National Center for Technology and Dispute Resolution

Ethan, we are starting up a new office to provide for mediation in resolving Freedom of Information Act (FOIA) disputes, something that previously has been done only in the context of lawsuits. That is, the courts have sometimes directed that mediation be attempted by the parties. But now, the FOIA has been amended to provide expressly that mediation can be an alternative (non-binding) to litigation for resolving disputes between a FOIA requester and a federal agency.

To give this new approach some context: There are 92 federal agencies (some as large as the Department of Defense and some quite small). These agencies receive more than 600,000 FOIA requests annually, which lead to the filing of 8800 administrative appeals each year. The government’s Fiscal Year 2008 estimated costs for FOIA (including litigation) were 8,403, 831.

But we will be a small office – 6 staff members – to reach all these agencies. Our thought is to try using technology – online dispute resolution – to augment our resources in providing mediation.

It would be great to hear some fresh ideas on how we might accomplish this mission.

One of the unknown factors right now is what the volume of disputes will be, or in other words, how many FOIA requesters might we expect to ask for mediation at some stage in the process? And might some agencies ask us to intervene as mediators? You can see that only a small percentage of the requests lead to the next stage in the administrative process (an appeal), and then much less than that end up in litigation. How might those numbers be affected by the availability of mediation? We don’t know right now.

Colin, how would you select/find “unimpeachable” jurors? It is a very interesting question as to how to port your system, where you probably do not have to justify such elements as to how many jurors there should be or who is qualified to be on the panel or how many times one can be on a panel to a government agency, particularly one that will have at least some cases with parties who are very political and adversarial.

It seems to me we would want to opt for crowd sourcing if (1) there’s a problem with expertise (peer-to-patent), or (2) want to make sure the decision is grounded in community norms/the system has legitinacy (eBay, I think). Colin, do you agree? Could you elaborate on the reasons for developing this mechanism on eBay?

Miriam is on to a couple of things that make the FOIA venue interesting – crowdsourcing decisions is fine if the agency involved is comfortable letting go of its control and abiding by decisions made by “outsiders” – and I don’t care how carefully the community is built, the agency that is guarding information will see them as outsiders. Often, the protective feeling that makes agencies hang on to information is bogus or self-serving, but that does not mean that it is not powerful. The status quo is that agencies can delay and force filers into litigation, thereby getting rid of most of them. what is their incentive to actively cooperate in a community court system?

As to the other issue – whether government mediators are automatically seen as biased – speaking as a government mediator, I hope not. Seriously, in most of the interactions with the private sector, Federal mediators are actually held in pretty high esteem – I think the more interesting question, again, is how the agencies would react.