Federal Aviation Administration, DOT

Section 17.37

(q) Other than communications regarding purely procedural matters or
ADR, there shall be no substantive ex
parte communication between ODRA
personnel and any principal or representative of a party concerning a
pending or potentially pending matter.
A potential or serving ADR neutral
may communicate on an ex parte basis
to establish or conduct the ADR.

Subpart D - Alternative Dispute
Resolution

spaschal on DSK3GDR082PROD with CFR

Section 17.35 Use of alternative dispute resolution.
(a) By statutory mandate, it is the
policy of the FAA to use voluntary
ADR to the maximum extent practicable to resolve matters pending at
the ODRA. The ODRA therefore uses
voluntary ADR as its primary means of
resolving all factual, legal, and procedural controversies.
(b) The parties are encouraged to
make a good faith effort to explore
ADR possibilities in all cases and to
employ ADR in every appropriate case.
The ODRA uses ADR techniques such
as mediation, neutral evaluation, binding arbitration or variations of these
techniques as agreed by the parties and
approved by the ODRA. At the beginning of each case, the ODRA assigns a
DRO as a potential neutral to explore
ADR options with the parties and to
convene an ADR process. See Section 17.35(b).
(c) The ODRA Adjudicative Process
will be used where the parties cannot
achieve agreement on the use of ADR;
where ADR has been employed but has
not resolved all pending issues in dispute; or where the ODRA concludes
that ADR will not provide an expeditious means of resolving a particular
dispute. Even where the Adjudicative
Process is to be used, the ODRA, with
the parties- consent, may employ informal ADR techniques concurrently with
the adjudication.
Section 17.37 Election of alternative dispute
resolution process.
(a) The ODRA will make its personnel available to serve as Neutrals in
ADR proceedings and, upon request by
the parties, will attempt to make
qualified non-FAA personnel available
to serve as Neutrals through neutral-

sharing programs and other similar arrangements. The parties may elect to
employ a mutually acceptable compensated neutral at their expense.
(b) The parties using an ADR process
to resolve a protest shall submit an executed ADR agreement containing the
information outlined in paragraph (d)
of this section to the ODRA pursuant
to Section 17.17(c). The ODRA may extend this
time for good cause.
(c) The parties using an ADR process
to resolve a contract dispute shall submit an executed ADR agreement containing the information outlined in
paragraph (d) of this section to the
ODRA pursuant to Section 17.29.
(d) The parties to a protest or contract dispute who elect to use ADR
must submit to the ODRA an ADR
agreement setting forth:
(1) The agreed ADR procedures to be
used; and
(2) The name of the neutral. If a compensated neutral is to be used, the
agreement must address how the cost
of the neutral-s services will be reimbursed.
(e) Non-binding ADR techniques are
not mutually exclusive, and may be
used in combination if the parties
agree that a combination is most appropriate to the dispute. The techniques to be employed must be determined in advance by the parties and
shall be expressly described in their
ADR agreement. The agreement may
provide for the use of any fair and reasonable ADR technique that is designed to achieve a prompt resolution
of the matter. An ADR agreement for
non-binding ADR shall provide for a
termination of ADR proceedings and
the commencement of adjudication
under the Adjudicative Process, upon
the election of any party. Notwithstanding such termination, the parties
may still engage with the ODRA in
ADR techniques (neutral evaluation
and/or informal mediation) concurrently with adjudication.
(f) Binding arbitration is available
through the ODRA, subject to the provisions of applicable law and the ODRA
Binding Arbitration Guidance dated
October 2001 as developed in consultation with the Department of Justice.
(g) The parties may, where appropriate in a given case, submit to the

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