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Chapter 672-19 GOVERNING UTILITIES MEDIATION PROCESS

Rule 672-19-.01 Purpose

(1) General. O.C.G.A § 32-6-171 requires the establishment of a Mediation Board to hear and decide disputes that may arise between the Department, the utility companies, and contractors concerning the prompt removal, relocation or adjustment of utilities on the Department's projects. The Code authorizes the Department to establish rules, procedures and guidelines for utility relocation, including the resolution of disputes pertaining to utility relocation.
(2) Legislative Intent. The legislature intended for mediation to be a means by which the Department, the Utilities, and the Contractors can settle disputes regarding the removal, relocation or adjustment of utilities on the Department's projects. The State Transportation Board views dispute resolution as a less expensive and more constructive alternative to litigation, which too often is the only option available to the parties involved in these disputes. The implementation by the Department of utility relocation procedures and the creation of a Mediation Board to assist with dispute resolution is one method of making removal, relocation or adjustment of utilities on the Department's projects both effective and efficient.

Rule 672-19-.02 Applicability of Rules

(1) Applicability. The Rules provided herein are applicable to three types of disputes subject to mediation under O.C.G.A. § 32-6-171:
(a) Disputes related to a Work Plan or revised Work Plan that has been submitted by the utility but not approved by the Department;
(b) Disputes related to a Contractor's claim against the Utility for Delay Costs or other Damages related to the Utility's removal, relocation, or adjustment of its facilities; and/or
(c) Any other matter related to the removal, relocation, or adjustment of the Utility's facilities.
(2) Time Period for Applicability. The dispute resolution process outlined by these rules and the Mediation Board shall be utilized on all Department projects that are let during and after the May 2008 letting. Where an updated Work Plan is needed, the Utilities shall provide the Department with such updated Work Plan sixty (60) days prior to letting.

Rule 672-19-.03 Definitions

(1) General. For the purpose of these rules, the following words shall have the meaning as contained herein unless the context does not permit such meaning. Terms not defined in these rules but defined in O.C.G.A. § 32-1-3et seq., shall have the meanings contained therein. Terms not defined in these rules, nor in O.C.G.A. § 32-1-3et seq., shall have ascribed to them the ordinary accepted meanings such as the context may imply.
(2) Definitions. The following terms and definitions shall be used:
(a) "Contractor": Department's prime contractor for projects awarded by GDOT.
(b) "Damages" (as pertain to Mediation): The actual cost that covers injury or economic loss due to documented damages resulting solely from failure on the part of the Utility to comply with requirements of the submitted and approved Work Plan under the control of the Utility.
(c) "Delay Cost": Cost incurred by the Contractor and approved by the Department which is caused by or which grow out of the failure of the Utility owner to carry out and complete its work in accordance with the approved Work Plan or in a timely and reasonable manner if a Work Plan or revised Work Plan was not submitted.
(d) "Department": The Georgia Department of Transportation (GDOT).
(e) "Designee": The individual or company to whom the Department delegates certain authority for the administration of the mediation process.
(f) "Escalation Process": The process which raises an issue, action or concern to successive levels of Departmental management for resolution.
(g) "List of Qualified Mediators": List of mediators compiled, maintained, or approved by the Department.
(h) "Mediation": A process of dispute resolution to be employed by the Department and Utility to resolve conflicts.
(i) "Mediation Board": A three-person board created by the authority of O.C.G.A. § 32-6-171 to resolve disputes between the Parties.
(j) "Notice of Potential Dispute": A written notification to the Utility that starts the Escalation Process.
(k) "Party": The Department, or the Utility, or the Contractor.
(l) "Petition for Mediation": A written notification to the Parties that starts the Mediation.
(m) "Petitioner": The Department or Utility who initiates the Mediation.
(n) "Utility": Any privately, publicly or cooperatively owned line, facility, or system for producing, transmitting or distributing communications, cable television, power, electricity, light, heat, gas, oil products, water, steam, clay, waste, storm water not connected with highway drainage, and other similar services and commodities, including river gages, fire and police signals, traffic control devices, and street lighting systems, which directly or indirectly serve the public. The term "utility" may also be used to refer to the owner of any above described utility or utility facility.
(o) "Work Day": A calendar day exclusive of Saturday, Sunday, and legal state holidays.
(p) "Work Plan": The relocation plans and the adjustment schedule submitted by each utility facility owner who has facilities that are required to be relocated or adjusted to accommodate the project construction.

