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DEPARTMENT OF JUSTICE

 

DIVISION 5

COLLABORATIVE DISPUTE RESOLUTION MODEL RULES

137-005-0010

Use of Collaborative Dispute Resolution Processes

(1) Unless otherwise precluded by law, the agency may, in its discretion, use a collaborative dispute resolution process in contested cases, rulemaking proceedings, judicial proceedings, and any other decision-making or policy development process or controversy involving the agency. Collaborative dispute resolution may be used to prevent or to minimize the escalation of disputes and to resolve disputes once they have occurred.

(2) Nothing in this rule limits innovation and experimentation with collaborative or alternative forms of dispute resolution, with negotiated rulemaking or with other procedures or dispute resolution practices not otherwise prohibited by law.

(3) The collaborative means of dispute resolution may be facilitated negotiation, mediation, facilitation or any other method designed to encourage the agency and the other participants to work together to develop a mutually agreeable solution. The agency may also consider using neutral fact-finders in an advisory capacity.

(4) The agency shall not agree to any dispute resolution process in which its ultimate settlement or decision making authority is given to a third party, including arbitration or fact-finding, without prior written authorization from the Attorney General.

(5) Nothing in this rule obligates the agency to offer funds to settle any case, to accept a particular settlement or resolution of a dispute, to alter its standards for accepting settlements, to submit to binding arbitration, or to alter any existing delegation of settlement or litigation authority.

Stat. Auth.: ORS 183.341 & ORS 183.502
Stats. Implemented: ORS 183.502
Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97

137-005-0020

Assessment for Use of Collaborative DR Process

(1) Before instituting a collaborative dispute resolution process, the agency may conduct an assessment to determine if a collaborative process is appropriate for the controversy and, if so, under what conditions.

(2) A collaborative DR process may be appropriate if:

(a) The relationship between the parties will continue beyond the resolution of the controversy and a collaborative DR process is likely to have a favorable effect on the relationship;

(b) There are outcomes or solutions that are only available through a collaborative process;

(c) There is a reasonable likelihood that a collaborative process will result in an agreement;

(d) The implementation and durability of any resolution to the controversy will likely require ongoing, voluntary cooperation of the participants;

(e) A candid or confidential discussion among the disputants may help resolve the controversy, and OAR 137-005-0050 may provide for such candor or confidentiality;

(f) Direct negotiations between the parties have been unsuccessful or could be improved with the assistance of a collaborative DR provider;

(g) No single agency or jurisdiction has complete control over the issue and a collaborative process is likely to be effective in reconciling conflicts over jurisdiction and control; or

(h) The agency has limited time or other resources, and a collaborative process would use less agency resources, take less time or be more efficient than another type of process.

(3) A collaborative DR process may not be appropriate if:

(a) The outcome of the controversy is important for its precedential value, and a collaborative DR process is unlikely to be accepted as an authoritative precedent;

(b) There are significant unresolved legal issues in this controversy, and a collaborative DR process is unlikely to be effective if those legal issues are not resolved first;

(c) The controversy involves significant questions of agency policy, and it is unlikely that a collaborative DR process will help develop or clarify agency policy;

(d) Maintaining established policies and consistency among decisions is important, and a collaborative DR process likely would result in inconsistent outcomes for comparable matters;

(e) The controversy significantly affects persons or organizations who are not participants in the process or whose interests are not adequately represented by participants;

(f) A public record of the proceeding is important, and a collaborative DR process cannot provide such a record;

(g) The agency must maintain authority to alter the disposition of the matter because of changed circumstances, and a collaborative DR process would interfere with the agency's ability to do so;

(h) The agency must act quickly or authoritatively to protect the public health or safety, and a collaborative dispute resolution process would not provide the necessary speed and authority to do this.

(i) The agency has limited time or other resources, and a collaborative process would use more agency resources, take longer or be less efficient than another type of process; or

(j) None of the factors in section (2) apply.

