Before the ADR Rules 2022, anyone might describe themselves as a mediator. Order 3 Rule 1 ended that.
Order 3 Rule 1
(1) No person shall hold themselves out as a mediator or ADR Practitioner unless accredited as such under these Rules.
(2) A person may be accredited as a mediator if that person meets the accreditation criteria set out in Schedule 1 or such other requirements as the Council considers appropriate from time to time.
Order 3 Rule 10: a person shall not practise as an accredited mediator or ADR Practitioner unless — (a) that person has signed the Register; and (b) that person is the holder of a current restricted or unrestricted mediator or ADR Practitioner practising certificate.
So accreditation alone is not enough. The person must be accredited, must have signed the Register, and must hold a current practising certificate.
The definition of mediator in Order 1 Rule 3 says the same: a neutral third party who is accredited as such and holds a current practising certificate under these Rules.
Order 3 Rules 3 and 4
Persons are qualified for accreditation, or renewal, if they — (a) are fit and proper persons, and (b) meet the accreditation criteria as determined by the Council.
The Council may, upon reasonable cause being shown, dispense with any of the criteria in paragraph (b) — but not with the fit and proper requirement.
Regard shall be had to the applicant’s —
- probity;
- competence and soundness of judgment for fulfilling the responsibilities as a mediator;
- diligence with which the applicant is fulfilling or likely to fulfil those responsibilities;
- record of any convictions or charges pending, whether criminal, administrative or other misconduct;
- experience, if any, within a system of dispute or conflict resolution;
- knowledge of the applicable laws, rules and regulations regarding the form of ADR applied for;
- engagement in any business practices appearing to be deceitful or oppressive or otherwise improper (whether unlawful or not) or which otherwise reflect discredit; and
- such matters and evidence as may be relevant and obtained from any source.
Further regard is had to the applicant’s history of physical or mental health or behavioural problems, and whether the interests of mediators or ADR Practitioners are, or are likely to be, in any way threatened or compromised.
Restricted and unrestricted
| Unrestricted — Form 5A | Restricted — Form 5B | |
|---|---|---|
| Entitles the holder to | Practise as an accredited mediator or ADR Practitioner | Practise only under the supervision of a holder of an unrestricted certificate |
| Validity | Not exceeding two years, expiring on 31 December in the second year following the year of issue — r 11(2) | |
| Fee | As prescribed in Schedule 4, paid to consolidated revenue for the credit of the ADR Service | |
Rule 13(2): the Committee may grant an unrestricted certificate to the holder of a restricted one provided the holder has conducted a minimum of five co-mediations, with at least one of those being conducted by him as the lead mediator, and is supported and endorsed by the holder of an unrestricted certificate with whom the co-mediations were conducted.
Internal mediators and ADR Practitioners employed by the Court, the NJSS or the State who will not be charging a fee are exempt from the certificate fee — Rule 12(3).
Rule 13(1): the right to practise is conditional on meeting the Code of Professional Conduct in Order 4; completing at least five mediations or a form of ADR in the two-year period prior to any renewal; and participating in at least one mediator or other forms of ADR educational program — a conference, workshop or training program — in the same two-year period.
Two kinds of mediator
Internal mediator — a mediator who is within the employ of the Court, the National Judicial Staff Service, the State or an external mediator who is engaged by the Court or the National Judicial Staff Service to conduct internal mediations.
External mediator — a mediator or an ADR Practitioner who is not employed by the Court, the National Judicial Staff Service or the State and who may charge a fee for their ADR services.
Internal mediation — a mediation process conducted by an internal mediator for a party or parties who do not have the ability to pay the fees of an external mediator.
Order 2 Rule 5(4): no appointment of an internal mediator shall be made unless the Court is satisfied that one or all the parties in the proceeding is or are impecunious or it is in the national interest.
And Rule 5(5): the party seeking that appointment shall provide comprehensive evidence of their financial position, including their sources of income and assets held by them or in which they hold an interest and all liabilities.
Order 2 Rule 5(6): provided the presiding Judge is fully accredited as a mediator under these Rules, the presiding Judge may appoint himself or herself as the internal mediator and conduct the mediation.
That accords with section 7B(3)(a) of the National Court Act (Chapter 38), under which the presiding judge may, with the consent of the parties, conduct the mediation — but the Rules add the accreditation requirement.
If it does not settle, section 7D(4) applies: the proceeding shall continue to trial before a judge other than the judge who mediated the dispute. See when mediation fails.
Deregistration
The Council may suspend, vary or revoke accreditation for — (a) misconduct as a mediator or an ADR Practitioner; (b) acting in a manner likely to bring mediation or the relevant form of ADR into disrepute; or (c) failure to renew his practising certificate for two years after the expiry of his last practising certificate.
Where accreditation is revoked, the Registrar shall remove the name from the Register. See discipline of mediators and how accreditation works.
Sources
- Alternative Dispute Resolution Rules 2022 — O 1 r 3; O 2 r 5; O 3 rr 1, 3, 4, 9–13; Schs 1, 2, 4
- National Court Act (Chapter 38) — ss 7A, 7B, 7D
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.