Utah Mediation Best Practice Guide

April 2023

Broad public confidence in the integrity and fairness of mediation is necessary for the

administration of justice and the public’s confidence in mediation as a dispute resolution process.

With that goal in mind, a subcommittee of the Utah Judicial Council’s Ad Hoc Committee on

Alternative Dispute Resolution (ADR Committee) in 2015 prepared the following document

entitled the

Utah Mediation Best Practice Guide. The Guide was approved by the Utah Judicial

Council on April 25, 2016.

This Guide is a summary of Utah statutes and rules governing mediation, as well as national

standards of best practice for mediators. If there is no citation to a statute, rule, or standard of

conduct, the best practice is based on the collective wisdom of experienced mediators.

The Utah Judicial Council intends this Guide to be used by Utah mediators, lawyers, parties, and

administrators, and included in mediator training programs in Utah. The Guide does not have the

force of law and is not to be used for disciplinary purposes. It also is not mandatory for adoption

by Utah dispute resolution organizations or rosters. Because the Guide is not mandatory, the

word “should” is used throughout, even though the word “shall” is used in many of the cited

statutes, rules, and model standards.

CONTENTS

Abbreviations and hyperlinks .......................................................................................................2

Standards and Best Practices

I. Integrity and Fairness of Mediation ...................................................................................3

II. Self-Determination ..............................................................................................................5

III. Competence and Efficiency .................................................................................................7

IV. Confidentiality .....................................................................................................................8

V. Agreement to Mediate......................................................................................................10

VI. Conflicts of Interest ...........................................................................................................11

VII. Final Agreement ................................................................................................................12

VIII. Fees and Other Charges ....................................................................................................14

IX. Terminating or Suspending Mediation .............................................................................14

X. Advertising and Solicitation ..............................................................................................15

XI. Advancement of Mediation ..............................................................................................16

XII. Online Mediation ..............................................................................................................17

Utah Mediation Best Practice Guide – 2023

Court Rules, Statutes, Case Law, and Model Standards

Abbreviations and Hyperlinks

Lyons v. Booker refers to Lyons v. Booker, 982 P.2d 1142 (Ut. App. 1999),

http://www.utcourts.gov/opinions/appopin/lyons.htm

MS #.# refers to the Model Standards of Conduct for Mediators.

https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/dispute_resoluti

on/model_standards_conduct_april2007.pdf

MSPFDM # refers to the Model Standards of Practice for Family and Divorce Mediation.

https://www.americanbar.org/content/dam/aba/administrative/family_law/model-standards-

family-divorce-mediation.pdf

Poly Software v. Su refers to Poly Software International, Inc. v. Su, et al., 880 F. Supp. 1487

(USDC Utah 1995),

http://law.justia.com/cases/federal/district-

courts/FSupp/880/1487/1408247/.

Reese v. Tingey refers to Reese v. Tingey Construction, 177 P. 3d 605 (Utah 2008),

http://www.utcourts.gov/opinions/supopin/Reese2020108.pdf

UADRA § 78B-6-# refers to the Utah Alternative Dispute Resolution Act.

http://le.utah.gov/xcode/Title78B/Chapter6/78B-6-P2.html?v=C78B-6-P2_1800010118000101

UCJA R. 4-510.# refers to the Utah Code of Judicial Administration Rule 4.510.

https://www.utcourts.gov/rules/view.php?type=ucja&rule=4-510.01

https://www.utcourts.gov/rules/view.php?type=ucja&rule=4-510.02

https://www.utcourts.gov/rules/view.php?type=ucja&rule=4-510.03

https://www.utcourts.gov/rules/view.php?type=ucja&rule=4-510.04

https://www.utcourts.gov/rules/view.php?type=ucja&rule=4-510.05

https://www.utcourts.gov/rules/view.php?type=ucja&rule=4-510.06

UMA § 78B-10-# refers to the Utah Uniform Mediation Act.

http://le.utah.gov/xcode/Title78B/Chapter10/78B-10.html?v=C78B-10_1800010118000101

URCADR R. #, Canon # refers to the Utah Rules of Court-Annexed Alternative Dispute

Resolution and Canon of Ethics.

https://www.utcourts.gov/rules/view.php?type=adr&rule=101

https://www.utcourts.gov/rules/view.php?type=adr&rule=102

https://www.utcourts.gov/rules/view.php?type=adr&rule=103

https://www.utcourts.gov/rules/view.php?type=adr&rule=104

URPC # refers to the Utah Rules of Professional Conduct.

https://www.utcourts.gov/rules/view.php?type=ucja&rule=14-0301

Utah Mediation Best Practice Guide – 2023

Standards and Best Practices

I. Integrity and Fairness of Mediation

A mediator should protect the integrity and fairness of mediation.

