Utah Courts
ADR Rule 104 (Rules of Court-Annexed Alternative Dispute Resolution)
ADR Rule 104 (Rules of Court-Annexed Alternative Dispute Resolution)
Rule 104. Code of ethics for ADR providers.
This Code applies to (1) arbitrators and mediators on the court roster acting pursuant to these rules and Code of Judicial Administration Rule 4-510.05, and (2) Online Dispute Resolution (ODR) facilitators acting pursuant to Utah Supreme Court Standing Order No. 13 and court rules that govern small claim ODR procedures. These arbitrators, mediators, and ODR facilitators are referred to collectively in this Code as “ADR providers” or “providers.” A court may impose sanctions against an ADR provider for violations of this Code which raise a substantial question as to the provider’s partiality . But a violation of this Code does not provide grounds to judicially review arbitration awards made under the court-annexed ADR program.
Canon I. An ADR Provider Should Uphold the Integrity and Fairness of the ADR Program.
(a) Alternative Dispute Resolution, including ODR, is an important and proven method for resolving disputes. In order for ADR to be effective, there must be broad public confidence in the integrity and fairness of the process, similar to the confidence the public has in judges who adjudicate cases in this state. Like judges, ADR providers must observe high standards of ethical conduct so that the integrity and fairness of the process will be preserved. Accordingly, ADR providers should recognize their responsibility to the court, to the public, to the parties, and to all other participants in the ADR processes. The provisions of this Code should be construed and applied to advance these objectives.
(b) For a case that is referred to arbitration, mediation, or ODR facilitation, a provider should accept an appointment only if the provider is in a position to adhere to the specific time limits for the proceedings as provided in the rules.
(c) After accepting appointment to and while serving as provider for a particular case, an ADR provider should avoid entering into any financial, business, professional, family, or social relationship, or acquiring any financial or personal interest which (1) is likely to affect the provider’s impartiality or (2) might reasonably create the appearance of partiality or bias. For a reasonable time after an ADR proceeding has been concluded, the provider should avoid entering into any such relationship, or acquiring any such interest, under circumstances which might reasonably create the appearance that the provider had been influenced in the proceeding by the anticipation or expectation of the relationship or interest.
(d) An ADR provider should act in a manner that is fair to all parties and their counsel; a provider should not be swayed by outside pressure, public clamor, fear of criticism, or self-interest.
(e) An ADR provider should neither exceed the authority delegated to the provider nor do less than is required to exercise that authority.
(f) An ADR provider should make all reasonable efforts to prevent delaying tactics, harassment of parties or other participants, or other abuse of, or disruption to, the ADR processes.
(g) The ethical objectives of an ADR provider begins prior to acceptance of the appointment to a particular case and continues throughout all stages of the proceedings. In addition, wherever specifically set forth in this Code, certain ethical obligations continue even after the award in the case has been made or after the case has been successfully resolved.
(h) A mediator or arbitrator should not directly contact a party to solicit the selection of that provider in a particular case if the party is represented by counsel.
(i) An ADR provider should refrain from promises and guarantees of results. A provider should not advertise statistical settlement data or settlement rates.
(j) An ADR provider should accurately represent the provider’s qualifications. In an advertisement or other communication, a mediator may refer to meeting state, national, or private organizational qualifications only if the entity referred to has a procedure for qualifying mediators and the mediator has been duly granted the requisite status.
(k) A mediator should have the participants sign a written agreement to mediate their dispute.
(l) A mediator should include in the participants’ written agreement to mediate a description of their fee arrangement with the provider.
Canon II. Disclosure And Disqualification.
(a) When requested to serve, an ADR provider should carefully consider prior to accepting a case whether the provider has:
(1) any financial or personal interest in the outcome of the proceeding;
(2) any existing or past financial, business, professional, family, or social relationships which are likely to affect their impartiality or which might reasonably create an appearance of partiality or bias;
(3) any existing or past financial, business, professional, family, or social relationship with a party, the party’s lawyer, the lawyer’s law firm, or with any individual who may serve as a witness in the ADR proceeding which are likely to affect their impartiality or which might reasonably create an appearance of partiality or bias; and
(4) any existing or past financial, business, professional, family, or social relationship between a party, a party’s lawyer, the lawyer’s law firm, or a witness in the ADR proceeding and the provider’s family, current employer, partner, or significant business associate which are likely to affect their impartiality or which might reasonably create an appearance of partiality or bias.
(b) An ADR provider should make a reasonable effort to be informed of any interests or relationships of the kind described in paragraph (a).
(c) The obligation to consider interests or relationships described in paragraph (a) is a continuing duty which requires an ADR provider who accepts an appointment to disclose, at any stage of the ADR proceeding, any such interests or relationships which may arise, or which are recalled or discovered.
