GovernmentExecutive.com

The Justice Department encourages alternative dispute resolution in appeals cases, despite what some government contractors believe, a department attorney said at a Washington, D.C. Bar Association luncheon Wednesday.

The Justice Department requires attorneys to attend annual alternative dispute resolution training sessions, according to Deborah Bynum, assistant director of the commercial litigation branch in the department's civil division. A pilot program at the U.S. Court of Federal Claims also encourages attorneys to consider mediation at two stages early on in appeals cases.

From a contractor's perspective, Justice Department attorneys are often slow to consider mediation, or reluctant to consider the technique at all, said Cheryle Morgan, senior counsel for the information technology sector at Northrop Grumman Corp., a defense contractor. She asked Bynum what contractors could do to open up a dialogue on alternative dispute resolution earlier on in the process.

Contractors would like to know if the Justice Department is likely to "head down the alternative dispute resolution road" sooner, to help with case strategy, Morgan said. The contractors prefer to settle appeals cases through mediation if possible, she said, because the process is much cheaper than going through lengthy discovery sessions and trials.

While the Justice Department encourages mediation when possible, some cases are not appropriate for the process, Bynum explained. For instance, when a larger legal issue is at stake, Justice Department lawyers will bring an appeal to trial to establish a precedent, she said. In other cases, the parties are often likely to reach a settlement without the help of mediation, she added.

Justice Department lawyers need time to sort through large amounts of paperwork and research cases thoroughly before they can determine whether a case is appropriate for mediation, Bynum said. This may create the perception that they are moving slowly and are reluctant to turn to alternative dispute resolution, but they are just making sure they send the case down the appropriate avenue, she said.

Government contractors have a choice of venues to appeal unfavorable decisions, including the Board of Contract Appeals and the U.S. Court of Federal Claims. At the Board of Contract Appeals, individual agency lawyers face the contractors and Justice Department attorneys are not involved in the process. Cases are more likely to reach a quick resolution at the board, according to Bynum. Contractors tend to turn to the U.S. Court of Federal Claims for disputes with large amounts of money at stake or for cases where they hope to set a legal precedent, she said.

Cases tend to move faster at the Board of Contract Appeals because the agency lawyer has often been assigned to the case for a long period of time and is familiar with all the details, Bynum explained. It would be unrealistic for contractors to expect the same efficient treatment at the Court of Federal Claims, where Justice Department attorneys assigned to the case are new to the issues and need to do extensive research to get a handle on the particular case, she said.