Best Practices:

1. A mediator should observe high standards of ethical conduct, including those found

in the applicable statutes, rules, and case law of Utah, in order to protect the integrity

and fairness of mediation. A lawyer-mediator is expected to comply with the Utah

Standards of Professionalism and Civility. URCADR R. 104, Canon I (a); UCJA R.

4-510.05(4)(A), (B)(ii), and (8). RPC Rule 14-301

2. A mediator’s ethical duties begin prior to acceptance of the appointment to a

particular case and continue throughout all stages of mediation, even after a case has

been resolved. URCADR R. 104, Canon I (g).

3. A mediator should be impartial and unbiased and should avoid even an appearance of

partiality or bias. Because a mediator owes equal duties to all parties, a mediator

cannot be considered a fiduciary. UMA § 78B-10-109(6); URCADR R. 104, Canon

III (a); MS II.A-C.

4. A mediator should guard against partiality based upon the parties’ or other

participants’ personal characteristics, background, or performance in mediation, or

any previous or existing relationship with any party or participant, including on social

media. URCADR R. 104, Canons I (c) and III (a)(2); MS II.B.

5. Upon acceptance of a case and throughout all stages of mediation, a mediator should

avoid entering into any financial, business, professional, family, social or social

media relationship, or acquiring any financial or personal interest, which will affect

the mediator’s impartiality in fact or appearance. URCADR R. 104, Canon I (c); MS

II.B.

6. After mediation has concluded, a mediator should avoid entering into any relationship

or acquiring any interest, including any relationship on social media, which might

reasonably create the appearance that the mediator was influenced during the

mediation by anticipation or expectation of the relationship or interest. Id.

7. In creating a future relationship with a mediation party or other participant, the

mediator should consider factors such as time elapsed following the mediation, the

nature of the relationship to be established, and the services to be provided. Id.

Utah Mediation Best Practice Guide – 2023

8. If a mediator determines that the mediator cannot conduct the mediation in an

impartial manner, or if the appearance of partiality is too great, or if requested to do

so by a party, the mediator should decline to serve or withdraw. URCADR R. 104,

Canon II (e) and (f).

9. A mediator should not use confidential information acquired during mediation to gain

advantage, personal or otherwise, or to adversely affect the interests of any party or

any other individual or entity. URCADR R. 104, Canon IV (a).

10. Mediators should not be swayed by outside pressure, public clamor, fear of criticism,

or self-interest. URCADR R. 104, Canon I (d).

11. A mediator should not use involvement in a particular mediation to enhance the

mediator’s personal or professional position or status. URCADR R. 104, Canon IV

(d).

12. A mediator should promote honesty and candor and should conduct mediation in a

manner that encourages informal and confidential exchange among the parties and

with the mediator. UADRA § 78B-6-208(1); MS VI.A.4; URCADR R. 104, Canon

IV (a). See also URCADR R. 103.

13. A mediator should not knowingly misrepresent any material fact or circumstance in

the course of mediation. MS VI.A.4.

14. A mediator should conduct mediation in a fair and evenhanded manner and treat all

parties and other participants with patience, courtesy, equality, and fairness. A

mediator should encourage similar conduct by all participants. URCADR R. 104,

Canon III (a) and (c).

15. A mediator should not deny any party the opportunity to be represented by counsel.

URCADR R. 104, Canon III (e); UMA § 78B-10-110.

16. A mediator should not conduct a dispute resolution procedure other than mediation

(e.g., arbitration), and call it “mediation,” in an effort to gain the protection of

statutes, rules, or other governing authorities pertaining to mediation. MS VI.A.6.

17. A mediator should not undertake another dispute resolution role in the same matter—

for example, changing from the role of mediator to arbitrator—without first fully

informing the parties of the implications of the change in role and obtaining their

written consent to the change. MS VI.A.8; URCADR R. 101(i).

