Current Practices in the Use of Alternative Dispute Resolution (2008)

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Legal Research Digest 50 NATIONAL COOpeRATIve hIghwAy ReseARCh pROgRAm October 2008 Subject Areas: IA Planning and Administration; IC Transportation Law TRANspORTATION ReseARCh BOARD OF THE NATIONAL ACADEMIES CurrenT PrACTICeS In The uSe of ALTernATIve dISPuTe reSoLuTIon This report was prepared under NChRp project 20-6, “Legal problems Arising Out of highway programs,” for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Charles pou, Jr., Attorney, washington, DC. James B. mcDaniel, TRB Counsel for Legal Research projects, was the principal investigator and content editor. The Problem and Its Solution State highway departments and transporta- tion agencies have a continuing need to keep abreast of operating practices and legal ele- ments of specific problems in highway law. This report is a new paper, which continues NCHRP’s policy of keeping departments up-to- date on laws that will affect their operations. Applications Alternative Dispute Resolution (ADR) policies and procedures have been widely de- veloped in both federal and state government sectors in the last 25 years, particularly in the areas of environment, contracts, right of way, and, to a lesser extent, in torts. Considerable in- formation about these policies and procedures is available online or can be obtained by con- tacting federal ADR offices directly. National ADR organizations, such as the U.S. Institute for Environmental Conflict Resolution and the American Arbitration Association, have pro- mulgated model rules and procedures that have been incorporated into federal and state policy and regulations. Information concerning these rules and procedures is available directly from the national organizations or on agency Web sites. However, information about state and pri- vate transportation ADR may not be as acces- sible or found in a central location. The project examines four areas to determine current practices in the various state transporta- tion departments: Environment,• Contracts,• Right of way, and• Torts.• The results of these surveys and analysis have been included in this Legal Research Digest— a compilation of the ADR practices in 32 re- sponding state transportation agencies. This digest should be helpful to all persons involved in transportation dispute resolution, specifically administrators, attorneys, program officers, contracting officers, environmental- ists, and risk managers. CONTeNTs I. Overview of ADR Processes 3 A. What Is ADR, and How Does It Work? 3 B. ADR Processes 4 C. Why Use ADR? 5 D. Factors Affecting the Utility of ADR Methods 5 II. Transportation Agencies’ Use of ADR 6 A. Overview 6 B. Environmental Conflicts 6 C. Contract Disputes 13 D. Right-of-Way Conflicts 19 E. Tort Claims 22 III. Legal, Policy, and Practical Issues in Transportation Agency ADR 24 A. Agency Authority to Use Settlement Negotiation, Facilitated Decision-Making Processes, and Binding Arbitration 24 B. Factors for Agencies Deciding Whether to Use ADR 27

C. Maintaining Confidentiality of Sensitive ADR Communications 28 D. Implementing and Institutionalizing ADR in Transportation Agencies 31 E. Finding and Acquiring the Services of ADR Neutrals 32 IV. Considerations for Transportation Agencies Using ADR 33 A. General 33 B. Selecting an ADR Process 34 C. Preparing for and Participating Effectively in an ADR Process 34 D. Encouraging and Enabling Effective Use of ADR 35 E. Finding and Selecting ADR Neutrals 36 F. Protecting Confidentiality in ADR 37 V. Conclusion 37 Appendix A 38 Appendix B 40 Appendix C 43 CONTeNTs (cont’d)