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 (Confidentiality of Collaborative Dispute Resolution Communications) 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 (Selection and Procurement of Dispute Resolution Providers) to assist the agency in conducting the assessment and may request that the provider prepare a written report summarizing the results of the assessment.
Rule 137-005-0020 — Assessment for Use of Collaborative DR Process,