Utah Mediation Best Practice Guide – 2023

18. A mediator should be aware of party safety and should take appropriate measures to

protect vulnerable parties, including conducting detailed intake (e.g., screening for

domestic violence), arranging for a secure location, and allowing for separate

meetings or caucuses and separate arrival and departure times for the parties.

MSPFDM X.

19. A mediator should take appropriate steps including, if necessary, postponing,

withdrawing from, or terminating mediation, if it becomes apparent to the mediator

that the mediation is being used to further criminal conduct. MS VI.A.9.

20. A mediator should take appropriate steps including, if necessary, postponing,

withdrawing from, or terminating mediation, if the mediator believes that party or

other participant conduct, including that of the mediator, jeopardizes conducting

mediation consistent with ethical practices. MS VI.C.

II. Self-Determination

A mediator should ensure self-determination of the parties, which is a fundamental principle in

mediation.

Best Practices:

1. A mediator should explain to the parties the principle of self-determination, which

includes the right to come to a voluntary, uncoerced decision in which each party

makes free and informed choices as to process and outcome. MS. I. See also

URCADR R. 104, Canon VIII (a).

2. A mediator should explain to the parties the importance of consulting legal counsel

and other professionals to help the parties make informed choices. MS I.A.2;

URCADR R. 104, Canon III (e).

3. A mediator should inform parties that mediation is voluntary and that a party has the

right to withdraw at any stage of the proceeding and is under no obligation to reach

an agreement. URCADR R. 101(b); R. 104, Canon III (h).

4. If mediation is conducted pursuant to a mandatory mediation statute or program, the

mediator should inform the parties of the requirements of that statute or program. Id.

5. If a mediator becomes aware that a party may not have the present capacity to

exercise self-determination, the mediator should explore accommodations that can

be made to allow the party to exercise self-determination. MS VI.A.10.

6. A mediator should be aware of and avoid mediator behaviors that impact party self-

determination. This includes behaviors or process choices that produce: undue

Utah Mediation Best Practice Guide – 2023

pressure or otherwise coerce parties to make particular substantive decisions; create

the appearance that the mediator can make substantive decisions or adjudicate the

parties’ dispute; or prevent or reduce the parties’ ability to access resources to make

informed decisions or choose other dispute resolution processes. MS I.A; URCADR

R.104, Canon VIII (b).

7. A mediator should not undermine self-determination by any party for reasons such

as higher settlement rates, mediator ego, larger fees, or outside pressures from court

personnel, program administrators, provider organizations, the media, or others. MS

I.B.

8. A mediator should serve as an impartial facilitator, assisting the parties in defining

and narrowing the issues and encouraging each party to examine the dispute from

multiple perspectives, without the mediator undertaking to decide any issue, make

findings of fact, or impose any agreement. URCADR R. 101(c).

9. A mediator should not attempt to usurp or otherwise assume the role of counsel for

any party. URCADR R. 104, Canon VIII (c).

10. A mediator should be cautious when rendering evaluations or opinions and should

make it clear that such evaluations or opinions are not binding on the parties. See

generally URCADR R. 101(c).

11. A mediator should not make substantive decisions for any party that affect the matter

at issue. URCADR R. 104, Canon VIII (b).

12. A mediator may make suggestions about settlement and may draft proposals for

consideration by the parties, but all decisions are to be made voluntarily by the

parties, without duress created by the mediator. Id.

13. A mediator should not coerce a settlement or otherwise pressure any party or the

attorney for any party into accepting an agreement. URCADR R. 104, Canon VIII

(b).

Utah Mediation Best Practice Guide – 2023

III. Competence and Efficiency

A mediator should have the necessary competence to satisfy the reasonable expectations of the

parties to provide a process that is evenhanded and efficient.

Best Practices:

1. A mediator should have specific appropriate mediation training before serving as a

mediator. UADRA 78B-6-205(3)(h)(ii); MS IV.A.1 and 2.

2. A mediator should mediate only when the mediator has the necessary subject matter

competence to satisfy the reasonable expectations of the parties. MS IV.A.

3. A mediator should be aware of and disclose, if asked to do so, the mediator’s

qualifications to mediate a dispute, e.g., the mediator’s process, style, and

methodology of mediation, including whether or not the mediator uses facilitative,

analytical, evaluative, and/or directive methodologies in mediation. See UMA §

78B-10-109(3); URCADR R. 104, Canon I (j).

