FEC Institutes Pilot ADR Program
FEC INSTITUTES PILOT ‘ADR’ PROGRAM
WASHINGTON – The Federal Election Commission has approved a new voluntary program designed to promote compliance with the campaign finance law (FECA) and Commission regulations by encouraging settlements outside the normal enforcement context. The pilot program will seek to expedite resolution of some enforcement matters, reduce the cost of processing complaints, and enhance overall FEC enforcement.
Implementation of the Alternative Dispute Resolution, or ADR, pilot program is scheduled for early October. Its overall goal is to expeditiously resolve complaints and referrals of election law violations through both direct and, when necessary, mediated negotiations.
FEC’s newly-established ADR Office will review and evaluate complaints forwarded to it from Commissioners or the Office of General Counsel, including matters stemming from audits for cause, to determine whether the case is appropriate for the ADR program. All cases involved in the ADR process will remain confidential until closed by the Commission and placed on the public record.
In addition to meeting procedural requirements, for a case to be considered for ADR treatment, a respondent (or respondents) must express willingness to engage in the ADR process, agree to set aside the statute of limitations while the case is pending in the ADR Office, and agree to participate in bilateral negotiations and, if necessary, mediation.
After Commissioners concur that a case can be dealt with through ADR procedures, the respondent(s) will receive notification containing an agreement to engage in bilateral negotiations and/or mediation.
Bilateral negotiations are oriented toward reaching an expedient resolution in a manner that is both satisfying to the respondent(s) and in compliance with the Federal Election Campaign Act (FECA). Any resolution reached in negotiations will be submitted to the Commissioners for final approval. If a resolution is not reached in bilateral negotiation, the case will proceed to mediation.
The mediation phase begins with the selection of a mediator agreed upon by the respondent(s) and the ADR Office. Mediators will be chosen from a list of senior, experienced mediators from the private sector, and their fees will be paid by the FEC and/or respondent(s). To address concerns regarding the impartiality of the mediators, no individuals serving on the FEC roster of mediators may have served as a consultant, or have been employed directly or indirectly by the federal government during the previous two years.
All mediators serving on the FEC’s panel will be required to disclose any partisan federal political activity during the previous five years, contributions to federal political campaigns or political organizations and involvement in political parties during the past five years. Additionally, individuals selected to serve on FEC’s roster will be required to pledge to refrain from any federal political activity during their time of service.
Agreements reached in mediation will be forwarded to the FEC’s six Commissioners for their approval. If no agreement is reached, the case will be returned to FEC’s Office of General Counsel for processing within regular compliance and enforcement parameters.
Heading the FEC’s Office of Alternative Dispute Resolution is Allan Silberman, former president of the Center of Dispute Management, an organization of specialists in designing and applying ADR procedures. Prior to that position, Mr. Silberman was the Executive Director of the Dispute Avoidance and Resolution Taskforce (DART) of the Construction Industry.
He is a former vice president of the American Arbitration Association and a former U.S. Foreign Service Officer who served in United States embassies in Ecuador and Brazil and at the Department of State in Washington.
Additional details on the ADR program may be found in the August issue of the FEC’s monthly newsletter, The Record, at www.fec.gov.
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