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Judge
General Services Administration Board of Contract Appeals
1800 F St., NW
Washington, DC 20405
202-501-0352
allan.goodman@gsa.gov
This article was originally written for
the Federal Procurement Institute held in Annapolis, MD on February
25-26, 1999, sponsored by the American Bar Association, Public
Contract Law Section.
Contents
Introduction
I. "It's never too early to talk."
An initial conference with the Judge after
the answer is filed.
II. "I want to talk to your clients."
Discussion of ADR options with those who
pay the bills.
III. "You don't need a CO's final decision - you need this resolved."
ADR prior to issuance of contracting officer's
final decision.
IV. "Call me before you put it in writing."
Avoiding discovery disputes by immediate
judicial intervention.
V. "You don't need to be here."
Telephonic hearings.
VI. "Would you like to know what I think now or $50,000 from now?"
Non-binding case evaluation as a settlement
technique.
VII. "Your motion for summary relief is denied - but let's talk."
Turning disappointment into opportunity.
VIII. "I'll read your depositions if you want me to."
Using discovery as a prelude to a neutral
case evaluation.
IX. "Do you want the Wizard of Oz or the man behind the curtain?"
The Judge as mediator
X. "Let your clients sit in the judge's chair."
Mini-trials with the clients as panel
members.
Conclusion
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Introduction
Before I was appointed as a Board Judge, I spent
seventeen years in private practice, and also served as a private
arbitrator and mediator. I was constantly frustrated by the inefficiency
of litigation. I found it difficult to explain the inefficiency
to clients. They could clearly see effort being spent for discovery,
drafting motions for summary relief, and preparing for trial.
Yet it often seemed to them that the process had a life of its
own, apart from the goal of resolving the dispute. Prolonged discovery
and motion practice often caused the clients to wonder if there
would ever be an end to the process. On the other hand, my experience
as an arbitrator and mediator convinced me that dispute resolution
could move rapidly to a conclusion if there was sufficient cooperation
between the dispute resolver and the parties.
In January 1993, I was appointed a Judge on the
GSBCA. During the past six years, I have been committed to moving
my docket as swiftly and efficiently as possible. I have accomplished
this by using the various techniques described below.
I. "It's never too early to talk."
An initial conference with the Judge after the answer is filed.
My experience as an attorney was that in many forums, there was no contact with a judge for an extended period of time after the complaint was filed. Often a judge was not assigned until immediately before a trial. Even when a motion for summary relief was filed, oral argument was not always available. My clients would routinely lament "When are we going to talk to a judge? When are we going to see a judge?"
I believe it is beneficial for the parties to have contact and guidance from the judge early in the process. I therefore routinely have a telephone conference with the parties after the answer is filed. The initial conference is held to discuss the issues in the case, establish a discovery schedule, and to review the options of using alternative dispute resolution (ADR) procedures. This initial conference has intangible benefits. I begin to educate myself early about each case on my docket. During the initial conference, I stress my accessibility during the entire process. I also find that attorneys and clients are more amenable to considering the options of ADR early in the process if the judge takes the time to explain various ADR procedures.
II. "I want to talk to your clients."
Discussion of ADR options with those who pay the bills.
My prior experience as an arbitrator and mediator taught me that the parties can retain control of the dispute resolution process by agreeing to use various forms of ADR (neutral case evaluation, mediation, etc.). When I first became a judge, I decided that I would do my best to explore the option of ADR with the parties. GSBCA Rule 204, attached to this article, explains in detail the procedures for electing ADR at the Board.
I quickly learned that it was very beneficial to have the clients involved in the initial discussion of ADR options. Why? Because they are the "consumers." It is in their interest to expedite the proceedings, retain control over the dispute process, and resolve the case short of extensive discovery, a hearing, post-hearing briefs, and all the other effort required in formal proceedings. I am not implying that counsel do not have the same interests. However, I have found that I should not rely solely upon the attorneys to transmit the "ADR message" to the clients. When I involve clients in the initial discussion, they always ask many questions concerning procedures and their own participation. Ultimately, it is the client's decision to participate in ADR. If I can help the client understand and feel comfortable with the ADR process, they can make an informed decision.
III. "You don't need a CO's final decision - you need this resolved."
ADR prior to issuance of contracting officer's final decision.