(4) The assessment may also be used to:

(a) Determine or clarify the nature of the controversy or the issues to be resolved;

(b) Match a dispute resolution process to the objectives and interests of the disputants;

(c) Determine who will participate in the process;

(d) Estimate the time and resources needed to implement a collaborative DR process;

(e) Assess the potential outcomes of a collaborative DR process and the desirability of those outcomes;

(f) Determine the likely means for enforcing any agreement or settlement that may result;

(g) Determine the compensation, if any, of the dispute resolution provider;

(h) Determine the ground rules for the collaborative DR process; and

(i) Determine the degree to which the parties and the agency wish, and are legally able, to keep the proceedings confidential.

(5) The agency may contract with a collaborative DR provider pursuant to OAR 137-005-0040 to assist the agency in conducting the assessment and may request that the provider prepare a written report summarizing the results of the assessment.

Stat. Auth.: ORS 183.341 & ORS 183.502
Stats. Implemented: ORS 183.502
Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97; DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00; DOJ 9-2001, f. & cert. ef. 10-3-01

137-005-0022

Assessment for Use of Collaborative DR Process in Complex Public Policy Controversies

(1) For the purposes of this rule, "complex public policy controversy" means a multi-party controversy that includes at least one governmental participant and that affects the broader public, rather than only a single group or individual.

(2) Before using a collaborative process to resolve a complex public policy controversy, the agency may conduct an assessment to determine if a collaborative DR process is appropriate and, if so, under what conditions. In addition to the factors in OAR 137-005-0020, the agency may use the assessment to consider if:

(a) The agency is interested in joint problem solving or in reaching a consensus among participants, and not solely in obtaining public comment, consultation or feedback, which may be addressed through other processes;

(b) The persons, interest groups or entities significantly affected by the controversy or by any agreement resulting from the collaborative DR process

(A) Can be readily identified;

(B) Are willing to participate in a collaborative process; and

(C) Have the time, resources and ability to participate effectively in a collaborative process and in the implementation of any agreement that may result from the collaborative process;

(c) The persons identified as representing the interests of a group of persons or of an organization have sufficient authority to negotiate a durable agreement on behalf of the group or organization they represent; or

(d) There are ongoing or proposed legislative, political or legal activities that would significantly undermine the value of the collaborative process or the durability of any collaborative agreement.

(3) The agency may contract with a collaborative DR provider pursuant to OAR 137-005-0040 to assist the agency in conducting all or part of the assessment under section (1) and may request that the provider prepare a written report summarizing the results of the assessment.

Stat. Auth.: ORS 183.341 & ORS 183.502
Stats. Implemented: ORS 183.502
Hist.: DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00

137-005-0030

Agreement to Collaborate

In preparation for, or in the course of, a collaborative DR process the agency and the other participants may enter into a written agreement to collaborate. This agreement may include:

(1) A brief description of the dispute or the issues to be resolved;

(2) A list of the participants;

(3) A description of the proposed collaborative DR process;

(4) An estimated starting date and ending date for the process;

(5) A statement whether the collaborative DR provider will receive compensation and, if so, who will be responsible for its payment;

(6) A description of the process, including, but not limited to: the role of witnesses, and whether and how counsel may participate in the process;

(7) Consistent with applicable statute and rules, a statement regarding the degree to which the proceedings or communications made during the course of the collaborative DR process are confidential; and

(8) A description of the likely means of enforcing any agreement or settlement that may result.

Stat. Auth.: ORS 183.341 & ORS 183.502
Stats. Implemented: ORS 183.502
Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97; DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00; DOJ 9-2001, f. & cert. ef. 10-3-01

137-005-0040

Selection and Procurement of Dispute Resolution Providers

(1) The agency may select the collaborative DR provider or may opt to select the provider by consensus of the participants.

(2) A collaborative DR provider who has a financial interest in the subject matter of the dispute, who is an employee of an agency in the dispute, who has a financial relationship with any participant in the collaborative DR process or who otherwise may not be impartial is considered to have a potential bias. If, before or during the dispute resolution process, a provider has or acquires a potential bias, the provider shall so inform all the participants. Any participant may disqualify a provider who has a potential bias if the participant believes in good faith that the potential bias will undermine the ability of the provider to be impartial throughout the process.

