An evaluation of the merits of mandatory mediation in federal government contracting




Smith, Christopher P., M. of Public Affairs

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Traditionally, parties to a government contract have sought administrative or judicial review to resolve disputes; however, appeals to these courts are costly and may take years to reach a conclusion. Congress has encouraged the use of Alternative Dispute Resolution methods to resolve disputes arising in federal government contracting. Alternative Dispute Resolution includes a broad range of techniques, including mediation; however, use of Alternative Dispute Resolution to resolve disputes in contracting has focused on arbitration. Arbitration is the Alternative Dispute Resolution method most similar to a trial. Attorneys largely lead the resolution of these contractual disputes given their expertise in contract law. This expertise in contract law as well as comfort and familiarity with the litigation process may encourage attorneys to select arbitration over other means of Alternative Dispute Resolution that may be more beneficial to all parties. "Lawyers bred in litigation may not realize when one or more of the techniques in the ADR procedural array may be far preferable to court litigation, and they may take an unnecessarily narrow view of their clients' interests" (Section of Administrative Law and Regulatory Practice, 2001). "Arbitration has become expensive and time consuming because of increasing demands for discovery (a process through which both parties exchange information prior to an administrative or judicial hearing), which results in an unintended consequence of participants not fully engaging in Alternative Dispute Resolution processes. The increased costs of arbitration associated with the discovery process encourages disputants to forgo investing in Alternative Dispute Resolution methods and proceed directly to administrative or judicial hearings where the parties can get a final ruling on the merits of the case with limited appeals options. If Alternative Dispute Resolution is to fulfill its original mandate or promise, parties must find resolution before the parties even get to arbitration. To encourage a fuller exploration of other Alternative Dispute Resolution methods, federal contracts should include mandatory dispute avoidance measures and mediation. Mediation should be required before parties can proceed with a grievance or a lawsuit.




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