About Mediation and Arbitration

Mediaiton 1The Office of the Property Rights Ombudsman (“OPRO”) offers free mediation and arbitration services to private property owners whose property rights are affected by government action. If you would like to request mediation or arbitration from the OPRO, please fill out and send in the request form obtained by clicking on the “Request for Mediation or Arbitration” button at the top of this page.

You will find information about mediation and arbitration below. If you have further questions, please contact us.

Why Does the Ombudsman Provide Mediation and Arbitration Services?

The Utah Legislature created the Office of the Property Rights Ombudsman to assist Utah citizens when government action affects their property rights, and to help resolve property rights disputes without the need to pursue costly and stressful litigation. Mediation and arbitration are means to try to resolve disputes without having to go to court.

Is There a Fee for Your Mediation and Arbitration Services?

When the OPRO staff attorneys act as mediator or arbitrator, there is no fee for the mediation and arbitration services provided by our office.

What Types of Disputes Does the Ombudsman Mediate or Arbitrate?

Under Utah law, the OPRO is able to mediate and arbitrate disputes involving eminent domain, relocation, and takings.  (See § 13-43-204 of the Utah Code.)   Below are brief descriptions of these areas of law.

a.  Eminent domain (or condemnation) occurs when the government (or in certain instances, a private company) takes your land for a public purpose. The condemnor must pay you just compensation for your land.

b.  Relocation is related to eminent domain law and arises when condemnation makes it necessary to relocate a home or business. Under the Utah Relocation Assistance Act, the condemnor may provide relocation assistance to eligible owners who have been displaced.

c.  A taking occurs when private property is taken or substantially restricted by the government or used for a public purpose so that compensation is due to the property owner, but no compensation or inadequate compensation is offered.

For informational purposes, the following is a partial list of actions by government entities that may be mediated or arbitrated with the OPRO:

A.  When private property is taken for government purposes through condemnation and compensation is offered.

B.  When possession of private property is taken but no compensation is offered.  (The law may allow this in cases of criminal seizures, tax liens, payment of debts to the government, and other similar exceptions.)

C.  When property owners or tenants are displaced by a government action.  Relocation costs, replacement residences, and other related damages may be compensable under the law.

D.  Substantial interference with fundamental property rights, such as 1) the right to sell property, 2) the ability to pass property on to one’s heirs, 3) having reasonable access, 4) having air, light, and view, 5) excluding other people from entering onto the property, 6) being free from nuisances such as noise, vibration, odors, and excessive light, and 7) otherwise enjoying peaceable and independent use of the property.

E.  Excessive regulation of the property so that no economically viable uses remain for it.

F.  Regulatory interference with reasonable expectations for return on investment in property.

G.  Damaging of property by continual or reccurring intrusion onto property by flood waters or other repetitive and predictable physical entry onto the property.

H.  Requiring excessive payments or conditions in order to obtain a permit or approval to conduct a legal use on the property.

I.  Interfering with vested rights, such as grandfathered uses or final development approvals.

J.  A regulation which requires that something be permanently placed on the property.

K.  Other cases not listed above, but where a government action is permanent, intentional, and results in loss of property value.  Not all such cases are compensable, but all compensable cases involve these elements.

These examples are provided as guidelines and determining whether your specific situation falls into one of these categories will depend on the specific facts of your matter.  Please call the OPRO to discuss your particular situation.

What is Mediation?

Mediation is a negotiation conducted or facilitated by a neutral third party who works with you and the condemning agency to arrive at a mutually agreeable settlement.

How Does Mediation With the Ombudsman Work?

Mediation 2The format of mediation depends on the circumstances, and the comfort and wishes of the property owner who requested it. The Ombudsman will discuss mediation with the parties in advance and consider the objectives of both sides  in planning the mediation. Typically the property owner, the condemning party and the Ombudsman begin by discussing the outstanding issues.  After the initial discussion, the parties often will separate to discuss issues and settlement offers privately.  Each party remains in control of the outcome, and neither party is obligated to agree to any settlement in mediation.

Where do Mediation Proceedings Take Place?

Mediation RoomThe mediation proceedings may take place in the OPRO offices in Salt Lake City, or at a different location in Utah based on the agreement of the parties. The OPRO’s attorneys are able to travel to mediations throughout Utah in order to reduce the burden and expense to the property owner.

