Neutrals Used at the ODRA
In practically every matter before the ODRA, the ODRA Director appoints an administrative judge to serve as the ADR neutral. In this role, the appointed judge advises the parties on the use of ADR, helps the parties draft an ADR Agreement, and offers his or her services to serve as mediator, facilitor, or other neutral role. The appointed judge is precluded from serving as the adjudicator if the ADR process does not produce a resolution. 14 CFR 17.29(b).
The ODRA also allows the parties to engage a compensated neutral in addition to the ODRA’s own appointed ADR neutral. By regulatory definition, a compensated neutral refers to:
. . . an impartial third party chosen by the parties to act as a facilitator, mediator, or arbitrator functioning to resolve the protest or contract dispute under the auspices of the ODRA. The parties pay equally for the services of a compensated neutral, unless otherwise agreed to by the parties. An ODRA [dispute resolution officer] or neutral cannot be a compensated neutral.
14 CFR 17.3(g). Parties using a compensated neutral must address in their ADR agreement “how the cost of the neutral’s services will be reimbursed.” 14 CFR 17.37(d)(2).
The use of compensated neutrals is rare. The most likely explanation lies in the obvious facts that the ODRA’s administrative judges are well-versed in the FAA’s unique acquisition system, and they come without additional costs to the parties. Use of compensated neutrals, however, may be appropriate when the parties perceive a conflict of interest, believe that certain technical expertise would be helpful, or perhaps desire a neutral with whom they are familiar.