Arkansas Administrative Code › Agency 187 - Alternative Dispute Resolution Commission › Rule 187.00.01-001 - Requirement for the Conduct of Mediations and Mediators- Rules of conduct to which mediators on the Arkansas Alternative Dispute Resolution Commission's Roster of Mediators must adhere.

Current through Register Vol. 49, No. 6, June, 2024
The Requirements for the Conduct of Mediation and
			 Mediators
have three primary goals:
1) serve as a guide for the conduct of
		  mediators;
2) inform the mediating
		  parties; and
3) instill public
		  confidence in the mediation process. These requirements are drawn from existing
		  codes of conduct for mediators and address issues and problems which have
		  surfaced in mediation practice.
I.
INTRODUCTION
These requirements serve as the foundation for the conduct of
			 mediators practicing in the state of Arkansas. They set out standards of
			 behavior for mediators in relationship to the parties in dispute, fellow
			 mediators, and the citizens of Arkansas.
These requirements are not a comprehensive list of the ethical
			 considerations which should guide the conduct of a mediator. However, they are
			 framework for the ethical practice of mediation.
Nothing in these requirements should be interpreted to establish
			 or augment any substantive legal duty on the part of mediators. Violation of a
			 Standard shall not give rise to a cause of action nor shall it create any
			 presumption that a legal duty has been breached. However, violation of
The Requirements for the Conduct of Mediation and Mediators
may result in disqualification from the Commission's Roster of
			 Mediators.
II
SCOPE,
		  DEFINITION, MEDIATOR'S ROLE, GENERAL PRINCIPLES, AND EFFECTIVE DATE
A.
Scope.
The Requirements set
		  out in this document shall apply to all mediators included on the Arkansas
		  Alternative Dispute Resolution Commission's Roster of Mediators. The Commission
		  recommends that all mediators practicing in the state of Arkansas adhere to
		  these requirements.
B.
Definition of Mediation.
Mediation is a dispute settlement process
		  in which a neutral third party assists disputing parties in reaching a mutually
		  acceptable agreement. The mediator may suggest alternatives, but does not
		  create an agreement for, or impose an agreement on, the parties. Mediation is a
		  non-adversarial process in which the objective is the encouragement and
		  facilitation of a mutually acceptable agreement based on the parties
		  self-determined needs, interests, and values.
III.
STANDARDS
STANDARD 1.
GENERAL
A.
Integrity, Impartiality, and
		  Professional Competence.
Integrity, impartiality, and professional
		  competence are the essential qualifications of any mediator. Professional
		  competence means the knowledge, skill, and thoroughness reasonably necessary
		  for the practice of mediation.
(1.) A mediator
		  shall not accept any engagement, perform any service, or undertake any act that
		  would compromise the mediator's integrity.
(2.) A mediator shall maintain professional
		  competence in mediation skill. This includes, but is not limited to:
(a.) Staying informed of, and abiding by, all
		  statutes, rules, and administrative orders relevant to the practice of
		  mediation; and
(b.) Engaging in
		  educational activities promoting professional growth.
(3.) If the mediator decides that a case is
		  beyond the mediator's competence, the mediator shall decline appointment,
		  withdraw, or request technical assistance.
(4.) A mediator shall be courteous toward a
		  co-mediator and avoid any appearance of conflict with or criticism of a
		  co-mediator in the presence of parties in mediation.
(5.) A mediator shall respect and promote
		  cooperation and understanding among all parties involved in mediation,
		  including , but not limited to, disputants, mediators, attorneys, judges,
		  mental health and social service professionals.
(6.) A mediator shall not practice, condone,
		  or facilitate any form of discrimination against any party on the basis of any
		  characteristic, condition, preference, belief, or status of such
		  party.
B.
Concurrent Standards.
Nothing contained herein shall replace,
		  eliminate, or render inapplicable relevant ethical standards not in conflict
		  with these rules that may be imposed upon any mediator by virtue of the
		  mediator's profession.
