The party representative, as used here, refers to a person who can commit his or her organization to completely settle a controversy. It does not refer to a lawyer or other advocate, whose primary role is to present their party’s side of a conflict. Many considerations come into play when selecting a party representative.
First Level Decision-Makers vs. Higher Level Managers?
People involved in the underlying transactions leading to the protest or claim obviously bring to the negotiation table their firsthand knowledge of the underlying facts that drive a controversy. This can be beneficial during a fact finding phase of an ADR, but it can be detrimental to reaching a negotiated resolution because such people tend to be emotionally tied to the dispute or its outcome. It may be preferable, therefore, that the party representative be somebody at a higher level in the organization, i.e., somebody who was not involved directly in the evaluation or award of the contract at issue (for bid protests) or in the day-to-day administration of the contract (for claims or appeals). Presumably, such people can maintain a certain degree of objectivity during the course of the ADR proceeding.
Regardless of who is the representative that will make negotiation decisions, each party should have the people with direct first-hand knowledge of the facts attend the ADR proceeding. Their participation is key in helping the principal understand the other side’s position. Similarly, these people can also help the neutral to more accurately assess the strengths and weaknesses of the other side’s position. This is critical where credibility becomes an issue. Another reason to include the people who have been involved in the issue since its inception is that this can bring about some emotional closure. Finally, negotiators and neutrals should consider whether every factually knowledgeable person is a necessary participant in the negotiation phase of an ADR proceeding.
The Negotiation Team
While a large number of people may hinder negotiations, other considerations dictate how many people to bring. Some negotiators firmly believe that bringing more people on their side creates a beneficial “herd effect” or “group-think” that steers the discussions in their favor; indeed, it is much harder for one person to say no when everybody else is saying yes. The key question is who is needed for a productive negotiation? Some factually knowledgeable people need to attend, and so should decision-makers. Further, if the true decision-maker is not at the table, he or she does not have the full benefit of the process and is making decisions without a complete assessment of the facts. Secondhand justifications to absent decision-makers do not convey the full picture of the ADR process.