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CHAPTER 17IOWA MEDIATION PROGRAMPART IGENERAL61—17.1(654A, 654B) Application. These rules are promulgated by the attorney general as the farm assistance coordinator on the recommendation of the Iowa Mediation Service, Inc. These rules will apply to and implement all mediation proceedings undertaken pursuant to Iowa Code chapters 654A and 654B unless otherwise noted. These rules do not apply to any other mediation proceedings which may be undertaken by the Iowa Mediation Service, Inc.pursuant to its bylaws and general corporate powers.61—17.2(654A, 654B) Definitions. As used in these rules, unless the context otherwise requires:Encourage disclosure of financial data including assets, obligations, and other pertinent information; Indicate the duties and rights of the parties to the proceedings; Promote participation within the mediation proceedings. 61—17.29(654A, 654B) Mediation period. 17.29(1) Meetings. The mediation service or the assigned mediator shall schedule the mediation meetings at a neutral and convenient place and at a time as convenient as possible for the parties including nights and weekends, if necessary. 17.29(2) Mediation period conclusion. The mediation period shall be concluded within 42 days after the mediation service has received the mediation request. 17.29(3) Extension. Upon agreement of the parties participating in mediation, the mediation period may be extended beyond 42 days. If a mediation agreement is under active consideration at the time the mediation period expires, and the parties so agree, the mediation period shall be extended and no release issued until the time that the mediation agreement has been approved or rejected.61—17.30(654A, 654B) Tentative agreement. If a tentative agreement is reached among the parties during the mediation meeting, the mediator shall draft a written statement summarizing what the parties have agreed to perform. Before the completion of the meeting the mediator and the parties shall review the specific terms of the written statement. The mediator shall utilize the assistance of the parties or their representatives as appropriate.61—17.31(654A, 654B) Review of tentative agreement. The mediator shall encourage each party to review the tentative agreement to be certain that it reflects their understanding of the agreement reached in the mediation session. The mediator may assist the parties in evaluating the potential implementation of the agreement. The mediator shall also encourage each party to have the tentative agreement reviewed by legal counsel and a tax adviser to review the legal and tax consequences of the tentative agreement. The tentative agreement may be reviewed during the session or during a specific time period agreed to by the parties. If after review, one or more of the parties rejects the tentative agreement in whole or in part, the mediator shall attempt to resolve the differences. The mediator may call the parties together for additional mediation meetings to resolve any outstanding differences on the elements and terms of the tentative agreement. Any new tentative agreement shall be signed by the parties and the mediator and sent to the mediation service. Copies shall be sent to all parties by the mediator.61—17.32(654A, 654B) Mediation agreement. After the tentative agreement has been reviewed and approved, the mediator shall formalize the mediation agreement by affixing the mediator’s signature and obtaining the parties’ signatures to the Mediation Agreement form. The original mediation agreement shall be retained by the mediation service and each party shall be given a copy.61—17.33(654A) Mediation release. The following constitute a mediation release:
"Affected landowner" means a landowner who has received notice of a preliminary wetlands designation from the Iowa department of natural resources.
"Director" means the director of the mediation service or the designee of the director.
"DNR" means the Iowa department of natural resources.
"Farm borrower" means a borrower who is any of the following:
- An individual operating a farm as a sole proprietorship or as a member of a partnership;
- A family farm corporation as defined in Iowa Code section 172C.1(8);
- An authorized farm corporation as defined in Iowa Code section 172C.1(9).
"Mediation agreement" means a written agreement between the parties to a mediation meeting.
"Participate" "participation" in a mediation involving the designation of wetlands means that the DNR’s representative attends the mediation meeting, listens to the affected landowner and the landowner’s representative, and discusses the following: the definitions of wetlands and protected wetlands, the criteria for designation of protected wetlands, and the reasons why the department designated all or a portion of the affected landowner’s land as protected wetlands.
"Preliminary wetlands designation" means the notice sent by certified mail to affected landowners informing the landowners that a portion of their land has been designated by the department of natural resources as a protected wetland.
"Send" means to mail by first-class mail, or certified or registered mail.
"Tentative agreement" means a written agreement reached by the parties in the course of the mediation meeting or meetings.