(3) If the collaborative DR provider is a public official as defined by ORS 244.020(15), the provider shall comply with the requirements of ORS Chapter 244.

(4) If the agency procures the services of a collaborative DR provider, the agency must comply with all procurement and contracting rules provided by law. A roster of collaborative DR providers and a simplified mediator and facilitator procurement process developed by the Department of Justice may be used by the agency when selecting a collaborative DR provider.

(5) If the collaborative DR provider is a mediator or facilitator who is not an employee of the agency, the participants shall share the costs of the provider, unless the participants agree otherwise or the provider is retained solely by the agency or by a non-participant.

(6) Whenever the agency compensates a provider who is not an employee of the agency, the state must execute a personal services contract with the provider. If the agency and the other participants choose to share the cost of the collaborative DR provider's services, the non-agency participants may enter into their own contract with the provider or may be a party to the contract between the agency and the provider, at the discretion of the agency. The agency's contract with a provider must state:

(a) The name and address of the provider and the contracting agency;

(b) The nature of the dispute, the issues being submitted to the collaborative DR process and the identity of the participants, as well as is known at the time the contract is signed;

(c) The services the provider will perform (scope of work);

(d) The compensation to be paid to the provider and the maximum contract amount;

(e) The beginning and ending dates of the contract and that the contract may be terminated by the agency or the provider upon mutual written consent, or at the sole discretion of the agency upon 30 calendar days notice to the provider or immediately if the agency determines that the DR process is unable to proceed for any reason.

(7) A student, intern or other person in training or assisting the provider may function as a co-provider in a dispute resolution proceeding. The co-provider shall sign and be bound by the agreement to collaborate specified in OAR 137-005-0030, if any, and, if compensated by the agency, a personal services contract as specified in section (6) of this rule.

Stat. Auth.: ORS 183.341 & 183.502
Stats. Implemented: ORS 183.502
Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97; DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00; DOJ 9-2001, f. & cert. ef. 10-3-01; DOJ 13-2005, f & cert. ef. 10-31-05; DOJ 11-2007, f. 10-15-07 cert. ef. 1-1-08

137-005-0050

Confidentiality of Collaborative Dispute Resolution Communications

(1) For the purposes of this rule,

(a) "Mediation" means a process in which a mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy and includes all contacts between a mediator and any party or agent of a party, until such time as a resolution is agreed to by the parties or the mediation process is terminated.

(b) "Mediation communication" means:

(A) All communications that are made, in the course of or in connection with a mediation, to a mediator, a mediation program or a party to, or any other person present at, the mediation proceedings; and

(B) All memoranda, work products, documents and other materials, including any draft mediation agreement, that are prepared for or submitted in the course of or in connection with a mediation or by a mediator, a mediation program or a party to, or any other person present at, mediation proceedings.

(c) "Mediator" means a third party who performs mediation. Mediator includes agents and employees of the mediator or mediation program.

(d) "Party" means a person or agency participating in a mediation who has a direct interest in the controversy that is the subject of the mediation. A person or agency is not a party to a mediation solely because the person or agency is conducting the mediation, is making the mediation available or is serving as an information resource at the mediation.

(2) If the agency is a party to a mediation or is mediating a dispute as to which the agency has regulatory authority:

(a) Subject to approval by the Governor, the agency may adopt confidentiality rules developed by the Attorney General pursuant to ORS 36.224, in which case mediation communications shall be confidential to the extent provided in those rules.

(b) If the agency has not adopted confidentiality rules pursuant to ORS 36.220 to 36.238, mediation communications shall not be confidential unless otherwise provided by law, and the agency shall inform the parties in the mediation of that fact in an agreement to collaborate pursuant to OAR 137-005-0030 or other document.

(3) If the agency is mediating a dispute as to which the agency is not a party and does not have regulatory authority, mediation communications are confidential, except as provided in ORS 36.220 to 36.238. The agency and the other parties to the mediation may agree in writing that all or part of the mediation communications are not confidential. Such an agreement may be made a part of an agreement to collaborate authorized by OAR 137-005-0030.

