Dispute Resolution
Members and listed businesses may use this document as a template to establish binding dispute resolution procedures with their clients. You must notify the GDCA of your intent to enter into the GDCA binding dispute resolution with your clients, and have the GDCA approve of your contract before the GDCA can agree to it.
This binding dispute resolution (“BDR”) agreement is entered into by (Name of organization) and (Name of client) to establish a procedure to resolve a dispute that has arisen during the performance of a contractual sale or service.
Both parties, sharing a desire to avoid expensive, time consuming litigation and to identify and mutually eliminate or resolve disputes hereby agree to submit to the GDCA binding dispute resolution process.
1. Conflict of Interest:
(a) The GDCA representative(s) involved in the BDR must at all times remain unbiased relating to the parties or an issue in controversy. If the GDCA director(s) find(s) that he/they cannot be unbiased, or that a conflict of interest might exist, he/they shall excuse him/themselves from participation in the specific issue creating the bias or conflict.
2. Procedures:
- (a) The parties agree to present their positions on their dispute(s) to the GDCA Board of Directors consisting of neutral parties.
- (b) Prior to the BDR proceeding, the parties will cooperate with each other in exchanging all documents that are relevant to the dispute and in permitting reasonable review of each other’s files. At the request of the GDCA, each party will send copies of all documents that are relevant to the dispute to the GDCA. The parties will cooperate in selecting documents to avoid duplication between the submissions of each party.
- (c) The parties will make every effort to submit a list of issues in the order that is most logical for presentation to the GDCA, including a listing of witnesses or other third parties that may have information directly impacting the BDR process.
- (d) All participants will refrain from statements that are unduly argumentative or contentious.
- (e) The proceedings will not be recorded and witnesses will not be sworn. However, all participants will be expected to be forthright in their statements and to be fully open and honest in their dealings with each other.
- (f) The principals may conduct discussions with or without the GDCA. The principals may also request the GDCA to present its views on any issues or to propose resolution of one or more of the issues in dispute. Either principal may correspond privately and confidentially with the GDCA to discuss possible settlement positions, and the GDCA will not reveal any confidential information to the other party, unless authorized to do so.
- (g) All parties will endeavor to keep the negotiations active until a binding resolution is reached by the GDCA. If settlement is not reached between the principals, the principals may continue negotiations for any period that is deemed to be mutually desirable.
- (h) At any time before the final binding resolution, the principals may come to terms and agree to a mutual settlement. At that time, the GDCA must be immediately informed, and the BDR will be discontinued. The settlement entered between the principals will be deemed by the GDCA as the final binding resolution, as if it was handed down by the GDCA.
- (i) If settlement is reached, either party may call for the GDCA to prepare a report documenting the settlement and stating its conclusions as to its merits. Any such report will be delivered to each party promptly after it is requested. This report may be used by either party to justify the settlement within its own organization.
- (j) This entire process is a settlement negotiation and all offers, promises, conduct, or statements made in this BDR proceeding are confidential and shall be inadmissible in any subsequent litigation (including proceedings before a board of contract appeals) of the disputes covered by this agreement. All written materials created specifically for this proceeding are also confidential and inadmissible in subsequent litigation. However, if settlement is reached, any such statements and written material may be used to justify and document the contract modification embodying the settlement.
- (k) The GDCA will treat the subject matter of this proceeding as confidential and refrain from disclosing any of the information exchanged to third parties. The GDCA is disqualified as a witness, consultant, or expert for either party in any matter relating to the disputes covered by this agreement.
- (l) The GDCA fees and actual costs, such as phone calls, postage, meetings, etc. of conducting the BDR proceeding will be paid jointly by the principals.
3. Principles:
(a). The GDCA representative will inform himself of the facts, issues, positions, interest, documents, and supporting arguments relating to a disputed matter. It is the purpose of the representative to foster the negotiations between the parties, not to become involved in the substantive issues. The representative may do this by:- facilitating communications between the parties:
- restating positions,
- clarifying statements and arguments,
- setting ground rules for discussion (such as no interruptions, no unsubstantiated allegations, etc),
- separating emotions and personality from the issue
- helping clarify the parties' positions,
- separating facts from allegations,
- separating legal issues from factual issues,
- helping the parties narrow and define the issues,
- finding where the parties agree, and where they disagree,
- separating the parties stated positions from their real interests
- striving to obtain first hand knowledge of the facts or talk to those with first hand knowledge
- assisting in settlement by finding areas of mutual interest
- identifying innovative solutions or recommended settlements
- seeking win-win strategies
- evaluating the parties positions and advising of logical weaknesses
- helping the parties to stay focused on the big picture