ADR CHECKLIST
CONTRACT__________________________________
DATE OF REQUEST FOR FINAL DECISION__________
DATE OF FINAL DECISION________________
The purpose of these guidelines is to assist in evaluating a situation for it potential resolution through the use of ADR.
You will need to carefully weigh the pros and cons of using ADR on a case by case basis.
1. FACTORS FAVORING THE USE OF ADR
a. The law of determinative legal issues is well settled.
b. The dispute is primarily factual
c. The position of each side has merit, but they may be overstated.
d. No further discovery (or fact-finding) is required--or limited expedited discovery will suffice--for each side to assess its strengths and weaknesses.
e. The risk of an adverse precedent should be avoided.
f. A speedy resolution should be avoided.
g. The case lends itself to settlement before a board or court decision.
h. A strong presentation will give one side or the other a more realistic attitude about the case.
i. Trial preparation could be costly and protracted.
j. A mediator or other third party could assist in diffusing the emotion or hostility which may inhibit an appropriate settlement of the dispute.
k. The evaluation by a neutral advisor or expert could help break the stalemate.
l. Neither side really wants to litigate.
2. FACTORS AGAINST THE USE OF ADR:
a. If the answer to any of the following questions is "yes", then ADR may not be appropriate.
i. Is the dispute primarily over issues of law?
ii. Is a decision with precedential value needed?
iii. Is a significant policy question involved?
iv. Is a full public record of the proceeding important?
v. Would the outcome significantly affect non-parties?
vi. Would the costs of using an ADR procedure be greater (in time as well as money) than the costs of pursuing litigation?
vii. Does the case involve a willful or criminal violaton of the law?
viii. Is the contractor subject of debarrment or suspension proceeding?
b. Other factors against the use of ADR
i. The case may dismissed in a motion for summary judgment.
ii. There is no bono fide dispute; the other side's case is without merit.
iii. The advantage of delay runs heavily in favor of one side.
iv. The other side has no motivation to settle (e.g., expectations of a large judgment, highly emotional stake in being vindicated.
v. More time must elapse before each side's position and settlement possibilities can all be evaluated.
vi. There is a need for continuing Board or Court supervison of one of the parties.
vii. The other side may not be forthright in its ADR presentation.
