Ark. ADR Comm'n Req. Conduct Mediation STANDARD 3

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.