OAR 137-020-0709: Standards and Guidelines for Mediation

(1) No dealer or consumer will be compelled to participate in mediation. (2) The Department shall select matters that are eligible for the pilot program from complaints submitted to it in writing. The Department may apply the following factors in determining the eligibility of a matter. An allegation is eligible unless, in the Department’s sole and unreviewable discretion, the allegation: (a) Involves a business that is already the object of an ongoing investigation or civil or criminal prosecution; or (b) Involves a practice that appears to the Department to be criminal and continuing; or (c) Is another iteration of a pattern of the same conduct exhibited by the same business; or (d) Involves a business or consumer located at such a distance from a participating CDRP that it would be impractical for the dispute to be mediated by that CDRP; or (e) Involves conduct by an unlicensed dealer. (3) The Department shall select at least two CDRP’s to participate in the pilot program. At least one shall be in Southern Oregon and at least one shall be in the Portland Metropolitan area. The Department and the participating CDRP’s shall enter into written agreements specifying the relative duties of the CDRP and the Department. The agreements shall comply with Oregon laws concerning the confidentiality of mediation communications. (4) When the Department determines that a complaint is eligible for referral to the pilot program, the Department shall: (a) Notify the complainant and the business in writing; (b) Send the participating CDRP the complainant’s written submission and an instructional packet describing relevant state and federal laws relating to used motor vehicle transactions and general information about the used motor vehicle industry. The Department and the participating CDRP’s, in consultation with dealers, shall create the instructional packet. (5) According to the terms of its agreement with the Department, the participating CDRP shall develop the case, conduct any mediation that may be required, and provide all reports required by the participating CDRP and the Department. However, confidential mediation documents used by the mediator shall remain the property of the mediator or the participating CDRP and shall not be subject to the control of the Department. (6) The mediator in mediations conducted as part of this pilot program: (a) Shall not represent the interests of any of the parties or offer legal advice. (b) Shall not act as a judge or an arbitrator and shall have no decision making power to impose a settlement on the participants or to render decisions. (c) Shall not give legal advice, nor will he or she provide legal counsel to the parties. (d) Shall disclose any pre-existing relationships or conflicts of interest at the earliest possible convenience. (e) Shall not be an employee or agent of any party to the mediation. (f) May require that participants review documents submitted by the mediator or the CDRP and may require the participants to provide information to the mediator before participating in a mediation session. (7) Attorneys shall not accompany participants into mediation sessions conducted as part of this pilot program. Participants in the mediation are free to consult with an attorney at any time, other than in a mediation session.