61—17.3(654A, 654B) Mediation services. The mediation services required under these rules shall be provided pursuant to a contract with the farm assistance program coordinator.61—17.4(654A, 654B) Duties. The duties of the mediation service under these rules include, but are not limited to, the following: 17.4(1) Training. The mediation service shall provide training in mediation techniques to all mediators utilized by the mediation service. This training shall include at least 32 hours of initial training on the mediation process, mediation skills and agricultural farm finance issues. At the director’s discretion the training period may be adapted for previously trained mediators. The mediation service shall provide training for mediators who assist in handling care and feeding contract, nuisance, and preliminary wetlands designation disputes. 17.4(2) Support. The mediation service shall provide support for each mediator. For purposes of these rules, support includes, but is not limited to, technical assistance in complying with these rules and applicable statutes, clerical support and supplies as necessary. 17.4(3) Compensation. The mediation service shall provide compensation for mediators at a rate of no more than $25 per hour and at a rate and in a manner as prescribed by the board of the mediation services. The board shall also verify and reimburse expenses incurred by the mediators, including mileage and telephone expenses upon submission of verified expense claims. 17.4(4) Additional personnel. The mediation service may train and utilize additional personnel to act in assisting farmers, creditors, farm residents, affected landowners, the department of natural resources and other parties in preparing for mediation. The board of the mediation service may provide for payment or reimbursement of specified expenses to these personnel upon the submission of verified expense claims. 17.4(5) Coordination of efforts. The mediation service shall coordinate its efforts with those of the Legal Services Corporation of Iowa and the ASSIST program of the Iowa State University extension service. 17.4(6) Forms. The mediation service shall adopt and utilize the forms described in these rules and provide these forms through its offices and mediators. These forms may be altered with the prior approval of the farm assistance program coordinator.61—17.5(654A, 654B) Time. Any time periods prescribed by the rules shall be computed as provided in Iowa Code section 4.1(34).61—17.6(13, 654A, 654B) Fees. The mediation service fee shall not exceed $50 per hour for the borrower and $100 per hour for the creditor in farmer/creditor mediations. The hourly mediation fee may be waived for any party demonstrating financial hardship upon application to the farm mediation service. Payment shall be made at the conclusion of the mediation meeting by cash, check or preapproved voucher.This rule is intended to implement Iowa Code section 13.15 and Iowa Code chapters 654A and 654B.61—17.7(654A, 654B) Oversight. The farm division of the attorney general’s office is the designee of the attorney general to serve as the farm assistance program coordinator under the supervision of the attorney general. The farm assistance program coordinator shall monitor compliance by the mediation service with these rules and the terms of the contract and may terminate the contract upon written notice and for good cause.61—17.8(654A, 654B) Initial consultation. The mediation service shall have personnel available for initial consultation for purposes of preparing a party for the mediation proceedings. This consultation may be in person or by telephone. The consultation shall include educating the parties regarding the mediation process and the need for the party to develop proposals prior to the actual mediation meeting. There shall be no charge for the initial consultation.61—17.9(654A, 654B) Availability of assistance in preparation for mediation. The mediation service may make available for an hourly fee personnel to assist parties in the preparation for mediation. The preparation may be done by mediators of the mediation service, but in no case shall a person available through the mediation service who assists in preparation for any party act as a mediator in proceedings relating to that party. The hourly fee shall be set by the board of the mediation service.61—17.10(654A, 654B) Voluntary mediation. 17.10(1) Request for mediation. A borrower who owns agricultural property, a creditor of that borrower, a farm resident, or other party with a dispute with a farm resident may request mediation by applying to the mediation service on forms made available for voluntary mediation by the mediation service. 17.10(2) Evaluation. Upon receipt of a request for voluntary mediation, the mediation service shall review the request and contact the farm borrower, creditor, farm resident or other party and advise them that voluntary mediation has been requested. If all parties agree to enter voluntary mediation, the mediation service shall assign a mediator to meet with the parties to assist in the voluntary mediation and shall schedule a time and place convenient to the parties for the mediation.61—17.11(654A, 654B) Assignment and removal of mediators. 17.11(1) Assignment of mediator. The assignment of mediators shall be made by the director of the mediation service. The director of the mediation service may substitute the assigned mediator. 