File No. 34888
This rule was published in the June 15, 2011, issue (Vol. 2011, No. 12) of the Utah State Bulletin.
Commerce, Occupational and Professional Licensing
Rule R156-39a
Alternative Dispute Resolution Providers Certification Act
Notice of Proposed Rule
(Repeal)
DAR File No.: 34888
Filed: 05/31/2011 10:59:26 AM
RULE ANALYSIS
Purpose of the rule or reason for the change:
This rule filing implements H.B. 243 which was passed during the 2011 General Session. H.B. 243 (2011) deleted the governing statute, Title 58, Chapter 39a, with respect to alternative dispute resolution providers. Thus this rule is being repealed. (DAR NOTE: H.B. 243 (2011) was effective 05/10/2011.)
Summary of the rule or change:
Rule is being repealed in its entirety.
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:
This rule is being repealed due to the 2011 General Session repealing the governing statute. As a result, there should be no additional costs or savings to the state budget beyond those identified in the fiscal analysis of H.B. 243 (2011).
local governments:
The proposed amendments only apply to formerly certified alternative dispute resolution providers. As a result, the proposed amendments do not apply to local governments. However, if a local government paid any fees for an alternative dispute resolution provider employed by the local government, fee savings shown below would apply to the local government.
small businesses:
This proposed rule change should not create any new costs for small businesses since the rule is being repealed in its entirety.
persons other than small businesses, businesses, or local governmental entities:
The proposed repeal only applies to alternative dispute resolution providers who were previously certified through the Division. The Division has determined there should be a savings for these persons of $63 every two years as they will no longer need to renew a certification. There should be no compliance costs incurred by any party as a result of the repeal of this rule.
Compliance costs for affected persons:
The proposed repeal only applies to alternative dispute resolution providers who were previously certified through the Division. The Division has determined there should be a savings for these persons of $63 every two years as they will no longer need to renew a certification. At the time of the recent legislation, there were 43 currently certified alternative dispute resolution providers which results in an aggregate savings of $2,709 every two years. There should be no compliance costs incurred by any party as a result of the repeal of this rule.
Comments by the department head on the fiscal impact the rule may have on businesses:
No fiscal impact to businesses is anticipated from this rule repeal, which conforms to a recent repeal of the authorizing statute.
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:
CommerceOccupational 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 cormond@utah.gov
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:
07/15/2011
This rule may become effective on:
07/22/2011
Authorized by:
Mark Steinagel, Director
RULE TEXT
R156. Commerce, Occupational and Professional Licensing.
[
R156-39a. Alternative Dispute Resolution Providers
Certification Act Rule.
R156-39a-101. Title.
This rule is known as the "Alternative Dispute
Resolution Providers Certification Act Rule".
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 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" is defined in Subsection
78B-6-202(8).
(7) "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.
(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.
(9) "Summary jury trial" is defined in
Subsection 78B-6-202(9).
(10) "Unprofessional conduct" is defined in
Subsection 58-1-501(2).
(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.
This rule is adopted by the Division under the authority
of Subsection 58-1-106(1)(a) to enable the Division to administer
Title 58, Chapter 39a.
R156-39a-104. Organization - Relationship to Rule 156-1.
The organization of this rule and its relationship to
Rule 156-1 is as described in Section R156-1-107.
R156-39a-301. Certificate Classifications.
(1) In accordance with Subsection 58-39a-4(1), the
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(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 Certification - Experience
Requirements.
In accordance with Subsections 58-1-203(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 R156-1-308a.
(2) Renewal procedures shall be in accordance with
Section R156-1-308c.
KEY: licensing, arbitration, mediation, alternative dispute
resolution
Date of Enactment or Last Substantive Amendment: November
22, 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]
Additional Information
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull-pdf/2011/b20110615.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
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For questions regarding the content or application of this rule, please contact Clyde Ormond at the above address, by phone at 801-530-6254, by FAX at 801-530-6511, or by Internet E-mail at cormond@utah.gov.