Federal Election Commission
Revised February 2017
The Federal Election Commission (the Commission or FEC) established the Alternative Dispute Resolution (ADR) Office to promote compliance with the federal election law by encouraging settlements outside of the traditional enforcement or litigation processes.
By expanding the tools for resolving administrative complaints and referrals, the program aims to:
Alternative Dispute Resolution is a series of constructive and efficient procedures for resolving disputes through the mutual consent of the parties involved. ADR encourages the parties to engage in interest-based negotiations—a problem-solving process to develop a solution jointly, in the FEC compliance context, that is specific and appropriate for the FEC and for the respondent in the administrative complaint or referral.
When applied to violations of the Federal Election Campaign Act (FECA), ADR:
The ADR Office, which operates as part of the FEC’s Compliance Division, receives cases either by referral from the Office of General Counsel (OGC), the Reports Analysis Division (RAD) or the Audit Division (Audit), or by assignment from the Commissioners. The ADR Office will conduct an initial review and evaluation to determine whether or not a case is appropriate for ADR. It is important to understand that having a case processed under ADR is not a right. ADR is an option extended to appropriate cases.
In order to have a case considered for processing in the ADR program, the respondent may file a response to the complaint or referral, but must agree, in writing, to the terms for participation in ADR. The terms require that the respondent agrees to:
If a case is approved for ADR processing, the respondent will be notified and the ADR Office will arrange to discuss mutually acceptable dates and times for engaging in negotiations or discussions.
The first phase of the ADR process is bilateral, interest-based negotiation. The negotiation phase involves collaboration between the respondent and an ADR Specialist. Negotiations are often conducted on the phone with the ADR Specialist. Interest-based negotiation offers several advantages:
While the ADR Specialist will emphasize compliance with the Act during the negotiations, he or she will also recognize the importance of achieving a mutually agreeable resolution that is satisfactory to both the respondent and the Commission.
At the conclusion of the negotiations, the ADR Office will provide the respondent with an agreement that incorporates the terms of the settlement. Once the respondent reviews and signs the agreement, the ADR Office will submit it to the Commission for approval.
If the respondent and the ADR Specialist are unable to reach a settlement during the negotiations, then the case may be evaluated to determine if it’s appropriate for mediation. In the event that both sides do not agree on proceeding to mediation, the case is referred to OGC for appropriate enforcement action. Note that any information disclosed during the negotiation session will remain strictly confidential and will not be used in a later enforcement proceeding.
In mediation, an impartial individual (the "mediator") facilitates negotiations that help the respondent and the ADR Specialist shape a mutually acceptable resolution of the dispute.
The respondent will select a mediator from a list of names provided by the ADR Office. All of the mediators in the ADR program are senior, experienced, neutral professionals from the private sector, and have no ties to the Federal government. During the course of the mediation session, which generally will last one day, the mediator will meet with the respondent (or the respondent’s representative) and the Commission’s ADR Specialist both jointly and separately as needed. Information disclosed during the mediation will remain strictly confidential. The information discussed in "caucus" sessions (closed meetings between a party and the mediator) cannot be shared with the other party (i.e., the FEC representative) unless the respondent gives the mediator express permission to do so. Furthermore, any information provided during mediation cannot be used in any later enforcement proceeding.
A settlement reached in negotiation or mediation, neither of which necessarily requires an admission of liability, will be submitted to the Commission for its approval. Approved settlements will be a matter of public record, and will be accompanied by a statement that the settlement was negotiated through ADR and cannot serve as a precedent for the settlement of other cases. Once a settlement is approved, the FEC will track the case to ensure compliance with the terms of the settlement. After all of the settlement terms are met, the matter is concluded and the case is closed before the FEC.
In the event that no settlement is reached, the case will be referred to OGC for the usual processing of complaints and referrals. At this point, the statute of limitations will begin to run again. Note that any information disclosed during the negotiation or mediation sessions will remain strictly confidential and may not be used in a later enforcement proceeding.
The Commission’s goal is to have the ADR program resolve complaints, as well as Audit and RAD referrals quickly through direct or mediated negotiations between a respondent and the ADR Office. The speed with which each case is settled will depend upon:
Taking into account these variables, it is expected that complaints will be processed, on average, within six months following the ADR Office’s receipt of the complaint or referral.
If a respondent has been advised that a case has been assigned to the ADR Office but determines that they do not want to avail themselves of the option, the respondent should inform the ADR Office. The case will then be sent to OGC for processing in the traditional enforcement program. If the case originated as an Audit or RAD referral, opting out of ADR will likely result in increased scrutiny of the committee’s activities during the next election cycle.
Interest-based negotiating is a problem-solving process to collaborate on a solution, in the FEC compliance context, that is specific and appropriate for both the FEC and for the respondent in an administrative complaint or referral.
Interest-based negotiations with the FEC’s ADR Office involve direct discussions between the respondent (and/or the respondent’s representative) and ADR Specialist in which the parties collaborate to find a solution. Positional negotiations, aka traditional negotiations, focus on a position regardless of the actual interests of the participants. The ADR Specialists work with respondents to develop solutions that focus on the respondent’s future compliance with the FECA (the interests) and resolve the issues raised in the referral or complaint.
Requiring suspension of the statute of limitations:
No. The agreement will be tailored to address the issues raised in the referral or complaint and will be shaped by the terms of settlement agreed to by the participants.
While the ADR program’s negotiation process is similar to the procedures used by OGC to obtain a conciliation agreement, there are some important differences. Both processes aim to arrive at a mutually agreeable settlement. However, a conciliation agreement usually includes civil penalties and an admission of having violated the FECA. While an agreement reached by the ADR Office may contain a monetary penalty, its primary focus will be remedial terms negotiated by the parties. Also, agreements reached in ADR may modify or exclude an admission of having violated the FECA.
No. The settlement reached in negotiations with the ADR Office will only resolve those issues identified in the referral or complaint. Questions about any other cases should be directed to the appropriate division of the FEC.
In the event that the parties do not reach a settlement in negotiations with the ADR Office and conclude that mediation is not an option, the case is referred to OGC for processing. Prior to referring the file to OGC, the ADR Office will remove all documents developed during the ADR process, and will forward only the original referral or complaint. None of the documents parties submit as part of the ADR process will be available to OGC for any subsequent enforcement efforts, including possible litigation.
While not precedential, respondents can use prior Commission enforcement matters or advisory opinions in support of their response to the dispute. A settlement achieved through negotiations with the ADR Office provides NO precedent for resolving subsequent matters that come before the Commission.