ADR Case Study: United States
The U.S. experience shows how a successful pilot program by the Federal Election Commission (FEC) became an established practice with clear rules and guidelines on mediation established prior to the adjudication of disputes. This case study provides a good example of effective training and voter education materials. The FEC provides valuable information on its website on the use of mediation and developed a manual to guide complainants and respondents in the process.
In 2000, the FEC initiated a pilot program to promote compliance with the Federal Election Campaigning Act and FEC regulations on campaign finance, with the following explicit goals: “…to expedite resolution of some enforcement matters, reduce the cost of processing complaints, and enhance overall FEC enforcement.”142 The FEC set up a dedicated ADR team, enabling parties to a dispute to enter into direct negotiation or mediate the issue. Following an evaluation of the first year of the program, evaluators found that “the ADR Office processed 61 cases, of which 47 were concluded with negotiated agreements. The independent evaluation interviewed respondents and members of the election bar and concluded that 90 percent of respondents believed they saved time and money using the ADR Program.”143
The success of this program led to the institutionalization of ADR at the FEC for the U.S. elections in 2002. In addition to the initial strategic goal, the then-chairman, David Mason, also noted that “The ADR Program has proven to be an important contributor to the FEC’s civil law enforcement efforts. ADR has expanded the reach of our enforcement efforts, resolved complaints quickly and promoted compliance with campaign finance laws through an emphasis on remedial and preventative action.” The FEC found that the attorneys on its teams are able to concentrate on more important or complex cases.
Two decades later, the FEC still offers this option for specific cases, which are assigned to the ADR office by commissioners or referred by the Office of the General Counsel, the Report Analysis Division, or the Audit Office. The FEC also provides educational information on its website and developed a guide for complainants, which explains the objective and details of this ADR process.144 The manual enables disputants to understand the nature of the process, whether it is binding, the relevant timeline, and what to expect from this process. The FEC also provides detailed information on the history of the ADR pilot program.
141 Some EMCs indicated that some disputes were mediated on Election Day or during field visits, and therefore meetings were held or disputes submitted by telephone or on the spot. Some meetings were, therefore, not recorded.
142 Federal Elections Commission. (2000, August 1). FEC institutes pilot ADR program [Press release]. Retrieved from https://www.fec.gov/updates/fec-institutes-pilot-adr-program/
143 Federal Election Commission. (2002, October 3). Commission’s pilot ADR program made permanent [Press release]. Retrieved from https://www.fec.gov/updates/commissions-pilot-adr-program-made-permanent/
144 Federal Election Commission. (2012, May). Guidebook for complainants and respondents on the FEC enforcement process. https://www.fec.gov/resources/cms-content/documents/respondent_guide.pdf