Supporting Statement A and B_Mediation Services 33200004 02 03 2012

SUPPORTING STATEMENT
(PART A AND B)

INFORMATION COLLECTION REQUEST
for the
Evaluation of Mediation Services
(Agreement Seeking Processes)
(Control Number 3320-0004, Expiring 12/31/2011)

The U.S. Institute for Environmental Conflict Resolution

November 14, 2011

TABLE OF CONTENTS
A. Justification .................................................................................................................... 3
1. Circumstances that Make the Collection of Information Necessary ........................ 3
2. How, by Whom, and for What Purpose the Information is to Be Used ................... 4
3. Collection Technology.............................................................................................. 5
4. Duplication................................................................................................................ 5
5. Impact on Small Businesses or Other Small Entities................................................ 5
6. Consequences of Not Conducting Collection ........................................................... 5
8. Federal Register Notice............................................................................................. 6
9. Payment/Gifts to Respondents.................................................................................. 7
10. Confidentiality Protocols .......................................................................................... 7
11. Justification of Questions of a Sensitive Nature ....................................................... 7
12. Hours Burden of the Collection of Information........................................................ 7
13. Estimate of Total Annual Cost Burden..................................................................... 9
14. Annualized Costs to the Federal Government .......................................................... 9
14a. Total Capital and Start-Up Costs ....................................................................... 9
14b. Total Operational and Maintenance and Purchase of Services Component.... 10
15. Reasons for Program Changes/Adjustments........................................................... 10
16. Plans for Tabulation and Publication...................................................................... 10
17. Display of Expiration Date for OMB Approval ..................................................... 11
18. Explanations to "Certification for Paperwork Reduction Act Submissions".......... 11
B. Collections of Information Employing Statistical Methods......................................... 11
1. Respondent Universe and Sample Size/Selection Methods.................................... 11
2. Procedures for the Collection of Information ......................................................... 12
2a. Statistical Methodology for Stratification and Sample Selection ....................... 12
2b. Estimation Procedure ......................................................................................... 12
2c. Degree of Accuracy Needed for the Purpose Described in the Justification...... 12
2d. Unusual Problems Requiring Specialized Sampling Procedures ....................... 12
2e. Periodic Data Collection to Reduce Burden....................................................... 12
3. Testing Procedures.................................................................................................. 12
4. Statistical Consultants............................................................................................. 12
Appendix A. Statutes and Regulations Authorizing the Collection of Information ......... 14
Appendix B. Mediation Evaluation Design Overview ..................................................... 25
Appendix C. Public Comments in Response to the First Federal Register Notice........... 32

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A. Justification
1. Circumstances that Make the Collection of Information Necessary
The U.S. Institute for Environmental Conflict Resolution (the U.S. Institute) is a
federal program established by the U. S. Congress to assist parties in resolving
environmental, natural resource, and public lands conflicts. The U.S. Institute was
created by the Environmental Policy and Conflict Resolution Act of 1998 (P.L. 105156) and is part of the Morris K. Udall and Stewart L. Udall Foundation, an
independent federal agency of the executive branch overseen by a board of trustees
appointed by the President (A copy of P.L. 105-106 is included in Appendix A1).
The U.S. Institute serves as an impartial, non-partisan institution providing
professional expertise, services, and resources to all parties involved in such conflicts,
regardless of who initiates or pays for assistance. The U.S. Institute helps parties
determine whether collaborative problem solving is appropriate for specific
environmental conflicts, how and when to bring all the parties to the table, and
whether a third-party facilitator or mediator might be helpful in assisting the parties in
their efforts to reach consensus or to resolve the conflict. In addition, the U.S.
Institute maintains a roster of qualified facilitators and mediators with substantial
experience in environmental conflict resolution, and can help parties in selecting an
appropriate neutral. (See www.ecr.gov for more information about the U.S. Institute.)
Program evaluation is necessary for the achievement of the U.S. Institute’s goals – to
resolve federal environmental disputes in a timely and constructive manner; to
increase the appropriate use of environmental conflict resolution (ECR); to improve
the ability of federal agencies and other interested parties to engage in ECR
effectively; and to promote collaborative problem solving and consensus building
during the design and implementation of federal environmental policies so as to
prevent and reduce the incidence of future environmental disputes. Effective program
evaluation will provide information on how well these functions are performed, and
will stimulate improvement in performance as needed. Furthermore, the Government
Performance and Reporting Act (GPRA) requires all Federal agencies to report
annually on their performance by, in essence, answering the following questions:
What is your program or organization trying to achieve? How will its effectiveness be
measured? How well is it meeting its objectives? (A copy of the relevant part of
GPRA is included in Appendix A2).
The U.S. Institute began the program evaluation process by articulating its mission in
terms of desired outcomes for its programs. Standards are being established for each
outcome, and information will be collected and interpreted to measure performance in
relation to the standards. Achievement of the standards can then be tied to activities
and staff responsibilities. This is the framework envisioned by GPRA for all federal
agencies. Properly designed and implemented, program evaluation will assist the U.S.
Institute in continually improving the delivery of its services and products.
Information will be collected from a variety of sources for use in judging the degree to
which the outcomes are achieved. Key sources of information are users of the U.S.