GSBCA Rule 204 allows parties to seek ADR services from the Board to resolve disputes "at any stage of a procurement, even if no contracting officer decision has been issued or is contemplated." Thus, one may request ADR of a dispute at the GSBCA, even if the dispute is not ripe to be docketed as an appeal at a Board of Contract Appeals. This includes bid protests as well as disputes arising from contract performance.
This procedure has been particular useful in resolving delay claims arising from construction contracts. The Board receives delay claims that are appeals from "deemed denials," with no contracting officer's decision on the claim. Even before a contracting officer's final decision is issued, the parties may request the Board to appoint a Board Judge as a neutral to resolve the delay claim. In several instances, this has occurred while the construction of the project progressed, and has resolved the dispute before the construction is completed. Because of the judge's familiarity with the project, the parties have then requested the judge to serve as ADR neutral for any other dispute arising on the project. In this procedure, the Board Judge serving as ADR neutral functions as a "dispute review board" for the project.
IV. "Call me before you put it in writing."
Avoiding discovery disputes by immediate judicial intervention.
Nothing takes on a life of its own faster than a discovery dispute. Motions to compel and responses can consume hours of billable time and detract counsel and their clients from the central issues in the case. In my initial conference, I request that if a discovery dispute arises, counsel immediately request a conference call with me before they file anything in writing. I emphasize that I am available on very short notice. If a discovery dispute arises during a deposition, counsel are free to call me during the deposition so that I can resolve the dispute.
Given my ready accessibility, I expected that the number of discovery disputes would have remained steady or even increased. Instead, the number of discovery disputes has decreased markedly. I have no explanation for this. I can only surmise that the possibility of immediate intervention by the judge encourages counsel to resolve discovery disputes.
V. "You don't need to be here."
Telephonic hearings.
Telephonic hearings are gaining in popularity for cases involving relatively small dollar amounts or for cases in which the hearing is expected to last less than a day. The savings in travel time and expense justifies the use of telephonic hearings.
VI. "Would you like to know what I think now or $50,000 from now?"
Non-binding case evaluation as a settlement technique.
The most popular ADR technique used at the GSBCA is non-binding neutral case evaluation. Parties will request this option once they believe the case is sufficiently developed so that it may be presented for a non-binding decision. The non-binding decision often serves as a basis for settlement. This technique saves the considerable expense of a hearing and post-hearing briefs.
Neutral case evaluation is defined as follows in Board Rule 204:
(2) Neutral case evaluation. The parties agree to present to the Board Neutral information on which the Board Neutral bases a non-binding, oral, advisory opinion. The manner in which the information is presented will vary from case to case depending upon the agreement of the parties. Presentations generally fall between two extremes, ranging from an informal proffer of evidence together with limited argument from the parties to a more formal presentation of oral and documentary evidence and argument from counsel, such as through a mini-trial.
Note that the Rule indicates that the presentation may consist of "information." This term is used because the presentation may consist solely of counsel's argument, describing what the evidence would be, rather than presentation of evidence. Also, by choice of the parties, the case may not have proceeded in discovery to the point where the parties can present admissible evidence. If this is the case, there is an understanding that the advisory opinion is based on the assumption that the evidence will be what the parties allege it will be.
Before the ADR session begins, I usually request
that the parties exchange and submit to me a position paper summarizing
the issues. In neutral case evaluation, I prefer to convene the
parties in a conference room rather than the formal setting of
a hearing room. A conference room setting tends to put participants
at ease, allows everyone to converse with each other, and stimulates
discussion. Counsel and their clients are present, together with
any witnesses. The parties have the option of excluding witnesses,
but they generally do not do so. There is no record of the proceedings.
The parties are free to present their positions in any way they feel is most effective. A typical presentation consists of opening statements of counsel, during which they summarize the position of their clients. Fact witnesses testify, either by response to direct examination by counsel or in narrative fashion. I do not place the witnesses under oath. Witnesses may be cross-examined by opposing counsel. I also allow witnesses to ask questions of each other. Thus, the contracting officer may ask questions of the contractor's personnel and vice versa. Often, this interchange between witnesses is a discussion rather than an exchange of questions and answers. Sometimes the "discussion" becomes argumentative and emotional. At times I may wish to have a discussion with only the attorneys present.
