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1 Welcome to the International Right of Way Association’s Course 203 Alternative Dispute Resolution 203-PT – Revision 2 – 06.30.07.INT.

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Presentation on theme: "1 Welcome to the International Right of Way Association’s Course 203 Alternative Dispute Resolution 203-PT – Revision 2 – 06.30.07.INT."— Presentation transcript:

1 1 Welcome to the International Right of Way Association’s Course 203 Alternative Dispute Resolution 203-PT – Revision 2 – 06.30.07.INT

2 2 Introduction

3 3 Objectives (1) At the conclusion of the two days, you will be able to... Identify different alternative dispute resolution (ADR) methods and recognize each method’s strengths and weaknesses Understand the Getting to Yes dispute resolution principles

4 4 Objectives (2) At the conclusion of the two days, you will be able to... Identify sources for and examples of objective criteria to resolve disputes Understand better the relationship between ADR and eminent domain/expropriation Employ processes and procedures to succeed at ADR

5 5 Housekeeping

6 6 Schedule Day One (1) 8:00 - 9:45Introductions, Etc. 10:00 - 12:00The ADR Toolbox 1:00 - 4:45The ADR Worldview: Getting to Yes 4:45 - 5:00Recap Day One

7 7 Schedule Day Two (2) 8:00 - 8:15Recap Day One Introduce Day Two 8:15 - 9:45ADR and Eminent Domain Expropriation 10:00 - 12:00ADR Processes and Procedures 1:00 - 3:45Succeeding at ADR 3:45 - 4:00Summary and Review 4:00 - 5:00Exam

8 8 Goals (1) If the goal of the acquisition process is to be legally correct, can the process also be fair? If the goal of the acquisition process is to be respectful, can the process also be efficient? If the goal of the acquisition process is to be friendly, can the process also be professional?

9 9 Goals (2) If the goal of the acquisition process is to be frugal, can the process also be even-handed? If the goal of the acquisition process is to be __________, can the process also be ________?

10 10 ADR Alternative Dispute Resolution (ADR) is any one of a variety of processes that a third party neutral uses to resolve a dispute between two or more parties. ADR includes conciliation, mediation, ombudsperson intervention, arbitration or other processes.

11 11 Neutral A third party “neutral” is someone who is knowledgeable, fair, skilled in ADR and who both parties agree has no personal stake in the outcome of a dispute resolution process. The neutral can act as a mediator, arbitrator, ombudsperson or in another role to facilitate the dispute resolution.

12 12 ADR Tips (1) Separate the people from the problem Relax Share power Focus on interests rather than on positions Invent options for mutual gain Be creative

13 13 ADR Tips (2) Stay informal and unstructured Focus on objective criteria Share information and expertise Remain open Showcase independent data

14 14 When a right of way professional turns to ADR, it is not because he/she failed. It is because the negotiation process failed.

15 15 Options Negotiation Conciliation Mediation Ombudsperson Arbitration Litigation

16 16 Negotiation

17 17 Conciliation

18 18 Conciliation  Most informal method of ADR  Focuses on the most pressing problems  The neutral is knowledgeable and well respected  Can be used immediately  Low risk

19 19 Mediation

20 20 Mediation  Most efficient, it is “real” time  Flexible and informal  Requires commitment  Works best to resolve “interests” rather than “rights”

21 21 Ombudsperson Opinion

22 22 Ombudsperson Opinion  Trained professional acts as a gatekeeper to ADR  Expert in area of specialty  Can be effective  Can follow through on long term solutions

23 23 Arbitration Award

24 24 Arbitration Award  Sometimes, it is better if a fair and reasoned decision is made by an informed neutral  Can be focused on specific issue; better to sort out “rights” rather than “interests”  Adds dignity and formality  Courts will not overturn binding arbitration  Can be final  Arbitration can be an efficient way to use a skilled professional

25 25 Judgment Litigation

26 26 Alternatives

27 27 Exercise No. 3

28 28 The “Soft” Approach In positional bargaining, the soft approach to negotiation emphasizes the importance of building and maintaining relationships. Pursuing a soft form of positional bargaining makes one vulnerable to someone who plays a hard game of positional bargaining.

