I. Introduction

As a Judge on the General Services Administration Board of Contract Appeals (GSBCA or Board), I have a unique opportunity to assess the efficacy of alternative dispute resolution. The GSBCA is a trial level tribunal that resolves Contract Disputes Act (CDA) appeals from contracting officer final decisions issued by the General Services Administration and other civilian agencies. The parties to these appeals have the option of staying the traditional procedures of dispute resolution offered by the Board and having a Board Judge serve as neutral in an ADR proceeding.

In addition to providing ADR in CDA appeals, the GSBCA makes its judges available as neutrals to any agency that requests ADR services with regard to a contract dispute. This includes bid protests as well as disputes arising from contract performance. The Board has provided ADR services in matters which have been initiated in other forums. In such circumstances, the other board or court is requested to issue an order staying proceedings pending the completion of ADR proceedings at the GSBCA.

I now spend more than 60% of my time as a judge on the GSBCA resolving disputes by ADR, and this percentage has increased steadily over the years. The consumers of the legal process - the parties to the dispute - continue to request ADR in lieu of the traditional litigation methods. Like these consumers, I have come to prefer ADR in appropriate cases. I will first define an appropriate case, and then discuss the reasons why I prefer ADR.

II. Defining an Appropriate Case

I recently heard the following story. A woman always cut the ends off a roast before cooking it. Her husband asked her the reason for this, and she told him that her mother always cut the ends off a roast before cooking it. During the next family get-together, the woman asked her mother about this. The mother replied, "because your grandmother always did it, but I don't know why." Several years later, the woman was in her mother's attic, and found a letter from her grandmother to her grandfather, which read "Maybe one day we will have enough money to buy a decent roasting pan - one big enough so I won't have to cut the ends off the roast."

ADR techniques have gained in popularity because many have questioned the need "to cut off the ends of the roast." In essence, business people have realized that they need not relinquish the resolution of their problems to a process controlled by third parties. Rather, they can employ procedures which allow principals to control the process and fashion the solution with the help of third-party neutrals.

What is an appropriate case for ADR? I believe it is any case in which the parties are willing to assume control of the process and employ a non-traditional method of conflict resolution.

III. Preferable ADR Procedures

There are several ADR procedures that are used at the Board. Parties usually prefer the non-binding methods of neutral case evaluation and mediation. My preference is to use a combination of these two techniques. In neutral case evaluation, the parties submit information to a neutral who then renders a non-binding opinion which is usually in the form of the strengths and weaknesses of each parties' position. The parties may then use the neutral's evaluation as a basis for settlement discussions. The parties may wish to have the assistance of the neutral as a mediator during settlement discussions.

IV. Why I Prefer ADR

A. ADR is Less Litigious

One of my major goals in the use of ADR is to remove as much litigiousness from the process as possible. When I was first trained as a mediator, I was taught that the first step in a mediation (or other non-binding ADR procedure) is a "joint session," in which the parties present their positions to the neutral with everyone present. I soon learned that such a joint session was usually counterproductive, because this procedure allowed the parties to reiterate in detail the basis of their dispute. One can almost hear the parties' positions hardening as they are set forth.

To allow the parties to present an adversarial opening statement in joint session is usually a guarantee that the process will begin on a litigious note. Instead, I suggest that I will be the first person to speak in the joint session. I request that the parties submit position papers to me before the ADR session begins. I do not limit the length of the position papers, but require that they be submitted in sufficient time before the ADR session so that I can review them in detail. I assure the parties that I will read their submissions before the ADR session begins.

In my opening statement, I set forth my understanding of the parties' positions based upon my reading of their submissions. This has several purposes. First, it saves time. I summarize the parties' positions in a much shorter time frame than the parties would take to do the same. My summary usually lasts no more than twenty minutes. Secondly, my summary demonstrates that I have actually read the parties' submissions, and hopefully have understood them. The fact that the ADR neutral spends time before the session begins to learn the details of the parties' positions builds the parties' confidence in the ability of the ADR neutral.

B. ADR Results in a Free Exchange of Information

In a traditional hearing, witnesses testify in response to questions by their attorneys. They are then passed to the opposing attorney for cross examination. During cross examination, if a client or other witness has a question that he or she believes is relevant, they may pass the question in writing to their attorney, who may ask the question. If the attorney asks the question, he or she may not necessarily know the import of the question, and therefore not be able to gauge the responsiveness of the answer or frame a meaningful follow-up question. The judge may also ask questions. Testimony is elicited, with commentary at the end, either by oral closing statement or post-hearing brief. Despite the information flow, there is usually very little dialogue between the participants. The focus is the presentation of information to the judge.

