Department of Transportation

Division of Transportation Solutions

2400 Division of Transportation Solutions

2407 Alternative Dispute Resolution Process for Acquisition of Certain Real Property

1.0 Purpose

The Department may initiate an Alternative Dispute Resolution (ADR) process, at the discretion of the Chief Engineer, to provide a property owner the opportunity to initiate or agree to a binding or non-binding review to determine the just compensation for an acquisition by the Department. This review will be held in an attempt to amicably settle the matter without a formal court process. The results of this review may be either binding or non-binding on the parties as they may agree in writing. If non-binding, either party may proceed thereafter with a formal court process. The results of a non-binding review will be considered privileged information and any part of the review, including value, shall not be admissible in any future valuation hearings by either party.

2.0 Requirements

1. 2.1 For the ADR process to proceed, both parties must agree to the ADR and the process listed below. Any changes to the process must be approved by both parties and a DAG assigned to the case. The ADR process shall not proceed if either party does not agree.
2. 2.2 The ADR review may only take place after an Order for Possession has occurred. However, an agreement to proceed to an ADR is allowed at anytime prior to the Order for Possession if agreed upon by the parties.
3. 2.3 Expenses related to the conducting of the ADR review shall be borne by the Department, except for any cost incurred by the property owner, the property owner's attorney, or witnesses in preparing or presenting the case.
4. 2.4 No discovery shall take place other than the exchange of appraisals, engineering, or other documentation typically available during negotiations.
5. 2.5 All information related to the case shall be held as confidential in a non-binding ADR.

3.0 Steps

1. 3.1 Upon the entering of an Order for Possession by a court of competent jurisdiction, either party (the Department or the property owner, or their respective representatives) may request an ADR review. This request must be in writing and may be submitted any time after the initiation of negotiations, but no later than 90 days from the issuance of the Order for Possession.
2. 3.2 A response agreeing to the ADR request must be sent to the requesting party within 15 calendar days of receipt of the request. Non-response by the party receiving the request within the 15 day period shall be construed as a refusal to the request for an ADR review.
3. 3.3 To be valid, all ADR requests or responses to a request made to the Department, or activities/determinations performed by the Department as part of the review process must have approval of the DelDOT Chief of Right of Way with concurrence from a Deputy Attorney General. In cases with just compensation in excess of $500,000, approval of the Secretary is also required.
4. 3.4 If no request is made or response received within the time frames identified, this ADR process shall not occur. If any activity or determination of either party is not performed within the identified time frames during the ADR process, without a written request and agreement for additional time to meet the obligation, the ADR process will be considered canceled by the obliged party.
5. 3.5 Both parties shall have the right to cancel the ADR at any time. However if the ADR review is canceled by the property owner less than 30 calendar days prior to the hearing, they shall be responsible for any costs incurred by the Department related to the conducting of the ADR review.
6. 3.6 Within 30 calendar days of agreement between the parties to meet, each party shall submit the name of 1 Delaware Licensed Real Estate Appraiser that is qualified to appraise the property being acquired, who shall act as a review panel member.
7. 3.7 The parties shall mutually select a third, independent, qualified member for the ADR review panel. If no agreement for a third member is reached, the parties shall request the Board of Realtors for the County the property is located in to appoint a Delaware Licensed Real Estate Broker, or Delaware Licensed Real Estate Appraiser, whose expertise includes the type of property being acquired, to act as the Chief ADR officer. This person shall be compensated for their time at the review as well as any travel in accordance with the Department’s reimbursement for Fee Appraisers.
8. 3.8 The Chief ADR Officer will act as the lead for the review panel and will be responsible to prepare the final report for the panel.
9. 3.9 The date and place of the review shall be arranged between the parties and the members of the ADR review panel.
10. 3.10 All documentation to be supplied by the parties shall be presented to the ADR officers and the opposing party no less than 15 calendar days prior to the review.
11. 3.11 The members of the ADR review panel shall meet in private to discuss the merits of each party's appraisal and documentation. Prior to this discussion, both sides may make a short opening statement, and the owner may make an owner’s statement. There will not be any testimony or input required from either party for the review unless requested by the ADR review panel. Copies of any testimony or input required of the parties shall be made available to the opposing party.
12. 3.12 The ADR review panel shall then reach a value conclusion based upon the information provided. A majority vote of the members shall be required for approval of the final value determination.
13. 3.13 The Chief ADR officer, with assistance from the other members, shall present a report detailing the determination of value as well as the justification for the determination. The amount of detail required is to be determined by the ADR panel members; however, the report must clearly justify the panel's findings and reference any materials, testimony or input used to arrive at the determination.
14. 3.14 The final report shall be transmitted in writing to the parties within 30 calendar days of the review meeting.
15. 3.15 If the ADR is a non-binding review, each party shall have 20 calendar days to accept or reject the ADR determination in writing to the other party. If both parties accept, the parties shall proceed to settlement. If either party rejects the determination, the case shall continue the normal eminent domain process. If neither party provides written notice of rejection within 20 calendar days, then the ADR determination shall be deemed final.
16. 3.16 The parties shall notify the other party as well as the ADR of their determination in writing.
17. 3.17 Upon final receipt of the ADR report, the ADR review panel shall be dismissed and any compensation will be made to the members.
18. 3.18 Subject to any requirements or exemptions of the Freedom of Information Act, the ADR report shall be considered a privileged document and may not be distributed to any outside third party without consent by both parties and the members of the ADR panel prior to completion of all portions of the real estate transaction or any ancillary activities relating to the real estate transaction.

29 DE Reg. 421 (11/01/25)

29 DE Reg. 421 (11/01/25)

29 DE Reg. 421 (11/01/25)

18 DE Reg. 734 (03/01/15)

29 DE Reg. 421 (11/01/25)