3

Institute’s services and others involved in U.S. Institute projects. Gathering
information on observations and experiences of these people and their satisfaction
with the U.S. Institute’s services is accomplished by administering questionnaires.
Some information about the U.S. Institute’s programs can be obtained without
administering questionnaires (e.g., the number of assessments handled by the U.S.
Institute). However, to evaluate the quality of the U.S. Institute’s services and the
many aspects of success in building consensus or resolving disputes (reaching
agreements being but one), administering questionnaires is essential.
The U.S. Institute has partnered with several agencies to allow the benefits of the
program evaluation system to be realized more broadly. In 2008, the Department of
Interior, Office of Collaborative Action and Dispute Resolution (CADR) was granted
the approval of the Office of Management and Budget (OMB) to act as a named
administrator of the U.S. Institute’s currently approved information collections for
evaluation. The CPRC, CADR, and the U.S. Institute are seeking approval as part of
this proposed collection to continue this evaluation partnership. In addition, the U.S.
Institute is seeking to add the United States Army Corps of Engineers, Conflict
Resolution and Public Participation Center (CPC) as a third named administrator
under this proposed collection. Other agencies have approached the U.S. Institute
seeking (a) evaluation services and (b) assistance in establishing their own internal
evaluation systems. Therefore, the U.S. Institute is requesting OMB approval to
administer the evaluation questionnaires on behalf of other agencies. The U.S.
Institute is seeking approval to make minor conforming revisions to questionnaires to
allow for the broader application of the instruments (e.g., change return address on
cover).
The burden estimates in this information collection request (ICR) take into
consideration the multi-agency usage of the evaluation instruments. The broad interest
in the U.S. Institute's evaluation system has fostered an evaluation collaborative
among several state and federal agencies. The sharing of evaluation resources and
expertise is advantageous on several fronts: (a) design and development efforts are not
duplicated across agencies; (b) common methods for evaluating collaborative
processes are established; (c) knowledge, expertise and resources are shared, realizing
cost-efficiencies for the collaborating agencies; and (d) learning and improvement on a
broader scale will be facilitated through the sharing of comparable multi-agency
findings.
2. How, by Whom, and for What Purpose the Information is to Be Used
As part of the evaluation process for mediation services, two questionnaires will be
administered. The questionnaires will go to: (1) the mediator (third-party neutral) who
mediated the collaborative process at the conclusion of the process (once), and (2)
participants (stakeholders) participating in a collaborative process at the conclusion of
the process (once). The agency evaluation coordinator or the agency evaluation
consultant will administer the questionnaires.
The mediators are asked to assess their assignment and several aspects of the
consensus building or conflict resolution process, and lessons learned. The

4

participants (stakeholders) are asked questions at the end of the process about their
satisfaction with the process, the mediator and the agreement, and a few questions
about the relative costs and speed in reaching an agreement.
The information collected by the U.S. Institute to-date has been used to comply with
the Government Performance and Results Act. The U.S. Institute is required to
produce an Annual Performance Plan (Performance Budget), linked directly to the
goals and objectives outlined in the U.S. Institute’s five-year Strategic Plan. The U.S.
Institute is also required to produce an Annual Performance and Accountability
Report, evaluating progress toward achieving its performance commitments. Results
of evaluating each of the U.S. Institute’s program areas have and will be included in
its Annual Performance Reports. Simple summaries and tabulations of information
will be used. In addition, the evaluation results have and will continue to be made
available to wide audiences of program administrators, users, practitioners, and
researchers who are interested in learning about performance and what factors most
influence successful outcomes in specific situations. The U.S. Institute's evaluation
partners will make similar use of the evaluation information collected.
Design details of the program evaluation system are contained in Attachment B.

3. Collection Technology
The questionnaires will be administered by mail initially, however, administration via
the Internet is anticipated whenever appropriate. To-date administration by Internet
has not been practical since some participants in collaborative processes do not have
Internet access or would be less likely to respond via electronic means. Electronic
administration would modestly reduce respondent burden.
4. Duplication
No other source currently exists that can be used to obtain information on the quality
of mediation programs.
5. Impact on Small Businesses or Other Small Entities
Although some of the participants involved in mediation cases will be small entities,
most will be government agencies and individuals. Moreover, the total number of
expected responses per year is estimated to be relatively small – approximately 1,975
per year – and the financial burden to be modest – less than $15 per respondent.
6. Consequences of Not Conducting Collection
Evaluation of the mediation services would not be possible without the information
that can be obtained only by administering questionnaires to users and participants in
the collaborative processes. Only descriptive information is available from other

5

sources (e.g., the number of cases and the number of agreements). Such information
cannot be used as a surrogate for program/service quality, and cannot substitute for
information obtained through surveys of users and participants.
With respect to the frequency of information collection, the information will be
collected only once for each event.

7. Special Circumstances of Information Collection
This ICR does not require respondents to:
 report information to the Agency more often than quarterly,
 prepare a written response to a collection of information in fewer than 30 days
after receipt of a request,
 submit more than an original and two copies of any document, or
 retain records, other than health, medical, government contract, grant-in-aid or
tax records, for more than three years.
Nor will information be collected in a manner:
 connected with a statistical survey, that is not designed to produce valid and
reliable results that can be generalized to the universe of study,
 requiring use of a statistical data classification that has not been reviewed and
approved by OMB,
 requiring a pledge of confidentiality that is not supported by authority
established in statute or regulation, that is not supported by disclosure and
data security policies that are consistent with the pledge, or which
unnecessarily impedes sharing of data with other agencies for compatible
confidential use, or
 requiring proprietary, trade secret or other confidential information unless the
Agency can demonstrate that it has procedures to protect the information's
confidentiality to the extent permitted by law.
8. Federal Register Notice
A comprehensive Federal Register Notice was published at the end of July 2011. It
opened a 60-day public comment period. The notice described in detail the need for
and use of the information. The notice also provided access to copies of the proposed
questionnaires via the Institute’s website:
http://ecr.gov/Resources/EvaluationProgram.aspx
In mid-October 2011, a second Federal Register Notice was published to announce
that the U.S. Institute forwarded seven information collection requests to OMB. The
second notice opened a 30-day public comment period.
One comment was received in response to the 60-day public comment notice. This
comment expressed concern about the funding of the Morris K. Udall Foundation and
6

