OAR 736-140-0001: 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.