(d) If a relationship or interest exists that may create an impression of partiality or bias, but that, in the judgment of the ADR provider, poses no obstacle to objectively evaluating the case, making an arbitration award, or facilitating or mediating the matter, the provider should disclose that interest or relationship as early as possible in the course of the ADR proceeding or withdraw from the appointment. Such disclosure should be made to all parties and their attorneys and, where the matter is being arbitrated, to the other arbitrators.
(e) If an ADR provider determines that existing interests and relationships preclude participation as a provider and constitute grounds for self-disqualification or recusal, the ADR provider should recuse.
(f) If a mediator or ODR facilitator is requested by any party to withdraw, the mediator or ODR facilitator should do so. If an arbitrator is requested to withdraw by any party because of alleged partiality or bias, the arbitrator must withdraw.
Canon III. An ADR Provider Should Conduct a Proceeding Fairly And Diligently.
(a) An ADR provider should conduct a proceeding in an evenhanded manner and treat all parties with impartiality at all stages of the proceeding.
(1) Impartial means free from favoritism or bias in word, action, or appearance, and includes a commitment to assist all participants as opposed to any one individual.
(2) An ADR provider should guard against bias or partiality based on the participants’ personal characteristics, background, or performance at the proceeding.
(b) An ADR provider should perform the provider’s duties diligently and conclude the case as promptly and efficiently as the circumstances or court order or rule reasonably permit, without compromising the interests of justice.
(c) An ADR provider should be patient with and courteous to the parties, their attorneys, and any witnesses. They should encourage similar conduct by all participants in the proceedings.
(d) Unless otherwise agreed by the parties, mediators and arbitrators should accord to all parties the right to appear in person and to be heard after due notice in writing of the date, time, and place of hearing.
(e) An ADR provider should not deny any party the opportunity to be represented by counsel.
(f) Where any party fails to appear, an arbitrator may proceed with a scheduled arbitration only after ensuring that appropriate written notice was provided to the absent party.
(g) If a panel is selected for arbitration, the chair should permit and encourage all arbitrators to participate equally in the arbitration process.
(h) Mediators and ODR facilitators must inform the participants that they may withdraw from the process at any time and are not required to reach an agreement. However, if the mediation or ODR negotiation is conducted pursuant to a mandatory court directive, the ADR provider must inform the parties of any participation requirements of that program.
Canon IV. An ADR Provider Should Be Faithful to the Relationship of Trust and Confidentiality Inherent in the Appointment.
(a) Maintaining confidentiality encourages candor, a full exploration of issues, and the integrity of the ADR program. Ethical standards require strict compliance with the promise of confidentiality as an integral element of the ADR process. Participation as an ADR provider assumes building a relationship with the parties that is based on trust. At no time should any ADR provider use confidential information acquired during ADR proceedings to gain advantage, personal or otherwise, or to adversely affect the interests of any party or any other individual or entity.
(b) The ADR provider should discuss the provider’s and the participants’ expectations of confidentiality prior to undertaking the appointment. Prior to beginning the proceeding, the provider should inform the participants of applicable limitations of confidentiality such as statutory, judicial, or ethical reporting requirements.
(c) In mediation, the written agreement to mediate should include provisions concerning confidentiality.
(d) An ADR provider should not utilize any information disclosed during the ADR process for private gain or personal advantage. Neither should a provider seek publicity from participation in a particular ADR proceeding to enhance the provider’s personal or professional position or status.
(e) Unless otherwise agreed by the parties, an ADR provider should keep confidential all matters relating to the proceedings and decisions in which the provider participates. This does not include the description and information submitted to the court by an ODR facilitator pursuant to Utah Supreme Court Standing Order No. 13, court rule or order that establishes small claims ODR procedures, or protocols established for the ODR program.
(f) No arbitrator is at liberty to inform anyone of, or to discuss with anyone other than the parties and other arbitrators, the award or decision.
(g) Mediators and ODR facilitators should preserve and maintain the confidentiality of all mediation and ODR negotiation proceedings. They should not disclose or discuss any information about or related to the proceedings to anyone, including the assigned judge with the exceptions allowed in court orders and/or rules that govern ODR facilitation. Mediators and ODR facilitators should keep confidential from other parties any information obtained in individual caucuses unless the party to the caucus permits disclosure. They should secure and ensure the confidentiality of mediation and ODR negotiation proceeding those records that they do not destroy. Mediators should render anonymous all identifying information when mediation proceeding materials are used for research, training, or statistical compilations. ODR facilitators should honor the confidentiality of private information revealed during facilitator training when reviewing active or archival cases that are used for training or research purposes, addressing performance concerns or complaints, or to compile statistical information.