4. A mediator should retain a written copy of the mediator’s disclosure of qualifications

and experience.

5. A mediator should schedule and conduct mediation in a manner that is timely and

efficient and respects the needs of the parties. URCADR R. 104, Canon I (b) and (f);

URCADR R. 104, Canon III (b); MS VI.A.1 and 2.

6. A mediator should use best efforts to ensure that mediation is not utilized to abuse or

harass parties or other participants or to delay or disrupt any proceedings. URCADR

R. 104, Canon I (f).

7. If, during the course of a mediation, a mediator determines that he or she cannot

conduct the mediation competently for any reason, the mediator should discuss that

determination with the parties as soon as is practical and take appropriate steps to

address the situation, including, but not limited to, withdrawing or requesting

appropriate assistance. MS IV. B.

8. A mediator should not conduct mediation if the mediator is impaired for any reason,

e.g., by drugs, alcohol, medication, mental health issues, or otherwise. MS IV.C.

9. A mediator should use best efforts to be aware of cultural issues and differences

involved in mediation. URCADR R. 104, Canon V; MS IV.A.1.

10. A mediator should conduct mediation so as to respect the parties’ divergent values

and negotiation styles. URCADR R.104, Canon V.

Utah Mediation Best Practice Guide – 2023

11. A mediator should not practice, condone, facilitate, or promote any form of

discrimination toward parties or their attorneys. Id.

12. If the mediator determines that the parties are unable or unwilling to participate

meaningfully in mediation, the mediator should suspend or terminate the mediation

and minimize the unnecessary expenditure of fees, time, or emotional stress for the

parties. URCADR R. 101(g); MS VI.C.

IV. Confidentiality

A mediator should maintain the confidentiality of all information obtained in mediation, unless

otherwise agreed to by the parties or required by law.

Best Practices:

1. A mediator should maintain the confidentiality of mediation communications, which

may occur before, during, or after mediation, regardless of whether the mediation

communications are verbal, nonverbal, or written, including on social media. UMA §

78B-10-108; UADRA § 78B-6-208; URCADR R. 103; URCADR R. 104, Canon IV;

MS V; Lyons v. Booker; Reese v. Tingey.

2. A mediator should understand the differences between confidentiality and privilege

and that confidentiality is broader than privilege. The obligation of confidentiality

requires the mediator and, by agreement, the parties and other participants in

mediation to protect and preserve the privacy of mediation communications. The

requirement of privilege prohibits the admission into evidence of mediation

communications in a “proceeding” such as litigation or arbitration. UMA § 78B-10-

108.

3. A mediator should discuss with the parties and other mediation participants the extent

to which they will maintain the confidentiality or privilege of information they obtain

in mediation, including disclosure on social media. URCADR R. 104, Canon IV (b)

and (c); MS V.C. and D; UMA § 78B-10-108.

4. If asked, a mediator should discuss with the parties and other mediation participants

the mediator’s document retention policies, including about the mediator’s notes and

party-supplied documents.

5. In a written agreement to mediate, a mediator should create a duty of confidentiality

for the parties and other participants in mediation, including as it relates to social

media. UMA § 78B-10-108; UADRA § 78B-6-208(4).

Utah Mediation Best Practice Guide – 2023

6. In Utah, it is prohibited for any person to audio or video record a mediation session.

With regard to final agreements, please see Section VII 1(a) – (b). See, e.g. UADRA

§ 78B-6-208(1).

7. A mediator should be aware of the statutory and other exceptions to confidentiality

and privilege (e.g., communications evidencing abuse or neglect of a child or

vulnerable adult must be disclosed), and should explain these exceptions to the parties

and other mediation participants. UMA § 78B-10-104; UADRA § 78B-6-208(4) and

(5); UCJA R. 4-510.05; Reese v. Tingey.

8. The agreement to mediate should include any relevant exceptions to confidentiality or

privilege. UMA § 78B-10-108; UADRA § 78B-6-208(4).

9. A mediator should maintain the confidentiality of parties’ ex parte communications,

whether provided in pre-mediation briefs and other documents or verbally during

caucuses. URCADR R. 104, Canon IV (g).

10. A mediator should refuse to disclose a mediation communication, the mediator’s

notes, and mediation records, unless ordered by a court to do so. URCADR R. 104,

Canon IV (e) and (h); UMA § 78B-10-104(2)(b).

