EPA and DOJ are not always united in their views or interests. As with any other large [18 ELR 10091] organizations or systems, subparts frequently do not support, and indeed may resist, new initiatives, especially if those organizational subparts feel that their role or "turf" is threatened by the initiative. The use of ADR holds a threat to certain organizational elements of the federal enforcement mechanism and, accordingly, is likely not to be supported by those elements.

EPA and DOJ share roles in environmental enforcement, with EPA developing cases and handling those that can be resolved by the administrative process. For those cases that must be handled by the judicial process, EPA refers them to DOJ after development, and thereafter DOJ takes the lead in their negotiation and management. Since the establishment of this system in the early years of EPA's existence, there has been a tension between the EPA and DOJ attorneys over their respective roles, with EPA's attorneys wanting a more significant role in the negotiation, management, and trial of cases. In recent years, a concerted effort has been made by EPA regional attorneys to increase that role, which would come at the expense of the DOJ attorneys' role.

The use of ADR in enforcement would increase the control of the EPA attorneys in some cases, since one of the goals would be to settle cases without litigation. Therefore, ADR has the potential to threaten DOJ's role or turf, and this has been reflected in the cautious and apprehensive approach toward the use of ADR by the enforcement attorneys at DOJ. While DOJ's top officials issue public statements supporting ADR, very little is being done there to promote its use, and some of the environmental enforcement staff view it with suspicion and "concern."¹⁹ At least part of the reason for this attitude may be the fear of loss of turf that DOJ may sustain should ADR become a significant procedure in environmental enforcement.

The "Inertia" Factor

Closely related to the lack of understanding/training about ADR, this factor relates to the very human reluctance to learn or attempt anything new that will require time and effort, notwithstanding that in the long run, the new process may save time and effort once it is learned and utilized. This factor, together with the lack of training and institutional incentives to drive the use of ADR, is probably the major reason why EPA's enforcement staff has not made a greater effort to utilize ADR.

The Legal/Programmatic Factor

The issue here is whether and to what extent EPA has the legal authority to enter into various forms of ADR. For example, the Federal Claims Collection Act (FCCA)²⁰ in essence limits the authority of federal agencies to compromise claims in excess of $20,000 without the concurrence of the Attorney General. The FCCA may be interpreted to include enforcement claims by EPA. Under that interpretation, cases settled by the use of ADR in excess of $20,000 would have to be approved by DOJ, unless another statute created an exception to the FCCA for particular types of claims.

In cases that are suitable for the use of a form of binding ADR, such as binding arbitration, a requirement that the government not be bound by the arbitrator's decision until DOJ had reviewed and approved the award would obviously be a tremendous disincentive to private parties to agree to the use of that form of ADR. One EPA enforcement official has suggested that the problem could be solved if DOJ would give EPA advance concurrence to conduct binding ADR in certain types of cases. While Deputy Attorney General Arnold Burns has endorsed giving greater authority to agencies to use ADR techniques,²¹ it remains to be seen whether DOJ will carry out Mr. Burns' recommendation by giving advance concurrence or waiving approval of settlements in cases that may be suitable for binding ADR.²²

DOJ has also expressed concern that the use of ADR by government agencies raises other legal, even constitutional, issues. Those concerns include whether sovereign immunity, authority to compensate the neutrals, the Anti-Deficiency Act,²³ confidentially of communications to the neutral, and other considerations unique to the federal government limit the ability of federal agencies to use ADR. Reacting to those concerns, the Administrative Conference of the United States (ACUS), which has been a leader in investigating and recommending the use of ADR by federal agencies, retained University of Texas law professor Harold H. Bruff to research the constitutional issues.

Professor Bruff developed a report²⁴ in which he concludes that, with minimal safeguards to insure fairness, the use of ADR does not present significant constitutional problems, with the possible exception of arbitration. Arbitration shifts decisionmaking authority to a private party who may not be authorized by law to make decisions involving the government.

As a result of Professor Bruff's report, ACUS has developed a recommendation entitled "Arbitration in Federal Programs,"²⁵ directed at Congress and federal agencies, which proposes procedural criteria that "provide some executive oversight, preserve judicial functions and ensure quality decisions and maintain legality and fairness" in federal ADR programs.²⁶ The recommendation [18 ELR 10092] concludes that legal issues should not be a concern "if Congress, in authorizing the use of arbitration, or the agency, when adopting arbitration, confines it to appropriate issues and provides for the agency's supervision of arbitration."²⁷

Other Potential Government Sector Impediments

Former Attorney General William French Smith has put forward three other reasons why government agencies in general have resisted adoption of ADR procedures:²⁸

(1) government lawyers have traditionally been unconcerned with the cost of defending and prosecuting disputes in court and administrative proceedings;

(2) those who manage the government's litigation may be reluctant to use ADR processes because of a fear that they will be criticized, the public perception being that (especially for public health and safety issues) informal hearings are inadequate, and that public officials who allow such hearings may be abusing their power; and

(3) it is not always clear whether Congress has authorized those procedures, or if so, who in the agency has the power to approve their use or how an agency pays for the non-judicial forum.

