(a)

1. (1) Mediation is available to the applicant/client before an impartial hearing is requested.
2. (2) Mediation is not used to deny or delay the right of an individual to a hearing or to deny any other right afforded by law or Arkansas Rehabilitation Services policy.

(b)

1. (1) Mediation is a voluntary process that allows the parties to resolve disputes regarding the provision of vocational rehabilitation services.
2. (2) Mediation is informal, nonadversarial, and the parties may present whatever evidence they wish in support of their position in a neutral setting.
3. (3) The mediation process relies on the good-faith efforts of the participants to reach their own agreement as to how the dispute should be resolved.

(c)

1. (1) Although mediation does not involve fact-finding or the strict weighing of evidence, mediation participants should be prepared to:

   1. (A) Describe the factual background behind the dispute; and
   2. (B) Discuss their desired outcome.

2. (2) Discussions that occur during the mediation process:

   1. (A) Are confidential; and
   2. (B) May not be used as evidence in any subsequent hearing or civil proceedings.
3. (3) The parties will be required to sign a confidentiality statement prior to commencement of the mediation.

(d) Mediation procedures.

1. (1) Arkansas Rehabilitation Services will notify applicants, clients, or their representatives in writing of the opportunity for mediation when:

   1. (A) An individual applies for vocational rehabilitation services;
   2. (B) Order of selection is utilized;
   3. (C) An individualized plan for employment is developed; or
   4. (D) The individual is determined ineligible for services/services are reduced, suspended, or terminated.

2. (2)

   1. (A) Mediation is voluntary for both parties.
   2. (B) At any time during the mediation process, either party or the mediator may elect to terminate the mediation.
   3. (C) If mediation is terminated, either party may continue to an impartial hearing.
   4. (D) However, terminating a mediation does not extend the sixty-day time period for completion of an impartial hearing, unless the parties agree otherwise.

(e) Request for mediation.

1. (1)

   1. (A) The supervisory staff member who conducted the administrative review will provide the applicant/client with an “Information on Mediation” handout when the staff member renders the written administrative decision.
   2. (B) If interested in mediation, the applicant/client will complete and submit the Request for Mediation form to the District Manager.
   3. (C) The District Manager will submit the Request for Mediation to the Chief of Field Services or designated deputy.
   4. (D) The Chief of Field Services or designated deputy will review the relevant documentation and determine, within five (5) business days of receiving the Request for Mediation, whether Arkansas Rehabilitation Services consents to mediation.
2. (2) If Arkansas Rehabilitation Services does not consent to mediation, a certified letter will be sent to the applicant/client informing them of their right to request an impartial hearing.

3. (3)

   1. (A) If Arkansas Rehabilitation Services consents to mediation, the agency’s Program Planning Development and Evaluation Section will coordinate the mediation session and inform the applicant/client of their due process rights.
   2. (B) The Program Planning Development and Evaluation Section is responsible for all mediation forms after a request is received.
   3. (C) As expeditiously as possible (and keeping in mind the sixty-day deadline to complete any impartial hearing), Program Planning Development and Evaluation Section staff will communicate with the applicant/client, Arkansas Rehabilitation Services staff, and mediator to establish the date, place, time, and participants for the mediation.
   4. (D) The Program Planning Development and Evaluation Section staff completes the Mediation Scheduling and Agreement to Mediate forms.

(g) Selection and role of mediator.

1. (1)

   1. (A) The mediation will be conducted by a qualified and impartial mediator, as defined in 34 C.F.R. § 361.5(b)(43).
   2. (B) The mediator will be selected from a list of qualified and impartial mediators maintained by the State of Arkansas.
   3. (C) Selection will be:

(i) By agreement between Arkansas Rehabilitation Services and the applicant/client or their representative;

1. (ii) On a random basis; or

   1. (iii) By a procedure established by the State of Arkansas for assigning qualified, impartial mediators.

2. (2)

   1. (A) Program Planning Development and Evaluation Section staff will present no more than five (5) names of mediators and their qualifications to the applicant/client.
   2. (B) The applicant/client, or their representative, may choose the mediator from those names.
   3. (C) If the applicant or client does not have a preference, the mediator will be randomly selected from the entire list of qualified and impartial mediators.
   4. (D) In mediation, decision-making authority rests with the parties agreeing to mediate.

3. (3) The role of the mediator includes, but is not limited to:

   1. (A) Assisting the parties to identify issues;
   2. (B) Facilitating communication;
   3. (C) Focusing the parties on their interests;
   4. (D) Maximizing the exploration of alternatives; and
   5. (E) Helping the parties reach voluntary agreements.
4. (4) The mediator may offer options for the parties to consider as to settlement terms but will not impose settlement terms on the parties.

(h) Mediation day — Reaching an agreement.

1. (1) The mediator will:

   1. (A) Introduce himself or herself and the parties involved;
   2. (B) Discuss the mediator’s neutrality in the process; and
   3. (C) Confirm the confidentiality of the proceedings.

2. (2) Generally, the mediation will proceed as follows:

   1. (A)

      1. (i) Opening statements.
      2. (ii) Both parties will be afforded the opportunity to explain their positions on why this session is being held;
   2. (B) The mediator will provide an opportunity for witnesses and/or evidence to be presented;

   3. (C)

      1. (i) At any time during the process, the mediator may ask questions for clarification or to obtain more information.
      2. (ii) The mediator may allow the parties to ask clarifying questions of each other;
   4. (D) The mediator will provide a summary or feedback to the parties;
   5. (E) The mediator will facilitate the parties’ communication to develop options for a settlement, which may require the mediator to hold private caucuses with the separate parties; and
   6. (F) The mediator will produce a written formal agreement with the assistance of the parties.

3. (3)

   1. (A) All parties must have a clear understanding of what each will do in carrying out the agreement.
   2. (B) The mediator will compose the agreement and ask the parties to sign a Final Mediation Agreement Form before leaving the mediation.
   3. (C) The agreement will be implemented as soon as possible, and copies will be provided to all parties.
4. (4) Although information exchanged at the mediation is confidential, Arkansas Rehabilitation Services staff may enter the mediation agreement and supporting documents in the applicant/client’s case file, which is itself subject to confidentiality protections.

5. (5) After the agreement is reached, the Program Planning Development and Evaluation Section will send the Arkansas Rehabilitation Services Mediation Feedback Survey form to:

   1. (A) The applicant/client and their representative;
   2. (B) Arkansas Rehabilitation Services staff involved; and
   3. (C) The mediator.

6. (6) The parties’ signed Final Mediation Agreement Form ends the due process steps and resolves the determination under review.

   1. (i) No agreement reached. If mediation does not result in a final agreement between the parties, the applicant or client may request an impartial hearing by submitting a Request for an Impartial Hearing form within five (5) calendar days of the completion of the mediation.