* Used for Contractual Disputes and Protests
Use of Alternative Dispute Resolution
The Virginia Information Technologies Agency is committed to the use of Alternative Dispute Resolution for the informal resolution of protests of contract awards, contractual disputes and other disputes for which Alternative Dispute Resolution may be appropriate. VITA retains the right to determine if a dispute is not appropriate for submission to Alternative Dispute Resolution.
When and How Used
Alternative Dispute Resolution may be used in procurement disputes such as protests of contract awards, contractual disputes and other disputes and can be initiated by any party to the dispute. VITA and the protesting supplier may use ADR without the supplier having to institute legal action within six months of the denial of protest. The supplier is not required to exhaust all administrative remedies prior to seeking judicial review.
Once a dispute has been submitted to Alternative Dispute Resolution, the mediator/facilitator will conduct a screening interview with each party to the dispute to determine if the dispute is appropriate for mediation or facilitation. After the screening interview, each party to the dispute will sign an Agreement for Mediation/Facilitation which outlines the rights and responsibilities of each party and the role of the mediator/facilitator. There may be several interviews or screenings with the mediator/facilitator and each party before the actual mediation or facilitation takes place. The parties and the mediator will agree upon a mutually convenient time to meet. Each party is responsible for making sure that the appropriate, decision-making parties are available to participate in the mediation/facilitation discussion.
Role of Mediator
Alternative Dispute Resolution, which includes mediation and facilitation, is a cooperative settlement process. The parties work toward resolving their own disputes in a private setting with the help of a neutral mediator or facilitator. The mediator or facilitator guide the parties in communicating effectively, defining issues, gathering and analyzing relevant information, generating alternatives, exploring consequences, and reaching agreements that are acceptable to all parties. The mediator may record the parties' agreement in writing, in a Memorandum of Agreement, acting as a scrivener. A facilitator will usually not create a record. Using a facilitative style of mediation, the mediator will be neither directive nor coercive and will not recommend particular solutions or make decisions for the parties. The Parties are responsible for the terms of their own agreement.
Any fees for Mediation services shall be discussed prior to any costs being incurred and shall be written, agreed upon, and signed by all parties in a separate document. The Virginia Information Technologies Agency is committed to attempting to provide Alternative Dispute Resolution at no cost using volunteer mediators and facilitators. However, there may be instances where a volunteer mediator or facilitator will not be available and a fee may be charged.
Facilitation and mediation are voluntary processes; each party has the right to terminate facilitation or mediation at any time for any reason.
The mediator/facilitator has the right to terminate mediation/facilitation if he/she determines that it is an inappropriate process for the parties; that any party is not able to participate effectively in the process; that any party is not willing to participate in the process in good faith; and for any other reason the mediator determines in his/her sole discretion.
All memoranda, work products and other materials contained in the case files of the mediator/facilitator are confidential. Any communication made in or in connection with the mediation, which relates to the dispute, whether made to a party or the mediator, or to any other person if made at the mediation session, is confidential. A signed mediated Memorandum of Agreement shall not be confidential unless the Parties agree otherwise in writing. "Confidential" materials and communications are not subject to disclosure in any judicial or administrative proceeding except:
- Where all parties agree in writing to waive the confidentiality;
- In an action between the mediator and a party for alleged damages arising out of the mediation: or
- Statements, memoranda, materials and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in and actually used in the mediation;
- Should any complaint against the mediator arise as a result of this mediation, confidentiality is waived with respect to that information necessary to present or defend against such a complaint.
(The parties agree that threats to do bodily harm to one's self or another person shall not be confidential.)
Legal Information and Advice
Any mediated agreement will affect the legal rights and responsibilities of the parties. The mediator may provide legal information but not legal advice. (Although the mediator(s) may be a licensed attorney, the parties acknowledge that he/she is acting solely as a mediator and not the attorney for any party or all parties throughout the mediation process.) Each party has the opportunity to consult with independent legal counsel at any time during the process, and is encouraged to do so. Each party is encouraged to have any mediated agreement reviewed by independent legal counsel prior to signing or should waive his or her opportunity to do so. If there is a pending court case, the parties shall consult their independent legal counsel about the procedural effect on the case participating in mediation.
Each Party shall provide substantial full disclosure of all relevant information.