17.11(2) Removal upon request. During the mediation period, upon the written request of any party or all parties participating in mediation, removal of the mediator may be requested of the mediation service. This request must be filed in writing with the mediation service and, as soon as practicable, the director shall review the request. At the discretion of the director, a new mediator may be assigned to participate in the mediation. 17.11(3) Effect of removal. In the event of the removal of a mediator, the mediation service shall comply with the 42-day time period required by statute unless there is written agreement by the parties extending the time period. 17.11(4) Self-removal. Mediators may remove themselves from the mediation proceeding.61—17.12(654A, 654B) Appeal procedures. 17.12(1) Notice of denial of mediation release. If the mediator determines that a mediation release should not be issued because the creditor, party seeking to initiate a civil proceeding against a farm resident or the DNR has not participated in a mediation meeting, the mediator shall within seven days of the mediation meeting give notice by certified mail or in person that a mediation release will not be issued. The notice shall inform the party seeking the mediation release that it has seven days from the date the notice is received to appeal the mediator’s decision to the director of the mediation service. The notice shall also inform the party as to the reasons for the denial of the release and that another mediation meeting may be requested. A copy of the notice of denial of mediation release shall be filed with the director and mailed to the farm borrower, farm resident or affected landowner. In addition, the mediator shall prepare a report detailing the reasons for denial of the release and file the report with the director. Copies of the report shall be served on all parties to the mediation meeting in the manner and within the time provided for service of the notice of denial of mediation release. 17.12(2) Appeal of denial of the mediation release. The party seeking the mediation release may appeal the denial of the mediation release to the director of the mediation service within seven days of receipt of the notice stating that the release will not be issued. The appeal should be in writing and include: a listing of the parties who attended the mediation meeting, a summary of the reasons why denial of the mediation release should be reversed by the director and a certificate or affidavit of mailing indicating that it was mailed within seven days of receipt of the notice of denial of the mediation release. The appeal should be addressed to: Iowa Mediation Service, Inc., 315 East Fifth Street, Suite 4, Des Moines, Iowa 50309. 17.12(3) Notice of hearing. Within 15 days of receipt of the appeal the director or designee of the mediation service shall schedule a hearing on the appeal. The hearing shall be scheduled no later than 30 days of the receipt of the notice of appeal. Written notice of the hearing shall be delivered by the mediation service by certified mail to all parties or attorneys attending the mediation meeting. The notice shall specify the time, location, date and nature of the hearing. 17.12(4) Continuances. The director may upon application of a party to the appeal hearing continue the hearing to a date certain. A continuance may be granted for any cause not resulting from the fault or neglect of the applicant. Notice of the rescheduled hearing shall be served in the same manner as the notice of hearing. 17.12(5) Failure to appear. If a party who has received notice of the appeal hearing fails to appear, the director may proceed with the hearing and render a decision. 17.12(6) Conduct of the hearing. Appeal hearings shall be heard by the director. The hearing shall be recorded either by mechanical or electrical means, or by a certified shorthand reporter. The proceedings or any part thereof shall be transcribed at the request of any party with the expense of the transcription charged to the requesting party. Hearings before the director shall follow the order established by these rules, subject to modification at the discretion of the director: a. The director shall read the notice of appeal. b. The party seeking the mediation release may present evidence as to why the mediation release should have been issued including any evidence which may rebut the mediator’s report. c. Any other party of the mediation meeting may present any evidence regarding the denial of the issuance of the mediation release. 17.12(7) Burden of proof. The burden of proof rests upon the party seeking the mediation release to prove by clear and convincing evidence that the denial of the issuance of the mediation release was an abuse of discretion. In reviewing the mediator’s decision, the director shall consider the mediator’s report, the evidence introduced at the appeal hearing, and any written briefs filed by the parties. 17.12(8) Rules of evidence. Unless noted otherwise, Iowa Code section 17A.14 shall govern the rules of evidence for appeal hearings. 17.12(9) Decision. The director shall render a decision no later than 30 days after the appeal hearing. The director shall forward a copy of the decision by certified mail to all parties to the mediation meeting. 