Posted on 7/31/2011 10:03 AM

IN PRAISE OF MEDIATION

There is a new DFARS coming out (the proposed rule went out in April and comments are in) encouraging the expanded use of dispute resolution and conflict management practices as an integral part of normal DOD business practices.  It encourages such techniques as structured unassisted negotiation, joint or collaborative problem-solving, coaching and the design of an integrated conflict management system.

DOD components will be required to establish and implement programs to resolve disputes at the earliest possible stage of the dispute and at the lowest possible organizational level.  One can only hope the FAR Council picks up on this and makes it government agency wide.  I think FAR should have some real teeth in it.  FAR 33.214 must be made mandatory.  The government should not be able to turn down the contractor's request. 

Much has been written and spoken about ADR (Alternative Dispute Resolution).  Frankly, the words mostly fall on deaf ears.  In my experience, it is extremely difficult to get the government to the table.  The federal court system and many state court systems are leaders in ADR:  don't file a law suit unless you expect to be told you must go to mediation.  Judges at the Court of Federal Claims and the Boards of Contract Appeals encourage ADR in the strongest of terms. 

As you know, I favor face to face negotiation over all other forms of ADR.  My second choice is mediation.  I insist on mediation in all of my cases unless it gets too lawyered up.  One or one and a half days with the mediator and the principals should be enough.  Too much lawyering really gets in the way.  That's why I abhor arbitration, which is just another form of litigation.

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