the U.S. Institute generally (Appendix C). This comment did not provide any specific
feedback on the evaluation instruments or the burden estimates pertaining to the
instruments.
9. Payment/Gifts to Respondents
The collection of information does not provide any payment or gift to respondents,
other than enumeration of contractors or grantees.
10. Confidentiality Protocols
It is U.S. Institute policy to disclose information collected from the process
participants only in summary fashion (e.g., project-level reports); neither individual
respondents nor their answers to questions will be identified. Social Security
numbers and company tax identifiers will not be requested as part of the evaluation.
It is U.S. Institute policy to disclose project-level evaluation information provided by
and pertaining to project contractors (e.g. mediators). The information will be
reported without directly identifying the name of the contractor(s). However, project
participants and others familiar with a particular project will know the identity of the
contractors to whom the evaluation information pertains. To this end, the U.S.
Institute does not perceive project-level indirect identification of contracted
mediators/facilitators neutrals as an unwarranted invasion of the personal privacy of
individuals.
In the event of a Freedom of Information Act (FOIA) request, the U.S. Institute takes
the general position that names and other information that could lead to identification
of project participants, or the invasion of the personal privacy of individuals about
whom evaluation information is collected, are exempt from disclosure under the
personal privacy exemption (5. U.S.C. 552(b)(6)). The use of the personal privacy
exception is subject to passing a balancing test to determine if the public interest in
disclosure outweighs the personal privacy interest. FOIA requests will be evaluated
on a case-by-case basis.
11. Justification of Questions of a Sensitive Nature
This information collection request (ICR) does not involve collecting any information
of a sensitive nature or any information commonly considered private.
12. Hours Burden of the Collection of Information
Burden means the total time and financial resources expended by persons to generate,
maintain, retain, disclose or provide information to or for a federal agency. This
section focuses on the time to read instructions and answer questions on the
appropriate questionnaire. Hour burdens are then monetized using fully burdened
labor rates for appropriate occupations derived from Bureau of Labor Statistics tables

7

(U.S. Department of Labor, Bureau of Labor Statistics, “Employer Costs for
Employee Compensation”, Table 2: Civilian Workers, by Occupational and Industry
Group – March, 2011. http://www.bls.gov/news.release/ecec.t02.htm).
The following table is based on several assumptions:


100 mediation cases will be evaluated each year on average.



Each case will involve an average of 19 participants.



Each case will be mediated by 1 practitioner



The total number of responses will average 1,975 per year



The average cost per response is less than $15.

The time estimates to complete each questionnaire are based on experience with prior
information collection authorized under OMB control number 3320-0004 (Expiring
12/31/11).
Respondent Burden and Cost (Annualized)
ECR and Collaborative Problem-Solving Mediation Services (3320-0004)
Agency

Annual
Number
of
Cases

Average
Number of
Respondents
per Case

Annual
Number
of
Responses

Average
Minutes
per
Response

Annual
Number
of
Minutes

Annual
Number
of
Hours

Labor
Rate Per
Hour
($)

Annual
Cost
($)

U.S. Institute for Environmental Conflict Resolution
Participant - end of
process

25

Facilitator

19

475

18

8,550

143

47

6,697

1

25

20

500

8

47

392

U.S. EPA Conflict Prevention and Resolution Center
Participant - end of
process

25

Facilitator

19

475

18

8,550

143

47

6,697

n/a

n/a

n/a

n/a

n/a

n/a

n/a

U.S. DOI Office of Collaborative Action and Dispute Resolution
Participant - end of
process

25

Facilitator

19

475

18

8,550

143

47

6,697

1

25

20

500

8

47

392

U.S. Army Corps of Engineers, Conflict Resolution and Public Participation Center
Participant - end of
process

25

Mediator/
Facilitator
Total

100

19

475

18

8,550

143

47

6,697

1

25

20

500

8

47

392

1,975

596.00

8

27,964

13. Estimate of

Total Annual Cost Burden

There are no capital or start-up costs.

14. Annualized

Costs to the Federal Government

14a. Total Capital and Start-Up Costs
Evaluation of the Facilitations
Agency Cost - Start-up (One-Time Costs)
Position
Management
Program Coordinator
Administrative Staff

Activity
Oversight
Design and
Management
Administrative
support

TOTAL

Total
Hours

Labor Rate
per Hour

5
20

$75
$42.50

$375
$850

6

$32.50

$195

31

Cost

$1,420

The costs above reflect total start-up costs for the U.S. Institute and its evaluation
partners (i.e., agencies acting as named administrators of the U.S. Institute's evaluation
instruments and agencies contracting with the U.S. Institute for evaluation services).

9

14b. Total Operational and Maintenance and Purchase of Services Component
Evaluation of the Mediation Processes - Agency Cost (Annualized)
Questionnaire/Activity

Administer Questionnaires
Participants End of
Process
Mediator End of Process
Data Entry Verification
and Data Cleaning
Participants End of
Process
Mediator End of Process
Analysis and Reporting
Case-level Reporting
Program-level Reporting
Oversight
Program Manager
Management
Supplies
TOTAL

Minutes per
Questionnaire

Number of
Questionnaires

Total
Hours

Labor
Rate per
Hour

Cost

6

1,900

190

$32.50

$6,175

12

75

15

$32.50

488

6

1,900

190

$32.50

$6,175

12

75

15

$32.50

$488

N/A

N/A

100
10

$32.50
$62.50

$3,250
$625

N/A

N/A

50
8

$62.50
$75

$3,125
$600
$500
$21,426

The costs in the table above are average annual operational and maintenance costs for
the next three years once the evaluation system is operational. The estimate includes
costs for the U.S. Institute and its evaluation partners (i.e., agencies acting as named
administrators of the U.S. Institute's evaluation instruments or agencies contracting
with the U.S. Institute for evaluation services).
15. Reasons for Program Changes/Adjustments
Burden change due to change in agency estimate based on the factors below.
For the participant questionnaire the time estimate for completing the instrument
was reduced, and the annual hour burden decreased. The total number of responses
was also decreased. Revisions to the instrument increased the total number of
questions by three. Changes were made to response formats (such as the
streamlining of the open-ended response field for question 15) to reduce burden.
For the practitioner questionnaire the time estimate for completing the survey was
reduced, and the annual hour burden decreased. The annual number of responses
increased slightly. Revisions to the instrument did not change the total number of
questions.