17.12(10) Arrangement to conduct hearing. The mediation service may make arrangements with the Iowa department of inspections and appeals to conduct an appeal hearing. If the appeal hearing is heard by an administrative law judge, the hearing shall be governed by these rules. When an administrative law judge hears the appeal, the decision becomes the final decision of the director for purposes of judicial review unless there is an appeal to the director within seven days of the date of the decision. On appeal from the decision of the administrative law judge, the director has all the power which the director would initially have had in making the decision; however, the director will consider only the issues presented at the hearing before the administrative law judge. 17.12(11) Prohibition against mediator testimony. The mediator who denied issuance of the mediation release shall not testify at the appeal hearing.61—17.13(654A, 654B) Rules of conduct. The mediation service shall establish, subject to the approval of the coordinator, general rules of conduct to govern the proceedings at mediation meetings which shall, in part, define the process and goals of mediation. The guidelines shall be available at cost from the mediation service. The rules of conduct are incorporated by reference into these rules. The mediators shall distribute these rules to all parties in attendance at the mediation meeting and shall discuss them with the parties orally prior to the commencement of the meeting. The rules of conduct shall also provide guidelines for the conduct of attorneys representing any party at the mediation meeting. The guidelines should inform attorneys of their right to counsel clients regarding their legal rights and the implications of suggested solutions. The guidelines should advise attorneys to avoid using the mediation proceedings as a discovery technique, that mediation proceedings are not formal legal proceedings, and that the mediator controls the meeting. A person may be accompanied, represented, and advised during the mediation session by a lawyer, legal assistant, law clerk or other representative.PART IIMANDATORY MEDIATION61—17.14(654A, 654B) Request for mediation. All parties for whom mediation is mandatory shall file a request for mediation with the Iowa Mediation Service, Inc., at 315 East 5th Street, Suite 4, Des Moines, Iowa 50309. An affected landowner may file a request for mediation at the same address within 60 days of the date of the notice of the designation of protected wetlands.61—17.15(654A, 654B) Contents of the request for mediation. 17.15(1) Farmer/creditor. The request for farmer/creditor mediation shall contain the following information: the name of the creditor and a person designated as the creditor’s representative for service, the address and telephone number of the creditor and the creditor’s representative and, where possible, the names and positions of the representatives who plan to attend the mediation proceedings. In addition, it may contain the name and address of the debtor, the telephone number of the debtor, and the location of the collateral real estate or chattel property. If the debtor’s property is under the control of a third party, the creditor shall list the same information, if available, for the third party. 17.15(2) Contract feeding and nuisance disputes. The request for contract feeding and nuisance dispute mediation shall contain the following information: the name and address of the farm resident or other party requesting mediation and the person(s) designated as the representative for service, and the name and position of the person who will attend the mediation proceeding; if the request for mediation concerns a contract feeding dispute, a copy of the contract, a description of the livestock, the name and address of the farm resident caring for the livestock, the name and address of the owner of the livestock if not the party requesting mediation, and a summary of the dispute; if the request for mediation concerns a nuisance dispute, the name and address of the person(s) alleged to be creating the nuisance and a description of the actions which are alleged to create the nuisance. 17.15(3) Wetlands designation. The request for wetland designation mediation shall contain the following information: the name, address and telephone number of the affected landowner and the person(s) designated as the representative for service, the name and position of the person(s) who will attend the mediation proceeding, a statement as to whether the affected landowner either challenges in whole or in part the designation of protected wetlands or requests the designation of additional marshes or wetlands as protected wetlands, and a copy of the DNR’s notice of preliminary wetlands designation.61—17.16(654A, 654B) Failure to furnish complete information. Failure to provide a complete request for mediation may cause the initiation of the mandatory mediation time period to be delayed until complete information is furnished. If the director determines that the mediation time period shall be delayed, the director shall immediately notify the party failing to furnish complete information, specifying what information is necessary to make the request for mediation complete. Failure to complete the request for mediation within 21 days may result, at the director’s discretion, in the termination of the mediation proceeding. A new request for mediation may then be initiated.61—17.17(654A, 654B) Bankruptcy. If the director learns that the creditor is barred from taking action against the farm borrower by the automatic stay provision of 11 U.S.C. Section 362, the director shall terminate the mediation proceeding, subject to reopening without filing a new request for mediation, in the event the automatic stay is lifted. The 42-day mediation period shall commence from the date the director receives notice that the stay has been lifted. The proceedings shall otherwise follow the time periods and rules applicable to mediation proceedings.61—17.18(654A, 654B) Notice of mediation request. 