One Way to Achieve Creative Solutions

Parties increase the odds of achieving a creative solution if they address an issue early, use integrative negotiation techniques, and elect facilitative ADR procedures if assistance is needed.  Consider:

• Early Discussion of the Issue.  Raising and discussing an issue early in a bid protest or contract dispute has significant benefits aside from simply meeting filing deadlines.  Damages, for example, might be mitigated or minimized if a matter is resolved early.  Likewise, risk of future costs or adverse consequences can be defined and clearly allocated between the parties.  Further, options for trade-offs or beneficial changes orders might be foreclosed as performance under the contract progresses.

• Integrative Negotiation Techniques.  Characterized by the parties’ willingness to exchange information and identify their interests, integrative negotiation gives the parties the opportunity to expand their discussion beyond the narrow confines of the dispute or protest.

• Facilitative ADR.  Facilitative ADR techniques help the parties communicate, and therefore, help them conduct meaningful integrative negotiations.  During contract performance, facilitated partnering (Chapter 06) is a well-established technique used to anticipate controversy, promote open communication, and reach early resolution.  It is employed before the parties need to file a claim or contract dispute.  Facilitative mediation is available when the parties have not used partnering (or have not used it successfully).  It can be elected either before beginning a legal action, or after a dispute has been filed with the U.S. Court of Federal Claims, board of contract appeals, or the FAA ODRA.