11. If the mediator is subpoenaed to testify or produce documents in a proceeding, and if

the mediator believes that compliance with the subpoena would violate the obligation

to maintain confidentiality in mediation, the mediator should not testify or produce

documents without an order of the court. UMA § 78B-10-104(2)(b); URCADR R.

104, Canon IV (h); UCJA R. 4-510.05(7); MS V.A.2.

12. When required, a mediator should report to the assigned judge or to a mediation

organization that mediation has occurred and whether a settlement was reached.

UMA § 78B-10-107; UADRA § 78B-6-208(6).

13. When mediation communications are disclosed for research, training, and statistical

records, a mediator should render anonymous information about the parties.

URCADR R. 101; URCADR R. 104, Canon I (a) and Canon IV (g); MS V and IX.A.

Utah Mediation Best Practice Guide – 2023

V. Agreement to Mediate

A mediator should prepare and provide to the parties and other participants a written agreement

to mediate, to be signed by them before mediation begins.

Best Practices:

1. A mediator should discuss the agreement to mediate with the parties and other

participants before mediation begins and require all participants to sign the

agreement. URCADR Rule 104, Canon I (k).

2. An agreement to mediate should:

a. Describe mediation as a facilitated negotiation process in which the parties make

free and informed choices as to the outcome of their dispute. MS 1.

b. Inform the parties that they may withdraw from mediation at any time and they

are not required to reach an agreement in mediation. URCADR Rule 104, Canon

III (h).

c. Describe the requirements of confidentiality or privilege (including statutory

mandatory disclosure exceptions) that apply to mediation, including social media

use. URCADR Rule 104, Canon IV (c).

d. Explain that, in Utah, it is prohibited for any person to audio or video record a

mediation session. See, e.g. UADRA § 78B-6-208(1).

e. Set forth the fee arrangement between the mediator and the parties. URCADR

Rule 104, Canon I (l).

f. Explain that, if the mediator is an attorney, the mediator will not offer legal advice

and is not representing the parties, but rather is serving as a third-party neutral.

URPC 2.4(b).

g. Explain that, if the mediator is a therapist or counselor, the mediator is not

entering into a therapeutic relationship with the parties, but rather is serving as a

third-party neutral.

h. Explain that, because the mediator is serving as a third-party neutral for all

parties, the mediator is not a fiduciary for any party.

i. Inform the parties that they can be represented by attorneys and can consult with

attorneys, tax advisors, financial advisors, therapists, and other professionals or

persons to help them make informed decisions. MS I.B.

Utah Mediation Best Practice Guide – 2023

3. A written agreement to mediate should be signed by the parties and other participants

in mediation. URCADR R. 104, Canon IV (c).

4. The mediator should retain a copy of the signed agreement to mediate.

VI. Conflicts of Interest

A mediator should be impartial with regard to mediation parties and other participants, as well as

to the subject matter and outcome of mediation.

Best Practices:

1. A conflict of interest includes a financial or personal interest in the outcome of the

mediation, an interest in the subject matter of the mediation, and an existing or past

financial, business, professional, family, or social relationship with a mediation party,

attorney, or other participant in the mediation. UMA § 78B-10-109 (1)(a); URCADR

R. 104, Canon II (a) and (b); MS III.A and B.

2. A mediator, before mediation, should make reasonable efforts to determine whether

any potential conflict of interest might reasonably create an appearance of partiality

or bias, including any material social media relationships. UMA § 78B-10-109 (1)(a);

URCADR R. 104, Canon II (a) and (b); MS III.A and B.

3. A mediator should avoid a conflict of interest and the appearance of a conflict of

interest during and after mediation. MS III.A.

4. A mediator should disclose relevant facts about a potential conflict of interest as soon

as practical before mediation, or during mediation if such facts become known later.

UMA § 78B-10-109 (1)(b); MS III (C) and (D); URCADR R. 104, Canon II (c) and

(d).

5. A mediator should disclose every appearance of a conflict of interest even if, in the

judgment of the mediator, it poses no obstacle to the mediator’s impartiality. This

determination is made by the parties and their attorneys, and not by the mediator.

UMA § 78B-10-109 (6); URCADR R. 104, Canon II (d); MS III.D.

