Government Contracting Database
Alternative Dispute Resolution
Contractors should also be aware that formal trial is no longer the only litigation choice. In response to rising litigation costs and the delay, often inherent in the traditional judicial resolution of complex legal claims, the United States Claims Court (now the United States Court of Federal Claims) implemented two methods of alternative dispute resolution (ADR) to help contractors resolve disputes more expeditiously. As a result, contractors who appeal to the Court now have the option of presenting their case to a Settlement Judge or pursuing a Mini-Trial in an attempt to promote an early settlement of their claim. In addition, contractors are encouraged to adopt other ADR techniques which do not require court involvement.
Whether these ADR techniques can help you save time and money depends on the specific facts of your case. The ADR procedures administered by the Court are voluntary and should be employed early in the litigation process to minimize discovery, which is a pretrial proceeding for identifying key facts in the case. Because these procedures involve the application of judicial resources, the court believes their use is most appropriate where the parties anticipate a lengthy discovery period, followed by a long trial. These conditions typically are met where the amount in controversy exceeds $100,000, and the trial is expected to last more than one week.
Once the parties decide to pursue one of the ADR methods offered, the case is reassigned to a new judge who presides over the ADR proceedings. Should the technique adopted fail to produce a satisfactory settlement, the case is returned to the original judge’s docket, and normal trial preparation continues. Because ADR proceedings are designed to promote settlement, all representations are confidential and may not be used for any reason in subsequent litigation.
The following brief description of the available ADR procedures should prove helpful in determining whether they are appropriate for your case:
In choosing this alternative, the parties present their case to a neutral advisor who evaluates its strengths and weaknesses. Flexible and informal, settlement judge proceedings last only a day or two and can be used successfully at any stage of the litigation. Because the case is returned to the original judge if a settlement is not reached, the parties gain the benefit of a judicial assessment of their settlement positions without jeopardizing their ability to obtain an impartial decision in the traditional court system.
The mini-trial is an expedited procedure where each party presents an abbreviated version of the case to a neutral advisor who assists the parties to negotiate a settlement. Because of its nature, mini-trials are best suited for settling fact-intensive cases which do not present novel issues of law or depend on witness credibility. The following guidelines will govern most proceedings:
- Time Frame – The entire process, including discovery and trial, should conclude within one to three months.
- Participants – Senior management and agency officials with first-hand knowledge of the case should participate in the Mini-Trial. Both sides may have legal representation.
- Discovery – Discovery should be limited in scope and scheduled to conclude two weeks prior to the mini-trial. Any discovery disputes that the parties cannot resolve are handled by the Mini-Trial judge. Discovery taken for Mini-Trial may be used in further judicial proceedings if a settlement is not reached.
- Pre-Hearing Matters – After discovery, the parties meet with the Mini-Trial Judge and present brief written summaries of their respective positions. Stipulations for the hearing are finalized, and witness lists and exhibits are exchanged.
- Hearing – The hearing is informal and generally should not exceed one day. The rules of evidence and procedure will not apply, and the parties may structure their case to include examination of witnesses, the use of demonstrative evidence, and oral argument. The judge’s role is flexible and may include questioning of witnesses.
- Post-Hearing Settlement Discussions – After the hearing, the parties and counsel meet to discuss resolution of the dispute. The judge may participate in the discussion or offer an advisory opinion concerning the merits of the claim. If a settlement is not reached, the case returns to the original judge.
ADR represents the court’s attempt to resolve disputes before contractors and government agencies invest an inordinate amount of time and money in contesting the matter. As such, the Mini-Trial and Settlement Judge hearing offers an important alternative to traditional court procedures. Federal agencies, most notably the Army Corps of Engineers, have also initiated mini-trial procedures which contractors should investigate and invoke whenever possible.
Updated: May 24, 2018