Rule 672-19-.04 Escalation Process - Duties and Responsibilities

(1) General. The Department is responsible for the administration of the dispute resolution process outlined in these rules including the initiation of the process by the Parties. The Department will provide for an Escalation Process that includes at least the following minimum requirements:
(a) A requirement that a written Notice of Potential Dispute be provided to any Utility involved in the dispute within at least ten (10) days from the time the dispute or potential dispute is identified by the Party initiating the use of the dispute resolution process;
(b) A structured negotiation process to encourage and facilitate resolution of the Notice of Potential Dispute prior to review of the issue by the Mediation Board; and
(c) Provisions for the requirement that the Parties make the notice provisions and the structured negotiation process a prerequisite to the referal of the case to the Mediation Board.

Rule 672-19-.05 Mediation Board

(1) Purpose and Responsibilities. As part of the dispute resolution process the Department is authorized to establish a Mediation Board and to establish procedures for the operation of the Mediation Board.
(2) Establishment of Mediation Board. After a written Petition for Mediation has been submitted and certified in accordance with 672-19-.06(5), the Mediation Board shall be established within thirty (30) days of the certification of the Petition for Mediation. The hearing shall be held within sixty (60) days of the establishment of the Mediation Board.
(3) Qualified Mediators. Any person serving on a Mediation Board established pursuant to these rules shall meet the following minimum criteria in order to be included on the List of Qualified Mediators:
(a) Certification by the State Office of Dispute Resolution or certification by completion of a program approved by the Department; and
(b) Meet the minimum training requirements to remain certified.

No member of a Mediation Board shall have any direct relationship with any of the parties involved in the dispute or issues for which the Mediation Board is formed. For purposes of this section, direct relationship shall mean any contractual relationship or employment relationship within the previous six (6) months from the establishment of the Mediation Board.

(4) Mediation Board Selection. The Mediation Board shall consist of three (3) qualified mediators selected by the Utility and the Department from the List of Qualified Mediators established by the Department. Procedures for selection of the Mediation Board shall be developed to ensure that one mediator is selected by the Department and one mediator is selected by the Utility. The third mediator on the Board shall be selected by the first two mediators selected to the Mediation Board. If for any reason the two mediators cannot agree upon the third mediator who shall serve as the presiding officer, then that third mediator shall be selected by random drawing from the list of qualified mediators. These three mediators shall form the Mediation Board.

