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United States
Civilian Board of Contract Appeals

Types of Alternative Dispute Resolution

The following ADR procedures are voluntary and consensual, and both the parties and the ADR Neutral must agree to their use. The names or titles given to various ADR procedures are not controlling, but rather articulate what role the ADR Neutral is to play.

Facilitative Mediation. Normally, mediations begin with a joint session, with the parties making informal presentations to one another and the ADR Neutral regarding the facts and circumstances giving rise to the issues in controversy as well as an explanation of their respective legal positions. The ADR Neutral, as mediator, aids the parties in settling their case, frequently by meeting with each party separately in confidential sessions, engaging in private discussions for the purpose of facilitating the formulation and transmission of settlement offers.

Evaluative Mediation. In addition to engaging in facilitative mediation, as described above, if authorized under the terms of the parties' ADR Agreement, the ADR Neutral, as mediator, may also discuss informally with the parties, either jointly or in private sessions, the strengths and weaknesses of their respective positions.

Mini-Trial. A mini-trial is a somewhat more formal procedure in which the parties make abbreviated presentations to an ADR Neutral 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 provision of a non-binding advisory opinion or to the Neutral's rendering a binding decision.

Non-Binding Advisory Opinion. The parties present to the ADR Neutral information on which the Neutral bases a non-binding, advisory opinion on the merits of the case, which opinion may be delivered to the parties jointly either orally or in writing. The manner in which the information is presented will vary from case to case, depending upon the circumstances and the terms of the parties' ADR Agreement. Presentations may range from an informal proffer of evidence together with limited argument from the parties to a more formal presentation, with oral testimony and documentary evidence and argument from counsel, such as may be done in the context of a mini-trial.

Summary Binding Decision. This is a binding ADR procedure similar to binding arbitration under which, by prior agreement of the parties, the ADR Neutral renders a brief, written decision that is to be binding, non-precedential, and non-appealable. As in a procedure under which the Neutral provides a non-binding advisory opinion, the manner in which information is presented for a summary binding decision may vary depending on the circumstances of the particular case and the wishes of the parties as outlined in their ADR Agreement.

Parties considering ADR are encouraged to adapt for their purposes any provisions in the CBCA's rules which they believe will be useful for ADR