All ADR processes are designed to speed the information-exchange and decision-making processes in order to lower the costs of a dispute, improve the quality of decision-making, and achieve resolution quickly. ADR processes are highly flexible and are usually tailored to the parties needs and the nature of the dispute. Nevertheless, a few broad descriptions of key terms and common processes will be helpful to the readers of this guide. Go to Chapter 23 to learn more about how to select an appropriate ADR process.
Neutral. A neutral is “an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy.” 5 USC 571(9). Examples include mediators, arbitrators, and facilitators. See Ch.24, Neutrals.
Non-binding ADR. In non-binding ADR, the parties have agreed that the third party neutral may offer an opinion, but neither party is bound by that neutral’s opinion. In other words, in non-binding ADR, if the parties cannot reach an agreement, they do not authorize the neutral to decide the outcome of the dispute. Techniques like mediation and facilitation are forms of non-binding ADR.
Binding ADR. In binding ADR, the parties agree to let the neutral determine the outcome, and to be bound by the neutral’s decision. Techniques like arbitration and summary trial with binding decision are forms of binding ADR.
Facilitative. This adjective is used to describe processes that use the neutral to help the parties communicate directly with each other. A facilitative mediator, for example, avoids “shuttle diplomacy,” in favor of having the parties in joint session so that they can communicate directly to each other. A facilitative neutral frequently uses broad questions, creative meeting techniques, brain storming, etc., to stimulate discussion about the issues, the parties’ interests, and possible mutual gains.
Evaluative. This adjective describes processes that permit the neutral to offer opinions, predictions, or even decisions. An evaluative mediator, for example, will offer his or her opinions about the legal or factual aspects of a party’s case. In early neutral evaluation or fact finding, the neutral makes similar assessments.
The following are some commonly used definitions of ADR processes applicable to procurement-related ADR. Agencies may differ in the manner in which they define each process. 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”. See Ch.21, Arbitration.
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. See, e.g., Ch.11, ODRA Protests.
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 or Ombudsman. 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. See Ch.13, Other Avenues.
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, is usually reduced to writing with summary findings and conclusions.
Training Materials – ADR Techniques
Selecting an ADR Process (Ch. 23)