July 21, 1993

Appeal of

RKM CONSTRUCTION COMPANY, INC.

Under Contract No. 079986-90-B-0088

PSBCA No. 3370

APPEARANCE FOR APPELLANT:

Richard K. Montoya, President

APPEARANCE FOR RESPONDENT:

Gregg R. Sackrider, Esq.

OPINION OF THE BOARD ON MOTION TO ENFORCE THE SETTLEMENT AGREEMENT

Respondent has filed a "Motion to Enforce the Settlement Agreement," in which it argues that in the course of a mediation process authorized by the Board, the parties to this appeal reached binding agreement on 48 of 49 elements of Appellant's claim. Appellant has refused to recognize the alleged settlement, and, by this motion, Respondent asks the Board to enforce the agreement. Appellant opposes the motion, arguing that no agreement was reached and that, in any event, the mediation proceeding was not binding on either party.

On April 30, 1993, the parties requested the Board's participation in an ADR process to attempt to resolve the claims underlying the appeal (Order and Memorandum of Telephone Conference, May 4, 1993). The parties agreed to the procedures that would govern the mediation process and submitted those procedures to the Board in a "Request for Settlement Conference and Stipulation as to Mediation Procedures" dated April 30, 1993. By Order dated May 4, 1993, the Board Chairman approved the request for mediation and accepted the procedures proposed by the parties.

Paragraph 6 of the "Request for Settlement Conference and Stipulation as to Mediation Procedures" provides, in part, "Mediation is voluntary and non-binding." Paragraph 10 provides:

"10. The mediation shall be terminated:

a. by the execution of a settlement agreement by the parties;

b. by a written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or

c. by a written declaration of a party or parties to the effect that the mediation proceedings are terminated."

Under the terms of the "Request for Settlement Conference and Stipulation as to Mediation Procedures," the proceedings are nonbinding and contemplate the execution of a settlement agreement to reflect any agreement reached. The terms of the "Request for Settlement Conference and Stipulation as to Mediation Procedures," accepted by the parties and the Board, serve as the rules governing the mediation process, and cannot be changed except by agreement of the parties and acceptance by the Board, and, consequently, as a matter of law, the mediation process herein was nonbinding. As no settlement agreement was executed, the motion is denied.

Norman D. Menegat

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

James D. Finn, Jr.

Administrative Judge

Vice Chairman