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

   1. (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;
   2. (b) There are outcomes or solutions that are only available through a collaborative process;
   3. (c) There is a reasonable likelihood that a collaborative process will result in an agreement;
   4. (d) The implementation and durability of any resolution to the controversy will likely require ongoing, voluntary cooperation of the participants;
   5. (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;
   6. (f) Direct negotiations between the parties have been unsuccessful or could be improved with the assistance of a collaborative DR provider;
   7. (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
   8. (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. (3) A collaborative DR process may not be appropriate if:

   1. (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;
   2. (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;
   3. (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;
   4. (d) Maintaining established policies and consistency among decisions is important, and a collaborative DR process likely would result in inconsistent outcomes for comparable matters;
   5. (e) The controversy significantly affects persons or organizations who are not participants in the process or whose interests are not adequately represented by participants;
   6. (f) A public record of the proceeding is important, and a collaborative DR process cannot provide such a record;
   7. (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;
   8. (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.
   9. (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
   10. (j) None of the factors in section (2) apply.

4. (4) The assessment may also be used to:

   1. (a) Determine or clarify the nature of the controversy or the issues to be resolved;
   2. (b) Match a dispute resolution process to the objectives and interests of the disputants;
   3. (c) Determine who will participate in the process;
   4. (d) Estimate the time and resources needed to implement a collaborative DR process;
   5. (e) Assess the potential outcomes of a collaborative DR process and the desirability of those outcomes;
   6. (f) Determine the likely means for enforcing any agreement or settlement that may result;
   7. (g) Determine the compensation, if any, of the dispute resolution provider;
   8. (h) Determine the ground rules for the collaborative DR process; and
   9. (i) Determine the degree to which the parties and the agency wish, and are legally able, to keep the proceedings confidential.
5. (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.

Statutory/Other Authority

ORS 390.124 & ORS 36.224

Statutes/Other Implemented

ORS 36.224

History

PRD 11-2021, adopt filed 11/23/2021, effective 11/23/2021