2 Colo. Code Regs. § 410-2-5

Current through Register Vol. 47, No. 19, October 10, 2024

Rule 2 CCR 410-2-5 - Alternative Means of Dispute Resolution

A. For the purposes of Rule 5, the following definitions apply:

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

2. "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 some or all of the Parties participate;

3. "In confidence" means, with respect to information, that the information is provided:

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

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

4. "Issue in controversy" means an issue which is material to a decision concerning an action of the Commission or its Staff and with which there is disagreement between the Parties, Agency or Person who would be substantially affected by the decision.

5. "Neutral" means an individual who, with respect to an issue in controversy, functions specifically to aid the Parties in resolving the controversy 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. A Neutral who serves as a conciliator, facilitator, or mediator serves at the will of the Parties.

B. General authority:

1. The Commission or Hearing Officer may approve the use of a dispute resolution proceeding for the resolution of any issue in controversy in an Adjudicatory Proceeding, when all Parties to such Adjudicatory Proceeding agree to such a process. The provisions herein regarding alternative means of dispute resolution are strictly voluntary and neither applicants nor objectors may be forced to participate. Sections 37-90-113(4) and 13-22-313, C.R.S.

2. The Commission or Hearing Officer shall consider not using a dispute resolution proceeding if any of the following apply:

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 Commission;

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, Agencies, 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.

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

C. 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 one of the following factors apply:

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.

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 one of the following factors apply:

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.

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 in writing to alternative confidential procedures for disclosures by a Neutral. Any such agreement shall be provided to the Neutral before the commencement 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 deemed to 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 Commission to use or not to use a dispute resolution proceeding under this subchapter shall be committed to the discretion of the Commission or its appointed Hearing Officer and shall not be subject to judicial review.

D. Effect - A decision by a Neutral under this Rule 5 shall be submitted to the Commission at their regularly scheduled quarterly meeting. Upon acceptance of the Commission, the Neutral's decision shall be adopted as the final decision of the Commission and enforceable as a decision of the Commission.

2 CCR 410-2-5