The latter two points are particularly applicable to EPA. The criticism of "sweetheart deals" and abuse heaped upon EPA during the period of 1982-1983, and the resulting distrust by the public and Congress of EPA have left many at that agency exceptionally sensitive to utilizing procedures that might renew those charges. However, since that era, EPA has adopted the philosophy that it should operate as if in a fishbowl, and Congress has helped to assure that by including into various statutes opportunities for greater public participation in the settlement process. The ADR process does not now present any greater danger for abuse of enforcement authority than do any of the existing, more traditional processes.

It may seem ironic that EPA, with its history of controversy over enforcement settlements, is taking the lead among federal agencies to promote the use of ADR. While the effects of that controversy still remain, time and the subsequent record enforcement efforts of EPA have lessened them. It is also a tribute to the leadership of Administrator Lee Thomas that he has not allowed that brief episode in the history of the agency to interfere with the progress of the agency toward finding more efficient and effective ways to perform its mission. In addition, Congress has demonstrated some support for this movement by authorizing the use of arbitration to resolve small cost recovery claims under CERCLA § 107.²⁹ For these reasons, while Attorney General Smith's points were well made at the time they were written, they do not, in my opinion, presently present major obstacles to the use of ADR in enforcement cases.

Impediments to Enforcement ADR Techniques from the Private Sector Perspective

The private sector — consisting in the environmental enforcement context primarily of corporations and their attorneys — has many of the same or similar impediments to the use of ADR as does the government sector, plus a few that are uniquely its own. "There are," as Mr. P. J. Mode, of the Washington, D.C., law firm of Wilmer, Cutler & Pickering, was recently quoted as saying, "only two obstacles to greater use of the techniques of ADR: lawyers and clients."³⁰

Even with "only" those two obstacles, one would think that the use of ADR in environmental enforcement cases would be more enthusiastically received by lawyers and their corporate clients. Defending such cases is usually an uphill and losing battle, and the losses are calculated in more than penalties and compliance costs. For example, the liability of the corporation is usually strict (i.e., negligence on the part of the corporation does not have to be proven by the government), and in some cases may be joint and several, making the corporation liable for the acts of others; the potential costs of compliance and the "transactional" costs (e.g., attorneys fees, engineering costs) are high and will only increase with time; and environmental cases are highly visible, widely publicized, create public concern, generate a negative image for the company, and increase the potential for third-party tort suits.

Corporations have those and other incentives to settle environmental enforcement cases as quickly, quietly, and cheaply as possible. Their attorneys are obligated to act in the best interest of their clients. Yet there is little evidence to date of widespread interest in the use of ADR either by corporations or their outside counsel. What, then, are the impediments that exist in the private sector to the adoption of procedures that would obviously be of benefit to them in many cases?

The "Hired Gun" or "Equalizer" Factor

The private sector counterpart to the "Mission" and "Macho" factors in the government sector, this evidences itself in the attitude of many private attorneys that they must demonstrate that they aretough, brilliant trial attorneys whose mission is to save their underdog, put-upon client from the oppressive, unwarranted, and patently unreasonable demands of a fumbling and unresponsive giant government bureaucracy.³¹

The image of the trial attorney as the champion of the wronged — even if the wronged is a multimillion dollar corporation — is bred into lawyers in law school and by the attitude of the practicing bar. In the context of the lawyer as a historical defender of the weak, poor, and oppressed, and the trial lawyer's use of the courts to vindicate the rights of those persons that has led to many important gains in various areas of our society, that image is totally justified. However, as important as environmental cases are, not every one involves precedential issues or will lead [18 ELR 10093] to a landmark decision. Not every case must be processed through the judicial gristmill to the Supreme Court.³²

Strangely enough, it seems that in many cases, the role of the trial attorney fighting every step of the way to settlement at the courthouse door is most often played by the younger or inexperienced attorney who has tried few cases, if any, but who is trying to demonstrate that he can be as tough as the most grizzled veteran. There are a number of experienced environmental attorneys whose egos are already sufficiently secure who advocate the use of ADR in appropriate circumstances, but they are presently too few in number. More importantly, they realize that it is usually to no one's interest to try most environmental cases on the facts, unless there is an important, unsettled legal principle for the court to resolve.³³ These cases are simply too complex to be easily tried in a U.S. district court.

The Financial Factor

Lawyers defending corporations against environmental enforcement cases usually charge their clients by the hours spent on the case.Those fees vary widely, depending on whether the attorney is an associate or partner, but can amount to very substantial sums. In addition, associates of many law firms are frequently expected to maintain a certain level of "utilization" or billable hours, from work on the firm's cases. These economic facts of life are widely cited as disincentives to settlement by advocates of ADR and other changes in the judicial system,³⁴ some of whom depict attorneys as selfish money-grubbers whose only interest in a case is the amount of fee that can be wrung from it. At best, the legal community must accept that they are faced with at least an apparent, if not real, conflict of interest on issues of finding ways to minimize litigation.

