236.11 Mediation
236.11.1 Mediation Process
236.11.1.1 Authority
The Missouri Highway and Transportation Commission is empowered to establish and adopt a mediation policy as an alternative to the costly and time consuming eminent domain process when needed right of way for road improvements cannot be acquired through the normal course of negotiations.
236.11.1.2 Definition of Mediation
Mediation is an option offered by MoDOT that can be described as a process in which a neutral and impartial third party assists parties in disagreement to negotiate an acceptable settlement.
It is a voluntary, informal and non-binding process that may be terminated at any time by either party. Rules of evidence do not apply. Testimony is not taken. Witnesses are neither sworn nor used to support or defend positions and interrogatories, depositions and transcripts are not required.
The mediator, or individual conducting the mediation, is not a judge and will not render a judgment, ruling or opinion as to the merit of either party’s position nor will the mediator advise either party as to their rights under the law.
236.11.1.3 Purpose
Mediation is a means to provide a non-adversarial process by which the property owner(s) and MoDOT make a concerted effort to reach an acceptable settlement, with the assistance of the mediator, and avoid the necessity of condemnation.
The process should improve communications between the parties, clarify data, identify key issues to be discussed, uncover hidden interest, generate possible settlement options and help to identify and formulate areas of agreement.
The property owner(s) and MoDOT retain control of the outcome rather than a decision being imposed by a third party or a jury.
Mediation is not intended to replace or reduce the importance of the negotiation process for the acquisition of right of way nor does it preclude the use of administrative settlements.
Should the mediation process not be successful and the parties not reach an agreement, the needed right of way will then be acquired by the normal condemnation process.
Mediation is an option of MoDOT; however, it will be offered to all property owners, or their representative, when a negotiated settlement cannot be reached. Any exceptions for not offering mediation must be approved by the Right of Way Director with concurrence by Chief Counsels Office.
236.11.1.4 Advising Property Owner that the Option to Enter into Mediation is Being Offered
The property owner should be advised in writing that MoDOT is extending an offer to enter into mediation in an attempt to reach a settlement and avoid the need for condemnation.
If the owner accepts the offer of mediation, the district right of way office will notify the mediation service.
The mediation service will schedule the mediation at a date, time and location agreeable to both parties; however, consideration should be given to the owners' preference for both when and where the mediation will take place.
236.11.1.5 The Mediation Session
The individuals present during the mediation session are the owner, department representative and the mediator. The district right of way manager, or the manager’s designated representative, is authorized to act as the MoDOT representative during the mediation process.
The parties may have whomever they choose to be present during the mediation; however, if the owner will have an attorney present, the department should also have an attorney from the regional counsel's office attend the mediation session with the right of way representative.
The department's representative may confer with others by telephone, but must have made prior arrangements to make certain those individuals will be available when and if it is necessary.
The session will normally begin with introductions of the participating parties and the mediator will usually outline the issues that have brought the parties to the session. The mediator may also suggest some procedural ground rules, such as non-interruption, clarification of limits of confidentiality, agreement on time limits and a commitment from the parties to bargain in good faith.
The mediator will usually ask each of the parties to make an opening statement that consists of an outline of the party's position with respect to the key issues and some reference to the justification for each position. The mediator may ask questions during the opening statements to clarify an issue. At the conclusion of the opening statements, the mediator might summarize what he or she has heard.
The mediator may then want to meet with each of the parties separately and ask a range of questions in an attempt to establish the party's private views as to the strengths and weaknesses of its case. Statements made to the mediator cannot be revealed to the other side without the explicit permission to do so by the party making the statement.
Settlement may be generated by the parties through structured discussion in joint session, or may be developed through the separate conversations with the mediator.
If the mediation results in an agreement to settle, the mediator will verify the terms of the settlement.
The department representative authorized to make a settlement during mediation is required to prepare a memo to the file as to why it was in the public's best interest to settle, or why a settlement could not be reached.
It is anticipated that the majority of the mediation sessions will require 4 hours or less. This is only a rule of thumb, if the right of way representative believes progress is being made in regard to reaching a settlement, the fact that the session has continued beyond 4 hours should not be a measure to terminate the session. On the other hand, if the right of way representative is of the opinion that there is no progress being made in reaching a settlement and does not believe a settlement will be reached, the session can be terminated at any time.
236.11.1.6 Supplemental Assistance
The following items are samples of step-by-step procedures, which may provide assistance in the mediation process. These optional forms are listed below:
- Mediation Referral (Exhibit 1)
- Mediator's Letter to Property Owner (Exhibit 2)
- Confirmation of Mediation (Exhibit 2)
- Mediation Checklist and Worksheet (Exhibit 3)
- Agreement to Mediate (Exhibit 4)
- Agreement of Settlement (Exhibit 5)
236.11.2 Contracting for Mediation Service
236.11.2.1 Qualifications for Mediators
Mediators contracted by the Missouri Department of Transportation shall have training in mediation services and alternate dispute resolutions, must enjoy a good professional reputation, and must be able to provide references from parties involved in past mediation sessions.
