No. 34108 (Amendment): Rule R156-39a. Alternative Dispute Resolution Providers Certification Act Rules

(Amendment)

DAR File No.: 34108
Filed: 09/21/2010 02:25:31 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

In response to H.B. 78 from the 2008 General Session, the Division is required to change the code citations to match the recodification of Title 78. The majority of changes in this rule filing were originally filed as a nonsubstantive rule change with Division of Administrative Rules on 07/29/2010. However, Hunter Finch (Governor's Office of Planning and Budget) notified the Division in an email sent to Clyde Ormond on 08/25/2010 that some of the statute citations were incorrect and could not actually be found in the statute. As a result, the Division withdrew the nonsubstantive rule filing (DAR No. 33869) and is now submitting the changes as a proposed rule filing since two definitions in Section R156-39a-102 need to be deleted as they are no longer referenced in any statute. (DAR NOTE: H.B. 78 (2008) is found at Chapter 3, Laws of Utah 2008, and was effective 05/05/2008.)

Summary of the rule or change:

The changes updated "rules" to "rule" throughout the rule; capitalized "division" where appropriate; and updated statutory citations throughout the rule. Also in Section R156-39a-102, deleted definitions for "mini-trial" and "moderated settlement conference" since these definitions no longer appear in Title 78B, Chapter 6. The remaining subsections have been renumbered.

State statutory or constitutional authorization for this rule:

• Subsection 58-1-106(1)(a)
• Subsection 58-1-202(1)(a)
• Section 58-39a-1

Anticipated cost or savings to:

the state budget:

The Division will incur minimal costs of approximately $50 to print and distribute the rule once the proposed amendments are made effective. Any costs incurred will be absorbed in the Division's current budget.

local governments:

The proposed amendments only apply to certified alternative dispute resolution providers and applicants for licensure in that classification. As a result, the proposed amendments do not apply to local governments.

small businesses:

The proposed amendments only apply to certified alternative dispute resolution providers and applicants for licensure in that classification. Licensees and applicants for licensure may work in a small business; however, the proposed amendments would not directly affect the business.

persons other than small businesses, businesses, or local governmental entities:

The proposed amendments only apply to certified alternative dispute resolution providers and applicants for licensure in that classification. The Division does not anticipate any impact on these persons as a result of these minor proposed rule amendments which are just "clean up" in nature.

Compliance costs for affected persons:

The proposed amendments only apply to certified alternative dispute resolution providers and applicants for licensure in that classification. The Division does not anticipate any impact on these persons as a result of these minor proposed rule amendments which are just "clean up" in nature.

Comments by the department head on the fiscal impact the rule may have on businesses:

No fiscal impact to businesses is anticipated from this filing which corrects references based on new statutory amendments, removes terms no loner used in statute, and makes other technical corrections.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Occupational and Professional Licensing
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Clyde Ormond at the above address, by phone at 801-530-6254, by FAX at 801-530-6511, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/15/2010

This rule may become effective on:

11/22/2010

Authorized by:

Mark Steinagel, Director

RULE TEXT

R156. Commerce, Occupational and Professional Licensing.

R156-39a. Alternative Dispute Resolution Providers Certification Act Rule[s].

R156-39a-101. Title.

[These rules are]This rule is known as the "Alternative Dispute Resolution Providers Certification Act Rule[s]".

 

R156-39a-102. Definitions.

In addition to the definitions in Title 58, Chapters 1 and 39a, as used in Title 58, Chapters 1 and 39a or [these rules]this rule:

(1) "Alternative dispute resolution provider" or "ADRP" means one who holds himself out as an arbitrator, negotiator, mediator, neutral fact finding expert, qualified neutral person, special master, conciliator, or any other title intended to cause a reasonable person to believe he is engaged in the alternative dispute resolution process.

(2) "Arbitration" means a forum in which one or more qualified neutral individuals, knowledgeable in the subject matter of the dispute, and educated, trained or experienced in the dispute resolution process, hears the positions, facts, and evidence presented by conflicting parties to a dispute, defines the issues, and makes a binding or non-binding decision regarding the matter in dispute.

(3) "Certified alternative dispute resolution provider" means an individual who is certified under Title 58, Chapter 39a as an alternative dispute resolution provider and designated as an arbitrator, mediator, or negotiator.

(4) "License" as used in Title 58, Chapter 39a means certification.

(5) "Negotiation" means a process in which there is an attempt to resolve a dispute or reach agreement in a matter employing the services of one or more negotiators who represent the interests of a party to a dispute or matter not agreed upon.

(6) "Mediation" [means that]is defined in Subsection [78-31b-1(5)]78B-6-202(8).

(7) ["Mini-trial" means that defined in Subsection 78-31b-1(6).

(8) "Moderated settlement conference" means that defined in Subsection 78-31b-1(7).

(9)] "Neutral expert fact-finding" means a process in which the issue or issues in dispute are of such a technical or complex nature, and the assessment of the issues by the disputing parties and their respective experts is so divergent, that the services of a neutral expert are retained by the parties to the dispute to hear the issues and advise the parties to the dispute of their neutral and expert opinion for the purpose of improving the opportunity for settlement between the parties.

([10]8) "Qualified neutral person" means a person who is determined by the parties to a dispute as competent to act as an alternative dispute resolution provider.