In an ADR session, I strive to increase the flow and efficiency of information. I request that the parties bring their witnesses, both expert and fact witnesses, and that everyone sit around a large conference table. After my opening statement, in which I state my understanding of the parties' positions, I invite each party, through its attorneys or principals, to comment on my understanding of its position.

After initial comments by the parties, the joint session proceeds with the witnesses discussing the dispute in a narrative fashion, chronologically explaining their understanding of the facts. The advantage of the narrative method is that the speaker is not taking direction from a third party, nor is the speaker interrupted. The speaker is emotionally unfettered. The speaker has more of a sense of speaking directly to both the ADR neutral and the other persons in attendance. Very importantly, the speaker is not on the witness stand; instead, he or she is in the position of controlling the session. Presumably, this is less stressful for the speaker.

There is an agreed rule - anyone in the room can ask a question of the speaker. Sometimes an individual who would never have had the opportunity to ask a question asks a very pertinent question. This rule encourages everyone in the room to listen, since they all have the opportunity to ask a question.

C. ADR Increases the Parties' Understanding

In almost every ADR proceeding, issues and concepts arise that the parties have not previously presented. Sometimes issues are dropped and others take on a greater importance. The focus becomes one of evolution towards a solution. While the focus in a traditional hearing is for the parties to make sure the judge understands their positions, the focus in ADR is to assure that the parties understand each other's position.

D. The Rules of Evidence Still Apply

When discussing the option of ADR, someone will invariably ask, "What about the rules of evidence? Will we apply the rules of evidence?" My response is "When don't we apply the rules of evidence?" The rules of evidence we learned in law school were not created by the legal system - they are rules of social intercourse. The myriad of rules is merely an outgrowth of three major concepts - authenticity (is it real?); relevancy (is it pertinent to the subject matter?); and credibility (is it believable?). We may choose to suspend these rules momentarily, when we watch TV, view a movie, tell a joke, or read a book of fiction, but we do not do so as a matter of course.

During a traditional hearing on the merits, information which a party may believe is not authentic, relevant, or credible is challenged by an objection. In ADR, the method of challenging questionable information is changed. Instead of posing an objection, any person attending is allowed to question the information presented. At the beginning of the ADR session, I caution those in attendance - "Don't object - Listen and question."

E. ADR Gives Everyone His Day in Court

Does ADR give the parties their "day in court"? Parties to a dispute often tell me that ADR is better than court. As I mentioned above, the parties to the dispute feel that they retain control of the process in ADR. They are allowed to speak directly and unfettered to each other and the ADR neutral. The main focus is the ability to present their case to someone who is listening - this includes not only the ADR neutral but all in attendance. ADR generally does not conclude until everyone present is given the opportunity to say what he or she wants to say. Can you imagine being in a hearing and having someone beyond counsel table making a comment?

F. ADR is Cost Efficient and Time Efficient

I am constantly amazed at the efficiency of ADR. There is no need to engage in costly discovery if the parameters of the dispute are known and acknowledged and the parties are able to settle on a reasonable basis with a comfort level as to the state of the available information. We are not archaeologists or historians engaged in an exercise to recreate past events to perfection. The result to be achieved is the settlement of the dispute. The voices of the witnesses speak louder than briefs. There is no need to reiterate in writing what has been presented orally. A complex dispute can be settled by agreement of the parties. There is no need for long, detailed, legal opinion.

G. ADR Takes Place Now

Litigation takes place in the past and in the future. Past events are discussed for resolution in the future. ADR takes place in real time. ADR takes place in the present, with the hope that the dispute will be resolved, if not today, then hopefully tomorrow. I have had disputes involving many millions of dollars resolved in several days, rather than months or years. As the parties calculate their settlement offers during ADR, I suggest that they factor in the mental and emotional wear and tear that will be saved if they settle. ADR results in a finality that is immediate and not subject to appeal.

H. In ADR, The Parties Can Fashion a Unique Solution

Parties to an ADR proceeding are free to fashion solutions that a judge or arbitrator could not impose. This leads to creative thinking on the part of all involved, including the neutral. Litigation does not usually result in a solution that is satisfactory to all parties, and often results in a solution that is not satisfactory to any party.

V. Conclusion

Several years ago I used to hear that ADR was a fad, and that ultimately the pendulum would swing back toward traditional litigation. For those who wish to retain control of the process and fashion business solutions which a court or board of contract appeals cannot achieve, ADR procedures are not a fad, but viable alternatives to traditional litigation.