Electronic Guide to Federal Procurement ADR
The following are some commonly used definitions of ADR terms applicable to procurement-related ADR. Agencies may differ in the manner in which they define such terms. Also, some of these terms may be used differently in other contexts.
Arbitration – A dispute resolution process whereby a neutral third-party is empowered by agreement of the parties to issue a decision on the controversy, following the conduct of a trial-like hearing. An arbitrator’s decision is generally binding and not reversible, absent fraud or misconduct on the part of the arbitrator. Arbitrators often are asked to attempt to mediate (see below) a settlement first, and to impose a decision on the parties only as a last resort. This hybrid process is frequently referred to as “Med/Arb“.
Conciliation – Efforts by a neutral third party to assist in the resolution of an issue in controversy, including holding meetings with individual parties to discuss the controversy and potential solutions; contacting individual parties by telephone or mail, and serving as a conduit for information between them.
Early Neutral Evaluation – The process by which an neutral third party imparts to the parties his/her views as to the strengths and weaknesses of their respective positions relating to an issue in controversy. This process frequently is combined with conciliation or mediation.
Fact Finding – A process in which a neutral third party assists the parties to determine in an objective manner the facts relating to an issue in controversy. Frequently, fact finding will be engaged in as a prelude to mediation.
Mediation – An effort by a neutral third party to resolve an issue in controversy through the conduct of face-to-face meetings between the disputing parties. The third party is not authorized to impose a settlement upon the parties, but rather seeks to assist the parties in fashioning a mutually satisfactory solution to the issue in controversy. Mediation can take two forms: (1) facilitative mediation — in which the mediator simply facilitates discussions between or among the parties and does not provide any form of evaluation of the merits of their respective positions; and (2) evaluative mediation — in which the mediator provides the parties, either individually or jointly, with early neutral evaluation (see above), i.e., his/her views as to the strengths and weaknesses of their respective positions, in conjunction with the mediator’s efforts to help the parties fashion an amicable resolution to their controversy.
Mini-Trial – A procedure where the parties make abbreviated presentations to a neutral third party who sits with the parties’ designated principal representatives as a mini-trial panel to hear and evaluate evidence relating to an issue in controversy. The neutral may thereafter meet with the principal representatives to attempt to mediate a settlement. The mini-trial process may also be a prelude to the neutral’s issuance of either a formal written non-binding advisory opinion or to the neutral’s rendering of a binding arbitration award.
Ombuds – An individual who has been designated as a confidential and informal information resource, communications channel, complaint-handler and dispute-resolver. The ombuds role was intended to be an antidote to abuses of governmental and bureaucratic authority and administration, and ombuds may serve as effective intervenors in cases of arbitrary decision making.
Summary Trial With Binding Decision – A binding ADR procedure utilized by Boards of Contract Appeals wherein the parties make abbreviated evidentiary presentations concerning an issue in controversy, and the Board judge renders a summary binding and non-appealable decision. The decision, frequently rendered from the bench