582-020-0045 Mediation (1) Participation in the mediation process is voluntary. If the Program declines to participate following a request for mediation under OAR 582- 020-0035, the Program shall provide written Notice of Proposed Action to the client that mediation is declined and the client shall be advised of their right to request a hearing, if a request for a hearing is not already pending. (2) Selection of mediator: (a) The Program shall select mediators who are listed on the Oregon State Appropriate Dispute Resolution (ADR) Provider Roster of the State of Oregon Department of Justice, who have indicated an interest or expertise in disability-related issues, and who meet the requirements of a qualified and impartial mediator. (b) Upon receipt of a timely request for mediation from the client, the Program shall contact, on a rotating basis, a mediator who is geographically near the Program office of the client. If that mediator is not available within two weeks, the Program shall contact other mediators using this same identification process until one is identified who can provide timely services. If no mediator is mutually selected from the pool of mediators geographically near the Program office of the client, the Program shall contact, on a rotating basis, mediators from a wider geographic range. (c) Each party shall be given the opportunity to agree to or reject an identified mediator prior to the beginning of mediation services. (3) Agreement to mediate: (a) Prior to the beginning of the first mediation session, the parties shall sign the Program-approved "Agreement to Mediate" form. (b) The mediation shall occur between the Program counselor or assigned Program employee and the client. The parties may have a representative assist them in the mediation. The inclusion or participation of any other individuals for either side shall be at the discretion of the mediator, unless otherwise prohibited by law. (4) Conclusion of mediation: (a) At any point during the mediation process, either party or the mediator may elect to terminate the mediation. (b) A successful mediation shall be concluded with a final written mediation agreement prepared by the mediator. The parties must agree to and sign the agreement for it to be effective in resolving the case. The parties shall be given a copy of the signed agreement. (A) The final agreement shall become part of the case file record, unless otherwise agreed. (B) If the agreement includes any changes to the Individualized Plan for Employment (IPE), a revision to the IPE or amended IPE that incorporates the changes shall be in writing and signed by the Program and the client. (c) If an agreement is not reached, the Program shall provide the client with written Notice of Proposed Action that the mediation process has ended and advise the client of their right to request an impartial due hearing process within the timeframes specified in OAR 582-020-0035, if a hearing request is not already pending. (5) Confidentiality of mediation: (a) All mediation communications, including discussions, memorandum, work product, draft mediation agreements, or any other documents prepared for, submitted, or made in the course of mediation, shall be confidential and may not be used as evidence in any subsequent impartial due process hearing or other civil proceeding, unless otherwise required by law. (b) A written mediation agreement that arises out of mediation, including any term or condition of the agreement, is not confidential and may be used as evidence in any subsequent impartial due hearing process or other legal proceeding. (c) Notwithstanding any other provision of these rules, the mediator, the Program, and the client may retain any mediation documentation to the extent it is necessary for administrative or payment purposes, or to comply with applicable laws, including but not limited to the Public Records law. Statutory/Other Authority: ORS 344.530 & 344.590 Statutes/Other Implemented: ORS 344.530, 344.540 & 344.590 History: VRS 1-2023, amend filed 03/31/2023, effective 04/14/2023 VRS 3-2020, adopt filed 02/21/2020, effective 03/06/2020