6. The disclosure of potential conflicts of interest should be in writing, and the mediator

should retain a copy of the disclosure.

7. A mediator, after full disclosure of a potential conflict of interest to the parties, may

proceed with mediation if all parties agree. URCADR R. 104, Canon II (d); MS III

(D); UMA § 78B-10-109(6).

Utah Mediation Best Practice Guide – 2023

8. Although the parties may waive a mediator’s conflict of interest, the mediator’s

impartiality should never be compromised.

9. The parties’ waiver of a mediator’s conflict of interest should be in writing signed by

the parties, and the mediator should retain a copy of the signed waiver.

10. A mediator should withdraw immediately from mediation, if the mediator believes

that an interest or relationship might reasonably be viewed by a party as undermining

the integrity of the mediation. If the mediator was appointed by the Utah ADR

Director, the mediator immediately should notify the Director. URCADR R. 104,

Canon I(c); URCADR R. 104, Canon II (e); MS III (E).

11. A mediator should withdraw from mediation if a party requests the mediator to do so.

URCADR R. 104, Canon II (f).

12. A mediator, after mediation is concluded, should not represent any mediation party in

connection with the same or substantially factually related matter, unless all parties to

the mediation consent in writing after full disclosure. Poly Software International v.

Su.

13. A mediator who holds a professional license should comply with the rules of

professional conduct of that profession. A mediator who is an attorney should comply

with the applicable rules of professional conduct of every state and federal Bar of

which the mediator is a member. A mediator who is an attorney in Utah should

comply with the URPC, including URPC R. 1.12 and 2.4.

VII. Final Agreement

The parties’ agreement reached in mediation should be reduced to writing and signed by the

parties in order to be binding and enforceable in court.

Best Practices:

1. A mediator should discuss with the parties that verbal agreements in mediation, that

are not memorialized in a writing signed by the parties, are generally not admissible

or enforceable in court. Reese v. Tingey.

a. It is considered a best practice in mediation to write down the terms of a final

agreement and to have all parties sign the agreement.

b. However, when mediating in a court setting, with the permission of a judge

or commissioner, a final agreement from mediation may be read into the

official record of the court of jurisdiction. Under these circumstances, the

Utah Mediation Best Practice Guide – 2023

presence of a judicial officer is more likely to ensure the clarity of the final

agreement terms.

2. In the event of settlement, a mediator may prepare and should facilitate the

preparation of appropriate settlement documents and the prompt and appropriate

handling of those documents. URCADR R. 101(e).

3. If attorneys participate in mediation, they should draft the final agreement.

4. If disputes arise in drafting the terms of a final written agreement, the mediator

should facilitate further negotiation to help the parties achieve a mutually acceptable

final agreement.

5. If attorneys draft the final written agreement, they should sign the agreement to assure

they have approved the agreement.

6. With the agreement of the parties, a mediator may prepare a final agreement or

memorandum of understanding, if the mediator has the experience or training to do

so. In drafting a mediated settlement agreement or memorandum of understanding,

the mediator should memorialize only the terms of the parties’ agreement. MSPFDM

VI E.

7. A mediator should advise a represented party who participates in mediation without

the presence of the party’s attorney not to sign a final agreement until the party’s

attorney reviews and approves the agreement. MS I.A.2.

8. A mediator should advise an unrepresented party to seek independent legal advice

before signing a final agreement. MS 1.A.2.

9. If possible, the mediator should retain a copy of the signed final agreement.

10. A mediator, who is an attorney in Utah (“attorney-mediator”), in a mediation in

which unrepresented parties have fully resolved all issues, may prepare documents

that memorialize and implement the parties’ agreement, if:

a. the attorney-mediator obtains the informed written consent of all parties;

b. the attorney-mediator recommends that each party seek independent legal advice

before executing the documents; and

c. the attorney-mediator informs the court of the attorney-mediator’s limited

representation of the parties for the sole purpose of obtaining court approval of

the documents. URPC 2.4.

Utah Mediation Best Practice Guide – 2023

VIII. Fees and Other Charges

A mediator should be transparent and clear about fees and other charges so that parties

completely understand what they will be paying.

Best Practices:

1. The fee arrangement should be stated in a written agreement to mediate. URCADR

R. 104, Canon I (l).

2. A mediator should provide each party or each party’s representative with accurate and

complete information about the mediator’s fees, expenses, and any other charges that

may be incurred in connection with mediation. MS VIII.A.