236.11.2.2 Application for Employment as Contract Mediator
All individuals desirous of contracting for mediation services may submit an Application for Employment as a Contract Mediator (Form 11.2.2). When the application is received at the district office and the district right of way manager is satisfied with the applicant's qualifications, the district shall transmit to the Right of Way Division office its' recommendation together with one copy of the application and such other information considered pertinent to the approval process. The division office will review the application material to determine the applicant's qualifications. The division office will advise the district office, in writing, if an applicant is approved or is rejected for lack of qualifications or other causes.
236.11.2.3 Roster of Approved Mediators
A Roster of Approved Contract Mediators (Form 11.2.3) shall be maintained by the Right of Way Division. Notice of all roster additions and deletions will be sent to those districts where the mediator is primarily available for work.
236.11.2.4 Employment of Contract Mediator
Contracts for mediation services may be on a district, county or multiple-county basis and may be for a period up to 24 months. Depending on the district’s anticipated workload, it is acceptable to have several mediators under contract at the same time in the same county.
The availability of qualified contract mediators may vary from one location of the state to another and from one period of time to another; therefore, policy for contracting mediators provides for both the solicitation of competitive bids and for non-competitive bids (negotiated contract).
236.11.2.5 Selecting Prospective Contract Mediator
The district may solicit proposals for mediation services from mediators listed on the Roster of Approved Contract Mediators maintained by the division office. In selecting the mediator, consideration should be given to talents and skills possessed by the individual mediator, past performance, pending mediation service contracts, etc. The district may contact prospective mediators by letter, telephone, or in person to learn if they are interested in submitting proposals for services.
236.11.2.6 Preparation of Proposals to be Provided to Mediators
The mediator should be issued a statement advising that work assigned under the contract will be on an as needed basis and that the contract will not provide exclusive rights to perform mediation services. In addition to a copy of the proposal and mediation contract, the following data may also be provided to the mediator.
- 1. List of the anticipated projects that may require mediation services during the time period of the contract.
- 2. A county map indicating the location of each anticipated project.
- 3. An estimate of the number of parcels per project that might involve mediation during time period covered by the contract.
- 4. The anticipated date that mediation services may be required.
- 5. Statement to the effect that should the mediator not be successful in locating a meeting room, free of charge, where the mediation may be conducted, the mediator will contact the district right of manager and so advise. The right of way manager may agree to reimburse the mediator for such cost by commercial invoice as part of the cost of mediation, or may choose to locate an adequate meeting room free of charge where mediation can be conducted.
After the mediator is made aware of all facts regarding the prospective assignments, the mediator may submit a proposal setting forth fees on an hourly basis that will apply to all mediation conducted during the duration of the contract. Proposed fees set forth by the mediator may include travel, lodging and meal expenses as outlined in their proposal for services.
236.11.2.7 Competitive Proposals for Contracting Mediation Services
When the competitive proposal process for contracting mediation services is utilized, the district shall make a reasonable effort to secure proposals from those approved mediators who have demonstrated expertise to accomplish the proposed assignment, by notification of a need for mediation services.
It should be noted that when the district is soliciting proposals, only those mediators believed to be qualified for the assignment and have a satisfactory record regarding quality of work and adherence to deadlines should be contacted. It can then be expected that proposals received will be from equally qualified individuals that can and will complete the assignment in a timely manner.
- A. Proposals for Contract Mediation
- The Proposal for Contract Mediation (Form 11.2.7) shall be used by the mediators for submission of their proposals. The district shall include the five (5) statements from 236.11.2.6 and complete all portions of proposal except fees, date, and signature of mediator. One copy of the proposal together with a copy of a contract with exhibits and above statements shall be given to each bidder. Every bidder should be advised not to add or delete any terms or conditions or amend the proposal in any way.
- Electronic submissions or faxed submissions of proposals will not be accepted because confidentiality cannot be maintained.
- The district right of way manager shall retain all proposals received at the district office until the designated time of opening.
- B. Opening of Proposals, Checking Tabulations and Preparing Contract
- District right of way personnel shall open all proposals at the prescribed time. Personnel supervising the opening shall publicly announce to all in attendance the amounts recited in each proposal.
- Right of Way personnel will check the proposals to ensure that each is acceptable from standpoint of having the signature of the individual submitting the proposal and is dated. The submittals will also be checked to ensure that the proposal has not been modified.
- The district right of way manager or a designated representative may review the proposals to determine if the proposed fees are excessive. If all fees are determined to be excessive, proposals may be rejected and resolicited in an effort to secure more acceptable fees.
