Code of Federal Regulations - Title 14

123

Federal Aviation Administration, DOT

§ 17.43

techniques as agreed by the parties and
approved by the ODRA. At the begin-
ning 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 § 17.35(b).

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 dis-
pute; or where the ODRA concludes
that ADR will not provide an expedi-
tious means of resolving a particular
dispute. Even where the Adjudicative
Process is to be used, the ODRA, with
the parties’ consent, may employ infor-
mal ADR techniques concurrently with
the adjudication.

§ 17.37

Election of alternative dispute

resolution process.

(a) The ODRA will make its per-

sonnel 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 ar-
rangements. The parties may elect to
employ a mutually acceptable com-
pensated neutral at their expense.

(b) The parties using an ADR process

to resolve a protest shall submit an ex-
ecuted ADR agreement containing the
information outlined in paragraph (d)
of this section to the ODRA pursuant
to § 17.17(c). The ODRA may extend this
time for good cause.

to resolve a contract dispute shall sub-
mit an executed ADR agreement con-
taining the information outlined in
paragraph (d) of this section to the
ODRA pursuant to § 17.29.

(d) The parties to a protest or con-

tract 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 com-

pensated neutral is to be used, the
agreement must address how the cost
of the neutral’s services will be reim-
bursed.

(e) Non-binding ADR techniques are

not mutually exclusive, and may be
used in combination if the parties

agree that a combination is most ap-
propriate to the dispute. The tech-
niques to be employed must be deter-
mined 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 rea-
sonable ADR technique that is de-
signed 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. Notwith-
standing such termination, the parties
may still engage with the ODRA in
ADR techniques (neutral evaluation
and/or informal mediation) concur-
rently with adjudication.

(f) Binding arbitration is available

through the ODRA, subject to the pro-
visions of applicable law and the ODRA
Binding Arbitration Guidance dated
October 2001 as developed in consulta-
tion with the Department of Justice.

(g) The parties may, where appro-

priate in a given case, submit to the
ODRA a negotiated protective order for
use in ADR in accordance with the re-
quirements of § 17.9.

§ 17.39

Confidentiality of ADR.

(a) The provisions of the Administra-

tive Dispute Resolution Act of 1996, 5
U.S.C. 571,

et seq., shall apply to ODRA

ADR proceedings.

(b) The ODRA looks to the principles

of Rule 408 of the Federal Rules of Evi-
dence in deciding admissibility issues
related to ADR communications.

of the administrative record unless
otherwise agreed by the parties.

Subpart E—Finality and Review

§ 17.41

Final orders.

All final FAA orders regarding pro-

tests or contract disputes under this
part are to be issued by the FAA Ad-
ministrator or by a delegee of the Ad-
ministrator.

§ 17.43

Judicial review.

(a) A protester or contractor may

seek review of a final FAA order, pur-
suant to 49 U.S.C. 46110, only after the

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