29 29 The “Hard” Approach In positional bargaining, the hard approach to negotiation insists on concessions. The negotiating game is biased in favor of the hard negotiator. The process may produce an agreement, although it may not be a wise one.

30 30 Position v. Interest A position is something that has already been decided and an interest is the problems or issues that arise as a function of the other party’s needs, desires, concerns or fears. The interest is what caused the person to adopt his/her position.

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40 40 Exercise No. 7 (1) 1. Has done all he/she can do.TF 2. Simply chose to use other tools beyond negotiation. T F 3. Abandoned the effort and turned it over to a neutral.T F When an agent chooses to use ADR, it means that the agent…

41 41 Exercise No. 7 (2) 4. Increased the agency’s cost to resolve the dispute. 5. Failed as a negotiator. 6. Caved in to the other party in the dispute. When an agent chooses to use ADR, it means that the agent… T F

42 42 Exercise No. 7 (3) 7. Showed respect to the other party. T F 8. Promoted resolution on the merits of the issues. T F 9. Usually jumped the gun. T F When an agent chooses to use ADR, it means that the agent…

43 43 Exercise No. 7 (4) 10. Make the matter much more complicated. T F 11. Slowed things down significantly. T F When an agent chooses to use ADR, it means that the agent…

44 44 Exercise No. 8 (1) 1. People focus on facts that reinforce prior perceptions. T F 2. People who participate in the process have a stake in the outcome. T F 3. Allowing others to save face is nice but not that important. T F According to Getting to Yes… When an agent chooses to use ADR, it means…

45 45 Exercise No. 8 (2) 4. If allowing others to let off steam, demand that others allow you to do the same.T F 5. Emotions are a fact of life; but there is no need to make them legitimate. T F According to Getting to Yes… When an agent chooses to use ADR, it means…

46 46 Exercise No. 8 (3) 6. To identify an interest, ask the other person why he/she has taken a specific position. T F 7. The other party’s interests are not part of the problem. T F According to Getting to Yes… When an agent chooses to use ADR, it means…

47 47 Exercise No. 8 (4) 8. You will satisfy your interests better if you talk about where you want to go instead of where you have been. 9. In order to push harder for your interests, you need to be close to the other party’s point of view. According to Getting to Yes… When an agent chooses to use ADR, it means… T F

48 48 Exercise No. 8 (5) 10. Although it is preferable to base dispute resolution on principle, sometimes it just makes sense to give into pressure. According to Getting to Yes… When an agent chooses to use ADR, it means… T F

49 49 Recap Day One

50 50 Recap Day One Introduce Day Two

51 51 “Eager” The eager property owner is motivated by the desire to sell the property. He/she doesn’t dispute the offer, either because he/she is convinced it is fair, or because the amount is not as important as some other issue. The owner just wants to be paid and the deal closed.

52 52 “Whatever” The “whatever” property owner is motivated by a lack of interest or by time limits, or by an aversion to hassle. He/she may not think that the process is fair or that the offer is adequate, but he/she simply does not wish to fight about it. The owner may feel powerless or trusting of the agency or may feel that there are simply more important things to worry about.

53 53 “Thinker” The thinker property owner is motivated by a lack of self-confidence or skepticism or by a sense of inquiry. He/she may remain unconvinced but is reasonable to deal with. While the thinker is analytical, he/she may not be trusting of him/herself or of the agency. Sometimes, the thinker looks to someone else (e.g., family, friends) for “permission” to proceed. The thinker needs to prove that the decision was a good one, once the deal is concluded.

54 54 “Dealer” The dealer property owner is motivated by a desire to maximize the settlement amount. The dealer enjoys the negotiation process (i.e., the wheeling-dealing) and is sometimes disappointed when the negotiation ends. He/she always looks for the angles and does not want to leave anything on the table. He/she uses time against the agency.