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16. Plans for Tabulation and Publication
To comply with the Government Performance and Results Act, agencies are required
to produce an Annual Performance Plan (Performance Budget), linked directly to the
goals and objectives outlined in the agencies five-year Strategic Plan. The agencies
are also required to produce an Annual Performance and Accountability Report,
evaluating progress toward achieving its performance commitments. Results of
evaluating program areas, such as mediations, will be included in the agencies Annual
Performance and Accountability Report. Simple summaries and tabulations of
information will be used.
The U.S. Institute in collaboration with its evaluation partners will also evaluate and
report on the performance of a large set of cases provided by a number of conflict
resolution organizations. The multi-agency project will provide a solid benchmark to
gauge performance, and will also provide insights on what contributes to achieving
desired outcomes, and how performance can be improved.
17. Display of Expiration Date for OMB Approval
The OMB approval number and expiration date will be displayed on the evaluation
questionnaires.
18. Explanations to "Certification for Paperwork Reduction Act Submissions"
This collection of information is in full compliance with the provisions of the
"Certification for Paperwork Reduction Act Submissions".
B. Collections of Information Employing Statistical Methods
1. Respondent Universe and Sample Size/Selection Methods
All mediation services provided with the assistance of the U.S. Institute will be
evaluated. Since all (100%) of the U.S. Institute mediation services will be evaluated,
sample selection methods are not applicable. With respect to other agencies acting as
a named administrator of the U.S. Institute's information collections (e.g., the EPA's
Conflict Prevention and Resolution Center), no attempt will be made to generalized
the initial evaluation results. The evaluation efforts in these agencies are in an early
stage of development.
Professor Don Dillman’s “Total Tailored Design Method”1 will be used to maximize
response rates. The U.S. Institute anticipates an average overall response rate over
50%. The U.S. Institute has developed operating rules to enhance the accuracy and
reliability of the information reported. While we strive for as high a response rate as
possible, results are flagged as possibly unrepresentative if the following conditions
are not present:

1

Don A. Dillman, Mail and Internet Surveys: The Tailored Design Method (2nd Edition), John Wiley &
Sons, Inc., NY, 2000.

11



Cases with 3 or fewer participants do not have a 100% response rate; and



Cases with more than 3 participants do not have an overall response rate
of at least 50%, and do not have at least one respondent from each
affiliation category identified by the mediator/facilitator (neutral
practitioner).

2. Procedures for the Collection of Information
2a. Statistical Methodology for Stratification and Sample Selection
2b. Estimation Procedure
2c. Degree of Accuracy Needed for the Purpose Described in the Justification
2d. Unusual Problems Requiring Specialized Sampling Procedures
2e. Periodic Data Collection to Reduce Burden
This section is not applicable as detailed in Section B(1) above.
3. Testing Procedures
Experience with the previously approved collection (3320-0004 expiry 12/31/2011)
provided the opportunity to extensively assess and improve on the previous version of
the evaluation design, instruments, administration, data entry and data processing
procedures.
Review of a similar program evaluation system for Oregon’s Public Policy Dispute
Resolution Program has all helped assess the validity of the overall system design.
Oregon’s pilot test of questionnaires was administered to participants and mediators
in late 2004 and early 2005. Feedback from the Oregon pilot study has been used to
refine the U.S. Institute's instruments.
4. Statistical Consultants
Agency Contact:
Patricia Orr
Director of Policy, Planning, and Budget
U.S. Institute for Environmental Conflict Resolution
130 South Scott Avenue
Tucson, Arizona 85701
520-901-8548

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LIST OF APPENDICES

Appendix A. Statutes and Regulations Authorizing the Collection of Information
Appendix B. Mediation Program Evaluation Design Overview
Appendix C. Public Comments in Response to the First Federal Register Notice

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Appendix A. Statutes and Regulations Authorizing the Collection of Information
1. Environmental Policy and Conflict Resolution Act
2. Government Performance and Reporting Act

14

[DOCID: f:publ156.105]
[[Page 8]]
ENVIRONMENTAL POLICY AND CONFLICT RESOLUTION ACT OF 1998
[[Page 112 STAT. 9]]
Public Law 105-156
105th Congress
An Act

To amend the Morris K. Udall Scholarship and Excellence in National
Environmental and Native American Public Policy Act of 1992 to
establish
the United States Institute for Environmental Conflict Resolution to
conduct environmental conflict resolution and training, and for other
purposes. <>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <> assembled,
SECTION 1. SHORT <>

TITLE.

This Act may be cited as the ``Environmental Policy and Conflict
Resolution Act of 1998''.
SEC. 2. DEFINITIONS.
Section 4 of the Morris K. Udall Scholarship and Excellence in
National Environmental and Native American Public Policy Act of 1992
(20
U.S.C. 5602) is amended-(1) by redesignating paragraphs (4), (5), (6), and (7) as
paragraphs (5), (9), (7), and (8), respectively;
(2) by inserting after paragraph (3) the following:
``(4) the term `environmental dispute' means a dispute or
conflict relating to the environment, public lands, or natural
resources;'';
(3) by inserting after paragraph (5) (as redesignated by
paragraph (1)) the following:
``(6) the term `Institute' means the United States
Institute
for Environmental Conflict Resolution established pursuant to
section 7(a)(1)(D);'';
(4) in paragraph (7) (as redesignated by paragraph (1)), by
striking ``and'' at the end;
(5) in paragraph (8) (as redesignated by paragraph (1)), by
striking the period at the end and inserting ``; and''; and
(6) in paragraph (9) (as redesignated by paragraph (1))-(A) by striking ``fund'' and inserting ``Trust
Fund''; and
(B) by striking the semicolon at the end and

