(1) Mediation. Mediation is a voluntary process for resolving disputes by which an independent neutral third person, in the role of mediator, assists two or more parties to a controversy in reaching a mutually acceptable resolution. For purposes of OAR division 019, mediation does not pertain to dispute resolution governed by ORS 656.307(6).
(2) Mediator. A mediator is an independent neutral third person whose role is to assist the parties in resolving their dispute by mutual agreement. The mediator has no authority to decide the outcome of the controversy or to force settlement upon the parties. The mediator, for purposes of these rules, is an employee of the Workers' Compensation Board, with the authority of an Administrative Law Judge, who satisfies the qualifications prescribed in OAR 438-019-0010(1) and (2).
(3) Party. For purposes of OAR 438 division 19, party means any person identified in 438-005-0040(10) and any other person identified by the mediator as necessary to the mediation.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.012(2)(b), 656.283(1), 656.283(9) & 656.289(4).
Hist.: WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97; WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02
(1) A mediator shall have completed at least 30 hours of basic mediation training and hold a certificate demonstrating such training.
(2) Such training described in section (1) of this rule shall address the following areas:
(a) Active listening, empathy and validation;
(b) Sensitivity to and awareness of cross-cultural issues;
(c) Maintaining neutrality;
(d) Identifying and reframing interests and issues;
(e) Establishing trust and respect;
(f) Using techniques to achieve agreement and settlement, including creating a climate conducive to resolution, identifying options, working toward agreement, and reaching consensus;
(g) Shaping and writing agreements; and
(h) Ethical standards for mediator conduct adopted by state and national organizations.
Stat. Auth: ORS
Stats. Implemented: ORS 656.012(2)(b), 656.283(1) & (9) & 656.289(4)
Hist.: WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97; WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13
Standards of Mediator Conduct
(1) Mediators have duties to the parties, to their profession, and to themselves. They should be honest and unbiased, act in good faith, be diligent, and never seek to advance their own interests at the expense of the parties.
(2) The mediator must maintain impartiality toward all parties. Impartiality means a commitment to serve all mediation parties as opposed to a single party. The mediator should disclose to the parties any affiliations which the mediator may have with any participant and obtain all parties' consent to proceed as mediator.
(3) The mediator has an obligation to assure that all parties understand the nature of the mediation process, the procedures to be utilized, and the particular role of the mediator. Each party's consent to proceed with mediation should be obtained early, prior to the beginning of substantive negotiations.
(4) The mediator shall inform the parties of their rights to withdraw from mediation at any time and for any reason. If the mediator believes that the parties are unable or unwilling to participate effectively in the mediation process, the mediator should suspend or terminate the mediation. If the parties reach a final impasse, the mediator should not prolong unproductive discussions.
(1) Unless there is a written agreement otherwise, any communication made in mediation which relates to the controversy being mediated is confidential.
(2) The mediator shall create and maintain a separate mediation file. All memoranda, work product, and other materials contained in the mediation file are confidential.
(3) The names and case numbers of cases for which mediation has been requested and the outcomes of those mediations are not confidential.
(4) Any mediation agreement that requires approval by the Administrative Law Judge who mediated the agreement or the Board pursuant to ORS Chapter 656 and OAR Chapter 438 shall not be confidential.
(5) Statements, memoranda, materials, and other tangible evidence that are subject to discovery under the Board's Rules of Practice and Procedure are not confidential unless they were prepared specifically for use in mediation.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.012(2)(b), 656.283(1), 656.283(9) & 656.289(4)
Hist.: WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97; WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08
Standards of Conduct for Attorneys and Parties
(1) Attorneys representing parties in mediation shall know the facts, the applicable law and the issues involved in their case, and understand the interests and needs of their clients which may affect the mediation process.
(2) Attorneys representing parties in mediation shall come to the mediation with authority to settle the issues or bring with them that person or those persons who have such authority.
(3) By consenting to mediation, all parties agree to bargain in good faith.
Requests for Mediation
(1) The parties shall notify the Presiding Administrative Law Judge or designee of their desire to mediate their controversy. The parties may select a mediator from an approved list maintained by the Hearings Division. If the parties do not indicate a choice of mediator or cannot agree, a mediator may be selected by the Presiding Administrative Law Judge or designee.
(2) Persons who are not parties to a mediation may be included in mediation discussions with the consent of the mediator and the parties.
(1) Any resolution involving matters arising under ORS Chapter 656 that is reached by the parties shall be reduced to writing and shall comply with the requirements set forth in OAR Chapter 438.
(2) The parties may, by agreement, resolve issues that arise outside the scope of ORS Chapter 656 and reduce those agreements to writing. Such agreements, however, shall be separate from any agreement resolving the workers' compensation issues and shall not be enforceable by the Workers' Compensation Board.
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