Arkansas Administrative Code › Agency 187 - Alternative Dispute Resolution Commission › Rule 187.00.13-002 - Requirements for the Conduct of Mediation and Mediators for the State Employee Grievance Program

Current through Register Vol. 49, No. 6, June, 2024
The Requirements for the Conduct of Mediation and
			 Mediators in the State Employee Grievance Program
have three primary
			 goals:
1) serve as a guide for the
		  conduct of mediators working in the program;
2) inform the mediating parties; and
3) instill public confidence in the
		  mediation process.
I.
INTRODUCTION
These requirements serve as the foundation for the conduct of
			 mediators practicing in the State Employee Grievance Program. 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.
Violation of
The Requirements for the Conduct of
			 Mediation and Mediators in the State Employee Grievance Program
may
			 result in disqualification from the Commission=s Roster of Mediators for the
			 State Employee Grievance Program.
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 Certified Mediators for
		  the State Employee Grievance Program.
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.
C.
Mediator =s Role.
In mediation, decision-making authority rests with the disputing
		  parties. The role of the mediator includes, but is not limited to, assisting
		  the disputing parties in identifying issues, facilitating communication,
		  focusing the disputing parties on their interests maximizing the exploration of
		  alternatives, and helping the disputing parties reach voluntary agreements. The
		  mediator may offer options for the parties to consider as settlement terms, but
		  is not to judge or impose settlement terms on the parties.
D.
General Principles.
Mediation
		  is based on principles of communication, negotiation, facilitation, and the
		  technique or method of solving problems. It emphasizes:
(1.) The needs and interests of the disputing
		  parties;
(2.) Fairness and the
		  merits of the issues as defined by the parties;
(3.) Procedural flexibility;
(4.) Privacy and confidentiality;
(5.) Full disclosure; and
(6.) Self-determination.
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.
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 except
		  in multi-party disputes in which the parties who are willing and able to
		  participate may reach a resolution.
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 3.
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 intentionally
		  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 may be affected by an agreement
		  resulting from the mediation process and who are not represented in the
		  mediation process.
STANDARD
		  4.
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 future 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 5.
CONFIDENTIALITY
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.
Mandated Reporters
. A mediator who is a mandated reporter must
		  disclose that status to all parties prior to the mediation and again during the
		  mediator=s opening statement at the mediation.
C.
Records and Research Data.
Except as otherwise provided by law, a mediator shall store and dispose
		  of records relating to mediation proceedings in a confidential manner and shall
		  ensure that all identifying information that is not otherwise publicly
		  available 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 6.
MEDIATOR REPORTS
A.
Prohibited Mediator Reports
. Except as permitted in section (B),
		  a mediator shall not make a report, assessment, evaluation, recommendation,
		  finding, or other communication regarding a mediation to a court,
		  administrative agency, or other authority that may make a ruling on the dispute
		  that is the subject of the mediation.
B.
Permitted Disclosures.
(1) A mediator may disclose whether the
		  mediation occurred or has terminated, whether a settlement was reached, and
		  attendance.
(2) A mediator
		  participating in the Arkansas State Employee Grievance Mediation Program may
		  make a report as required by state law relating to the State Employee Grievance
		  Program mediation.
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 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.
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 9.
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.