In all fairness however, attorneys are required by ethical standards to act in the best interests of their clients. Responsible attorneys will advise a client to take a particular course of action that they believe to be in the client's best interest, even though it may be against the attorney's self-interest in shortening or terminating the duration of his/her services to the client. However, it is often not altogether clear as to what course of action is in the client's best interest. Further, the client may be resisting settlement by indignantly and emotionally taking a "Macho" position for reasons of its own. There is also the frequent fear of the private attorney of being viewed by his/her client as weak or "selling out" by recommending settlement.

Faced with these dilemmas, very often the easiest course of action for the attorney is to continue with litigation. That decision is undoubtedly made easier by the fact that the lawyer will continue to be paid during the course of the litigation, but it may or may not be the compelling reason for the decision. For whatever weight it may bear in the individual attorney's decision, the financial interests of the attorney in generating fees out of a case are perceived to, and in some cases probably do, create an impediment to the use of ADR.

The "Benign Client" Factor

Lest one get the impression that all of the private sector impediments to use of ADR are thrown up by attorneys, it should be remembered that these "hired guns" are just that — representatives of the client company, presumably carrying out the will and instructions of the client. While it is true that the client looks to the attorney for advice on legal issues, and usually follows that advice,there are in any case many policy, business, and economic decisions that the client should properly make. All too frequently, however, the client defers or defaults the making of those decisions to the attorney, or fails to maintain sufficient supervision of the case to know when those decisions should be made. Instead, the client takes an attitude of benign neglect toward the case after it is placed in the attorney's hands.

In like manner, many corporations frequently fail to develop and clearly communicate to their outside attorneys a policy or directions on preference for settlement. In fact, the corporation's representatives may be emotional and indignant at being the target of an enforcement action at the time the case is referred to outside counsel, and give the impression to outside counsel that settlement is not a preference, leading counsel to proceed accordingly. Most attorneys are willing to perform the wishes of the client, assuming they are legal, in the client's best interests, and that they are known.

The "Bottom Line" Factor

From the corporate perspective, one of the largest impediments against early settlements, and therefore against the use of ADR, is the reluctance of corporate managers to spend the large sums of money, frequently unbudgeted, necessary to resolve many environmental cases. Those expenditures may severely affect the bottom-line profit of [18 ELR 10094] the corporation. Perhaps more important to the corporate decisionmaker, a settlement may lessen or eliminate that person's bonus or other compensation if it is keyed to the profit of the company or an operating unit to which a settlement would be charged. There is, therefore, an incentive in many corporations to delay the expenditure of those costs as long as possible; ideally to the day that someone else will have to worry about them.

There are, of course, other impediments to the use of ADR in environmental enforcement cases in the private sector.³⁵ The private sector shares many of the factors discussed earlier regarding government impediments, including the "Lack of Institutional Incentives" factor, the "Inertia" factor, and has perhaps an even greater "Lack of Knowledge/Training" factor than exists in the government sector. In addition, corporate personnel may not want settlement of a case because it may be viewed as an admission of a mistake that they committed. Turf battles which may impede ADR exist within and between corporations and law firms just as they do in the government.

Is ADR an Irresistible Idea or a Lost Cause?

With all of these very consequential impediments, what is the hope for ADR ever becoming a significant procedure in environmental enforcement? Is it indeed an irresistible group of efficient and effective techniques whose time has come, or is it an idealistic concept, useful in other areas, but which has an insurmountable array of interests against its application to environmental enforcement, making it a lost cause?

The answer to these questions must be that ADR techniques present efficient and effective procedures that may be useful in some but probably not all environmental enforcement cases. Further, the factors and interests that impede the use of ADR in those cases are not so strong or entrenched that they cannot be overcome in time with leadership from the appropriate officials at EPA and DOJ, experienced private-sector attorneys, top corporate officers, and, in some areas, by legislation. However, change frequently comes slowly, and, at best, the adoption of ADR procedures for environmental enforcement to any significant degree will require a few years and a lot of patience and persistence by the persons who see the value in promoting it.

What needs to be done to promote the use of ADR in environmental enforcement? There are a number of actions that can be taken, but they must be taken by all of the sectors that have an interest in promoting its use. The use of ADR presumes that all parties to the dispute want to settle the case, are knowledgeable about the alternative methods of achieving settlement, and are willing to use an ADR technique to do so. It will not advance the cause of ADR for the government or the private sector alone to promote it.

While it may sound trite, leadership on the part of key officials in both the government and private sector is indispensible. Without leadership in action as well as words from these top government and corporate officials and leading environmental counsel, the development of ADR in environmental enforcement will be retarded and may fail in the short term, giving ADR a negative image as an enforcement procedure, and making it that much more difficult for subsequent leaders to revive it. That leadership must be translated from words, which have been plentiful, into action, which has been lacking.

Below are some specific initiatives that both the government and private sectors can develop for encouraging the use of ADR in enforcement cases.

