Order 4 of the ADR Rules 2022 is the Code of Professional Conduct. Rule 1(1): unless otherwise provided, this Order applies only to mediators.
Rule 2
It is the duty of a mediator to comply with the relevant provisions of the Act and this Code, and —
(a) not to engage at any time in conduct (whether in pursuit of their profession or otherwise) which is — illegal; dishonest; unprofessional; prejudicial to the administration of justice; or may otherwise bring the mediation profession into disrepute;
(b) to observe the ethics and etiquette of the mediation profession;
(c) to be competent in all professional activities as a mediator; and
(d) to respond within a reasonable time and in any event within 14 days — or such further time as the Complaints Officer or Complaints Authority allows — to any requirement of the Council for comments or information, furnishing in writing a full and accurate account of their conduct.
Rule 3
(1) A mediator shall not provide any advice or opinion or an evaluation of a matter in dispute, or knowingly assist or seek to induce a breach of this Code by another mediator. (2) That does not preclude providing information or referring parties to information that is generally available, exercising care not to provide any prescriptive advice or opinion.
(3) It does not apply to a blended form or a customary form of mediation, where the mediator shall be at liberty to provide such advice or opinion as fairly and generally as is possible — provided the mediator is an expert in the area of dispute (except in a customary process) or the participants requested or consented to the advice, and it does not amount to an interpretation of a law, a statement or behaviour.
- Supervision — rr 3(4), (5): take reasonable care that partners and employees do not breach the Code, and properly supervise all professional work carried out for them by a person who is not an accredited mediator.
- Reporting — r 3(6): promptly report to the Council a breach of the Act, these Rules, the accreditation criteria, or a breach of this Code by another mediator.
- No gifts or loans — r 3(7): a mediator shall not permit a party, or any person or entity associated with a party, to make gifts or lend money to the mediator, their family, a domestic partner, or an unlisted company in which any of them has a significant beneficial interest.
- Reputation — r 3(8): take all reasonable steps that they and their associates do not engage in any conduct that brings into disrepute their integrity as mediators.
- Vulnerable people — r 3(9): ensure that the participants are aware of the interests of vulnerable people such as children, aged parents, and others who may be affected by the dispute and make appropriate provisions for such persons.
Rule 13
A mediator shall conduct the process in an impartial manner and must avoid — (a) any conflict between the interests of the mediator and those of any of the participants; (b) any personal judgment or belief of the mediator which could affect the impartiality required; (c) any favouritism or bias in word or in action or in omission of word or action that gives the appearance of any favour or bias.
Rule 13(2): except where it is customarily or culturally required and with the express agreement of all the participants, mediators shall not facilitate a mediation involving close friends, relatives, colleagues, supervisors or superiors in their employment, or their students — by reason of which it would be difficult to maintain professional independence.
(3) Where a mediator has or acquires an interest that may conflict with the parties’ interests, the mediator shall fully disclose the nature of the interest and all actual and any potential grounds of bias and conflict of interest well in advance — whereupon the participants are free to either retain the mediator by an informed waiver of the conflict of interest or to appoint another mediator.
(4) Notwithstanding subrule (3), if a mediator forms the view that a bias or conflict of interest impairs or has the likelihood of impairing his impartiality, he shall disqualify himself and withdraw from the mediation process regardless of any express agreement of the participants for an informed waiver.
Rules 4 and 9
A mediator shall always be frank and open with the participants and give candid opinion as to the mediator’s role; and use best endeavours to complete the process as soon as possible.
If it becomes apparent the work cannot be done within a reasonable time, the mediator shall so inform the participants and Court.
A mediator shall not take unnecessary steps or do work in such a manner as to increase costs to the participants, or agree to and undertake mediation on a matter which is beyond their competence.
Rules 12 and 14
In a case where there is a serious power imbalance, safety concerns or issues of control or intimidation, mediation shall not proceed unless the mediator is sufficiently experienced to deal with those issues and has the parties’ consent to proceed.
Where abuse is present, implied or threatened, Rule 12(2) requires appropriate measures — activating security protocols, conferencing by telecommunication, separate sessions, referral to appropriate resources or authorities, or suspending or terminating the session.
Among eleven requirements: avoiding any statement or view as to the truthfulness, validity or reasonableness of what a party says; avoiding any pressure or undue influence to reach an agreement; ensuring that manipulative or intimidating negotiating tactics do not adversely affect the fairness of the process; and enabling the participants to assess any proposed agreement in accordance with the participants’ own subjective criteria of fairness, considering where appropriate, any cultural or customary differences and the interests of any vulnerable stakeholders.
Sources
- Alternative Dispute Resolution Rules 2022 — O 1 r 3; O 4 rr 1–4, 9, 10, 12–14
- National Court Act (Chapter 38) — ss 7C, 7E
The ADR Rules 2022 are on PacLII as a PDF only. The Professional Conduct Rules 1989 are not available on PacLII.
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.