3. A mediator should not charge fees in a manner that impairs a mediator’s impartiality.

MS VIII.B.

4. While a mediator may accept unequal fee payments from the parties, a mediator

should not use fee arrangements that impair the mediator’s impartiality. MS VIII.B.2.

5. A mediator should not enter into a fee agreement which is contingent upon the

outcome of the mediation or the amount of the parties’ settlement. MS VIII.B.1.

IX. Terminating or Suspending Mediation

A mediator should suspend or terminate mediation in order to uphold the integrity and fairness of

mediation or where required by law.

Best Practices:

1. A mediator should inform the participants that they may withdraw from and terminate

mediation at any time without being required to reach an agreement. URCADR R.

104, Canon III (h).

2. A mediator should exercise reasonable diligence and effort to assure parties their

mediation is not terminated prematurely. URCADR R. 104, Cannon III.

3. A mediator should terminate mediation, if the mediator:

a. becomes aware of a conflict of interest that might reasonably be viewed as

undermining the integrity of mediation, MS III.E;

b. is not able to conduct mediation in a competent, fair, or impartial manner, MS

I.A;

Utah Mediation Best Practice Guide – 2023

c. becomes aware that mediation is being used to further criminal conduct, MS

VI.A.9;

d. becomes aware of domestic abuse or violence between the parties that could

jeopardize the mediation, MS VI.B;

e. believes that the conduct of any participant jeopardizes the mediation, MS VI.C;

f. has a reasonable belief that a party appears to have difficulty comprehending or

participating in mediation, and believes reasonable adjustments and

accommodations for that party cannot be made, MS VI.A.10; or

g. believes that the parties are no longer able to participate in a meaningful

mediation, or that it is unlikely that a reasonable agreement is possible, URCADR

R. 101(g).

4. A mediator should not terminate or suspend a mediation and undertake an additional

dispute resolution process (e.g., arbitration) in the same matter without the informed

written consent of the parties, and then only after the mediator informs the parties of

the implication of the change in the dispute resolution process. MS VI.A.8.

X. Advertising and Solicitation

A mediator should be truthful and not misleading when advertising, soliciting, or otherwise

communicating the mediator’s qualifications, experience, services, and fees. This principle

applies to written, oral, and electronic communications.

Best Practices:

1. A mediator should accurately represent the mediator’s qualifications and experience.

In an advertisement or other communication, a mediator may make reference to

meeting state, national, or private organizational qualifications, only if the entity

referred to has a recognized procedure for qualifying mediators and the mediator has

been duly granted the requisite status. URCADR R. 104, Canon I (j); MS VII.A.2.

2. A mediator should refrain from making promises or guarantees of results in

communications.. A mediator should not advertise statistical settlement data or

settlement rates. URCADR R. 104, Canon I (i); MS VII.A.1.

3. A mediator should not directly contact a party to solicit selection in a particular case,

if the party is represented by an attorney. URCADR R. 104, Canon I (h).

Utah Mediation Best Practice Guide – 2023

4. A mediator should not solicit in a manner that gives an appearance of partiality for or

against a party or otherwise undermines the integrity of mediation. MS VII.B.

5. A mediator should not communicate to others, in promotional materials or through

other forms of communication, including on social media, the names of persons

served in prior mediations without their permission. MS VII.C.

XI. Advancement of Mediation

A mediator should act in a manner that advances the practice of mediation.

Best Practices:

1. A mediator should advance the practice of mediation by:

a. fostering diversity within the field of mediation, MS IX.A.1;

b. striving to make mediation accessible by performing pro bono or reduced-rate

mediation services, MS IX.A.2;

c. collaborating with the state and federal judiciary, the Utah State Bar, public and

private institutions, and other mediators to make mediation accessible and

affordable, URCADR R. 104, Canon I (a); MS IX.A.2;

d. participating in research, writing articles, and presenting programs designed to

improve the skills of those engaged in the practice of mediation, MS IX.A.3;

e. participating in outreach and educational efforts to assist the public in

understanding and appreciating mediation, including different styles and

methodologies of mediation, MS IX.A.4; and

f. collaborating with, assisting, and mentoring those who aspire to be mediators or

who are new to the field of mediation, MS IX.A.5.

