Appropriate Dispute Resolution:
Achieving effective outcomes

Appropriate Dispute Resolution (ADR) is an important factor in how the ERCB fulfills its commitment to regulate Alberta’s energy resources in the public interest.

Albertans and energy companies find unique solutions to balance different interests, which allow them to define their own version of "the public interest" to suit their specific situation.

In operation since 2001, the ADR program is used primarily by affected parties when concerns and objections persist following negotiations between landowners and companies. Occasionally ADR is used to resolve issues between companies themselves. ADR directly engages the two sides, allowing them to work collaboratively to reach outcomes that both can support. ADR helps the parties develop a clear understanding of the issues and interests and then facilitates defining for resolution options.

Through the ADR process, industry and landowners are able to successfully negotiate concerns about most proposed energy activities. About 2061 of the roughly 44 000 applications the ERCB received in 2008 had outstanding objections. Some of the parties that held objections turned to ADR; of the 129 staff facilitations and 12 third-party mediations completed last year, 94 per cent were resolved.

ADR is a straightforward process that carries with it few costs. In fact, the money and time that can be saved by avoiding the hearing process is substantial: 29, or 40 per cent, of the ERCB’s scheduled hearings for 2008 were cancelled following ADR involvement. The benefits of ADR go far beyond merely resolving issues. ADR discussions often foster trust among participants that can endure for the lifespan of an energy development. In addition, companies that train their staff to negotiate effectively and work closely with landowners before submitting an application enjoy better relationships with the broader community and a smoother regulatory process.

When Is ADR Used?

The ERCB’s ADR program is used when concerns and objections remain outstanding following negotiations between landowners and companies or between two companies (C2C). Most disputes resolved by ADR relate to proposed facility applications (wells, pipelines, and plants). To a lesser extent, ADR also assists in C2C equity applications, such as spacing, pooling, rateable take, and common carrier or processor.

ADR directly involves the parties, who work collaboratively to reach mutually agreeable solutions. ADR helps the sides develop a clear understanding of their issues and interests and then facilitates defining resolution options.

The two main components of the ADR program are ERCB staff facilitation (formerly known as "field facilitation") and third-party assistance from ADR professional service providers and mediators. ERCB staff assist parties in understanding regulatory requirements and facilitate meetings to discover mutually agreeable options. Staff facilitation usually occurs prior to a company submitting an application but after the company has attempted to resolve the concerns of stakeholders. Staff normally assist through direct meetings and by speaking with each of the involved parties.

Third-Party Assistance

Third-party professional service providers and mediators are used in more complex and/or multiparty disputes to develop mutually beneficial outcomes. They may be used when there are concerns about deadlines, disputes involving multiple parties, or difficulties engaging other parties. The first step involving third-party professionals is a preliminary meeting when the parties, assisted by the third-party professional and ERCB staff, discuss procedures and reach agreement on how to move forward. This often involves mediation. In these situations, the significance of a preliminary meeting has become increasingly important and it has been linked to many successfully resolved disputes.

ADR options sometimes deal with confidential matters. It should be noted that ERCB staff involved in these matters do not participate in any related hearings, should they occur.

Developments in 2008

In 2008, the ERCB strengthened its ability to deliver the ADR program. In response to growing demand for its services, the ADR team grew from five to eight employees last year. This staffing increase not only allows the ADR team to carry out more staff facilitations and C2C mediations, but also to offer better outreach to industry, the public, and staff from other ERCB departments.

Besides the numerous staff facilitations and C2C mediations conducted in 2008, the ADR group launched new training courses that aim to improve conflict resolution and communication skills. In the past, such courses were conducted by an outside contractor and were only offered a couple of times a year to larger internal groups. Now they are given by ADR staff and can be delivered anytime, anywhere, to a group of any size. While up until now they have been offered solely to ERCB employees, a pilot program planned for 2009 will see a shortened course offered to interested community groups.

Last year ADR staff continued to meet with industry and encouraged companies to take an “interest-based” approach when dealing with landowners. This approach involves identifying concerns early on and understanding what issues lie behind them. ADR staff also delivered presentations to Alberta synergy groups; the ERCB continues to be an active supporter of Synergy Alberta.