Who May Request Mediation With the Ombudsman?

Utah law provides that a property owner may request mediation to resolve property rights disputes with a government entity.  If you want to mediate and mediation through the OPRO is appropriate, the condemning agency involved is obligated to participate.

How Do I Start the Mediation Process?

The mediation process is initiated by filling out the Request Mediation form, which can be found here, and sending the completed form to the OPRO.

What Happens After I Request Mediation?

Mediation RequestUpon receipt of the Request Mediation form, the OPRO sends a copy to the condemning agency to notify it of the request.  If the OPRO determines the request is appropriate,  it will proceed with the mediation.  Under Utah law, if the OPRO determines that the matter is not ready or appropriate for mediation, then the OPRO may decline to mediate the matter.  Once the condemning agency is notified and mediation is determined to be appropriate, the OPRO and the property owner consult together to determine the best way to proceed.

Can You Stop a Court Case From Moving Forward if I Have Requested Mediation?

Generally, no. The OPRO has standing to request a court to stay (or temporarily stop) a case while mediation is pending.  The decision of whether or not to stay a proceeding belongs to the judge.  However, in nearly every case the parties are able to agree to a mediation schedule, so requesting a stay is rarely necessary.  Utah law does not authorize the OPRO to request a stay of a court proceeding on a request to obtain immediate occupancy of a property.

What Options Do I Have if Mediation is Not Successful?

If mediation is unsuccessful, you can continue negotiations to try to reach settlement, arbitrate the dispute through the OPRO, or you may contest the issue in court and let a judge decide.

What is Arbitration?

Arbitration is a more formal type of dispute resolution than mediation (but still much less formal than litigation). One or more neutral third parties serve as the arbitrator(s) and conduct the proceeding. The parties meet together and informally present the evidence and the law to the arbitrator. The arbitrator reviews the evidence and law, and issues a decision.

How Does Arbitration With the Ombudsman Work?

An arbitration hearing through the OPRO is similar to a court hearing, only it is much less time consuming and is less formal.  The parties may present evidence regarding the issues, and can even introduce witness testimony and cross examine witnesses.  After the evidence is introduced, the neutral third party serving as arbitrator will issue a formal award resolving the issues based on the law and the evidence presented in the hearing.

How Long Does it Take to Arbitrate a Dispute?

If the participants’ schedules allow it, the OPRO usually can schedule arbitration quickly.  Typically, once scheduled, an arbitration hearing with the OPRO can nearly always be completed in less than one day.

What if I Don’t Agree With the Arbitration Award?

Unless the parties agree in advance that the arbitration award would be binding, the award may be appealed to district court within the time provided by law.  If the decision is appealed, the court will rehear the evidence and come to an independent decision.  Be aware, though, that failing to appeal the decision within the legal time frame could result in the arbitration award becoming binding and enforceable by either party.

Do I Need an Attorney to Participate in Mediation or Arbitration With the Ombudsman ?

There is no obligation to have an attorney represent you at arbitration with the OPRO. You can decide whether you would like to hire an attorney to represent you.

Can the Ombudsman Provide Me With Anything to Help Make my Case?

In most cases, in order to prove a claim regarding compensation and damages in a condemnation or takings matter, a property owner will need an appraisal.  The Utah Legislature provided the OPRO with the ability to order an appraisal at a property owner’s request if the additional appraisal is reasonably necessary to resolve the dispute.  The condemning party will pay for this appraisal. The OPRO can also provide information about the law if requested.

Do I Have a Right to Receive a Free Appraisal When my Property is Condemned?

Appraisal CoverProperty owners have the right to receive mediation or arbitration services from the OPRO. As part of the mediation process, they have the right to request that the condemning entity provide a second appraisal. However, the decision whether to provide that second appraisal is made by the mediator, after a determination of whether that additional appraisal is reasonably necessary to resolve the dispute.

I Work For an Agency That has Eminent Domain Authority.   What Help Can You Offer Me?

Please call the OPRO and we will help you. The OPRO is engaged in this area of the law every day, and we use that experience to assist all parties to obtain their objectives while protecting property rights. Moreover, under Utah law, the OPRO has a duty to assist and educate both condemnors as well as property owners.  You may request training, discuss a specific question or simply ask about how the process works by clicking the “Request Training” button above.

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