2. A mediator should work with and seek to learn from other mediators to improve the

practice of mediation. MS IX.B.

Utah Mediation Best Practice Guide – 2023

Section XII – Online Mediation

This section of the Guide is intended to provide wisdom and experience for mediators regarding

the administration of a mediation in a virtual or hybrid (one party in person and one party

virtual) setting. All of the additional Guide sections and standards of conduct set forth remain

relevant to these sessions, as well.

Best Practices:

1. ONLINE PLATFORM

1a. The mediator should take reasonable steps to ensure a confidential and secure online

platform for hosting virtual/online mediation sessions.

1b. Mediators should give mediation participants instructions about how to use the online

platform, as well as inform themselves and their clients about how to resolve technology

service interruptions, technology failures, and other IT issues ahead of the mediation session.

1c. The mediator should control access to the mediation room/breakout sessions, just as

they would in an in-person, office setting. It is recommended that a mediator use a waiting

room format at the outset of the session, to be aware who is accessing the online mediation, to

ensure knowledge of how to use the online platform, and to facilitate effective engagement for

all participants.

1d. It is recommended that the mediator use breakout rooms to host caucus/individual

discussions, and that the mediator practice this feature ahead of time for familiarity with the

technology. Caucuses in an online mediation must be secure and confidential, just as they

would in an in-person setting.

1e. It is recommended that the chat feature for message exchanging and that the recording

feature both be disabled during the online mediation session.

Utah Mediation Best Practice Guide – 2023

2. SECURE WI-FI / ETHERNET / NETWORK CONNECTION

2a. Mediators should use a private, secure connection. It is recommended that a mediator

not administer an online mediation in any public, accessible physical setting where they cannot

ensure internet security and confidentiality.

2b. The mediator should be aware of who is present in the virtual mediation setting. The

mediator should inform the parties and other participants, as well, not to use a public access

system, if at all possible.

2c. If an online platform or internet connection fails, the mediator’s readiness and ability to

employ a technology failure protocol must be in place prior to opening the mediation session.

The mediator should inform the parties ahead of the mediation session about what best next

steps are to be taken if technology fails. It is recommended to exchange cell phone numbers

ahead of the mediation session in order to communicate in the event of any possible

technology failure.

3. DOCUMENT EXECUTION

3a. Exchanging an agreement to mediate form is just as important in a virtual mediation and

should not be ignored. Forms can be exchanged and signed ahead of the mediation session. The

mediator must ensure a process for either virtually signing or physically signing forms and

returning them to the mediator; this process must account for all parties’ capabilities, offering

an alternative as needed/requested.

3b. It is imperative for a mediator to know who is in the virtual mediation rooms, and/or

who is participating on or off camera, especially in the virtual context where the entire physical

space may not be visible on screen. All participants must be disclosed and sign the agreement

to mediate form.

3c. These recommendations apply also to the drafting and signing of any final agreement in

mediation.

Utah Mediation Best Practice Guide – 2023

4. CONFIDENTIALITY

4a. It is imperative for a mediator to know who is in the virtual mediation rooms, and/or

who is participating on or off camera, especially in the virtual context where the entire physical

space may not be visible on screen.

4b. It is encouraged that a mediator and the session participants find private, respectful

locations to participate in the online mediation session. This includes being free from noise,

intrusion, interruption, and distraction.

4c. All parties to an online mediation session should agree in advance that all mediation

communications are considered confidential, including those by video, call, text, email, chat, or

other means.

4d. Any recording of online mediation is prohibited. It is a violation of the confidentiality of

the parties and of mediation to create or retain a recording.

4e. The terms/recommendations included in this subsection (number 4) are also

recommended to be language written into the agreement to mediate used by the mediator.

5. ADDITIONAL CONSIDERATIONS

5a. Part of hosting an online mediation is to be seen and heard, meaning that the mediator

should be visible on camera, with their face well-lit and have adequate sound for

communicating.

Utah Mediation Best Practice Guide – 2023

5b. The mediator in an online session should refrain from checking emails, receiving calls,

social media use, search engines, and other online distractions that are not related to and

necessary for the mediation. A mediator should encourage all parties to do so also.

5c. Online mediators should arrive at least 10 minutes ahead of the scheduled start time,

for preparation for hosting. It is recommended that parties arrive 5 minutes ahead of scheduled

start time.