Appropriate Dispute Resolution (ADR)
Appropriate Dispute Resolution (ADR)
HIRING MEDIATORS OR FACILITATORS
In December of 2011 the Department of Justice, with the assistance of the Department of Administrative Services and the Oregon Consensus Program, established five-year price agreements with ADR providers to provide agencies with a fast and convenient way to access highly qualified ADR providers. (The open, competitive process to establish these price agreements, RFP ## 102-1803-11, closed on August 31, 2011.) These price agreements establish a roster of ADR Providers in the following five service categories.
- Mediation General Practitioner;
- Large Group Facilitation General Practitioner;
- Litigation Settlement Mediator;
- Collaborative Public Policy Facilitator; and
- Public Involvement General Practitioner.
These price agreements are also available to local governments and the state University system through the Oregon Cooperative Buy Program. ADR Providers who have a Price Agreement with the State of Oregon ("ADR Provider Roster") can be found at ADR Provider Roster.
While the Price Agreements are a convenient way to hire a mediator or facilitator, agencies are not required to use this resource. The following table highlights a range of methods by which agencies who are subject to the authority of the Department of Adminsitrative Services may hire ADR Providers:
Method |
#1 |
#2 |
#3 |
#4 |
#5 |
Direct negotiation |
Informal procurement |
Formal procurement |
Price Agreement |
Litigation Related |
|
ORS |
279B.065 |
279B.070 |
279B.055 & 279B.060 |
|
279A.025(2)(e) |
Rules for agencies subject to DAS authority (Note that agencies not subject to DAS authority, such as ODOT, may use the same statutory procurement methods but follow their own or DOJ rules) |
OAR 125-247-0265. |
OAR 125-247-0270 |
OAR 125-247-0255 and OAR 125-247-0260. |
|
|
Dollar Limit |
Not more than $5,000 |
Not more than $150,000 |
No Limit |
No Limit |
No Limit |
Selection Process |
Select any mediator or facilitator |
Consider at least three mediators or facilitators and select using criteria |
Issue a request for proposals and evaluate responses |
Select any mediator or facilitator with a price agreement |
Select any mediator or facilitator |
Can "mutual selection"(1) be used as a criteria for contractor selection? |
Yes |
Yes |
Yes |
Yes |
Yes |
Notice of Solicitation to Office of WMSB for each contract/ mediation? |
Yes |
Yes |
Yes |
No |
No |
Post solicitation notice on ORPIN prior to selecting mediator or facilitator? |
Yes |
Yes |
Yes |
No |
No |
Negotiate rates and contract with Provider for each mediation? |
Yes |
Yes |
Yes |
No |
Yes |
Recommended Mediator Contract form |
Mediator contract form (2) |
Mediator contract form (2) |
Mediator contract form (2) |
Service Order Contract (3) |
Litigation-Related Mediator Contract (4) |
FOOTNOTES
(1) Regarding "Mutual Selection" - DOJ and DAS encourage agencies to select the ADR Provider using a process known as "mutual selection." Under this process, the agency and the other parties to a dispute examine the Roster and may contact mediators or facilitators to obtain more information on their experience, fees, availability, dispute resolution style, etc. The agency and the other parties then select a mediator or facilitator acceptable to everyone. (If there are many parties involved in a project the agency may wish to select a mediator from the list with the help of a few representative parties.) For agencies subject to DAS rules, mutual selection may be used in any of the procurement processes described above except the formal procurement.
(2) The Mediator Personal Services Contract can be found at http://www.doj.state.or.us/adr/psk.shtml DOJ encourages the use of this form for mediation and facilitation as, among other things, it: Clearly lays out the relationship to the agency as a neutral and the expectation that the mediator will disclose to both the agency and the other party any potential conflicts; Addresses the confidential nature of certain mediator communications by limiting agency access to the contractor work product; Allows for other parties to share the costs of the contractor/mediator; and References limitations on mediator liability found in ORS 36.210.
(3) The Service Order Contract form is used for all ADR Providers on the ADR Roster. This contract form is specific to each individual ADR Provider and can be found on the ADR Roster webpage.
(4) The Mediator Personal Services Contract for Litigation-Related Mediation Services can also be found at http://www.doj.state.or.us/adr/psk.shtml This is a simplified version of the Mediator Personal Services Contract that can be used for litigation-related mediator procurements under ORS 279A.025(2)(e).