THE ADR PROCESS ~~~~~~~~~~ KEY 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 ADR IN YOUR CASE DIFFERING VIEWS ON ADR USAGE APPLYING CASE SCREENING CRITERIA –The ADRA of 1996 –DoJ Guidelines

CHOOSING A FORM OF ADR THE RANGE OF ADR OPTIONS BINDING V. NON-BINDING FACILITATIVE MEDIATION NEUTRAL EVALUATION

THE ROLE OF LEGAL COUNSEL IN ADR DECISIONMAKING AUTHORITY RETAINED BY CONTRACT MANAGER OR IPT COUNSEL PROVIDES GUIDANCE ON: –LEGALITY –LITIGATIVE RISK –PRESENTATION ISSUES –SETTLEMENT AGREEMENTS

NEGOTIATING AN ADR AGREEMENT WRITTEN AGREEMENT DESIRABLE AGREEMENT SHOULD INCLUDE: –SPECIFIC ADR PROCEDURE –SCHEDULE –SELECTION & COMPENSATION OF NEUTRAL AVAILABLE SAMPLE AGREEMENTS

CONFIDENTIALITY A KEY ADR CONSIDERATION ADR AGREEMENT MUST COVER USE IN LITIGATION

CHOOSING AN ADR NEUTRAL CONSIDERATIONS: –REPUTATION –ADR EXPERIENCE –SUBSTANTIVE KNOWLEDGE IN-HOUSE OR OUTSIDE NUETRALS BCA JUDGES

PREPARING FOR ADR DEVELOP FACTUAL & LEGAL ISSUES DOCUMENT EXCHANGES & DISCOVERY PREPARE POSITION STATEMENTS DESIGNATE PRINCIPAL

DECIDING TO SETTLE RISK ASSESSMENT ESSENTIAL EVALUATE COSTS & BENEFITS CONSIDER: –RELATIVE STRENGTHS & WEAKNESSES –COSTS TO PROGRAM –EFFECTS ON RELATIONSHIP –BENEFITS OF SETTLEMENT

MEMORIALIZING THE SETTLEMENT REQUIRE A WRITTEN AGREEMENT SIGN PRELIMINARY BEFORE LEAVING THE ADR SESSION ADAPT AVAILABLE FORM AGREEMENTS SIGNATORIES WITH AUTHORITY

MEASURING 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