15

inserting a period.
SEC. 3. BOARD OF TRUSTEES.
Section 5(b) of the Morris K. Udall Scholarship and Excellence in
National Environmental and Native American Public Policy Act of 1992
(20
U.S.C. 5603(b)) is amended-(1) in the matter preceding paragraph (1) of the second
sentence, by striking ``twelve'' and inserting ``thirteen'';
and
(2) by adding at the end the following:
[[Page 112 STAT. 10]]
``(7) The chairperson of the President's Council on
Environmental Quality, who shall serve as a nonvoting, ex
officio member and shall not be eligible to serve as
chairperson.''.
SEC. 4. PURPOSE.
Section 6 of the Morris K. Udall Scholarship and Excellence in
National Environmental and Native American Public Policy Act of 1992
(20
U.S.C. 5604) is amended-(1) in paragraph (4), by striking ``an Environmental
Conflict Resolution'' and inserting ``Environmental Conflict
Resolution and Training'';
(2) in paragraph (6), by striking ``and'' at the end;
(3) in paragraph (7), by striking the period at the end and
inserting a semicolon; and
(4) by adding at the end the following:
``(8) establish as part of the Foundation the United States
Institute for Environmental Conflict Resolution to assist the
Federal Government in implementing section 101 of the National
Environmental Policy Act of 1969 (42 U.S.C. 4331) by providing
assessment, mediation, and other related services to resolve
environmental disputes involving agencies and instrumentalities
of the United States; and
``(9) complement the direction established by the President
in Executive Order No. 12988 (61 Fed. Reg. 4729; relating to
civil justice reform).''.
SEC. 5. AUTHORITY.
Section 7(a) of the Morris K. Udall Scholarship and Excellence in
National Environmental and Native American Public Policy Act of 1992
(20
U.S.C. 5605(a)) is amended-(1) in paragraph (1), by adding at the end the following:
``(D) Institute for environmental conflict
resolution.-``(i) In general.--The Foundation shall-``(I) establish the United States
Institute for Environmental Conflict
Resolution as part of the Foundation;

16

and
``(II) identify and conduct such
programs, activities, and services as
the Foundation determines appropriate
to
permit the Foundation to provide
assessment, mediation, training, and
other related services to resolve
environmental disputes.
``(ii) Geographic proximity of conflict
resolution provision.--In providing assessment,
mediation, training, and other related services
under clause (i)(II) to resolve environmental
disputes, the Foundation shall consider, to the
maximum extent practicable, conflict resolution
providers within the geographic proximity of the
conflict.''; and
(2) in paragraph (7), by inserting ``and Training '' after
``Conflict Resolution''.
SEC. 6. ENVIRONMENTAL DISPUTE RESOLUTION FUND.
(a) Redesignation.--Sections 10 and 11 of the Morris K. Udall
Scholarship and Excellence in National Environmental and Native
American
Public Policy Act of 1992 (20 U.S.C. 5608, 5609) are redesignated as
sections 12 and 13 of the Act, respectively.
[[Page 112 STAT. 11]]
(b) Environmental Dispute
Scholarship and Excellence in
American
Public Policy Act of 1992 (20
subsection (a)) is amended by

Resolution Fund.--The Morris K. Udall
National Environmental and Native
U.S.C. 5601 et seq.) (as amended by
inserting after section 9 the following:

``SEC. 10. ENVIRONMENTAL DISPUTE RESOLUTION <>
FUND.
``(a) Establishment.--There is established in the Treasury of the
United States an Environmental Dispute Resolution Fund to be
administered by the Foundation. The Fund shall consist of amounts
appropriated to the Fund under section 13(b) and amounts paid into the
Fund under section 11.
``(b) Expenditures.--The Foundation shall expend from the Fund such
sums as the Board determines are necessary to establish and operate the
Institute, including such amounts as are necessary for salaries,
administration, the provision of mediation and other services, and such
other expenses as the Board determines are necessary.
``(c) Distinction From Trust Fund.--The Fund shall be maintained
separately from the Trust Fund established under section 8.
``(d) Investment of Amounts.-``(1) In general.--The Secretary of the Treasury shall
invest such portion of the Fund as is not, in the judgment of
the Secretary, required to meet current withdrawals.
``(2) Interest-bearing obligations.--Investments may be
made

17

only in interest-bearing obligations of the United States.
``(3) Acquisition of obligations.--For the purpose of
investments under paragraph (1), obligations may be acquired-``(A) on original issue at the issue price; or
``(B) by purchase of outstanding obligations at the
market price.
``(4) Sale of obligations.--Any obligation acquired by the
Fund may be sold by the Secretary of the Treasury at the market
price.
``(5) Credits to fund.--The interest on, and the proceeds
from the sale or redemption of, any obligations held in the
Fund
shall be credited to and form a part of the Fund.''.
SEC. 7. USE OF THE INSTITUTE BY A FEDERAL AGENCY.
The Morris K. Udall Scholarship and Excellence in National
Environmental and Native American Policy Act of 1992 (20 U.S.C. 5601 et
seq.) (as amended by section 6) is amended by inserting after section
10
the following:
``SEC. 11. USE OF THE INSTITUTE BY A FEDERAL <>
AGENCY.
``(a) Authorization.--A Federal agency may use the Foundation and
the Institute to provide assessment, mediation, or other related
services in connection with a dispute or conflict related to the
environment, public lands, or natural resources.
``(b) Payment.-``(1) In general.--A Federal agency may enter into a
contract and expend funds to obtain the services of the
Institute.
``(2) Payment into environmental dispute resolution fund.-A
payment from an executive agency on a contract entered into
under paragraph (1) shall be paid into the Environmental
Dispute
Resolution Fund established under section 10.
``(c) Notification and Concurrence.-[[Page 112 STAT. 12]]
``(1) Notification.--An agency or instrumentality of the
Federal Government shall notify the chairperson of the
President's Council on Environmental Quality when using the
Foundation or the Institute to provide the services described
in
subsection (a).
``(2) Notification descriptions.--In a matter involving two
or more agencies or instrumentalities of the Federal
Government,
notification under paragraph (1) shall include a written
description of-``(A) the issues and parties involved;
``(B) prior efforts, if any, undertaken by the