STANDARD 2.
RESPONSIBILITIES TO COURTS
A mediator shall be candid, accurate, and fully responsive to a
			 court concerning the mediator's qualifications, availability, and other matters
			 pertinent to his or her being selected to mediate. A mediator shall observe all
			 administrative policies, procedural rules, and statutes that apply to
			 mediation. A mediator shall refirain from any activity that has the appearance
			 of improperly influencing a court to secure placement on a roster of mediators
			 or appointment to a case.
STANDARD
		  3.
THE MEDIATION PROCESS
A.
Orientation Session.
In
		  order for parties to exercise self-determination they must understand the
		  mediation process. At the beginning of the mediation session, the mediator
		  should explain the mediation process. This explanation should include:
(1.) the role of the mediator is as a neutral
		  party who will assist and encourage the parties to make informed and voluntary
		  decisions that can lead to settlement. The mediator is not an authority of fact
		  or law in the session. All settlement decisions are to be made by the parties,
		  not the mediator.
(2.) the role of
		  the mediator can include, but is not limited to:
(a.) assisting the parties by facilitating
		  communication;
(b.) encouraging
		  engagement and autonomy in the process;
(c.) clarifying and reality testing
		  issues;
(d.) reducing obstacles to
		  decision making;
(e.) encouraging
		  parties to evaluate options;
(f.)
		  encouraging an informed and voluntary agreement;
(3.) the procedure that will be followed
		  during the mediation session or sessions;
(4.) the pledge of confidentiality that
		  applies to the mediation process;
(5.) the fact that the mediator does not
		  represent either party and will not give professional advice. If expert advice
		  is needed, the parties will be expected to consult with experts other than the
		  mediator; and
(6.) the fact that
		  the mediator is responsible for promoting a reasonable negotiating atmosphere.
		  A safe and neutral environment is expected and shall be controlled by the
		  mediator to the point of stopping the mediation if maintaining safety is in
		  jeopardy.
Further, in the event a party is not represented by an attorney,
			 the mediator should explain:
(a.) that
		  the parties are free to consult legal counsel at any time and are encouraged to
		  have any settlement agreement resulting from the mediation process reviewed by
		  counsel before they sign it; and
(b.) that a mediated agreement, once signed,
		  is binding and can have a significant effect upon the rights of the parties and
		  upon the status of the case.
B.
Continuing Mediation.
A
		  mediator shall withdraw from a mediation if the mediator believes the mediation
		  is being used to further illegal conduct. A mediator shall withdraw if the
		  mediator believes any agreement reached would be the result of fraud, duress,
		  overreaching, the absence of bargaining ability, or unconscionability. A
		  mediator shall not prolong a mediation session if it becomes apparent that the
		  case is unsuitable for mediation or if one or more of the parties is unable or
		  unwilling to participate in the mediation process in a meaningful
		  manner.
C.
Avoidance of
		  Delay.
A mediator shall perform mediation services in a timely and
		  expeditious fashion, avoiding delays whenever reasonably possible. A mediator
		  shall refrain from accepting additional appointments when it becomes apparent
		  that completion of mediation assignments already accepted cannot be
		  accomplished in a timely fashion.
STANDARD 4.
SELF-DETERMINATION
A.
Parties' Right and Obligation to
		  Decide.
A mediator is to assist the parties in reaching an informed and
		  voluntary agreement. Substantive decisions made during mediation are to be made
		  voluntarily by the parties.
B.
Prohibition of Coercion.
A mediator shall not coerce or unfairly
		  influence a party into entering into a settlement agreement.
C.
Misrepresentation Prohibited.
A mediator shall not inentionally misrepresent material facts or
		  circumstances in the course of a mediation.
D.
Balanced Process.
A mediator
		  shall encourage a reasonably balanced process and encourage the parties to
		  participate in the mediation proceedings in a non-adversarial manner.
E.
Responsibility to Nonparticipating
		  Parties.