Government Sector Initiatives

Training Programs

The Administrator of EPA and other Agency officials have encouraged the use of ADR in enforcement in the strongest words, and have asked EPA's regional offices to find cases where ADR may be applied. The regional offices have made only a half-hearted effort to comply. Part of the reason for this failure is that the regional offices, which have considerable autonomy, have not been "sold" on the concept or trained in its potential and use. It will be essential not only for the Administrator and other top EPA and DOJ officials to continue advocating the advantages and use of ADR, but to persuade the division directors, branch chiefs, and other mid-level officials who make EPA and DOJ work that it is a good idea that they should advocate.

In order to do this, and to overcome the "Macho" and "Mission" factor impediments, EPA and DOJ enforcement personnel must come to realize and act upon several critical facts:

(a) efficiencies must continually be achieved in the processing of enforcement cases to enable them to keep pace with EPA's ever-growing workload, and to maintain the credibility of the enforcement program in the regulated community;

(b) inflicting the judicial system upon a violator in cases that do not require resolution of important legal principles, are not egregious, or in which injunctive or other court-supervised relief is not necessary may ultimately be self-inflicting punishment upon EPA's ability to perform its mission;

(d) the proper use of ADR affects not the substance of the case against the violator, but merely the procedure by which the same result may be obtained as by using a traditional procedure.³⁶

The best way for EPA and DOJ enforcement personnel to come to accept these important premises is through training programs designed to acquaint those personnel [18 ELR 10095] with the various types of ADR, the cases in which each type might be most useful, procedures for selection and payment of third-party neutrals, and procedures to be used during the ADR process. The Guidance issued by the Administrator on August 14, 1987, contains information on these subjects, but experience has taught that much of the guidance and policy documents issued by EPA Headquarters does not get read in the regional offices. Training programs utilizing experts in ADR procedures would be a far more effective means of selling the program.

Institutional Incentives

Because EPA has so many responsibilities, very little gets done at EPA unless it is included in one of its various management systems. The potential for use of ADR would be enhanced considerably if EPA's management would incorporate it into the Agency's Strategic Planning Management System, which drives major agency actions, or in other of the Agency's management systems. At a minimum, EPA could require its regional offices to consider every existing and new case as a candidate for ADR, and, for new cases, to explain why ADR was not used if the case is referred for judicial enforcement. EPA Headquarters could also make clear to the regions that a case settled through the use of a form of ADR will qualify for credit against case referral projections, even though no traditional referral results. Finally, EPA could also develop a system that rewards closure of cases, rather than only the opening of cases, as is presently the system.

Develop ADR Legislation

In order to engage in the full spectrum of binding ADR procedures, EPA may have to develop legislation to avoid the effect of the Federal Claims Collection Act. EPA presently can engage in any ADR technique that does not bind the agency, such as mediation, but, with one important exception, is barred by the FCCA from engaging in any binding form of ADR over any claim in excess of $20,000.³⁷ That one exception is the authority to arbitrate cost recovery claims not exceeding $500,000 under CERCLA § 107.³⁸ Regulations necessary to establish the procedures by which arbitration will be conducted on Superfund cost recovery claims are now being developed at EPA, and should be promulgated relativelysoon. That Congress gave EPA the authority to arbitrate those claims is indication that it might be willing to broaden that authority to other claims as well.

Overcome the "Turf" Factor

DOJ particularly will have to convince itself that there are sufficient environmental enforcement cases that ADR will not present a threat to DOJ's status as the government's trial lawyers, or to the rather sizable staff that has grown up at DOJ to handle judicial enforcement cases, even if some of those ADR cases are handled by EPA lawyers. This especially will require courage and leadership on the part of DOJ's top officials, because to relinquish authority over any kind of case or proceeding goes contrary to DOJ's culture.

Deputy Attorney General Burns' recommendation that greater authority be given to federal agencies to use ADR techniques is a good start. This can be done if DOJ waives or gives advance concurrence to EPA to compromise enforcement claims through the use of binding ADR, such as arbitration and fact-finding. If there is a legal impediment to that course of action, then DOJ could support a request by EPA to Congress for legislation granting the authority to compromise claims by binding forms of ADR.

Private Sector Initiatives

Leadership from Attorneys

Because of their traditional leadership role and the position of trust and respect that they hold with their clients, private-sector attorneys are uniquely capable of being a strong influence in encouraging the use of ADR in environmental enforcement. But while many lawyers are natural leaders, they are also great followers of precedent as well. This is especially true in following new procedures established by other lawyers recognized and respected within the bar.

Defense of environmental cases is a relatively new area of practice, particularly in the hazardous waste area, and many of the private attorneys just entering the field are still unsure of their ground, following the procedures established by the more experienced attorneys. In order for the use of ADR in environmental enforcement to develop and flourish, it will be important for some of the experienced environmental defense attorneys to be willing to participate in ADR techniques with EPA. These techniques could be nonbinding at the outset, if that would aid in making the participants feel more comfortable with the process. Assuming that those initial efforts were successful, others might then more willingly follow their lead.

