2 Colo. Code Regs. § 402-5-5

Current through Register Vol. 47, No. 20, October 25, 2024

Rule 2 CCR 402-5-5 - Alternative Means of Dispute Resolution

For the purposes of this rule, the term-

A. "Alternative means of dispute resolution" means any procedure that is used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, fact finding, mini trials, arbitration, and use of ombudsman, or any combination thereof;

B. "Dispute resolution proceeding" means any process in which an alternative means of dispute resolution is used to resolve an issue in controversy in which a neutral is appointed and specified Parties participate;

C. "In confidence" means, with respect to information, that the information is provided-

1. with the expressed intent of the source that it not be disclosed; or

2. under circumstances that would create the reasonable expectation on behalf of the source that the information will not be disclosed;

D. "Issue in controversy" means an issue which is material to a decision concerning an administrative program of the Division of Water Resources and with which there is disagreement:

1. between an Agency and Persons who would be substantially affected by the decision; or

2. between persons who would be substantially affected by the decision;

E. "Neutral" means an individual who, with respect to an issue in controversy, functions specifically to aid the Parties in resolving the controversy;

F. "Roster" means a list of persons qualified to provide services as neutrals.

G. General authority

1. The State Engineer or Hearing Officer may approve the use of a dispute resolution proceeding for the resolution of an issue in controversy that relates to an administrative program, if the Parties agree to such proceeding.

2. The State Engineer or Hearing Officer shall consider not using a dispute resolution proceeding if:--

a. a definitive or authoritative resolution of the matter is required for precedential value, and such a proceeding is not likely to be accepted generally as an authoritative precedent;

b. the matter involves or may bear upon significant questions of state government policy that require additional procedures before a final resolution may be made, and such a proceeding would not likely serve to develop a recommended policy for the Division of Water Resources;

c. maintaining established policies is of special importance, so that variations among individual decisions are not increased and such a proceeding would not likely reach consistent results among individual decisions;

d. the matter significantly affects persons or organizations who are not Parties to the proceeding;

e. a full public record of the proceeding is important, and a dispute resolution proceeding cannot provide such a record; or

f. the Division of Water Resources must maintain continuing jurisdiction over the matter with authority to alter the disposition of the matter in the light of changed circumstances, and a dispute resolution proceeding would interfere with the Division of Water Resources' fulfilling that requirement.

3. Alternative means of dispute resolution authorized under this subchapter are voluntary procedures which supplement rather than limit other available dispute resolution techniques.

H. Neutrals

1. A Neutral may be a permanent or temporary officer or employee of the State of Colorado or any other individual who is acceptable to the Parties to a dispute resolution proceeding. The neutral shall have no official, financial, or personal conflict of interest with respect to the issues in controversy, unless such interest is fully disclosed in writing to all Parties and all Parties agree that the neutral may serve.

2. A neutral who serves as a conciliator, facilitator, or mediator serves at the will of the Parties.

I. Confidentiality- Except as provided herein, a neutral in a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication or any communication provided in confidence to the neutral, unless--

1. all Parties to the dispute resolution proceeding and the neutral consent in writing, and, if the dispute resolution communication was provided by a non-Party participant, that participant also consents in writing;

2. the dispute resolution communication has already been made public;

3. the dispute resolution communication is required by statute to be made public, but a neutral should make such communication public only if no other person is reasonably available to disclose the communication; or

4. a court determines that such testimony or disclosure is necessary to--

a. prevent a manifest injustice;

b. help establish a violation of law; or

c. prevent harm to the public health or safety, of sufficient magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the confidence of Parties in future cases that their communications will remain confidential.

5. A Party to a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication, unless--

a. the communication was prepared by the Party seeking disclosure;

b. all Parties to the dispute resolution proceeding consent in writing;

c. the dispute resolution communication has already been made public;

d. the dispute resolution communication is required by statute to be made public;

e. a court determines that such testimony or disclosure is necessary to--

i. prevent a manifest injustice;

ii. help establish a violation of law; or

iii. prevent harm to the public health and safety, of sufficient magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the confidence of Parties in future cases that their communications will remain confidential;

f. the dispute resolution communication is relevant to determining the existence or meaning of an agreement or award that resulted from the dispute resolution proceeding or to the enforcement of such an agreement or award; or

g. except for dispute resolution communications generated by the neutral, the dispute resolution communication was provided to or was available to all Parties to the dispute resolution proceeding.

6. Any dispute resolution communication that is disclosed in violation of these rules shall not be admissible in any proceeding relating to the issues in controversy with respect to which the communication was made.

7. The Parties may agree to alternative confidential procedures for disclosures by a neutral. Upon such agreement the Parties shall inform the neutral before the commencement of the dispute resolution proceeding of any modifications that will govern the confidentiality of the dispute resolution proceeding.

8. If a demand for disclosure by way of discovery request or other legal process is made upon a neutral regarding a dispute resolution communication, the neutral shall make reasonable efforts to notify the Parties and any affected non-Party participants of the demand. Any Party or affected non-Party participant who receives such notice and within 15 calendar days does not offer to defend a refusal of the neutral to disclose the requested information shall have waived any objection to such disclosure.

9. Nothing in this section shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented in the course of a dispute resolution proceeding.

10. A decision by the Division of Water Resources to use or not to use a dispute resolution proceeding under this subchapter shall be committed to the discretion of the Division of Water Resources and shall not be subject to judicial review.

2 CCR 402-5-5

38 CR 24, December 25, 2015, effective 1/15/2016