Section 162.03. Mediators and arbitrators; general.

 

(1)   Appointment and qualifications. The department shall appoint mediators according to s. ATCP 162.04 (4) . The department shall appoint arbitrators according to s. ATCP 162.05 (2) . Mediators and arbitrators shall possess the qualifications required under ss. 93.50 (2) (a) and (am) , Stats. Mediators and arbitrators shall successfully complete all training required by the department. Mediators and arbitrators shall be impartial.

(2)   Written agreement. The department shall enter into a written agreement with each mediator or arbitrator. The agreement shall set forth the terms and conditions under which the mediator or arbitrator will provide mediation and arbitration services under s. 93.50 , Stats., and this chapter.

(3)   Mediator functions. If parties consent to mediation under s. 93.50 , Stats., and this chapter, the appointed mediator shall encourage and assist the parties to reach a voluntary settlement as provided in s. 93.50 (3) (f) , Stats. Neither the mediator nor the department may impose a settlement upon any party.

(4)   Arbitrator functions. If parties consent to arbitration under s. 93.50 , Stats., and this chapter, an arbitrator shall conduct an arbitration proceeding and render an arbitration award. Arbitration proceedings shall conform to ch. 788 , Stats. , and this chapter.

(5)   Advising parties. No mediator or arbitrator may provide legal, financial or therapeutic advice to any party in a mediation or arbitration proceeding. At the request of a party, a mediator may refer the party to alternative sources of professional consultation or assistance. A mediator may not solicit or accept any payment or thing of value, either directly or indirectly, in return for making a referral.

(6)   Confidentiality. Except as otherwise agreed by the parties and the department, or as provided in s. 904.085 , Stats., mediators and arbitrators shall keep confidential all information and records obtained in connection with a mediation or arbitration proceeding. At the conclusion of the proceeding, the mediator shall file all records with the department.

(7)   Ethics.

(a) No mediator or arbitrator may, during a mediation or arbitration proceeding or within one year after that proceeding is concluded, provide or offer to provide, for compensation, any service to a person who is a party to that proceeding before that mediator or arbitrator.

(b) No mediator or arbitrator may provide or offer to provide, for compensation, to a person who is a party to a mediation or arbitration proceeding before that mediator or arbitrator, any service related to any issue raised in that proceeding.

(c) No mediator or arbitrator may solicit or accept, directly or indirectly, from a party to a mediation or arbitration proceeding, any of the following:

1. Anything of value that could reasonably be expected to influence the actions or judgment of the mediator or arbitrator, in his or her capacity as a mediator or arbitrator.

2. Anything of value that could reasonably be considered as a reward for any action or inaction by the mediator or arbitrator, in his or her capacity as a mediator or arbitrator.

(d) No mediator or arbitrator may disclose confidential information gained as a result of his or her service as a mediator or arbitrator, or use that information in any way that could result in the receipt of anything of value by the mediator or arbitrator, or any person or organization with which the mediator or arbitrator is associated.

(e) No mediator or arbitrator may use or attempt to use his or her position as a mediator or arbitrator to gain unlawful benefits, advantages or privileges for himself or herself, or for others.

(f) A mediator or arbitrator shall disclose to the department, and to the parties to a mediation or arbitration proceeding, every potential conflict of interest and every other matter which may affect the mediator's or arbitrator's ability to act in a fair and impartial manner in the proceeding. A mediator or arbitrator shall withdraw from the proceeding if the mediator or arbitrator is unable to act in a fair and impartial manner.

(g) This subsection does not prohibit a mediator or arbitrator from receiving normal compensation or reimbursement of expenses from the department, pursuant to s. 93.50 (2) (b) , Stats.

(8)   Substitution.

(a) A party to a mediation or arbitration proceeding may petition the department for substitution of a mediator or arbitrator. The party shall submit the petition in writing, and shall specify the reason for the petition. The department may require the petitioner to substantiate his or her claim, and may conduct its own investigation as necessary. The department may order a substitution if the department determines that a conflict of interest exists, or that there are reasonable grounds to believe that the mediator or arbitrator cannot act fairly and impartially in the matter. The department shall issue its decision in writing and shall serve a copy on all parties to the proceeding. If the department orders a substitution, the department shall appoint a new mediator according to s. ATCP 162.04 (4) or a new arbitrator according to s. ATCP 162.05 (2) .

(9)   Immunity from liability; limitations. The civil immunity provided to mediators and arbitrators under s. 93.50 (2) (c) , Stats., does not include any of the following:

(a) Immunity from liability related to fraud or an intentional violation of sub. (7) .

(b) Immunity from criminal liability.

History: CR 04-005 : cr. Register October 2004 No. 586 , eff. 11-1-04.