Recognition of Settlement as a Goal

Attorneys, and to a lesser extent their clients, must restructure their current thinking that the primary purpose of an enforcement case is to litigate (recognizing that some attorneys and clients use the lawsuit as a delaying tool, never intending to litigate the case). From the government's perspective, the goal of an enforcement action should be to compel compliance by the violator with the environmental laws. The goal from the private sector perspective should be the satisfaction of the requirements of the law as quickly and inexpensively as possible. The process by which these goals are achieved should be a secondary consideration in all but the few exceptional cases that have been mentioned as most desirable for the judicial process. If those compatible goals are recognized by both sides of an enforcement dispute at its outset, the use of ADR will be made easier.

Private sector attorneys and corporations can take a number of steps to acknowledge and instill in their ranks the goal of settlement.

Training Programs. Law firms, bar associations, and corporations can develop training programs on the various [18 ELR 10096] forms of ADR, the types of cases in which they might be most useful, and procedures that are generally followed under each.

Designation of Settlement Counsel. Lawyers should come to view the ADR process as a means to achieve the goal of settlement, and not as an end in itself, much as many lawyers now view litigation as an end or goal in itself. This may be done not only through in-firm and bar association training and culture development, but through the designation of "settlement counsel" within the firm who are expert in ADR procedures, and whose job it is to provide a check and balance against the "gung-ho" litigation counsel by participating in case discussions and reviews.³⁹ Some firms are using a "dual-track" approach, assigning a settlement counsel to a case along with a litigation counsel.⁴⁰ That is an expensive procedure, but may be worth the cost in hastening settlement in particular and the acceptance and use of ADR procedures in general.

Restructure the Basis of Compensation. Law firms and their clients should consider development of a system for compensation that financially rewards the attorney as well as the client for the early settlement of cases. There is danger in this, of course, just as there is danger in the government developing a system that rewards its enforcement personnel for case closures rather than only recognizing case openings. However, assuming that the client is interested in early settlement, is kept informed of developments, and is knowledgeable about the effect of settlement procedures and proposals, the danger of an improvident settlement by an attorney is remote, especially since the alternative to settlement is that the attorney continues to charge by the hour.

Corporations and their outside counsel could explore rewarding early settlements with bonuses based on a percentage of fee that might have been earned by the attorney over the projected life of the case had ADR or other settlement-inducing techniques not been used, or based upon actual or estimated costs in analogous cases. Associates in law firms could be similarly rewarded for early settlements to compensate for the loss of a case to which to bill their hours.

Greater Corporate Oversight of Litigation

Corporate officers are frequently heard to complain mightily about the size of fee bills that they receive from law firms for defending environmental cases. There are some actions that corporate clients can take to potentially reduce the size and duration of those billings:

Clear Direction to Attorneys. The client should make clear to its outside counsel that its goal in the case is not to fight the government to the last dollar in the corporate treasury, but to settle the case as quickly and economically as the interests of the corporation will allow. This will help to remove any ambiguity or false impressions in the mind of the counsel as to the wishes of the client. This should also be made clear to the company's general counsel and his assistants, who would normally oversee the actions of outside counsel, to remove any "Macho" factor from their perspective.

Continued Involvement in Case. The client should remain closely involved in the case after it is referred to outside counsel, assisting in the development of strategy for the defense of the case, the development of settlement options, negotiations, and settlement discussions. The client's representatives in those matters should include high-level financial and operations personnel, not only those from the general counsel's office. The decisions made during those strategy, negotiation, and settlement discussions impact directly and heavily upon the client's pocketbook, and the client has a right and duty to its stockholders to participate. Throughout these discussions, the client whose goal is to resolve the case as expeditiously and inexpensively as possible will reinforce that goal as often as necessary through raising the possibility of use of ADR or other procedures calculated to achieve that goal.

Conclusion

The use of ADR in environmental enforcement cases is an idea whose time has come with the increase in number and complexity of those cases. The enforcement ADR program has been born at EPA, and is a noble and progressive experiment. However, there are many impediments of a human and institutional nature that stand in the way of its growth and development. Unless this fledgling program is nurtured by leadership from top and mid-level officials at EPA and DOJ, leading members of the environmental bar, and responsible corporate officials, it will have a slow, stunted growth, and may wither.

Government and the private sector should develop programs designed to educate and train persons involved in environmental enforcement cases about the various types of ADR, the cases to which they are most applicable, procedures used in each type of ADR, and the benefits to be gained from its use. Through such training programs, the attitudes that currently exist in many people involved on both sides of environmental enforcement may be changed to one in which settlement is the goal and ADR is a procedure used to attain it, rather than one in which the process is an end unto itself.

However, long periods of time are frequently required to bring about changes in attitude. The leadership of the governmental and private sectors will also need to establish institutional systems to help bring about these changes in attitude. Those systems should encourage and reward the prompt resolution of cases rather than only the opening and perpetuation of cases. In the private sector especially, this may require the rethinking of long-standing and customary compensation arrangements between client and counsel, and within law firms.

