Appendix A to Part 17 - Alternative
Dispute Resolution (ADR)
A. The FAA dispute resolution procedures encourage the parties to protests and contract disputes to use ADR as the primary means to resolve protests and contract disputes, pursuant to the Administrative Dispute Resolution Act of 1996, Pub. L. 104-320, 5 U.S.C. 570-579, and Department of Transportation and FAA policies to utilize ADR to the maximum extent practicable. Under the procedures presented in this part, the Office of Dispute Resolution for Acquisition would encourage parties to consider ADR techniques such as case evaluation, mediation, or arbitration.
B. ADR encompasses a number of processes and techniques for resolving protests or contract disputes. The most commonly used types include:
(1) Mediation. The Neutral or Compensated Neutral ascertains the needs and interests of both parties and facilitates discussions between or among the parties and an amicable resolution of their differences, seeking approaches to bridge the gaps between the parties' respective positions. The Neutral or Compensated Neutral can meet with the parties separately, conduct joint meetings with the parties' representatives, or employ both methods in appropriate cases.
(2) Neutral Evaluation. At any stage during the ADR process, as the parties may agree, the Neutral or Compensated Neutral will provide a candid assessment and opinion of the strengths and weaknesses of the parties' positions as to the facts and law, so as to facilitate further discussion and resolution.
(3) Minitrial. The minitrial
resembles adjudication, but is less formal. It is used to provide an
efficient process for airing and resolving more complex, fact-intensive
disputes. The parties select principal representatives who should be
senior officials of their respective organizations, having authority to
negotiate a complete settlement. It is preferable that the principals be
individuals who were not directly involved in the events leading to the
dispute and who, thus, may be able to maintain a degree of impartiality
during the proceeding. In order to maintain such impartiality, the
principals typically serve as "judges" over the mini-trial proceeding
together with the Neutral or Compensated Neutral. The proceeding is aimed
at informing the principal representatives and the Neutral or Compensated
Neutral of the underlying bases of the parties' positions. Each party is
given the opportunity and responsibility to present its position. The
presentations may be made through the parties' counsel and/or through some
limited testimony of fact witnesses or experts, which may be subject to
cross-examination or rebuttal. Normally, witnesses are not sworn in and
transcripts are not made of the proceedings. Similarly, rules of evidence
are not directly applicable, though it is recommended that the Neutral or
Compensated Neutral be provided authority by the parties' ADR agreement to
exclude evidence which is not relevant to the issues in dispute, for the
sake of an efficient proceeding. Frequently, minitrials are followed
either by direct one-on-one negotiations by the parties' principals or by
meetings between the Neutral/Compensated Neutral and the parties'
principals, at which the Neutral/Compensated Neutral may offer his or her
views on the parties' positions (i.e., Neutral Evaluation) and/or
facilitate negotiations and ultimate resolution via Mediation.