18

agency to resolve or address the issue or issues;
``(C) all Federal agencies or instrumentalities
with
a direct interest or involvement in the matter and a
statement that all Federal agencies or
instrumentalities
agree to dispute resolution; and
``(D) other relevant information.
``(3) Concurrence.-``(A) In general.--In a matter that involves two or
more agencies or instrumentalities of the Federal
Government (including branches or divisions of a single
agency or instrumentality), the agencies or
instrumentalities of the Federal Government shall
obtain
the concurrence of the chairperson of the President's
Council on Environmental Quality before using the
Foundation or Institute to provide the services
described in subsection (a).
``(B) Indication of concurrence or nonconcurrence.The chairperson of the President's Council on
Environmental Quality shall indicate concurrence or
nonconcurrence under subparagraph (A) not later than 20
days after receiving notice under paragraph (2).
``(d) Exceptions.-``(1) Legal issues and enforcement.-``(A) In general.--A dispute or conflict involving
agencies or instrumentalities of the Federal Government
(including branches or divisions of a single agency or
instrumentality) that concern purely legal issues or
matters, interpretation or determination of law, or
enforcement of law by one agency against another agency
shall not be submitted to the Foundation or Institute.
``(B) Applicability.--Subparagraph (A) does not
apply to a dispute or conflict concerning-``(i) agency implementation of a program or
project;
``(ii) a matter involving two or more
agencies
with parallel authority requiring facilitation
and
coordination of the various Government agencies;
or
``(iii) a nonlegal policy or decisionmaking
matter that involves two or more agencies that
are
jointly operating a project.
``(2) Other mandated mechanisms or avenues.--A dispute or
conflict involving agencies or instrumentalities of the Federal
Government (including branches or divisions of a single agency
or instrumentality) for which Congress by law has mandated
another dispute resolution mechanism or avenue to address or
resolve shall not be submitted to the Foundation or
Institute.''.

19

[[Page 112 STAT. 13]]
SEC. 8. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--Section 13 of the Morris K. Udall Scholarship and
Excellence in National Environmental and Native American Public Policy
Act of 1992 (as redesignated by section 6(a)) is amended-(1) by striking ``There are authorized to be appropriated
to
the Fund'' and inserting the following:
``(a) Trust Fund.--There is authorized to be appropriated to the
Trust Fund''; and
(2) by adding at the end the following:
``(b) Environmental Dispute Resolution Fund.--There are authorized
to be appropriated to the Environmental Dispute Resolution Fund
established under section 10-``(1) $4,250,000 for fiscal year 1998, of which-``(A) $3,000,000 shall be for capitalization; and
``(B) $1,250,000 shall be for operation costs; and
``(2) $1,250,000 for each of the fiscal years 1999 through
2002 for operation costs.''.
SEC. 9. CONFORMING AMENDMENTS.
(a) The second sentence of section 8(a) of the Morris K. Udall
Scholarship and Excellence in National Environmental and Native
American
Public Policy Act of 1992 (20 U.S.C. 5606) is amended-(1) by striking ``fund'' and inserting ``Trust Fund''; and
(2) by striking ``section 11'' and inserting ``section
13(a)''.
(b) Sections 7(a)(6), 8(b), and 9(a) of the Morris K. Udall
Scholarship and Excellence in National Environmental and Native
American
Public Policy Act of 1992 (20 U.S.C. 5605(a)(6), 5606(b), and 5607(a))
are each amended by striking ``Fund'' and inserting ``Trust Fund'' each
place it appears.
Approved February 11, 1998.
LEGISLATIVE HISTORY--H.R. 3042 (S. 399):
-------------------------------------------------------------------------CONGRESSIONAL RECORD:
Vol. 143
(1997):
Nov. 13, considered and passed
House.
Vol. 144
(1998):
Jan. 29, considered and passed
Senate.

20

21

Government Performance and Reporting Act
(Relevant Portions)


United States Code
o TITLE 31 - MONEY AND FINANCE
 SUBTITLE II - THE BUDGET PROCESS
 CHAPTER 11 - THE BUDGET AND FISCAL, BUDGET,
AND PROGRAM INFORMATION

U.S. Code as of: 01/05/99
Section 1115. Performance plans
(a) In carrying out the provisions of section 1105(a)(29),
(FOOTNOTE 1) the Director of the Office of Management and Budget
shall require each agency to prepare an annual performance plan
covering each program activity set forth in the budget of such
agency. Such plan shall (FOOTNOTE 1) See References in Text note below.
(1) establish performance goals to define the level of
performance to be achieved by a program activity;
(2) express such goals in an objective, quantifiable, and
measurable form unless authorized to be in an alternative form
under subsection (b);
(3) briefly describe the operational processes, skills and
technology, and the human, capital, information, or other
resources required to meet the performance goals;
(4) establish performance indicators to be used in measuring or
assessing the relevant outputs, service levels, and outcomes of
each program activity;
(5) provide a basis for comparing actual program results with
the established performance goals; and
(6) describe the means to be used to verify and validate
measured values.
(b) If an agency, in consultation with the Director of the Office
of Management and Budget, determines that it is not feasible to
express the performance goals for a particular program activity in
an objective, quantifiable, and measurable form, the Director of
the Office of Management and Budget may authorize an alternative
form. Such alternative form shall (1) include separate descriptive statements of (A)(i) a minimally effective program, and
(ii) a successful program, or
(B) such alternative as authorized by the Director of the
Office of Management and Budget,
with sufficient precision and in such terms that would allow for
an accurate, independent determination of whether the program
activity's performance meets the criteria of the description; or
(2) state why it is infeasible or impractical to express a
performance goal in any form for the program activity.
(c) For the purpose of complying with this section, an agency may

22

aggregate, disaggregate, or consolidate program activities, except
that any aggregation or consolidation may not omit or minimize the
significance of any program activity constituting a major function
or operation for the agency.
(d) An agency may submit with its annual performance plan an
appendix covering any portion of the plan that (1) is specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy; and
(2) is properly classified pursuant to such Executive order.
(e) The functions and activities of this section shall be
considered to be inherently Governmental functions. The drafting
of performance plans under this section shall be performed only by
Federal employees.
(f) For purposes of this section and sections 1116 through 1119,
and sections 9703 (FOOTNOTE 2) and 9704 the term (FOOTNOTE 2) See References in Text note below.
(1) ''agency'' has the same meaning as such term is defined
under section 306(f) of title 5;
(2) ''outcome measure'' means an assessment of the results of a
program activity compared to its intended purpose;
(3) ''output measure'' means the tabulation, calculation, or
recording of activity or effort and can be expressed in a
quantitative or qualitative manner;
(4) ''performance goal'' means a target level of performance
expressed as a tangible, measurable objective, against which
actual achievement can be compared, including a goal expressed as
a quantitative standard, value, or rate;
(5) ''performance indicator'' means a particular value or
characteristic used to measure output or outcome;
(6) ''program activity'' means a specific activity or project
as listed in the program and financing schedules of the annual
budget of the United States Government; and
(7) ''program evaluation'' means an assessment, through
objective measurement and systematic analysis, of the manner and
extent to which Federal programs achieve intended objectives.

