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(1) The resolution of any matter in connection with a dispute may be pursued through mediation with the agreement of all parties.

(2) Mediation may be requested and scheduled at the initial conference or at any time during the proceeding at the agreement of both parties. Alternatively, if the parties and the hearing examiner agree, mediation may also occur during the initial conference with the understanding that if a resolution is not reached, the case shall be reassigned to a different hearing examiner.

(3) The mediator may either be a hearing examiner from the ODR or a mediator from outside the department and shall be selected with the consent of both parties.

(4) If an outside mediator is selected, the cost of the mediator shall be paid for by the party requesting the outside mediator, unless the parties have agreed to some other cost-sharing provision.

(5) The mediator does not have authority to enter any decision on the merits of the issues in dispute or to impose a settlement upon the parties. The parties control the identification of the issues submitted and the type of resolution to be agreed upon.

(6) At the mediation, each party shall have the appropriate representative or access to the appropriate representative who has full settlement authority.

(7) Mediation sessions are confidential settlement negotiations. All written and oral communications, negotiations, and statements made in the course of the mediation are made without compromising any party's legal position, are not discoverable, and shall be inadmissible for any purpose at any legal proceeding.

(8) If mediation resolves the dispute, a written agreement documenting the resolution shall be prepared by the parties with the assistance of the mediator, if necessary. A written agreement signed by all parties to the agreement is not confidential and may be admissible as evidence, as set forth in 26-1-813, MCA.

(9) If mediation does not resolve all issues in a dispute, the parties shall prepare a stipulation that identifies the issues resolved and those that still remain in dispute. For the issues remaining unresolved, the matter may proceed before a different hearing examiner unless the parties have agreed to move the remaining issues to the next level of appeal.

History: 15-1-201, 15-1-211, MCA; IMP, 15-1-211, MCA; NEW, 1999 MAR p. 2900, Eff. 12/17/99; AMD, 2016 MAR p. 1072, Eff. 6/18/16.

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