17.18(1) Farmer/creditor. Upon receipt of the mediation request, the mediation service shall, within three working days, send by regular mail notice to the borrower of the creditor’s request for mediation. The notice of the request for mediation shall include the name of the creditor requesting mediation, describe the mediation process in brief, explain the availability of legal services and the ASSIST program, and set forth the procedure for the farm borrower to follow in mediation. The notice shall require the farm borrower to file a list of creditors and their addresses with the mediation service within ten days of the receipt of the notice. This list shall include all secured creditors and any unsecured creditors to whom the farm borrower owes $2,000 or more. The notice shall further require the farm borrower, where possible, to include the names of persons who will attend the mediation meeting with the farm borrower, including legal counsel and family members. 17.18(2) Contract feeding and nuisance disputes. Upon receipt of the contract feeding or nuisance mediation request, the mediation service has three working days in which to send by regular mail notice to the farm resident or other party of the mediation request. The notice of the request for mediation shall indicate the name of the person requesting mediation, describe the mediation process in brief, explain the possible availability of legal services, and set forth the procedure for the parties to follow in mediation. The notice shall require the farm resident or other party to file the names of persons who will attend the mediation meeting, including legal counsel or family members, within ten days of receipt of this notice. 17.18(3) Wetlands designation. Upon receipt of the mediation request, the mediation service has three working days in which to send by regular mail notice to the DNR of the mediation request. The notice of the request for mediation shall indicate the name of the affected landowner and set forth the procedure for the parties to follow in mediation and indicate whether the landowner challenges the designation of protected wetlands or requests the designation of additional marshes or wetlands as protected wetlands. Within ten days of receipt of the notice of mediation request, the DNR shall designate to the mediation service the name(s) of the person(s) who, with authority to negotiate agreements, will appear at the mediation meeting on its behalf.61—17.19(654A, 654B) Failure to respond. If the farm borrower, farm resident or other party fails to respond to the notice of the request for mediation within ten days of receipt of the notice, the mediation service shall, if possible, contact the farm borrower, farm resident or other party by telephone or by registered or certified mail, to advise of the request for mediation.61—17.20(654A, 654B) Automatic waiver. Any farm borrower, farm resident or other party who fails to respond to the request for mediation within 21 days of the receipt of the request for mediation shall be deemed to have waived mediation.61—17.21(654A, 654B) Notice of automatic waiver. In the event of an automatic waiver, the mediation service shall notify, by regular mail, the creditor, farm resident or other party who made the request for mediation that there has been an automatic waiver. The mediation service shall issue a release to the initiating creditor, farm resident or other party requesting mediation stating that the creditor may proceed against the agricultural property or that a civil proceeding may be initiated to resolve the dispute. The notice of waiver and release shall be mailed within 21 days of the automatic waiver. A copy of the notice of waiver and release shall also be sent to the party who failed to respond.61—17.22(654A, 654B) Availability of legal services and ASSIST program of Iowa State University extension service. The mediation service shall, at the time notice is given of the request for mediation, advise farm borrowers, farm residents, and affected landowners of the possible availability of legal services to qualifying persons under Iowa Code section 13.23. The notice shall include the WATS telephone number of the Legal Services Corporation of Iowa with whom the farm assistance program coordinator has contracted to provide legal services to farmers. The farm borrower, farm resident or affected landowner shall be responsible for obtaining information and assistance from Legal Services Corporation of Iowa. The mediation service shall also, at the time notice is given of the request for mediation, advise farm borrowers of the availability of financial preparation services to farm borrowers through the ASSIST program offered by the Iowa State University extension service. The notice shall include the location of the nearest county extension office and a description of the services offered. The farm borrower shall be responsible for obtaining information and assistance from the ASSIST program.61—17.23(654A, 654B) Extension of time. In the event that legal services or financial preparations cannot be provided on a timely basis, the farm borrower or the Legal Services Corporation on behalf of the farm borrower, farm resident or affected landowner or the ASSIST program on the farm borrower’s behalf, may file