American Bar Association - Alternative Dispute Resolution: A Practical Guide for Resolving Government Contract Controversies

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Alternative Dispute Resolution A Practical Guide for Resolving Government Contract Controversies Prepared by the Special Committee on Alternative Dispute Resolution of the Section of Public Contract Law

Nothing contained in this monograph is to be considered as rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This monograph, including any forms and sample agreements set forth as appendices, are intended for educational and informational purposes only. 1999 American Bar Association. All rights reserved. Non-copyrighted materials within the appendices are in the public domain and may be freely reproduced and used.

Acknowledgments Alternative Dispute Resolution (ADR) Committee Co-Chairs Joseph M. McDade, Jr. David E. Marmelstein Primary Authors/Editors Hon. Martin J. Harty Joseph M. McDade, Jr. Richard C. Walters Contributing Authors P. Jean Baker James DeLanoy Anthony H. Gamboa Hon. Allan H. Goodman Jeremy M. Griffin Behn Miller Nicholas P. Retson Contributing ADR Committee Members Hon. Ruth C. Burg Richard F. Busch, II Frank Carr William F. Cloran George M. Coburn Paul G. Dembling Donald G. Gavin Hon. Robert J. Gomez Carole S. Houk David E. Marmelstein Malcolm S. Mason Karen D. Powell Hon. Robert J. Robertory George Sisson Mark Wilkoff Our thanks to Herman D. Levy, Esq. for his editorial assistance.

Page i Table of Contents I. Introduction 1 II. Cases Suitable for ADR 5 A. Screening Criteria Mandated by Congress Under the ADRA of 1996 5 B. The DoJ Guidelines for Use of ADR in Federal Litigation 6 C. ADR Case Screening: Factors to Consider 8 III. ADR Techniques 12 A. Non-Binding ADR Techniques 12 1. Mediation 12 2. Settlement Judge 15 3. Minitrial 16 4. Advisory Opinion 16 5. Dispute Review Board 17 B. Binding ADR: Arbitration/Summary Trial with Binding Decision 17

Page ii IV. Matching Your Controversy with the Appropriate ADR Techniques 19 A. The Dispute Resolution Spectrum 19 B. Considerations for Choosing Specific ADR Techniques 22 1. Binding ADR 22 2. Non-Binding ADR 23 a. Mediation 23

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