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A spectrum of options is available to help parties better understand each other and resolve any differences between them.
Obviously, the less time, hassle, and emotion expended in dispute resolution, the better the result will be. This is not only true for the property owner, but also for the government entity which has other pressing matters to work on and limited time and money for argument.
This effort by a neutral third party to bring two sides together is in marked contrast to the traditional alternatives. In some cases where legitimate concerns about property rights exist, the prospect of fighting the matter out politically or in the court room proves too intimidating for the property owner, and his or her interests are lost by default. This is one of the reasons that the office of Ombudsman was created.
Beginning with the least intrusive and most informal approach to dispute resolution and moving to the other end of the spectrum, we first attempt to simply communicate and inform.
Information/Communication: Many cases are not really about the constitutional safeguards anyway. Politics, personalities and precedent are often really at the heart of finding a resolution. Communication of information and the presence of an independent neutral third party in the discussion can often resolve matters quite quickly with minimal damage to the long-term relationships that are so essential to good government and citizenship.
Conciliation: If both parties to a dispute can put behind them the friction that may have developed between them and view the issues from the perspective of the other side, a resolution may be close at hand. Experience has shown that Utah agencies and local governments do not intentionally set out to abuse private property owners. Likewise, most property owners are not out to gain an unfair advantage over the governments. Usually some effort to help one side understand the intent of the other can close much of the chasm that separates them.
Negotiation: Without imposing his own view, the Ombudsman can often pass along ideas for settlement from one party to another. Careful listening to the real intent and desire of each party can often suggest middle ground that resolves a dispute. Ideally, a suggestion that the parties get together and negotiate solves the problem without the Ombudsman having to participate.
Mediation: This more formal step is available if other options do not succeed. Mediation involves some formality in meeting with the parties, having an organized exchange, and setting deadlines for results. The third party neutral involved remains only a facilitator, however, and the parties are still in control of the solution without the need of any evaluation by the mediator.
Opinion: At this stage of the dispute resolution spectrum, a third party neutral begins to evaluate and express an opinion. The Ombudsman is empowered by statute and tradition to offer an expert opinion on the merits of each party's position if the matter involves the law of private property "takings". One way to describe the result is that he can provide a "preliminary prediction of the probable result" if the matter were to go to court. Sometimes this helps those involved realize that a position taken is not realistic. The Ombudsman's opinions are not binding, and not admissible in court if the matter goes to litigation, except in limited circumstances.
Arbitration: A final step in the alternative dispute resolution process, arbitration can be fairly formal. While the property owner need not have an attorney present, many do. Evidence is presented and weighed and witnesses can be subpoenaed and compelled to testify under oath. A record is kept of the proceedings. If neither party appeals the result of arbitration, the decision of the arbitrator or arbitrators acts as a final resolution of the dispute. Arbitration can be arranged by the Ombudsman. To date, he rarely has acted as the arbitrator himself, since to do so would limit other options for resolution short of formal arbitration.
Litigation: If all else fails, or if either party to an arbitration appeals the result, there is always the right to litigate that is preserved by the Constitution of the State of Utah. It is to be hoped that even if this eventuality cannot be avoided, at least the dispute resolution process may have narrowed the issues for trial and allowed the parties to evaluate their cases efficiently.