Rule 672-19-.06 Mediation Board Procedures

(1) Petition for Mediation. Whenever a Notice of Potential Dispute regarding an issue outlined in Section 672-19-.04(1) has been filed and at the end of the Escalation Process the potential dispute has not been resolved, the Utility or the Department may file a Petition for Mediation with a request that a Mediation Board be convened to hear and decide the dispute. The Petition for Mediation shall be initiated by sending a copy of the petition to each Party involved in the dispute.
(2) Contents of Petition for Mediation. A uniform Petition for Mediation provided by the Department shall be used. The Petition shall be date-stamped by the Department immediately upon receipt. The following must accompany the Petition:
(a) A certification that the Petitioner has served a copy of the Petition for Mediation on the Department and that formal mediation is being sought;
(b) A narrative statement of the facts underlying the dispute(s), including statements as to what remedy is being sought by the Petitioner and what steps, if any, have previously been taken to resolve the disputes(s);
(c) A notarized signature by the authorized representative of the Petitioner;
(d) A detailed statement of all disputes and issues the Petitioner is submitting for resolution by the Mediation Board and a statement identifying the Parties that are necessary to resolve the dispute. This statement may be amended prior to the hearing subject to approval by the Mediation Board; and
(e) A statement by the Department that the dispute by the Contractor, (if applicable) should proceed.
(3) Response to Petition for Mediation. After submission of the Petition for Mediation, or any amendment thereto, then all parties identified in the Petition may submit to the Mediation Board a response to the Petition for Mediation. The response will be submitted in accordance with time periods established by the Mediation Board, and served on all other parties to the dispute.
(4) Filing Procedures. The Petition for Mediation shall be submitted to the Department. Once the Mediation Board for that dispute is established all additional correspondence and submittals shall be submitted directly to that Mediation Board.
(5) Certification of Petition. Upon receipt of a Petition for Mediation, the Department shall have five (5) working days to review the Petition for Mediation and determine whether it is properly filed. If it is determined that a Petition for Mediation is properly filed, it shall certify the Petition for Mediation. Once the Petition for Mediation is certified, the procedures for the Mediation Board shall begin and the Mediation Board shall be established within 30 days in accordance with 672-19-.05(2). If the Petition for Mediation has been improperly filed, the Petition for Mediation may either be dismissed or the Petitioner may be given the opportunity to take remedial actions to correct any deficiencies. Such corrections must be made within five (5) working days of the date of notification of deficiencies in the Petition for Mediation.
(6) Appeal of Certification. Within two (2) working days after certifying a Petition for Mediation, all necessary Parties shall be provided notice that the Petition for Mediation has been filed and indicate in the notice the nature of the issues in dispute. If a potentially affected Party believes that the Petition for Mediation has been either erroneously certified or that a Petition for Mediation has been erroneously dismissed, that Party may appeal the decision to the Department or its designee. Such appeal must be in writing setting forth the factual basis of the alleged error, signed by an official representing the Party, faxed or mailed to the Department, and received by the Department within five (5) working days of the Department's or designee's notification of potentially affected Parties.
(7) Location of Hearing. The hearing on the disputes and issues submitted by the Petitioner shall be held at a location mutually agreed upon by the utility, the Department, and the Mediation Board. If no agreement can be reached, the Mediation Board shall make a binding decision on such location. The Department shall provide a location for the hearing if mutually desired or if no other location is available. The Mediation Board shall provide reasonable notice in writing to the parties as to the location and the time of the hearing.
(8) Hearing Procedures.
(a) Process. At the hearing, the Mediation Board shall afford each Party an opportunity to present evidence and make an oral argument. At the discretion of the Mediation Board, it may allow for or request written submittals during or following the hearing. Unless the Parties otherwise agree, the provisions of Code Sections 50-13-13, 50-13-14, and 50-13-15, relating to proceedings in a contested case under the Georgia Administrative Procedure Act, shall not apply to the hearing before the Mediation Board. Prior to the hearing and after the hearing has begun, the Mediation Board has sole discretion regarding granting continuances or postponements.
(b) Representation. Each party to the mediation must designate representatives who shall be present at the mediation sessions. Failure of a Party to provide a representative will constitute bad faith on the part of that Party.
(9) Costs. Each Party will pay the costs of the Mediation Board member that it selected. Costs associated with the third Mediation Board member will be divided equally between the Parties. Any other costs not associated with a particular Mediation Board member, including but not limited to hearing room rental, copying charges and court reporter fees, will be divided equally between the Parties. In the event the Mediation Board determines that any Party is acting in bad faith, the Mediation Board may recommend that all costs associated with the Mediation be assessed against that Party.
(10) Decision. The mediators shall decide each issue presented by a majority vote. Within a reasonable time after the conclusion of the hearing, the Mediation Board shall issue a final decision in writing with regard to each dispute that is submitted to the Mediation Board for resolution. The original final decision shall be served on the Department with a copy to every other Party involved in the dispute. Such decision, which shall be a public document, will include a factual summary of the issues involved in the conflict and the procedures followed during the Mediation. All final decisions of the Mediation Board shall be subject to de novo review in the Superior Court of Fulton County by way of a petition for judicial review filed by the Department or the Utility within thirty (30) days after service of the final decision.
(11) Conclusion. The formal mediation period is intended to last until an agreement is reached or 60 days, whichever occurs first. The decision shall be issued within 60 days, unless the parties mutually agree to extend the time for a decision.