Procurement Lawyer

Posttrial Mediation: Alternative Dispute Resolution Considerations, Challenges, and Opportunities

by Robert T. Peacock

Robert T. Peacock is an administrative judge on the Armed Services Board of Contract Appeals (ASBCA). He has conducted over 75 mediations, all successfully resolved and settled, with one exception. The views expressed in this article are solely those of Judge Peacock and not those of the ASBCA or the Department of Defense.1

Scholarly and comprehensive articles previously have been written about the Armed Services Board of Contract Appeals’ (ASBCA’s or Board’s) alternative dispute resolution (ADR) techniques and procedures.2 The purpose of this article is to complement those informative commentaries by sharing my practical experience conducting a nonbinding posttrial mediation (PTM) that resulted in settlement of a dispute following a multiweek trial on entitlement.

Addendum II to the ASBCA Rules sets forth the Board’s ADR procedures,3 which specifically identify two primary types of Board-assisted ADR proceedings: (1) nonbinding mediation, and (2) a summary proceeding with binding decision.4 Parties also have the flexibility to craft other informal methods, binding or nonbinding, tailored to the requirements of their case.5 While both parties benefit from “[r]esolution of a dispute at the earliest stage feasible, by the fastest and least expensive method possible,”6 the ASBCA’s “ADR methods can be used successfully at any stage of the litigation.”7 PTM reemphasizes that ADR may be viable at any time and at any stage of the appeal and decision-making process — in this case, after full exposure to both sides of the extent and strength of the opposing party’s case and with the benefit of a closed finite record. It is another ADR “tool” for use in appropriate circumstances, providing increased flexibility and versatility in timing and implementing ADR options. It bears emphasis that that mediation models vary and the parties have extensive flexibility in establishing procedural steps tailored to their specific disputes. This article compares and contrasts perhaps the most commonly used procedural structure utilizing initial, joint, “open presentation” sessions with principals present, followed by private caucuses with the mediator, exchanges of offers, supplemented occasionally with additional joint sessions and break-out meetings among selected decision makers and the mediator. The most obvious differences between the PTM process discussed herein and this “traditional” model are the elimination or abbreviation of the initial joint presentations and conduct of the mediation on a closed finite record. The essence of the “traditional” structure was adopted by the parties in the case discussed in this article.

Background of the “LA Case”

Because the trial and mediation were conducted in Los Angeles, California, I will refer to the subject case throughout this article as the “LA Case.” The mediation resolved three appeals revolving around 512 claimed days of delay to a construction project resulting from multiple alleged causes (in excess of 25 discrete claim events) and associated government contentions of concurrent delays. The evidentiary record included transcripts of the 10-day trial and approximately 1,000 Rule 4 documents and exhibits, along with expert critical path analyses of the alleged delaying events. About $4 million was claimed by the appellant (plus Equal Access to Justice Act fees and Contract Disputes Act interest). The government conceded the compensability of about 170 of the delay days claimed. The 10-day trial was conducted in two sessions with approximately a seven-week break between the two sessions. That break, prior to the second session, was important to the election and success of the mediation as discussed below.

While the LA Case was relatively complex, the posttrial ADR approaches and considerations addressed herein are generally applicable and adaptable to most cases, regardless of the length of the trial or the size of the record. To protect the confidentiality of the ADR proceeding, this article will only discuss nonconfidential, procedural considerations and challenges associated with the posttrial nature and circumstances of the ADR, without mention of specific substantive issues and matters discussed during the mediation process.8

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