Depending on the nature of the issues involved, I may render an advisory opinion at the conclusion of the presentation, or schedule a time in the near future to reconvene so that I may render the opinion. If I am the panel chairman, I inform the parties that I may, if I believe it necessary, consult with the other two judges on the panel of the case. While the opinion is non-binding, the parties look favorably on the fact that they have received an opinion endorsed by the three panel members.
VII. "Your motion for summary relief is denied - but let's talk."
Turning disappointment into opportunity.
Motions for summary relief, when denied, may provide an opportunity to initiate ADR. Parties spend considerable effort drafting such motions, and the motions serve to summarize in detail the parties' positions based upon the record of the case at that stage. If a party has filed a motion for summary relief which is not granted, I may suggest that the parties meet to consider using the information presented with the motion to serve as the basis of a "neutral case evaluation" procedure discussed above. This affords an opportunity to put to good use the effort expended in compiling the motions for summary relief.
VIII. "I'll read your depositions if you want me to."
Using discovery as a prelude to a neutral case evaluation.
After discovery is concluded, the parties often attempt to settle the case before proceeding to prepare for trial. There have been times when the parties have simply requested that I read key depositions as a prelude to neutral case evaluation. This is an efficient use of discovery. I am more than willing to read the depositions. However, I prefer to have the witnesses who have been deposed available during the neutral case evaluation. Any ambiguities in their testimony can be resolved during the settlement conference.
IX. "Do you want the Wizard of Oz or the man behind the curtain?"
The Judge as mediator
The Wizard of Oz is an excellent example of the difference between the judicial process and mediation. Dorothy, the Scarecrow, the Tin Woodsman, and the Cowardly Lion wanted a judicial solution from the Wizard. They went through all the pre-trial procedures that the Wizard required (remember - they retrieved the broomstick of the Wicked Witch of the West!!). After an unexpected challenge to the Wizard's authority by Toto, the Wizard came out from behind the curtained booth and assumed the role of mediator by helping the parties to realize that the solutions to their personal conflicts were actually within the parties' ability to achieve.
Board Rule 204 defines mediation as follows:
Mediation. The Board Neutral, as mediator, aids the parties in settling their case. The mediator engages in ex parte discussions with the parties and facilitates the transmission of settlement offers. Although not authorized to render a decision in the dispute, the mediator may discuss with the parties, on a confidential basis, the strengths and weaknesses of their positions. No judge who has participated in discussions about the mediation will participate in a Board decision of the case if the ADR is unsuccessful.
The distinguishing feature of mediation is that the mediator is allowed to have ex parte contact with the parties. During these ex parte meetings, the parties may reveal confidential information which they believe might be helpful for the mediator to know, but which they do not wish to reveal to the other party. The mediator is not authorized to render a decision in the dispute. Rather, the mediator may discuss with the parties the strengths and weaknesses of their positions, and facilitate the transmission of settlement offers. The mediator should not be the same individual who would render a decision if the mediation fails and proceeds to litigation. Also, by prior agreement, the mediator will not discuss the mediation with the individual who will render a decision if the mediation fails to result in a settlement.
How do I determine that a case might possibly
be settled by mediation? Sometimes the parties will tell me. They
have attempted settlement discussions, and while the case has
not yet settled, they believe it would with the assistance of
an independent third party. In other instances, even if settlement
discussions have not been conducted, the parties will choose mediation
over other ADR techniques. This reflects their own assessment
that the case is a candidate for mediation.
As in neutral case evaluation, I request a position paper from the parties before the mediation begins. The mediation session convenes in a conference room, rather than a hearing room. The general procedure for mediation consists of an opening statement by the parties with all counsel and clients present. The parties may also bring individuals who have personal knowledge of the facts, who can present a summary of their knowledge to the mediator. The mediator then meets ex parte with counsel and their clients and discusses the strengths and weaknesses of their case. These ex parte meetings are called "caucuses." I usually will conduct the caucuses in my office, while the other party and counsel remain in the conference room. After several caucuses during which the facts of the case are analyzed, and the parties have had an opportunity to discuss with me any confidential information they wish, I request that the parties begin exchanging settlement offers. Usually the parties will prefer that I transmit the settlement offers and counteroffers. Once a settlement is reached, the parties reconvene in the conference room to confirm that a settlement has occurred.
