$0.00 – $6.00
Susan Podziba and Lawrence Susskind
Three-party, two-round internal negotiation among agency officials over whether to litigate or pursue non-binding arbitration to settle a contract claim against a private contractor
The U.S. Agency of Engineers (Agency) contracted with Concrete Construction Company (CCC) to redesign and reshape the cement weirs of the west fishladder of the Arctic Lock and Dam. The cement work has to be done during harsh winter conditions because the fishladder is in use at all other times. Three bulkhead gates at the upstream entrance to the fishladder were expected to keep the work area virtually dry.
According to the contract, CCC was required to lower the bulkhead gates into their sealed position to assure that water did not flow into the fishladder and affect concrete placement areas. CCC failed to obtain a water-tight seal on one of the bulkhead gates and was plagued by water throughout the project.
After the contract work was completed by CCC and accepted by the government, the contractor filed a claim at the Federal Contract Appeals Court based on the bulkhead gates' failure to provide a water-tight seal. CCC charges that according to the contract CCC had to "lower the gates in the sealed position." CCC contended that it did so under the direction of Agency personnel. CCC claims that the Government's property (i.e. the gates) malfunctioned due to insufficient maintenance and age. For these reasons, CCC charges that the government is liable for the delays and increased costs that resulted from unexpected water and ice in the cement placement area.
Preparation should take 30-45 minutes, as should the actual negotiation. Debriefing should take 45-75 minutes.
- This exercise provides a useful context for thinking about the preparation required for ADR, knowing your BATNA, and for estimating the strength and weaknesses of your negotiation position.
- When the intra-group negotiation is conducted by two or more groups simultaneously, the comparison of different outcomes and dynamics can be observed.
For all parties:
- General Instructions
- Steps in non-binding Arbitration Process
- Memo to the Chief of Construction and the District Engineer from the Chief District Counsel
- Confidential and Supplemental Instructions for Chief of Construction
- Chief District Counsel
- District Engineer
- All of the above
- Teaching Note
ADR; Contracts; Construction; Intra-team negotiation; Meeting design; Negligence; Preparation; Joint gains; Litigation analysis; Information exchange; Interest analysis; Objective criteria; Options, generating; Systems of negotiation
Fishladder Claim Attributes
|Time required:||1-2 hours|
|Number of participants:||3|
|Neutral third party present:||None|
|Teaching notes available:||Yes|