44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO DISPUTE RESOLUTION; ENACTING THE ALTERNATIVE DISPUTE RESOLUTION ACT; PRESCRIBING POWERS AND DUTIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Alternative Dispute Resolution Act".

Section 2. PURPOSE.--The purpose of the Alternative Dispute Resolution Act is to resolve public disputes through methods of building consensus that are efficient, flexible, creative and comprehensive."

Section 3. DEFINITIONS.--As used in the Alternative Dispute Resolution Act:

A. "agency" means the state of New Mexico, any of its branches, agencies, departments, boards, instrumentalities, institutions, political subdivisions of the state and their agencies, instrumentalities and institutions and all water and natural gas associations organized pursuant to Chapter 3, Article 28 NMSA 1978;

B. "alternative dispute resolution" means a process other than litigation used to resolve disputes, including mediation, facilitation, regulatory negotiation, fact-finding, conciliation, mini-trials, early neutral evaluation and policy dialogues;

C. "convenor" means a person or agency that helps parties decide whether alternative dispute resolution is appropriate and that encourages parties to use alternative dispute resolution in a dispute;

D. "coordinator" means a person appointed by an agency who promotes the use of alternative dispute resolution;

E. "neutral" means a person who provides services as a mediator, facilitator, fact-finder or conciliator or who aids parties to resolve disputes; and

F. "public dispute" means a dispute that involves the public interest and the determination of rights, obligations and privileges of persons and agencies.

Section 4. AUTHORIZATION--AGREEMENTS--COSTS--COORDINATORS--NEUTRALS.--

A. An agency is authorized to use alternative dispute resolution to resolve a dispute, issue or controversy in which the agency is involved. An agency may use alternative dispute resolution in all areas of their operations, programs and functions, including formal and informal adjudications, rulemakings, enforcement actions, permitting, certification, licensing, policy development, contract administration and other work place disputes.

B. An agency shall employ voluntary procedures to be used at the agency's discretion or at the request of another person. A decision by an agency whether to employ alternative dispute resolution shall not be subject to judicial review.

C. An agency shall consider using alternative dispute resolution if:

(1) the nature of the controversy appears to be suited to alternative dispute resolution through consensus building; and

(2) the parties with a substantial interest in the conflict are identifiable and appear willing to use alternative dispute resolution either by direct participation or through a representative.

D. An agency that chooses to use alternative dispute resolution shall enter into an agreement that:

(1) provides for the appointment of neutrals, consultants or experts;

(2) extends any limitation periods applicable to the commencement or conclusion of formal administrative or judicial proceedings; and

(3) establishes rules for the alternative dispute resolution.

E. The agreement may be included in an enforcement order, stipulation, contract, permit or other document entered into or issued by an agency to assist in the resolution of future disputes. The agreement shall not require an agency to take any action that is inconsistent or contrary to any state law or rule.

F. An agency may pay the costs necessary to achieve the objectives of the Alternative Dispute Resolution Act, including reasonable fees for:

(1) training;

(2) policy review;

(3) system design;

(4) evaluation;

(5) technical and expert assistance; and

(6) the use of neutrals.

G. An agency may appoint a coordinator who shall:

(1) make recommendations to the agency's executive staff on issues and disputes that are suitable for alternative dispute resolution;

(2) analyze the agency's enabling statutes and rules to determine whether they contain impediments to the use of alternative dispute resolution and suggest any modifications;

(3) monitor the agency's use of alternative dispute resolution;

(4) arrange for training of agency staff in alternative dispute resolution practices; and

(5) provide information about the agency's alternative dispute resolution practices to staff and to the public.

H. A neutral shall be selected and shall serve at the will of the parties of an alternative dispute resolution.

I. The parties shall agree how to provide compensation to a neutral.

J. A neutral shall have no official, financial or personal conflict of interest with any issue or party in controversy unless the conflict of interest is fully disclosed in writing to all of the parties and all parties agree that the neutral may continue to serve.