A mediator may promote consideration of the interests of
		  persons who maybe affected by an agreement resulting from the mediation process
		  and who are not represented in the mediation process.
STANDARD 5.
IMPARTIALITY AND CONFLICTS
		  OF INTEREST
A.
Impartiality.
A mediator is expected to be impartial and advise all parties of any
		  circumstances that may result in possible bias, prejudice or impartiality on
		  the part of the mediator. Impartiality means freedom from favoritism or bias in
		  work, action, and appearance. Impartiality implies a commitment to aid all
		  parties, as opposed to one or more specific parties, in moving toward an
		  agreement.
(1.) a mediator shall maintain
		  impartiality while raising questions for the parties to consider concerning the
		  fairness, equity, and feasibility of proposed settlement options.
(2.) a mediator shall withdraw from mediation
		  if the mediator believes he or she can no longer remain impartial.
B.
Required Disclosures and
		  Conflicts of Interest.
(1.) A mediator
		  shall disclose to the disputing parties the following:
(a.) any current or past representation of,
		  or consulting relationship with, any party or the attorney of any party
		  involved in the mediation.
(b.) any
		  monetary interest the mediator may have in common with any of the parties or
		  that may be affected by the outcome of the mediation process.
(c.) known potential conflicts, including
		  membership on a board of directors, full or part-time service as a
		  representative or advocate, consultation work performed for a fee,
		  arrangements, or any other form of managerial, financial, or immediate family
		  interest with respect to a party involved. A mediator who is a member of a law
		  firm is obligated to disclose any representation of any of the disputing
		  parties by the mediator's firm or a member of that firm of which the mediator
		  is aware.
(d.) any close personal
		  relationship or other circumstances, in addition to those specifically
		  mentioned in this Standard, that might reasonably raise a question as to the
		  mediator's impartiality.
(2.) Mediators establish personal
		  relationships with many representatives, attorneys, other mediators, and
		  members of various other professional associations. Mediators should not be
		  secretive about such friendships or acquaintances, but disclosure of these
		  relationships is not necessary unless the relationship is one of those
		  mentioned in this Standard or some feature of a particular relationship which
		  might reasonably appear to impair impartiality.
(3.) Prior service as a mediator in a
		  mediation involving a party or an attorney for a party does not constitute
		  representation of the party or consultation work for the party. However,
		  mediators are strongly encouraged to disclose such prior relationships.
		  Mediators are expected to disclose any ongoing relationship with a party or an
		  attorney for a party involved in a mediation, including membership on a panel
		  of persons providing mediation, arbitration, or other alternative dispute
		  resolution services to that party or attorney.
(4.) A mediator shall not provide counseling,
		  therapy, or give legal advice to any party during the mediation
		  process
(5.) A mediator who is a
		  lawyer shall not represent a party involved in the mediation or any case
		  related to the mediation.
(6.) All
		  disclosures required by this Standard shall be made as soon as practical after
		  the mediator becomes aware of the interest or the relationship.
(7.) The burden of disclosure rests on the
		  mediator and continues throughout the mediation process. After appropriate
		  disclosure, the mediator may mediate the dispute if all parties to the
		  mediation agree to the mediator's participation and that agreement is reduced
		  to writing. If the mediator believes that the relationship or interest would
		  affect the mediator's impartiality, he or she shall withdraw, irrespective of
		  the expressed desires of the parties.
(8.) A mediator shall not use the mediation
		  process to solicit any party to the mediation concerning feature professional
		  services.
(9.) A mediator shall
		  avoid the appearance of a conflict of interest both during and after the
		  mediation. Without the consent of all parties, a mediator shall not
		  subsequently establish a professional relationship with one of the parties in
		  the same or a substantially related matter.
STANDARD 6.
CONFlDEIVTIALITY
A.
Confidentiality.
A mediator
		  shall preserve and maintain the confidentiality of all mediation proceedings as
		  permitted by state statute except where required by law to disclose information
		  gathered during the mediation.
