OAR 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 (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.
Source:
Rule 137-005-0020 — Assessment for Use of Collaborative DR Process, https://secure.sos.state.or.us/oard/view.action?ruleNumber=137-005-0020.