(4) If the agency and the other participants in a collaborative DR process other than a mediation wish to make confidential the communications made during the course of the collaborative DR process:

(a) The agency, the other participants and the collaborative DR provider, if any, shall sign an agreement to collaborate pursuant to OAR 137-005-0030 or any other document that expresses their intent with respect to:

(A) Disclosures by the agency and the other participants of communications made during the course of the collaborative DR process;

(B) Disclosures by the collaborative DR provider of communications made during the course of the collaborative DR process;

(C) Any restrictions on the agency's use of communications made during the course of the collaborative DR process in any subsequent administrative proceeding of the agency; and

(D) Any restrictions on the ability of the agency or the other participants to introduce communications made during the course of the collaborative DR process in any subsequent judicial or administrative proceeding relating to the issues in controversy with respect to which the communication was made.

(b) Notwithstanding any agreement under subsection (4)(a) of this rule, communications made during the course of a collaborative DR process:

(A) May be disclosed if the communication relates to child abuse and is made to a person who is required to report abuse under ORS 419B.010;

(B) May be disclosed if the communication relates to elder abuse and is made to a person who is required to report abuse under ORS 124.050 to 124.095;

(C) May be disclosed if the communication reveals past crimes or the intent to commit a crime;

(D) May be disclosed by a party to a collaborative DR process to another person if the party's communication with that person is privileged under ORS chapter 40 or other provision of law;

(E) May be used by the agency in any subsequent proceeding to enforce, modify or set aside an agreement arising out of the collaborative DR process;

(F) May be disclosed in an action for damages or other relief between a party to a collaborative DR process and a DR provider to the extent necessary to prosecute or defend the matter; and

(G) Shall be subject to the Public Records Law, ORS 192.410 to 192.505, and the Public Meetings Law, 192.610 to 192.690.

(c) If a demand for disclosure of a communication that is subject to an agreement under this section is made upon the agency, any other participant or the collaborative DR provider, the person receiving the demand for disclosure shall make reasonable efforts to notify the agency, the other participants and the collaborative DR provider.

Stat. Authority: ORS 183.341 & ORS 183.502
Stats. Implemented: ORS 36.110, ORS 36.220 - ORS 36.238
Hist.: JD 3-1997, f. 9-4-97, cert. ef. 9-15-97; DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00

137-005-0060

Mediation

(1) Unless otherwise provided by law, mediation is a voluntary process from which the agency and other participants may withdraw at any time.

(2) The mediator does not represent the interests of any of the participants or offer legal advice. Likewise, the mediator is not a judge and has no decision making power to impose a settlement on the participants or to render decisions.

(3) The person participating in the mediation on behalf of the agency shall be knowledgeable about the issues in dispute and have authority to effectively recommend settlement options to the agency.

Stat. Auth.: ORS 183.341 & ORS 183.502
Stats. Implemented: ORS 183.502
Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97; JD 3-1997, f. 9-4-97, cert. ef. 9-15-97

137-005-0070

Contract Clauses Specifying Dispute Resolution

(1) The agency may specify or require any form of dispute resolution except binding arbitration as a condition of a contract.

(2) The agency may specify binding arbitration by contract only if the Attorney General has approved the contract containing the clause specifying binding arbitration and the clause itself for legal sufficiency.

(3) The agency may provide for the resolution of technical, scientific or accounting matters of fact by requiring the submission of such matters to a neutral fact finder selected and appointed as specified in a contract clause.

(4) The specification of a method of dispute resolution in a contract clause does not:

(a) Remove the requirement to provide notices or filings or to meet deadlines otherwise required by law, regulation or contract provision;

(b) Constitute a waiver of the sovereign immunity of the State of Oregon; or

(c) Prohibit the participants from entering into an agreement to use any other method of dispute resolution that appears to be more suitable for the particular dispute in lieu of or in addition to the method specified by contract.

Stat. Auth.: ORS 183.341 & ORS 183.502
Stats. Implemented: ORS 183.502
Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97

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