B.
Records and Research Data.
A mediator shall store and dispose of
		  records relating to mediation proceedings in a confidential manner and shall
		  ensure that all identifying information is removed and the anonymity of the
		  parties is protected when materials included in those records are used for
		  research, training, or statistical compilations.
STANDARD 7.
PROFESSIONAL ADVICE
A.
Generally.
A mediator shall
		  not provide information which he or she is not qualified by training or
		  experience to provide.
B.
Independent Legal Advice.
When a mediator believes a party does
		  not understand or appreciate how a potential agreement reached through the
		  mediation process may adversely affect the party's legal rights or obligations,
		  the mediator shall advise the participants to seek independent legal
		  advice.
C.
Participation of
		  Parties.
If any party to the mediation is unrepresented or unable to
		  participate in the mediation process for psychological or physical reasons, a
		  mediator shall postpone or cancel mediation until such time as all parties are
		  able to participate.
D.
Personal or Professional Opinion.
A mediator may discuss possible
		  outcomes of a dispute, but a mediator shall not offer a personal or
		  professional opinion regarding the likelihood of any specific outcome.
STANDARD 8.
FEES
		  AND EXPENSES; PRO BONO SERVICE
A.
General Requirements.
A mediator occupies a position of trust with
		  respect to the parties and the court system. In charging for services and
		  expenses, the mediator shall be governed by the same high standards of honor
		  and integrity that apply to all other phases of the mediator's work. A mediator
		  shall be scrupulous and honest in billing and should avoid charging excessive
		  fees and expenses for mediation services.
B.
Records.
A mediator shall
		  maintain adequate records to support charges for services and expenses and
		  shall make an accounting to the parties or to the court upon request.
C.
Referrals.
No commissions,
		  rebates, or similar remuneration shall be given to or received by a mediator
		  for referral of persons for mediation or related services.
D.
Contingent Fees.
A mediator
		  shall not charge or accept a contingent fee or base a fee in any manner on the
		  outcome of the mediation process.
E.
Minimum Fees.
A mediator may
		  specify in advance minimum charges for scheduling or conducting a mediation
		  session without violating this Standard.
F.
Disclosure of Fees.
When a
		  mediator is contacted directly by the parties for mediation services, the
		  mediator has a professional responsibility to respond to questions regarding
		  fees by providing a copy of the basis for charges including all fees and
		  expenses.
G.
Pro Bono
		  Service,
Mediators are encouraged to meet the needs of those unable to
		  pay for their services by offering their services pro bono or at a reduced rate
		  of compensation whenever appropriate.
STANDARD 9.
TRAINING AND
		  EDUCATION
A.
Training.
A
		  mediator is obligated to acquire knowledge and training in the performance of
		  the mediation process, including an understanding of appropriate professional
		  ethics, standards, and responsibilities. Upon request, a mediator shall
		  disclose the extent and nature of the mediator's education, training, and
		  experience to the parties, the parties' attorneys, the judge in the case or the
		  Arkansas Alternative Dispute Resolution Commission.
B.
Continuing Education.
It is
		  important that mediators continue their professional education as long as they
		  are actively serving as mediators. A mediator shall be personally responsible
		  for ongoing professional growth, including participation in such continuing
		  education as may be required by law or rule of the Arkansas Alternative Dispute
		  Resolution Commission or any other appropriate authority.
C.
New Mediator Training.
An
		  experienced mediator should cooperate in the training of new mediators,
		  including serving as a mentor.
STANDARD 10.
ADVERTISING
Advertising or any other communication with the public concerning
			 mediation services offered by the mediator or regarding the education,
			 training, and expertise of the mediator shall be truthful. Mediators shall
			 refrain from making promises and guarantees of results.
STANDARD 11.
ADVANCEMENT OF
		  MEDIATION
A mediator should support the advancement of mediation by
			 encouraging and participating in research, evaluation, or other forms of
			 professional development and public
			 education.