a written request for an extension of time in which to obtain these services. Upon receipt of this written request, the mediation service shall notify the creditor, other party or the DNR that the written request has been filed and shall consult with the creditor, other party or the DNR and with the provider of the legal or financial services to determine if an extension is justified. The extension may be granted by agreement of the parties or at the discretion of the director of the mediation service for good cause.61—17.24(654A, 654B) Notice of initial mediation meeting. Within 21 days after receiving the request for mediation, the mediation service shall send a mediation meeting notice to the creditor, farm borrower, all other creditors listed by the farm borrower, the farm resident, other party, affected landowner and the DNR as applicable. The notice of the initial mediation meeting shall state the time and location of the meeting, and the name of the mediator assigned to the mediation proceeding. The notice of initial mediation meeting shall also state that parties or any representatives must have authority to negotiate an agreement within the mediation proceedings.61—17.25(654A, 654B) Expedited procedure. Any party may, by filing a written request with the director, request that the time frames for mediation be expedited. The written request shall be served on all other parties to the mediation by certified mail. Upon receipt of the written request, the director shall notify all other parties to the mediation meeting of the request and provide an opportunity for response. The opportunity to respond is limited to three days and the director shall evaluate all materials submitted concerning the request and decide whether the proceedings should be expedited within three days of the response. The burden to show irreparable harm unless the proceedings are expedited rests with the party requesting that the proceedings be expedited. If all parties agree, or if upon review of the written request and other information the director finds that the party filing the written request will suffer irreparable harm unless mediation is expedited, the director shall expedite the time frames for mediation. The director shall serve by certified mail a notification of the expedited mediation schedule within 48 hours of that decision.61—17.26(654A, 654B) Initial mediation meeting. The initial mediation meeting must be held within 21 days of the issuance of the notice of the initial mediation meeting. The initial mediation meeting may be held beyond the 21-day period only with the consent of all the parties to the mediation.61—17.27(654A, 654B) Cancellation. 17.27(1) Farmer/creditor. After the commencement of the mediation proceedings, the mediation service may cancel the proceedings upon any of the following grounds: a. The receipt of notice from the creditor requesting mediation that the default has been cured; b. The receipt of notice that an agreement has been reached between the creditor requesting mediation and the farm borrower; c. The farm borrower has waived mediation; d. The creditor requesting mediation withdraws the request for mediation. 17.27(2) Contract feeding and nuisance disputes. The mediation service may cancel the proceedings upon any of the following grounds: a. The receipt of notice from either the farm resident or other party requesting mediation that the dispute has been resolved; b. The farm resident has waived mediation; c. The farm resident or other party requesting mediation withdraws the request for mediation. 17.27(3) Wetlands designation. The mediation service may cancel the proceedings upon either of the following grounds: a. The receipt of notice from the affected landowner that the request for mediation is withdrawn; b. The receipt of notice from either the affected landowner or the DNR that the parties have reached an agreement concerning the designation of protected wetlands.61—17.28(654A, 654B) Procedure for mediation meeting. At the initial mediation meeting and any subsequent meetings, the mediator shall perform the following duties:- Listen to all parties;
- Mediate between all parties;
- Encourage compromise and workable solutions;
- Advise, counsel and assist the parties in attempting to arrive at an agreement for the future conduct of relations among them;
- Clarify the names of all participating parties present, and facilitate agreement on the attendance of any assisting persons at the mediation meeting, as well as the extent to which these persons may participate in the proceedings;
- Ensure that the parties understand that the mediator does not legally represent any of the parties and is neutral in the proceedings;
- Help the parties review any proposed solution to determine if it can be effectively implemented and to help the parties understand the consequences of the proposed solution;
- Review the rights and obligations of the participants in the mediation process including, but not limited to, the following:
- A mediation agreement;
- A statement of waiver of mediation executed by the farm borrower, farm resident or affected landowner;
- A notice to creditors that the farm borrower, farm resident or other party has failed to provide the required information to the mediation service within the prescribed 21 days;
- A statement executed by the mediator indicating that a mediation meeting has been held in which the parties participated with no provision for extension of time, and that no tentative agreement is under consideration.