([11]9) "Summary jury trial" [means that]is defined in Subsection [78-31b-1(8)]78B-6-202(9).

([12]10) "Unprofessional conduct" is defined in Subsection 58-1-501(2).

([13]11) "Use of special masters and related processes in civil disputes" means the use of individuals to perform duties assigned by a court or administrative agency in the resolution of disputes in accordance with the direction and authority of the court of administrative agency.

 

R156-39a-103. Authority - Purpose.

[These rules are]This rule is adopted by the [d]Division under the authority of Subsection 58-1-106(1)(a) to enable the [d]Division to administer Title 58, Chapter 39a.

 

R156-39a-301. Certificate Classifications.

(1) In accordance with Subsection 58-39a-4(1), the [d]Division shall issue certificates in the following classifications:

(a) Certified Alternative Dispute Resolution Provider - Arbitrator;

(b) Certified Alternative Dispute Resolution Provider - Mediator; and

(c) Certified Alternative Dispute Resolution Provider - Negotiator.

(2) Each classification shall be considered a separate certificate and shall be obtained by filing a separate application for each and paying the related fee.

 

R156-39a-302a. Qualifications for Certification - Education and Training Requirements.

In accordance with Subsections 58-1-203([2]1) (c) and 58-1-301(3), the education and training requirements for certification in Section 58-39a-5 are defined, clarified, or established as follows:

(1) An applicant to obtain certification as an arbitrator shall document completion of education and training as follows:

(a) satisfactory completion of 30 clock hours of education in arbitration which program of education may include the following subject material:

(i) arbitration language including the phrases and clauses necessary to initiate the procedure;

(ii) implementing the procedures required in adjudicating a proper award including conduct of proceedings, preparation, evidence, timeliness, records and documentation;

(iii) analyzing conflicts to narrow issues in dispute;

(iv) principles of dispute resolution;

(v) effective listening;

(vi) sensitivity and awareness of cross-cultural issues;

(vii) maintaining neutrality;

(viii) appropriate decision making processes;

(ix) control of the process and effective adjudication of the issues in dispute;

(x) historical perspective of arbitration;

(xi) critical thinking and reasoning skills;

(xii) various types of arbitration;

(xiii) effective writing; and

(b) verification that the applicant has satisfactorily served as an arbitrator in three separate cases or ten clock hours, whichever is greater.

(2) An applicant to obtain certification as a mediator shall document completion of education and training as follows:

(a) satisfactory completion of 30 clock hours of education in mediation which may include the following subject material:

(i) stages and value of conflict in empowering change;

(ii) principles of dispute resolution;

(iii) effective listening;

(iv) empathy and validation;

(v) sensitivity and awareness of cross-cultural issues;

(vi) maintaining neutrality;

(vii) identifying and reframing issues;

(viii) establishing trust and respect;

(ix) techniques for achieving agreement and settlement;

(x) creating a climate conducive to resolution, identifying options, reaching consensus, and working toward agreement;

(xi) shaping and writing agreements;

(xii) ethical standards for conduct of mediations; and

(b) verification that the applicant has satisfactorily served as a mediator in three separate cases or ten clock hours, whichever is greater.

(3) An applicant to obtain certification as a negotiator shall document completion of education and training as follows:

(a) satisfactory completion of 30 clock hours of education in negotiation which may include the following subject material:

(i) stages and value of conflict in empowering change;

(ii) principles of negotiation;

(iii) effective listening;

(iv) empathy and validation;

(v) sensitivity and awareness of cross-cultural issues;

(vi) maintaining neutrality;

(vii) identifying and reframing issues;

(viii) establishing trust and respect;

(ix) shaping and writing agreements;

(x) ethical standards for conduct of negotiations; and

(b) verification that the applicant has satisfactorily served as a negotiator in three separate cases or ten clock hours, whichever is greater.

 

R156-39a-302b. Qualifications for [Licensure]Certification - Experience Requirements.

In accordance with Subsections 58-1-203([2]1) (c) and 58-1-301(3), the experience requirements for certification in Section 58-39a-5 are defined, clarified, or established as follows:

(1) An applicant may be certified as an ADRP - Arbitrator

without the necessity of completing the education and training requirements provided in R156-39a-302a(1) by providing evidence that the applicant has served as an arbitrator in cases involving not less than 32 clock hours.

(2) An applicant may be certified as an ADRP - Mediator without the necessity of completing the education and training requirements provided in R156-39a-302a(2) by providing evidence that the applicant has served as a mediator in cases involving not less than 32 clock hours.

(3) An applicant may be certified as an ADRP - Negotiator without the necessity of completing the education and training requirements provided in R156-39a-302a(3) by providing evidence that the applicant has served as a negotiator in cases involving not less than 32 clock hours.

 

R156-39a-303. Renewal Cycle - Procedures.

(1) In accordance with Subsection 58-1-308(1) (a), the renewal date for the two-year renewal cycle applicable to certificates under Title 58, Chapter 39a, is established by rule in Section R156-1-308 a.

(2) Renewal procedures shall be in accordance with Section R156-1-308 c.

 

KEY: licensing, arbitration, mediation, alternative dispute resolution

Date of Enactment or Last Substantive Amendment: [October 11, 2006]2010

Notice of Continuation: October 13, 2008

Authorizing, and Implemented or Interpreted Law: 58-1-106(1)(a); 58-1-202(1)(a); 58-39a-1

 

---