55 55 “Fighter” Opposition to the project or the process motivates the fighter property owner. Sometimes, he/she is hostile and/or emotional; but always firm and resolute. The fighter is mad at the government, the agency and/or the agent for any number of reasons, including the use of eminent domain/expropriation. The fighter wants to “hurt” someone, anyone.

56 56 Property Owners EagerWhateverThinker DealerFighter

57 57 Eminent Domain/Expropriation/ADR Matrix

58 58 Property Owners EagerWhateverThinker Dealer Fighter

59 59 Characteristics (1) Good communication skills Independence Credibility Wisdom Humor Charisma Efficiency Fairness Intelligence Savvyness Expertise

60 60 Characteristics (2)

61 61 F ast F air F riendly F rugal F lexible F inal

62 62 Other Options Mini-trial “Rent a judge” Dual mediators Ombudsperson “Seasoned practitioner” Med(iator) -Arb(itrator)

63 63 Rules for Success Focus on the future, not the past Focus on needs, not wants Focus on needs, not legal rights Be prepared to share responsibility Preserve relationships Be flexible

64 64 Milton Academy

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67 67 Quad A Milton Academy

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69 69 Exercise No. 11 (1) 1.The method of dispute resolution that is most likely to result in an outcome that preserves both the project and the future relationship of the parties is: A. Alternative Dispute Resolution B. Capitulation C. Condemnation/Expropriation

70 70 Exercise No. 11 (2) 2. The result reached in ADR should be written. Which of the following options is not binding on the parties? A. A signed mediation settlement agreement B. The mediator’s follow up letter C. The award of an arbitrator in a binding arbitration

71 71 Exercise No. 11 (3) 3.Alternative dispute resolution is a good method to: A.Reach a settlement that is better than could be reached in other settings B.Punish the other party C. Save the time that discovery normally takes before trial

72 72 Exercise No. 11 (4) 4. The difference between mediation and arbitration is that the neutral in mediation: A. Knows less than an arbitrator B. Never expresses an opinion C. Does not impose a result on the parties

73 73 Exercise No. 11 (5) 5. Which of the following is a valid reason that ADR should work well in right of way acquisition disputes? A. ADR allows the parties to be “in-charge” of the process, which makes follow through more likely B. ADR preserves the agency’s power to impose a result C. ADR works well when the property owner has little information about the project and the process

74 74 Exercise No. 11 (6) 6. Which of the following is not one of the four essential steps in Getting to Yes? A. Insisting on objective criteria B. Inventing options for mutual gain C. Focusing on positions

75 75 Exercise No. 11 (7) 7. Which of the following is not one of the fouressential steps in Getting to Yes? A. Separating the people from the problem B. Inventing options for mutual gain C. Seeking solutions that are amiable and efficient

76 76 Exercise No. 11 (8) 8. What is BATNA? A. The “ruler” one uses to insure that the ADR process does not end up in an agreement that is worse than no agreement B. A position one announces at the beginning of a dispute resolution process as a way to start the conversation C. The ideal settlement for the other party in the dispute resolution process – their best case scenario

77 77 Exercise No. 11 (9) 9. Which of the following is an interest? A. “I want $100,000 to settle this.” B. “I want the same amount as everyone else is getting.” C. “I want to be treated fairly.”

78 78 Exercise No. 11 (10) 10. Which of the following is a position? A. “I want my legal fees paid.” B. “I want a reasonable amount of time tomove.” C. “I want to be treated fairly.”

79 79 Objectives (1) Now, you will be able to... Identify different alternative dispute resolution(ADR) methods and recognize each method’s strengths and weaknesses Understand the Getting to Yes dispute resolution principles

80 80 Objectives (2) Now, you will be able to... Identify sources for and examples of objective criteria to resolve disputes Understand better the relationship between ADR and eminent domain/expropriation Employ processes and procedures to succeed at ADR

81 81 Thank you 203-PT – Revision 2 – 06.30.07.INT


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