U.S. Code as of: 01/05/99
Section 1116. Program performance reports
(a) No later than March 31, 2000, and no later than March 31 of
each year thereafter, the head of each agency shall prepare and
submit to the President and the Congress, a report on program
performance for the previous fiscal year.
(b)(1) Each program performance report shall set forth the
performance indicators established in the agency performance plan
under section 1115, along with the actual program performance
achieved compared with the performance goals expressed in the plan
for that fiscal year.
(2) If performance goals are specified in an alternative form
under section 1115(b), the results of such program shall be
described in relation to such specifications, including whether the
performance failed to meet the criteria of a minimally effective or
successful program.
(c) The report for fiscal year 2000 shall include actual results

23

for the preceding fiscal year, the report for fiscal year 2001
shall include actual results for the two preceding fiscal years,
and the report for fiscal year 2002 and all subsequent reports
shall include actual results for the three preceding fiscal years.
(d) Each report shall (1) review the success of achieving the performance goals of
the fiscal year;
(2) evaluate the performance plan for the current fiscal year
relative to the performance achieved toward the performance goals
in the fiscal year covered by the report;
(3) explain and describe, where a performance goal has not been
met (including when a program activity's performance is
determined not to have met the criteria of a successful program
activity under section 1115(b)(1)(A)(ii) or a corresponding level
of achievement if another alternative form is used) (A) why the goal was not met;
(B) those plans and schedules for achieving the established
performance goal; and
(C) if the performance goal is impractical or infeasible, why
that is the case and what action is recommended;
(4) describe the use and assess the effectiveness in achieving
performance goals of any waiver under section 9703 (FOOTNOTE 1)
of this title; and
(FOOTNOTE 1) See References in Text note below.
(5) include the summary findings of those program evaluations
completed during the fiscal year covered by the report.
(e) An agency head may include all program performance
information required annually under this section in an annual
financial statement required under section 3515 if any such
statement is submitted to the Congress no later than March 31 of
the applicable fiscal year.
(f) The functions and activities of this section shall be
considered to be inherently Governmental functions. The drafting
of program performance reports under this section shall be
performed only by Federal employees.

24

Appendix B. Mediation Evaluation Design Overview

25

Evaluating Mediations:
Design Overview
A variety of non-adversarial, participatory processes are available as adjuncts or
alternatives to conventional forums for solving environmental problems or resolving
environmental conflicts. Such collaborative processes range broadly depending on the
nature of the issue and the parties involved as well as their context (for example, early on
in policy development, planning processes, when seeking administrative relief, or during
litigation). Under the right circumstances, a well-designed collaborative process
facilitated or mediated by the appropriate mediator/facilitator (neutral practitioner) can
effectively assist parties in reaching agreement on plans, proposals, procedures, and
recommendations to address their issue or resolve their conflict. Collaborative processes
can also result in benefits such as improvement in relationships among the parties, and
increased capacity among the parties to manage and resolve the issue or dispute. The
following survey instruments have been designed for use across the broad range of
collaborative processes, be it a process to reach agreement on a plan or a set of
recommendations or environmental mediation to resolve a dispute.
The U.S. Institute for Environmental Conflict Resolution (U.S. Institute), in partnership
with several federal and state agencies, has created a system to evaluate environmental
conflict resolution and collaborative problem solving processes (e.g. mediations). The
evaluation system facilitates (a) performance measurement and reporting, (b) diagnosis of
what factors influence success (i.e., the achievement of desired outcomes and impacts),
and (c) continual learning and improvement when evaluation information is gathered,
analyzed, and shared with practitioners, program managers/administrators, users, and

26

other appropriate audiences.
Background
In 1999, the U.S. Institute, in cooperation with the Policy Consensus Initiative2 and state
alternative dispute resolution programs, began the task of designing a program evaluation
system. After extensively piloting the evaluation instruments staff from the U.S. Institute,
PCI, Oregon Dispute Resolution Commission, Oregon Department of Justice, Florida
Conflict Resolution Consortium, Environmental Protection Agency - Conflict Prevention
and Resolution Center (CPRC), and the Department of Interior - Center for Alternative
Dispute Resolution (CADR), joined forces to collaboratively revise the evaluation
instruments. The collaboratively developed evaluation system has also benefited from indepth input from over 40 practitioners, program administrators, evaluators, researchers
and trainers. Evaluation consultants Dr. Kathy McKnight and Dr. Lee Sechrest, the
University of Arizona, assisted with this effort. Evaluation consultant Dr. Andy Rowe,
GHK International, guided the earlier evaluation design. Throughout this effort, the
William and Flora Hewlett Foundation has provided financial assistance.
Evaluation information will be collected from members of the public who are participants
in, and users of, these services. Before such information can be collected by a federal
agency, the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) requires approval from the
Office of Management and Budget (OMB). The U.S. Institute's current collection
authorization expires on December 31, 2011. The U.S. Institute is hoping to receive
approval to use a revised set of instruments prior to the expiration of the current
collection authorization.
2 PCI is a national, nonpartisan organization that works with state leaders – governors, legislators,
attorneys general, and state courts – to promote the use of consensus-building and conflict resolution
practices to address difficult policy issues and achieve more effective governance.