(h) If subpoenaed or otherwise given notice to testify or to produce documents, the mediator or ODR facilitator should inform the participants immediately. The mediator or ODR facilitator should not testify or provide documents in response to a subpoena or other notice without a court order if the mediator or ODR facilitator reasonably believes doing so would violate an obligation of confidentiality to the participants.
Canon V. Prohibition Against Discrimination.
In an ADR provider’s practice, a provider should not practice, condone, facilitate, or promote any form of invidious discrimination. An ADR provider should be aware of cultural differences and how such differences may affect a party’s values and negotiating style. A provider should avoid condoning or displaying stereotypical attitudes toward parties and their attorneys in an ADR proceeding.
Canon VI. An Arbitrator Should Make Decisions in a Just, Independent, and Deliberate Manner.
(a) An arbitrator should decide all matters justly, exercising independent judgment; no arbitrator should permit outside pressure to affect or bear on the arbitrator’s decision.
(b) An arbitrator should not delegate the obligation to make an appropriate determination in the case to any other person or authority.
Canon VII. When Communicating with the Parties, an Arbitrator Should Avoid Impropriety and the Appearance of Impropriety.
(a) In the absence of a stipulation to the contrary, an arbitrator should not discuss a case with any party in the absence of any other party, except that the arbitrator may discuss with a party such matters as setting the time and place of hearings or making other arrangements for the proceedings.
(b) Whenever an arbitrator communicates in writing with one party, that arbitrator should at the same time transmit a copy of the communication to each other party and the other arbitrators. Whenever an arbitrator receives from one party any case-related written communication which has not been served on all other parties, that arbitrator promptly should provide the same to the other parties and to the other arbitrators.
Canon VIII. Process and Terms of Settlement in Mediation or ODR Facilitated Negotiations.
(a) Since self-determination is a fundamental principle of mediation and ODR facilitation, the mediator or facilitator recognizes that the primary responsibility for the resolution of a dispute rests with the parties and their attorneys if represented. The mediator’s or ODR facilitator’s obligation is to assist the parties to reach an informed and voluntary agreement. In mediation, the primary responsibility for the forging of a settlement agreement rests with the parties and their attorneys. In ODR negotiation, a facilitator may prepare a settlement agreement but may finalize the agreement only with authorization of the parties and their attorneys if represented.
(b) The mediator’s or ODR facilitator’s obligation is to assist the disputants to reach an informed and voluntary settlement. In the course of the mediation or ODR negotiation process, no mediator or ODR facilitator may coerce a settlement or otherwise pressure any party or the attorneys for any party into accepting an agreement. Nor may any mediator or ODR facilitator make a substantive decision affecting the matter at issue for any party. A mediators or ODR facilitator may make suggestions and may draft proposals for consideration by the parties and their attorneys if represented, but all decisions are to be made voluntarily and without duress on the part of the mediator or facilitator by the parties in consultation with their attorneys if represented.
(c) Mediators and ODR facilitators should not attempt to usurp or otherwise assume the role of counsel for any party.
Canon IX. Provisions Specific to an ODR Facilitator.
(a) An ODR facilitator is encouraged to provide parties with procedural information as provided in Supreme Court Standing Order No. 13 and court rules that govern small claims ODR procedures. The purpose of providing information is to ensure parties are making informed and voluntary decisions. An ODR facilitator should present procedural information using neutral, nonjudgmental language and refrain from offering advice about accepting or rejecting a proposal.
(b) An ODR facilitator is permittedto evaluate a claim and defense as provided in Supreme Court Standing Order No. 13 and court rules that govern small claims ODR procedures. The purpose for a facilitator evaluating any small claims case is to help parties better understand possible trial outcomes and make more informed decisions. Only qualified ODR facilitators should conduct case evaluations and only if the facilitator can do so in a manner that maintains neutrality. If an ODR facilitator offers an evaluation of a case, the facilitator should continue to honor the parties’ right to self-determination and avoid any pressure or coercion on any party to resolve a case against their will.
(c) When parties reach agreement in ODR negotiations, either a party or the facilitator may use the ODR program to prepare a written document that formalizes the provisions of agreement. When a party prepares the settlement agreement in the ODR platform, the facilitator should ensure that it reflects the agreements reached between the parties in the online negotiation and that the parties understand the provisions included in the settlement agreement. If a party insists that external documents or elements not discussed in the ODR negotiation be included, then the facilitator should refer the case back to the court.
(d) An ODR facilitators should refer a case back to court when no agreement results from the online negotiation or when parties elect to enter into a settlement agreement that was prepared and signed outside of the ODR platform. A facilitator may report to the court certain information about process and party participation in keeping with established ODR protocols without obtaining the parties’ signatures.
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