These changes will require much courage and effort from government agencies and the private sector. Is ADR in environmental [18 ELR 10097] enforcement worth all of this effort? If the enforcement credibility of the government is to be maintained, rather than be allowed to eventually bog down into a stagnant backlog of stale cases, the answer for the government and public is "yes." If lawyers are sensitive to their growing image as dairy farmers milking their cases like cows; if lawyers are concerned that the increasingly loud grumble of corporate managers over large and incessant attorneys fees portends a time when there will be a widespread demand for reform of the current system that could eliminate or substantially reduce those costs, the answer for attorneys is "yes." If corporations are indeed concerned about the effect of environmental cases on the bottom line as well as the corporate image, the answer for corporations is "yes."

Assuming that these issues are all legitimate concerns of the key parties to environmental enforcement cases, ADR will surely eventually grow and prosper for a significant proportion of those cases. But with the obstacles to overcome, that growth will be slow, and will require leadership and patience on the part of those government and private sector leaders who advocate it.

1. MEMORANDUM FROM LEE M. THOMAS, ADMINISTRATOR, EPA, TO ASSISTANT ADMINISTRATORS AND REGIONAL ADMINISTRATORS, RE: FINAL GUIDANCE ON USE OF ALTERNATIVE DISPUTE RESOLUTION TECHNIQUES IN ENFORCEMENT ACTIONS (Aug. 14, 1987).

2. U.S. Environmental Protection Agency, Guidance on the Use of Alternative Dispute Resolution in EPA Enforcement Cases, ELR ADMIN. MATERIALS 35123.

3. As of February 1, 1988, EPA's ten regional offices had nominated seven cases for consideration for the use of ADR. Three of the cases were not enforcement, but cases in which EPA was the defendant. All but one of the cases nominated proposed the use of mediation and/or fact-finding. The one exception proposes the use of a minitrial. As of this writing, none of the cases nominated had begun to actually utilize ADR. In the case nominated for the use of mini-trial, EPA and the defendant have informally agreed to begin the use of that technique soon. The private party in one of the cases has rejected the use of ADR when it was proposed by EPA. EPA is considering proposing use of ADR to the defendants in two of the remaining cases, but will not pursue ADR in the remaining three cases.

EPA is currently engaged in one case involving the use of mediation to resolve a claim against the City of Sheridan, Wyoming, for alleged violation of the Safe Drinking Water Act. That case was nominated by EPA's Region VIII and mediation agreed upon by the City and other interested parties prior to Lee Thomas' memorandum of August 14, 1987.

4. The use of "ADR" or "ADR techniques" in this article is intended to generically refer to a variety of binding and nonbinding procedures which assist parties to a dispute to achieve a settlement through the use of third-party neutrals who may or may not be delegated decisionmaking authority by the parties to the dispute. Those procedures include mediation, arbitration, fact-finding, mini-trials, and other procedures. The definitions of and distinctions between those procedures are set forth in the Guidance, pp. 2-4, ELR ADMIN. MATERIALS 35124.

5. For a review of cases in which ADR has been utilized to resolve environmental disputes involving land use, resource management, and public policy, see BINGHAM, RESOLVING ENVIRONMENTAL DISPUTES (Conservation Foundation, 1986); TALBOT, SETTLING THINGS (Conservation Foundation, 1983); Susskind & Weinstein, Towards a Theory of Environmental Dispute Resolution, 9 B.C. ENVTL. AFF. L. REV. 311 (1981).

6. Source: Office of Compliance Analysis and Program Operations, Office of Enforcement and Compliance Monitoring, U.S. Environmental Protection Agency, Washington, D.C. 20460.

7. Id.

8. Id.

9. Id.

10. For a discussion by EPA's Chief Administrative Law Judge of the procedures followed in EPA administrative hearings, see Harwood, Hearings Before an EPA Administrative Law Judge, 17 ELR 10441 (1987).

11. The roles of litigation and ADR procedures relative to environmental cases were succinctly stated by Ms. Carol E. Dinkins, then Deputy Attorney General of the United States, in Dinkins, Shall We Fight or Will We Finish: Environmental Dispute Resolution in a Litigious Society, 14 ELR 10398 (1984). In that article, Ms. Dinkins stated:

To place in context any discussion of alternatives to litigation, we must first identify the proper role of litigation. Although litigation is often cumbersome, divisive and costly, it does serve an essential function in the dispute resolution process. Congress at best is often imprecise. Congress creates its laws in a climate of competing interests where conflict is ultimately forged into compromise. The resulting products often contain ambiguities, apparently irreconcilable provisions, and indefinite standards. Litigation is an important tool to sharpen and hone legal requirements and to define more clearly the respective rights and responsibilities of parties under the law.

But while litigation provides the most certain and efficient method to resolve disputes relating to the law, it is an undeniably cumbersome and inefficient mechanism to deal with facts. Once the legal ground rules are established, once the relative rights and responsibilities of the parties are precisely defined, litigation is not a satisfactory means to resolve disputes. The adversary process is not designed to quickly and fairly sort out the facts of a case. Rather, in litigation, facts are developed through a complex discovery process, in which each side typically will provide as little information as possible. Throughout the process, attorneys present their cases so that the court record is most favorable to their client's interest, and not necessarily to present a clear picture of what happened. Alternative mechanisms for dispute resolution could be of great use in helping resolve factual disputes once litigation has clarified the requisite legal framework provided by Congress.

