Order 5 of the ADR Rules 2022 establishes a three-stage disciplinary system. In this Order, “ADR Practitioner” shall be read and understood to mean and cover mediators and other ADR Practitioners.
Order 5 Rule 2
A complaint shall be in Form 7 of Schedule 2 and may be lodged by any party to or participants at a mediation or an ADR process, or by the Committee. Where a party complains, the fee prescribed in Schedule 5 must be paid — K50, to Consolidated Revenue for the credit of the ADR Service.
Complaints may be lodged in writing, by telephoning or emailing, or by personally attending — one not in writing being recorded by the Complaints Officer and signed as a true record.
Rule 2(7): complaints shall specify the conduct or behaviour complained of in sufficient detail to fully inform the person against whom the complaint is made and the Complaints Authority of the nature of the complaint, and must be lodged with the Complaints Officer within 60 days from the date of occurrence of such conduct or behaviour.
Order 5 Rule 3
(1) Within seven days of receipt, the Complaints Officer shall deliver a copy of the complaint to the person complained of.
(2)(a) That person shall, within 14 days of receipt or such further time as the Complaints Officer permits, provide a full and frank explanation of the alleged behaviour or conduct.
(2)(b) And, unless excused, take every step to have the matter resolved promptly and amicably through joint discussions with the complainant and the Complaints Officer, and/or mediation facilitated by the Complaints Officer, within 30 days from the expiry of the 14 days.
Rule 3(3): any failure by an ADR Practitioner to take the steps as required under subrule (2) without reasonable excuse shall be deemed to be improper conduct by an ADR Practitioner.
Order 4 Rule 2(d) makes the same point from the other direction: it is the duty of every mediator to respond within a reasonable time and in any event within 14 days to any requirement of the Council for comments or information.
Rules 4 to 8
The Authority is constituted by a Judge or Magistrate who is a member of the Committee other than the Chair, who is a most experienced and successful mediator. It shall not participate in any deliberations of the Committee regarding a complaint.
Rule 7: it has powers similar to a commission of inquiry under the Commissions of Inquiry Act (Chapter 31), may determine its own procedures, and shall observe the rules of natural justice.
(1) All proceedings shall be conducted in private and remain confidential save only for its final decision.
(2) Evidence shall be given on oath, and witnesses may be examined and cross examined but shall be protected from self-incrimination. (3) The Authority may permit counsel assistance to both the complainant and the ADR Practitioner. (4) A confidential written record is kept, available only for use in aid of determining the accreditation and certification of an ADR Practitioner.
Rule 9(2): where no misconduct or improper conduct is found, the Authority shall return a decision to that effect and may order costs against the complainant in favour of the ADR Practitioner.
Rule 10 also reaches a person who is not an ADR Practitioner who caused or assisted an act of default: the Authority may order that no ADR Practitioner employ them for a specified period, after a reasonable opportunity to be heard, and the order shall be published in a newspaper circulating in the country.
Rule 9
Where the Authority finds misconduct or improper conduct it may impose any one or more of — a finding of misconduct or improper conduct; a reprimand; conditions or restrictions on practice; cancellation of the practising certificate; removal of the name from the Roll; suspension from practice; an order to pay compensation in cash or in kind to another person affected; completion of a course of mediator education; orders as to the practice and books of accounts, reporting, taking advice on management, and whom the practitioner may employ; an order not to accept work in a specified form of ADR; an order to pay the costs of the inquiry; and any combination of these.
Rules 11 to 16
The Board is constituted by a Judge who is an accredited ADR Practitioner with not less than four years unrestricted practising certificate and is not a member of the Committee or Council, as Chair, and two Magistrates similarly qualified, appointed for three years. Decisions are by consensus or failing that by simple majority of any two members.
The Board hears appeals from a decision of the Council or the Authority. An appeal from a decision of the Council under Order 3 rules 4, 6 or 9 or of the Authority under Order 5 rule 9, shall be lodged within 21 days of the decision, in Form 8.
The appellant shall state succinctly and clearly the grounds relied upon, and the appeal is by way of rehearing on the record.
Rule 16(2): the decision of the Board is final and is not open to further appeal or review.
And under Order 6 Rule 1 the ADR Service shall forthwith communicate by notice in Form 9 a finding of guilt and penalty to the employer and or the professional body of the practitioner, who may then take disciplinary action under its own governing laws or rules. See a mediator’s duties and who may act as a mediator.
Sources
- Alternative Dispute Resolution Rules 2022 — O 2 rr 5, 8; O 3 rr 4, 6, 9, 11; O 4 r 2; O 5 rr 1–17; O 6 r 1; Sch 2 Forms 7–10; Sch 5
- Commissions of Inquiry Act (Chapter 31)
- National Court Act (Chapter 38) — s 7C(3)
The ADR Rules 2022 are on PacLII as a PDF only.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.