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ADR Sample Agreement - Nonbinding (18 May 2017)

This document outlines a sample agreement for utilizing mediation as an alternative dispute resolution (ADR) method under the Armed Services Board of Contract Appeals (ASBCA) rules. It emphasizes the confidentiality of communications during the ADR process and includes mandatory provisions regarding the role of a neutral facilitator, good faith participation, and the return of materials post-proceeding. The agreement serves as a flexible template for parties to tailor their mediation process while adhering to essential guidelines.

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9 views3 pages

ADR Sample Agreement - Nonbinding (18 May 2017)

This document outlines a sample agreement for utilizing mediation as an alternative dispute resolution (ADR) method under the Armed Services Board of Contract Appeals (ASBCA) rules. It emphasizes the confidentiality of communications during the ADR process and includes mandatory provisions regarding the role of a neutral facilitator, good faith participation, and the return of materials post-proceeding. The agreement serves as a flexible template for parties to tailor their mediation process while adhering to essential guidelines.

Uploaded by

mohamed.elcompany
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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ARMED SERVICES BOARD OF CONTRACT APPEALS

SAMPLE AGREEMENT TO UTILIZE THE MEDIATION PROCEDURE


18 May 2017

[NOTE 1: The following sample agreement is provided in response to requests the


Board receives for examples of ADR agreements that may be suitable for use in ADR
proceedings under Addendum II to the Board’s Rules, Alternative Methods of Dispute
Resolution. This sample is offered solely as an aid to the parties in focusing their
thoughts on the ground rules that will best serve their interests in resolving a particular
dispute. The Board recognizes that one of the strengths of the ADR process would be
lost if the same procedural format were insisted on in every case. Thus, the Board by
offering this sample does not intend to restrict the parties’ discretion in tailoring the
agreement to meet their particular needs. Paragraphs 2, 6, and 9-10, however, are key
features of the Mediation method of ADR and are mandatory.

NOTE 2: The parties are advised that written material prepared specifically for use in
an ADR proceeding, oral presentations made at an ADR proceeding, and all
discussions in connection with such proceedings are considered “dispute resolution
communications” as defined in the Administrative Dispute Resolution Act, 5 U.S.C.
§ 571(5). Pursuant to paragraph 5 of Addendum II to the Board’s Rules, Alternative
Methods of Dispute Resolution, such dispute resolution communications are presumed
to be confidential and, unless otherwise specifically agreed by the parties, are
inadmissible as evidence in any pending or future Board proceeding involving the
parties or matter in dispute; however, evidence otherwise admissible before the Board
is not rendered inadmissible because of its use in the ADR proceeding. Dispute
resolution communications are subject to the confidentiality requirements of 5 U.S.C.
§ 574.]

SAMPLE

AGREEMENT TO UTILIZE THE MEDIATION PROCEDURE


UNDER ADDENDUM II OF THE ASBCA’S RULES
(REVISED 21 JULY 2014): ALTERNATIVE METHODS OF DISPUTE RESOLUTION

THIS AGREEMENT is entered into by and between


(hereinafter “appellant”)
and the Department of (hereinafter “the government”).

WHEREAS, appellant and the government entered into Contract No.


; and
WHEREAS, appellant filed with the Armed Services Board of Contract Appeals
(hereinafter the “ASBCA”) an appeal under said contract; and

WHEREAS, said appeal is designated ASBCA No. ; and

WHEREAS, ASBCA No. involves claims by


[appellant / the government for ] in the amount of $ ; and

WHEREAS, the parties wish to resolve the appeal by alternative dispute


resolution, specifically utilizing mediation; and

WHEREAS, the ASBCA is authorized to resolve disputes by alternative dispute


resolution under its Charter; and

NOW THEREFORE, the parties mutually stipulate and agree as follows:

1. Schedule. The ADR proceeding on the appeal is scheduled for


days(s), namely: , at the Board (or other agreed location).

2. [Mandatory] Neutral. The Neutral’s role will be to facilitate the parties’


settlement efforts. The Neutral may meet with the parties either jointly or individually
and to the extent necessary to foster a negotiated settlement of the dispute. The
Neutral’s recommendations are not binding on the parties. The Neutral shall have the
same common law immunity as judges and arbitrators from suit for damages or
equitable relief and from compulsory process to testify or produce evidence based on
or concerning any action, statement, or communication in or concerning the ADR
proceeding. The parties understand that there is no attorney-client relationship
between the Neutral and any party to this Agreement, and each party acknowledges
that it will seek and rely on legal advice solely from its own counsel and not from the
Neutral. The parties agree, on behalf of themselves and their counsel, that they will
not call or subpoena the Neutral in any legal action or administrative proceeding of any
kind to produce any notes or documents related to the ADR proceeding or to testify
concerning any such notes or documents or his/her thoughts or impressions.
[NOTE: The Neutral will normally not participate further in the appeal if the parties’
efforts are unsuccessful, unless the parties seek the continued involvement of the
Neutral.]

3. Exhibits. [NOTE: The parties should agree on what exhibits will be


presented in the mediation.]

4. Transcript. A transcript of the proceedings will not be prepared.


5. Agenda. The presentations of the parties will be informal and the rules of
evidence are waived. The Neutral may, nonetheless, guide the presentation of
evidence. [NOTE: The parties should spell out how they wish to make their informal
presentations and agree on time to be allotted to various phases of the process. It is
often helpful for each party to submit a brief position paper (3 to 5 pages) sufficiently
in advance of the proceeding for the Neutral to consider it in connection with the
record agreed to by the parties.]

6. [Mandatory] Participants. Each party will include among its representatives a


principal with authority to settle the appeal.

7. Use of statements and documents. The admissibility, in any further


proceedings before the Board, of statements made or documents used in connection
with the ADR proceeding will be guided by Federal Rule of Evidence 408.

8. Fees and expenses. Each party will bear its own fees and expenses, including
but not limited to attorney and agent fees and compensation for witnesses, incurred
incidental to the ADR proceeding.

9. [Mandatory] Good faith. All participants in the ADR proceeding agree to act
in good faith in all aspects of the proceeding with the view of resolving the dispute.

10. [Mandatory] Post-ADR. The Board will return any written materials created
solely for use in the ADR to the creating party if requested by the party within 10 days
of the conclusion of the ADR proceeding. The following documents will not be
returned or destroyed: the parties’ ADR agreement; documents provided to the Board
prior to its approval of the ADR agreement, including documents in a Rule 4 file and
routine correspondence with the Board concerning the election and scheduling of the
ADR; and any documents necessary for the Board’s recordkeeping purposes, such as
any settlement agreement entered into which serves as a basis for later dismissal of the
matter. All other dispute resolution communications remaining in the Board’s
possession will be destroyed as the Board deems appropriate.

APPELLANT GOVERNMENT AGENCY

By: By:

Date Date

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