(Emphasis supplied.) Id. at 10398-99.

For a discussion of the role ADR could play in conserving scarce enforcement resources in light of the Supreme Court decision in Tull v. United States, 107 S. Ct. 831, 17 ELR 20667 (1987), holding that a jury trial is required when the government seeks a civil penalty under the Clean Water Act, see Openchowski, Changing the Nature of Federal Enforcement of Environmental Laws, 17 ELR 10304 (Aug. 1987).

12. 40 C.F.R. § 300. The NCP is undergoing major revisions which are to be officially proposed within a few months.

13. See Susskind, The Special Master as Environmental Mediator, A.B.A. STANDING COMM. ON ENVTL. LAW (1987), reprinted in 17 ELR 10239 (July 1987).

14. MEMORANDUM FROM EDWIN MEESE III TO ALL ASSISTANT ATTORNEYS GENERAL AND ALL UNITED STATES ATTORNEYS (UNDATED), RE: DEPARTMENT POLICY REGARDING SPECIAL MASTERS, which provides, inter alia:

Special masters are an acceptable aid to judicial officers in a narrow range of cases, but they are not a substitute for Article III judges

The appropriate role for special masters is in situations where the demands on the decisionmaker's time are great but the need for judicial resolution is minimal. Masters can be useful where decisions are (1) routine, (2) large in number, (3) minimally connected to the substantive issues in a case, and (4) not sufficiently difficult or significant to require a constitutional or legislative officer.

15. For example, in U.S. v. Stringfellow, No. CV-83-2501-MML (D.C. Cal.), and U.S. v. Conservation Chemical Company, Civil Action No. 82-0983 (W.D. Mo.), two cases in which special masters were appointed in complex Superfund cases, the costs attributable to the special masters in each case have run well into the hundreds of thousands of dollars. The Conservation Chemical case was recently settled (consent decree lodged November 23, 1987, notice and opportunity for public comment published November 30, 1987, 52 Fed. Reg. 45510), but the Stringfellow case is still pending.

16. See Dinkins, supra note 11, in which Ms. Dinkins observes:

Referrals [of judicial cases to DOJ] are not like the visible tip of an iceberg whose size is necessarily proportional to the size of that which lies underneath. Indeed, because enforcement litigation is resource intensive, increases in the number of referrals may signal a shrinking of other kinds of enforcement activity. … Judicial referrals, in and of themselves, cannot give us the enforcement program that we need in the environmental area. The simple truth is that we cannot bring every enforcement action or even a significant number of these actions to court.

(Emphasis supplied.) Id. at 10399.

17. Prior to Lee Thomas' memorandum of August 14, 1987, Courtney M. Price, then Assistant Administrator for Enforcement and Compliance Monitoring at EPA, issued a Memorandum on October 2, 1985, to EPA's regional offices endorsing the use of ADR in enforcement cases and requesting the nomination of cases in which ADR might be used. The only case nominated was that involving the City of Sheridan, Wyoming, mentioned in note 3, supra. Dr. J. Winston Porter, Assistant Administrator for Solid Waste and Emergency Response at EPA has endorsed the use of mediation to resolve technical disputes in remedial investigations and feasibility studies, and small cost recovery cases under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund), 42 U.S.C. §§ 9601-9675, ELR STAT. 44001. See, Porter, Superfund Settlements: EPA's Perspective, SUPERFUND UPDATE (Aspen Publishers, Inc., 1987).

See also, remarks of the Honorable Arnold I. Burns, Deputy Attorney General of the United States, before the Administrative Conference of the United States on "Improving Dispute Resolution: Options for the Federal Government" (June 1, 1987); and Dinkins, supra note 11.

18. See, for example, the remarks of John O'Keefe, counsel for the Travelers Insurance Company, before the International Association of Defense Counsel on July 2, 1987, in Colorado Springs, Colorado, regarding problems encountered by the Connecticut Alternative Dispute Resolution project in which Travelers played a leading role. He described the major problem as a widespread lack of understanding among judges, plaintiffs and defense attorneys, and senior insurance company officials about the distinction between various types of ADR, such as mediation and arbitration, and their benefits. 1 ALTERNATIVE DISPUTE RESOLUTION REPT., (BNA) 140 (July 23, 1987).

19. The word "concern" in this context was best defined by the columnist George Will as "the preferred adjective of people eager to be perceived as not rushing to judgment, but as theatrically suspicious that the object of their 'concern' will be discovered to be appalling."

20. 31 U.S.C. §§ 3701, 3711, 3716-3718.

21. Remarks of the Honorable Arnold I. Burns, Deputy Attorney General of the United States, before the Administrative Conference of the United States on "Improving Dispute Resolution: Options for the Federal Government" (June 1, 1987).

