THE ADR PROCESSTHE ADR PROCESS~~~~~~~~~~~~~~~~~~~~

KEY ISSUES AND ELEMENTSKEY ISSUES AND ELEMENTS

PRESENTED BY:

Anthony N. Palladino

Associate Chief Counsel and Director

FAA Office of Dispute Resolution

for Acquisition

May 19, 1999

DECIDING WHETHER TO USE ADRDECIDING WHETHER TO USE ADR IN YOUR CASE IN YOUR CASE

• DIFFERING VIEWS ON ADR USAGE

• APPLYING CASE SCREENING CRITERIA– The ADRA of 1996

– DoJ Guidelines

CHOOSING A FORM OF ADRCHOOSING A FORM OF ADR

• THE RANGE OF ADR OPTIONS

• BINDING V. NON-BINDING

• FACILITATIVE MEDIATION

• NEUTRAL EVALUATION

THE ROLE OF LEGAL COUNSELTHE ROLE OF LEGAL COUNSEL IN ADR IN ADR

• DECISIONMAKING AUTHORITY RETAINED BY CONTRACT MANAGER OR IPT

• COUNSEL PROVIDES GUIDANCE ON: – LEGALITY

– LITIGATIVE RISK

– PRESENTATION ISSUES

– SETTLEMENT AGREEMENTS

NEGOTIATING AN ADR AGREEMENTNEGOTIATING AN ADR AGREEMENT

• WRITTEN AGREEMENT DESIRABLE

• AGREEMENT SHOULD INCLUDE:– SPECIFIC ADR PROCEDURE

– SCHEDULE

– SELECTION & COMPENSATION OF NEUTRAL

• AVAILABLE SAMPLE AGREEMENTS

CONFIDENTIALITY CONFIDENTIALITY

• A KEY ADR CONSIDERATION

• ADR AGREEMENT MUST COVER

• USE IN LITIGATION

CHOOSING AN ADR NEUTRALCHOOSING AN ADR NEUTRAL

• CONSIDERATIONS:– REPUTATION

– ADR EXPERIENCE

– SUBSTANTIVE KNOWLEDGE

• IN-HOUSE OR OUTSIDE NUETRALS

• BCA JUDGES

PREPARING FOR ADRPREPARING FOR ADR

• DEVELOP FACTUAL & LEGAL ISSUES

• DOCUMENT EXCHANGES & DISCOVERY

• PREPARE POSITION STATEMENTS

• DESIGNATE PRINCIPAL

DECIDING TO SETTLEDECIDING TO SETTLE

• RISK ASSESSMENT ESSENTIAL

• EVALUATE COSTS & BENEFITS

• CONSIDER:– RELATIVE STRENGTHS & WEAKNESSES– COSTS TO PROGRAM – EFFECTS ON RELATIONSHIP– BENEFITS OF SETTLEMENT

MEMORIALIZING THE SETTLEMENTMEMORIALIZING THE SETTLEMENT

• REQUIRE A WRITTEN AGREEMENT

• SIGN PRELIMINARY BEFORE LEAVING THE ADR SESSION

• ADAPT AVAILABLE FORM AGREEMENTS

• SIGNATORIES WITH AUTHORITY

MEASURING SUCCESSMEASURING SUCCESS

• VARIOUS METHODS AVAILABLE

– COMPARE TO RISK ANALYSIS

– COMPARE SETTLEMENT TO CLAIM

– COMPUTE SAVINGS COMPARED TO :

• FURTHER LITIGATION COSTS & TIME

• NEGATIVE IMPACT OF CONTINUED LIT. ON PROGRAM OR OTHER WORK