- The proposals will all be compared and tabulated. If the lowest proposal is acceptable, the district will prepare a mediation service contract for the party submitting the bid. If more than one contract will be required in a county, the next lowest bidder would be the party selected for the second contract.
- District right of way shall then submit to the district engineer two copies of the mediation services contract(s) (Form 11.3.1,RW 31) as executed by the selected bidder(s) and one copy of proposal as received from each bidder. The district engineer shall review subject data and cause the contract to be approved or rejected.
When the district determines it will be more efficient to have two (2) or more mediators under contract for the same county covering the same time period, mediation services will be assigned to the contractors on an as needed basis, as determined by the district right of way manager, to allow work on a project to flow in the most effective manner to meet project time limits.
236.11.2.8 Non-Competitive Proposals For Mediation Services
When contracting for mediation services without competitive proposals, the district may proceed as follows:
- District shall select a mediator from the current roster of approved mediators. Every effort shall be made to select the most qualified mediator available. Consideration should be given to skills possessed by the individual, past performance, pending mediation contracts, etc. District personnel shall contact the selected mediator to determine his/her availability to provide service within the specified time. All contacts shall be documented in the district file to show party contacted, date of contact, and brief summary of the conversation.
- After the mediator has been made aware of all facts regarding the prospective assignment, the district shall request a proposal (Form 11.2.7) setting forth an hourly fee that will apply to services provided during length of contract. Since competitive proposals are not involved, paragraphs 1 and 2 of page 1 of the form may be deleted marked "not applicable."
- The proposal must be dated, signed, and submitted to the district office. The district right of way manager or a designated representative shall review each proposal to determine if reasonable fees are being proposed. Should it be determined that the proposed fees appear excessive, the district right of way manager or designee may negotiate with the mediator in an effort to achieve acceptable fees. In the event negotiations fail to produce acceptable fees, the district has the option to negotiate with another mediator or initiate the competitive bid process.
When the fees are negotiated to be more in accord with what the district determines to be reasonable, the district may prepare a contract for execution by the district engineer. The district engineer shall review subject data and cause the contract to be approved or rejected. The contract must contain the same provisions as the proposal.
236.11.2.9 Distribution of Fully - Executed Mediation Contracts (Form 11.3.1)
An original executed contract is to be given to the contract mediator together with other data necessary to accomplish the contract. At that time the mediator shall also be given notice that a contact will be made on a parcel by parcel basis requesting mediation services.
A copy of the fully executed contract shall be retained in the district file.
236.11.2.10 Mediator Performance Evaluation
The Proposal for Mediation Services (Form 11.2.7) advises that overall performance will be reviewed and that inadequate performance can result in their removal from the department's list of approved mediators.
After completion of assignments, the right of way manager or designee may evaluate the performance of the mediator. In the case of unacceptable performance by the mediator, district personnel shall evaluate the performance of the mediator. The performance shall be rated (Form 11.2.10). It is essential that this report be fully completed.
Some questions may require more than a simple yes or no answer. If that is the case, the comments should be written on a separate page and attached to the evaluation report.
The performance evaluation can be of considerable value to the department in effectively managing mediation. It is intended to serve as the documentary basis for the retention or dismissal of mediators. If a mediator is to be removed from the approved roster based on poor performance he/she must be notified in writing.
It is emphasized that the Performance Evaluation is strictly for the department's internal use and is not to be given to the mediator.
- A. Distribution of Evaluation Form
- Upon completion of the district's performance evaluation of a mediator, it is to be signed by the district right of way manager, the district will retain the original with a copy mailed to the division office for retention in the mediator's permanent file.
- B. Notification to Mediator of Unsatisfactory Performance
- If the district right of way manager concludes after completion of the performance evaluation that a mediator's performance falls below an acceptable level, a letter signed by the district engineer shall be mailed advising him/her that his/her performance was found to be unsatisfactory. A copy of this letter is to be submitted to the division office for the mediator's permanent file.
- C. Notification to Mediator of Removal From Approved Roster
- If, after receiving a letter notification of unsatisfactory performance, his/her work on a subsequent contract results in a performance evaluation with a recommendation to remove them from the Approved Roster, a letter signed by the district engineer shall be mailed to the contract mediator advising him/her that he/she has been removed from the Roster in accordance with MoDOT policy.
- Special circumstances may warrant a recommendation for the removal of a mediator from the Approved Roster as a result of his/her first evaluation.
236.11.3 Mediation Contracts
All mediation services performed for the Right of Way Division shall be done by authority of a contractual agreement. A copy of the Mediation Services Contract (Form 11.3.1, RW 31) is available. Contracts with corporate entities shall designate a given individual who shall perform the mediation services. All contracts with corporate entities shall be executed by an officer of such entity.