All of the forums discussed in this guide have judges who are available to serve as neutrals, at no cost to the parties. If the parties desire instead to look outside the federal government, an agency may use procedures other than competitive procedures to hire an expert or neutral for use in a dispute resolution proceeding.
The definitions of a neutral found in the ADRA of 1996 and the FAR give lots of flexibility to the parties. When selecting a neutral, here are some factors to consider:
- What type of ADR process are the parties using? An arbitration is not a mediation, and the skill-set the neutral employs is not the same.
- Does the neutral need to be a subject matter expert?
- Does the neutral need strong mediation/facilitation skills?
- What is the neutral’s role going to be? Will the neutral engage in outcome prediction, or be a facilitator?
- Does the neutral need special expertise based on the posture of the case?
- Does the neutral need to be well-versed in the facts of the particular dispute?
- If selecting co-neutrals, will they work together as one?
- Does the neutral have credibility with each party?
- Does the neutral have significant conflict of interest or impartiality issues?
- Are costs affordable (privately-procured neutrals only)?
- Are there concerns with conflicts of interest/impartiality?
- What is the size and visibility of the dispute?
Which factors are most important? Of course, it depends on the dispute and the process the parties want to use. If the parties want a mediation in which the neutral evaluates their cases and gives them an opinion as to likely outcome, subject-matter expertise and credibility are important attributes for the neutral. If the parties don’t want an opinion, but do want someone to help them discuss the issues in a positive, forward-looking way, mediation skills may be more important than subject-matter expertise. Having said that, respondents to surveys generally identified the neutral’s subject matter expertise, reputation, and ADR experience as the most important factors in the neutral’s selection. Size of the claim, legal expertise (as opposed to subject matter expertise) and the mediator’s fee and costs were least important.