27

In 2003, the CPRC was granted the approval of OMB to act as a named administrator of
the U.S. Institute’s currently approved information collections for evaluation. The
Department of Interior, Office of Collaborative Action and Dispute Resolution (CADR)
was granted similar status in 2008. The CPRC, CADR and the U.S. Institute will seek
approval as part of this proposed collection to continue this evaluation partnership. The
U.S. Army Corps of Engineers, Conflict Resolution and Public Participation Center is
seeking approval to join this partnership. Other agencies have approached the U.S.
Institute seeking (a) evaluation services and (b) assistance in establishing their own
internal evaluation systems. Therefore, the U.S. Institute will request OMB approval to
administer the evaluation questionnaires on behalf of other agencies.
Design Elements and Data Collection
The evaluation system designed draws from environmental conflict resolution operating
assumptions and program theory. The U.S. Institute developed a conceptual model (i.e.,
logic model) to visually represent the major components and stages of a collaborative
process (Figure 1). The conceptual model was then used to structure and guide the design
of a comprehensive evaluation system.
The logic model is divided into four components (a) desired conditions, (b) expected
process dynamics, (c) end of process and longer-term outcomes, and (d) impacts. The
logic model helps visually depict the expected dynamics between basic conditions (e.g.,
key inputs), expected process dynamics, desired outcomes, and impacts of collaborative
processes. Once the major components were specified, key elements subsumed under
each component were identified, and criteria to measure the achievement of these
elements were developed. Over 300 evaluation criteria were identified in the

28

environmental conflict resolution literature to help inform this process.
The Environmental Conflict Resolution and Collaborative Problem Solving Logic Model:
A Visual Way to Depict Program Theory
End of Process Outcomes

Expected Process
Dynamics

Impacts

Desired Conditions
Longer-Term Outcomes

Environmental Conflict Resolution and Collaborative Problem Solving Evaluation Model
End of process
outcomes
Desired conditions

Expected process dynamics

Impacts
Longer-term
outcomes

Mediator/facilitator skills and practices add value

For example:
Agreement
is
achieved

Participants are effectively engaged
(i.e. participants communicate
and collaborate)
Appropriate
participants are
involved in the
process

Collaborative
problem solving/
dispute resolution
is determined to
be appropriate

Appropriate
mediator/facilitator
engaged to guide
the process

Participants
understand
each other’s
views and
perspectives

Participants’
understanding
of issues
improves
(e.g. technical
issues, etc.)

Participants narrow and clarify the
issues in dispute

Agreement
is
Agreement
is of high
quality and
the participants
expect the
agreement to
last

implemented

Agreement
is
durable

Beneficial
environmental,
economic,
community/
social,
and institutional
outcomes/
impacts occur

Participants’ collective
capacity to manage and
resolve this issue or conflict is improved

Alternative forums are identified
for issues that are better dealt with
in other forums
Additional outcomes (e.g., participants are
satisfied with the process, the process was more
effective than the most likely alternative.)

Impacts
contribute to
more effective
problem solving,
conflict
management
and governance

Participants have the capacity to engage in the process
Relevant, high quality and trusted information is
effectively incorporated into the process
Information collection:
Contextual information

Questionnaires

Process time and cost information

Agreement records

Records of on the ground
impacts/effects

Figure 1. Environmental Conflict Resolution and Collaborative Problem Solving
Conceptual Model (Logic Model)

29

In designing the evaluation system, emphasis was placed on feedback solicited from
participants. In addition, evaluation feedback is also solicited from the process
mediator/facilitator.
Following conclusion of a mediation process, the participants that have been involved
will be surveyed once, via questionnaire, to determine their views on a variety of issues.
Topics to be investigated include: were the appropriate participants effectively engaged;
did the participants have the capacity to engage in the process; was the
mediator/facilitator that guided the process appropriate; and did all participants have
access to relevant information? The voluntary questionnaire contains 18 questions
requiring respondents to provide fill-in-the blank and open-ended responses. Information
from the questionnaire will provide the opportunity to evaluate if the intended outcomes
were achieved, and if so or not, why. Affected Entities: Entities potentially affected by
this action are parties to the collaborative processes.
Immediately following conclusion of a mediation process, the mediator(s)/facilitator(s)
will be surveyed once, via questionnaire, to determine their views on a variety of issues.
In most cases, it will be specified in the mediator/facilitator contracts that they are
required to complete the questionnaire. The mediator/facilitator questionnaire contains 19
questions. Information from this questionnaire will provide the opportunity to evaluate if
the intended mediation outcomes/impacts were achieved, and if so or not, why. Affected
Entities: Entities potentially affected by this action are mediators/facilitators are federal
agency staff or contracted non-federal professional.
Data Use and Audiences

30

Information from the questionnaires will facilitate the (a) measurement and reporting of
performance for case/project level mediations, (b) measurement and reporting of program
performance when the data are aggregated across all evaluated mediation cases or
projects, (c) broad-based evaluations of mediation processes when cases/project
evaluations are aggregated across multiple agencies sharing the same evaluation system,
and (d) learning and improvement when feedback is used to design and execute future
mediations. The evaluation audiences include the process participants, mediators,
program managers/administrators, and the Office of Management and Budget.

For more information contact:
Patricia Orr, Director of Policy, Planning, and Budget
The U.S. Institute for Environmental Conflict Resolution
130 South Scott Avenue
Tucson, Arizona 85701
Telephone (520) 901-8548 or Fax (520) 670-5530

31

Appendix C. Public Comments in Response to the First Federal Register Notice
IT IS TIME TO DOWNSIZE GOVT. I THINK IT IS TIME TO SUNSET THIS
BUDGET OF THIS FOUNDATION, ETC. TO ZERO. IT SEEMS LIKE A HUGE
BUREAUCRACY THAT IS NTO NEEDED. THIS IS A 1950 CREATION, THIS IS
2011. IT NEEDS TO BE SUNSET.
JEANPUBLIC ADDRESS IF REQUIRED
>Subject: PUBLIC COMMENT ON FEDERAL REGISTER W: cut budget of udall
bureaucracy to zero

32