22. It should be noted that many of the legal concerns expressed about the use of binding ADR do not exist for the use of nonbinding forms of ADR, such as mediation, since the parties to the dispute do not delegate to the third-party neutral the authority to resolve the dispute. Settlements subject to the FCCA or other statutes requiring DOJ approval reached through nonbinding ADR would include a proviso, as do current settlements, that the agreement is subject to the approval of the appropriate official at DOJ and any rules requiring public notice and opportunity for comment. The principal legal or programmatic concern in non-binding ADR is how to pay the third-party neutral.

23. 31 U.S.C. § 1341.

24. THE CONSTITUTIONALITY OF ARBITRATION IN FEDERAL PROGRAMS, REPORT TO THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES (May 27, 1987).

25. Administrative Conference of the United States Recommendation No. 87-5, "Arbitration in Federal Programs," 52 Fed. Reg. 23629 (June 24, 1987) (to be codified at 1 C.F.R. § 305.87-5).

26. Id. at 23635.

27. Id.

28. Smith, Alternative Means of Dispute Resolution: Practices and Possibilities in the Federal Government, 1984 MO. J. DISPUTE RESOLUTION, at 9-23.

29. See CERCLA § 122(h)(2), 42 U.S.C. § 9622(h)(2), ELR STAT. 44062.

30. 1 ALTERNATIVE DISPUTE RESOLUTION REP. (BNA) 30 (May 14, 1987).

31. Mr. Mode eloquently expressed the "Hired Gun" or "Macho" factor another way: "Good lawyers want to win and, if possible, rub their adversary's face in the dust: the win-win solution is for wimps in 'fern bars,' not for real jocks in locker rooms. Clients come to lawyers for their help in waging holy wars. Money is no object — until about the third bill." Id.

32. Mr. Stephen Ramsey, former Chief of the Environmental Enforcement Section of the Land and Natural Resources Division at DOJ, and now a partner in the law firm of Sidley & Austin, in commenting upon the need to find alternatives to litigation in cleaning up Superfund sites, observed:

[A]s Henry VIII said to Thomas More (albeit in another context) "Does a man need a Pope to tell him when he's sinned?" Paraphrasing, do parties need to hear it from the Supreme Court? It costs more today to get a litigated answer from the court that it did to bribe the 16th century popes. I predict the news will be equally bad for the losers in both fora.

Ramsey, Opinion, 9 CHEM. & RADIATION WASTE LITIGATION REP. 614 (Apr. 1985).

33. [T]he stronger the litigator — the more competent the lawyer — the more secure the man or woman advocate — the better the chance of resolving a dispute without resort to actual litigation. If you have a 750 pound gorilla on your side, you're more likely to get people to talk sense.

Burns, supra note 21.

34. See, for example, Fisher, He Who Pays The Piper, HARV. BUS. REV. at 150 (Mar.-Apr. 1985), an imaginative review of disincentives to the use of ADR by corporations and attorneys in the form of a fictional letter from a corporate CEO to the corporation's outside counsel. Mr. Fisher, who is Williston Professor of Law at Harvard University, Director of the Harvard Negotiation Project, and a coauthor of the widely-acclaimed book Getting To Yes: Negotiating Agreement Without Giving In, (Houghton, Mifflin, 1981; Penguin, 1983), makes the following analogy regarding how attorneys are perceived to view cases:

A big case is to a law firm as a good milking cow is to a dairy farmer: a reliable source of steady income…. A solo practitioner may have only one big case — one milking cow. The possibility of settlement may loom as a major disaster.

Fisher, He Who Pays The Piper, HARV. BUS. REV., Mar.-Apr., 1985, at 150, 154.

35. For a comprehensive review of many of the factors that serve as disincentives to use of ADR by corporations and their outside counsel, see Fisher, He Who Pays the Piper, supra note 34.

36. Deputy Attorney General Burns stated this in terms of the need to change the "culture" of government agencies:

[A] major task during the next few years will be promoting changes in agencies' "cultures" so as to let them make more effective use of ADR. This change, which really involves teaching lawyers that in some situations "losing is winning" will not come easily. We need to get the message across that the best solution to a dispute is often one in which both parties go away unhappy — minimally unhappy, one hopes, but unhappy nonetheless. Creating the awareness, ability and willingness to resort to ADR will demand leadership from high-level officials.

(Emphasis in original). Burns, supra note 21.

37. See supra note 23.

38. See supra note 29.

39. For a description of the role of an ADR specialist in a major law firm, see, Millhauser, ADR Partner Analyzes Law Firm Programs and Their Roles, 1 ALTERNATIVE DISPUTE RESOLUTION REP. (BNA) 117 (June 25, 1987). Ms. Millhauser is a partner and ADR Specialist in the Washington, D.C., law firm of Steptoe & Johnson.

40. For a description of the use of the "dual track" approach by the law firm of Wilmer, Cutler & Pickering, see Mode and Siemer, The Litigation Partner and the Settlement Partner, 12 LITIGATION (the Journal of the American Bar Association Litigation Section) 43 (Summer 1986).