Hon. Patricia J. Sheridan Administrative Judge U.S. Civilian Board of Contract Appeals

2. BCA Judges as ADR Neutrals—A National Treasure! Hon. Patricia J. Sheridan Administrative Judge U.S. Civilian Board of Contract Appeals Breakout Session #107 April 24, 2007 4:30 – 5:30pm

3. What is ADR? A better way to resolve contract disputes and issues in controversy so that you can work on completing your current contracts.

4. What is ADR? Several forms of nontraditional dispute resolution processes that give contracting officers and contractors more options for resolving the conflicts that typically occur during a contract.

5. How does ADR work? • ADR uses a trained, neutral person • Who is not associated with the problem • To help the parties resolve the problem

6. Options for resolving contract disputes • IGNORE THE PROBLEM • ONE-ON-ONE NEGOTIATIONS • FACILITATION/CONCILIATION • MEDIATION • BCA JUDGE NEUTRAL • ARBITRATION • BCA ADMINISTRATIVE JUDGE or COURT OF FEDERAL CLAIMS • VIOLENCE

7. CBCA Judge Neutrals • A CBCA Judge Neutral with mediator skills training • Assists involved individuals to find a mutually acceptable solution to their problem/dispute • It is informal, voluntary and confidential

8. CBCA Judge Neutrals • Do not decide who wins or loses • Help the parties, jointly and/or individually • Review their strengths and weaknesses • Consider possible solutions that would work for both the VA and the contractor.

9. CBCA Judge Neutrals are specially trained to . . . • Diffuse hostility • Inspire creative solutions • Use listening skills • Encourage realism • Open communication • Find areas of agreement • Establish trust • Keep confidences • Suspend Judgment

10. Using CBCA Judge Neutrals Are available to help contracting parties resolve: • Bid protests • Issues in controversy • Pre-final decision issues (CBCA Judge Neutral as “project neutral” • Post-appeal contract disputes

11. CBCA ADR Policy • CBCA Judge Neutrals are available to provide mediation and other ADR services. • CBCA Judge Neutrals can be used for Government/Contractor disputes, pre-award, post-award, pre-appeal, post-appeal.

12. ADR • It’s VOLUNTARY • The Government and the Contractor must be willing to use ADR.

13. ADR – What’s the process? • It looks like the parties want it to look • Contact a CBCA Judge to find out more • Participate in phone conference to describe the ADR process, discuss the problem and talk about what type of ADR rules would work best for the parties

14. ADR – What’s the process? Making sure all the needed players are present

15. ADR – What’s the process? • Assemble/submit documents, maybe position statements • Participate in telephone conferences to narrow issues, discuss who will participate and arrange for the ADR proceeding

16. ADR – What’s the process? • Submit an ADR Agreement (CBCA has samples) • Attend an ADR proceeding • If the matter is settled, sign a settlement agreement • If the matter is not settled, discuss next steps

17. ADR – What’s the process? Joint Session – Each party makes presentation followed by joint discussion (clarifying questions)

18. ADR – What’s the process? Private (Caucus) Sessions – • Held with the Judge Neutral and each of the parties • Judge Neutral may assess strengths and weaknesses of parties’ positions • Confidential discussions/”brainstorming” of settlement options

19. ADR – What’s the process? Reconvening • Settlement options jointly explored Shuttle Diplomacy • Series of “caucuses” with both sides Supplemental Agreement • Initial memorandum of terms Supplemental Agreement • Finalization

20. THE BENEFITS OF ADR It helps resolve problems faster and more effectively, at less cost in terms of time and money ▬ It is a more proactive way to deal with contract problems rather than reactive ▬ It helps addresses contract problems as they occur rather then when memories have slipped

21. THE BENEFITS OF ADR If they want, the Parties can privately or together, get an idea about what the Judge Neutral believes are their strengths or weaknesses ▬ The parties can explore more creative options for resolving the problem in a safe and knowledgeable setting

22. THE BENEFITS OF ADR Available anytime during the contracting process ▬ Whenever the parties agree a Judge Neutral might be able to help them work through a problem

23. THE BENEFITS OF ADR The Judge Neutral is provided at no cost to the parties where the CBCA would have jurisdiction over the matter if it were appealed ▬ Judge Neutrals are available for other matters for a nominal fee

24. THE BENEFITS OF ADR Each party pays its own costs for the ADR proceeding ▬ It’s a confidential process ▬ Do the parties really want to air their “dirty laundry” to the community?

25. THE BENEFITS OF ADR ADR is a much more easy, simple, and quick process than the traditional appeal procedures

26. THE BENEFITS OF ADR Solutions worked out by the parties using ADR are more satisfying and can help maintain a better contracting relationship

27. THE BENEFITS OF ADR Using ADR, the parties decide themselves: • Whether or not to settle • The result (if any) of ADR • How to structure a “Win/Win” solution ▬

28. THE BENEFITS OF ADR In litigation, the Judge controls the outcome and decides: • Win/Lose • Less flexible – fewer remedies available • Considers only the parties’ legal positions, not their real interests ▬

29. THE BENEFITS OF ADR NO HARM ▬ If ADR is tried and does not work, the parties can go back into the traditional dispute process ▬

30. THE BENEFITS OF ADR The Judge Neutral will totally withdraw from any future consideration of the matter by the CBCA, unless the parties want the Judge to stay on the case

31. THE BENEFITS OF ADR • INFORMAL, FLEXIBLE AND COMPLETELY VOLUNTARY SETTLEMENTS • Faster . . . MUCH FASTER • Less expensive . . . MUCH MORE AFFORDABLE • Less intrusive . . . MUCH LESS INTRUSIVE • Confidential . . . allowing matters to be handled with more privacy (no airing of “dirty laundry”) • Emphasizes problem solving (not assessing blame) • Emphasizes the parties’ interests (not necessarily their legal positions) • Maintains or repairs relationships • Provides the parties more control over the outcome • Even if matter is not completely resolved, ADR is productive in settling some items, narrowing the remaining issues and making any litigation more efficient.

32. SO WHEN SHOULD PARTIES USE ADR? When the parties decide a neutral third party might be beneficial to the negotiations.

33. BCA Judges as ADR Neutrals—A National Treasure! • Call or send an email if you have questions or need CBCA Judge Neutral: • Judge Pat Sheridan • 202-273-6743 • patricia.sheridan@gsa.gov