There are two approaches to mediation - facilitative and evaluative. In facilitative mediation, the mediator's function is to aid the parties in settling the matter, but the mediator does not offer an opinion as to which party will most likely prevail or the value of a settlement. Facilitative mediation proceeds with the assumption that since the mediator is not the person who will ultimately issue a decision if the mediation is not successful, the mediator's non-binding opinion might serve to harden the parties' positions and be counter-productive to a settlement. In evaluative mediation, the mediator's function is to render an opinion. The two approaches may be combined. In facilitative-evaluative mediation, the mediator's efforts are focused upon first achieving a settlement without rendering an opinion. Sometimes the parties arrive at their own solution through the facilitative efforts of the mediator, without the mediator rendering an opinion. If the parties cannot achieve settlement, the mediator will then render an opinion, which will then be used as the basis for further settlement discussion.
It has been my experience that the parties request
evaluative mediation. Counsel and the parties will usually ask
my opinion of the case, based upon the information that I have
heard, as the mediation session progresses. Even though I am not
the person who will ultimately decide the case if the mediation
is not successful, counsel and the parties have told me emphatically
that my opinion as mediator has predictive value, because in I
am also a judge. If I am able to give an opinion, I will. This
often enhances settlement discussions and results in a settlement.
I seldom see a party, after receiving a negative opinion during
a mediation, terminate the mediation and proceed to litigation,
hoping to receive a more favorable opinion. I have had instances
in which the parties have reached a settlement before I render
an opinion, even though they contemplated evaluative mediation.
In these cases, the parties discussions and mutual cooperation
have yielded a settlement based upon their own evaluations of
information received during the mediation process.
X. "Let your clients sit in the judge's chair."
Mini-trials with the clients as panel members.
The "mini-trial" is a procedure in which a neutral sits on a panel with party representatives who have authority to settle the dispute. The party representatives ideally should not be personally involved in the dispute, and therefore should be able to take a more objective, business approach to resolving the matter. Counsel present evidence and/or information to the panel. The party representatives have the unique perspective of sitting with the neutral and having the presentations made to them.
One can see that the term "mini-trial" is a misnomer. The procedure is not a trial, but is really a structured combination of neutral case evaluation and mediation. By placing the party representatives on a "panel" with the neutral, they are physically and psychologically isolated from the advocacy. They are not part of the problem; they are involved in the solution.
Once the presentation of the evidence/information is concluded, the neutral then meets jointly and ex parte with the party representatives and attempts to negotiate a settlement, usually through facilitative and/or evaluative mediation. This procedure can be used with a panel consisting of a Board neutral and representatives from the contractor and the Government.
I had the occasion to serve as Board Neutral and employ this procedure. The dispute presented in the mini-trial arose from a contract awarded in 1985 for the design, development and maintenance of a worldwide logistics information system for the Air Force equipment. The purpose of the ADR proceeding was to attempt to resolve three consolidated appeals previously docketed at the Armed Services Board of Contract Appeals, together with other disputes arising from contract performance. Pursuant to Rule 204, the parties agreed to request ADR services from the GSBCA.
Prior to the mini-trial, I requested that the parties file briefs and supporting documentation. The Board Neutral and party representatives spent considerable time reviewing the parties submissions. After two and a half days of presentation to the panel, I, as the Board Neutral, facilitated negotiations between the party representatives. During the course of these negotiations, I offered non-binding evaluation of the parties' positions, and met ex parte with the party representatives. Thus, the procedure was conducted as both a neutral case evaluation and mediation. After several days of negotiations, the mini-trial concluded. The parties settled the disputes raised in the three consolidated appeals at the ASBCA, as well as other matters arising from the contract which had not been the subject of those appeals.
Conclusion
Effective case management is a cooperative effort involving the judge, counsel, and the parties. I have found the following techniques and concepts to be effective in managing my docket quickly and efficiently.
Early and continuous communication between the judge and the parties.
Early discussion of ADR options with counsel and clients.
Parties' willingness to resolve a dispute before a contracting officer's final decision is issued.
Accessibility of the judge to quickly resolve discovery disputes.
Use of telephonic hearing when appropriate.
Non-binding case evaluation based on discovery, information in summary relief motions, and party presentations.
Appropriate use of other ADR techniques, such as mediation and mini-trial.
These techniques and concepts do not stand alone, but are used in combination. Judges, counsel, and parties should be willing to attempt to resolve the dispute by these expedited and cost-saving techniques. It is my experience that the clients, the true "consumers" of the process, demand these techniques.