After understanding of the differences between the ADR processes, the next question to address is how to select the appropriate process. There is no right or wrong answer, just considerations that depend entirely on the details of the case or controversy. The “If . . . then . . . ” table below poses some common features of a case and offers an appropriate consideration.
The If . . . Then . . . Table
Instructions: Use the table by creating a sentence using the header and the appropriate line.
Example: The header and the second line create the sentence, “If a party wants to preserve its relationship with the other party, then that party should consider methods that allow for integrative negotiation like facilitated mediation or partnering.”
|If a party . . .
||. . . then that party should consider . . .
|. . . wants to preserve its relationship with the other party, then . . .
||. . . methods that allow for integrative negotiation like facilitated mediation or partnering. See Ch.30, Information Exchange, for how to build trust.
|. . . thinks it has a really strong case on both the law and facts, then . . .
||. . . allowing the neutral to evaluate the case. This could mean using evaluative mediation so that the mediator can give a reality check to the other side. It could also mean that arbitration, or summary trial with binding decision, might be attractive.
|. . . is still involved in the contract, and has a lot of options for creative solutions, then . . .
||. . . partnering, a dispute resolution board, or facilitative mediation. All of these processes can focus the parties’ attention on turning a dispute into an opportunity for mutual gain. See Ch. 28, Creative Resolutions.
|. . . has a strong need for precedent or is concerned about the rights of third parties, then . . .
||. . . not using ADR at all. Sometimes it is appropriate to select litigation. See Ch.22, ADR for this Case?
|. . . has a weak case on either the facts or the law, then . . .
||. . . either unassisted negotiation or facilitative mediation. These processes allow the weak party to raise new issues that might give them alternative sources of power in negotiation. In all likelihood, simply avoiding the issue will only work until a deadline (like a statute of limitations) forces the other party to take legal action.
|. . . doesn’t have a lawyer or is unsure how to proceed, then . . .
||. . . mediation using one of the judges from the appropriate forum. Such judges do not form an attorney-client relationship with the parties, but they also are in a position to provide insight into key issues about the dispute. Mediation (unlike arbitration) allows each party to have private conversations with the mediator about confusing aspects of federal procurement.
Sometimes a forum will offer the opportunity to discuss ADR options with a neutral before a process is selected. The FAA Office of Dispute Resolution for Acquisition (ODRA), for example, assigns a neutral even before the parties elect to use ADR. That neutral holds private conversations with each party to ensure that they understand their options and have considered the various advantages of each process. See Ch.11, ODRA Protests.
One Size Does not Fit All
Finally, remember that the basic ADR processes can be tailored to parties’ needs. Maybe the parties need some kind of discovery, formal expert reports, or even decisions on preliminary motions before they engage in mediation. Further, ADR processes can be combined. For example, some forums will offer med-arb, which starts with a mediation but resorts to arbitration if the parties don’t agree to settle after the mediation. Note that a med-arb neutral might be reluctant, however, to engage in private (ex parte or caucus) conversations if they might later have to issue an arbitral award.