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Alternative Dispute Resolution
Notice Regarding Alternative
Methods of Dispute Resolution

This Notice implements the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613, which states that boards of contract appeals "shall provide to the fullest extent practicable, informal, expeditious, and inexpensive resolution of disputes," and the Administrative Disputes Resolution Act, 5 U.S.C. §§ 581-591, which specifically authorizes and encourages Federal agencies to use alternative means of dispute resolution, including mediation, conciliation, and arbitration in lieu of adjudication.

Under the procedures outlined below, with the exception of summary trials, the administrative dispute resolution (ADR) process is not binding. If the parties are unable to resolve their dispute, the appeal will be returned to the Board's active docket and considered in accordance with Board Rules. This differs from, and supersedes, the Board's Experimental Alternative Appeals Resolution Procedure, under which binding decisions were rendered by a single administrative judge and could be appealed or set aside only in case of fraud. The Board, moreover, will not view participation in ADR proceedings as a sign of weakness of a party's position.

The methods described are intended to suggest ones which have worked in the past; they are designed to supplement, but not to replace, existing extrajudicial approaches to dispute resolution. This Notice, therefore, does not preclude the use of negotiation, fact-finding conferences, mediation, or minitrials not involving the Board. Any method which results in settlement, or partial settlement, of a contract dispute is a good method.

A request to use ADR must be made jointly by the parties; the Board will not consider unilateral requests or motions. If the request involves Board participation, the presiding administrative judge will forward it to the Chairperson for consideration. The presiding judge may also schedule a conference to explore the desirability and selection of an ADR method. If approved, a settlement judge or other neutral advisor, for example, a member of another agency board of contract appeals, will be appointed.

The parties may select any ADR method for any claim of more than $50,000. (For claims of $50,000 or less, an Appellant may elect consideration under the Expedited Procedure, Board Rule 12.2, without agreement by the Government.) Guidelines, schedules, and requirements implementing the ADR method selected will be by agreement of the parties and the settlement judge or neutral advisor. ADR can be used successfully at any stage of an appeal, although election should be as early as possible. Proceedings generally will be conducted within 120 days of approval.

As indicated above, if non-binding ADR fails to resolve the dispute, the appeal will be restored to the Board's active docket. To facilitate full, frank, and open discussion, the settlement judge or neutral advisor will be excluded from further consideration of the appeal unless the parties request, and the Chairperson approves, that individual's continued participation. In addition, the judge or advisor will not discuss the merits of the appeal or substantive matters involved in the ADR proceedings with other Board personnel.

Written material prepared specifically for use in an ADR proceeding, oral presentations made at an ADR proceeding, and all discussions between the parties and the judge or advisor in such proceedings will not only be confidential, but also inadmissible in any further Board proceeding involving the same parties and the same subject matter. Otherwise admissible evidence is not rendered inadmissible, however, because of its use in an ADR proceeding.

The following ADR methods are consensual and voluntary. In each case, procedures will be flexible and designed to meet the needs of a particular appeal. Both parties and the Board must agree to their use.

Settlement Judge: A settlement judge is an administrative judge who will not hear or have any formal or informal decision-making authority; he or she is appointed solely for purposes of facilitating settlement. In many circumstances, settlement can be fostered by a frank, in-depth discussion of the strengths and weaknesses of each party's factual and legal position with a settlement judge. The recommendations of settlement judges are not binding.

Minitrial: The minitrial is an expedited but structured procedure in which each party presents an abbreviated version of its position to principals who have full authority to conclude a settlement and to a Board-appointed neutral advisor. The parties and advisor agree in advance as to the method of presentation, without regard to customary procedure or rules of evidence. Presentations are followed by settlement negotiations in which the neutral advisor may assist. The recommendations of neutral advisors are not binding.

Summary Trial with Binding Decision: In a summary trial, the parties present their cases informally to an administrative judge or panel of judges. Pretrial, trial, and post-trial procedures and rules generally will be modified or eliminated to expedite resolution. Either a summary "bench" decision or a summary written decision may be issued, the latter within ten days after conclusion of the trial or receipt of a transcript, whichever is later. The parties must agree that all decisions, rulings, and orders of the Board shall be final. In addition, decisions under this ADR method have no precedental value, are not appealable, and may not be set aside except for fraud.

Other Agreed Methods: The parties and the Board may agree on any other informal ADR method or combination thereof.

These ADR procedures are intended to shorten and simplify the Board's more formalized procedures. Parties who in good faith attempt to resolve their differences by agreement will gain both time and money, as well as maintain or restore amicable relations. Adoption of this Notice reflects the Board's commitment to resolution of contract disputes at the earliest stage feasible, by the fastest and least expensive method possible.

This Notice is effective upon issuance.

Issued at Washington, D.C., October 18, 1996

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