Consumer Claims Tribunal
Code of Conduct for Mediators & Arbitrators
Progressive and Reliable
Med-arb is used to resolve a broad range of conflicts within a variety of settings. It is a process in which a frustrated mediation process immediately evolves into an arbitration process.
Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute. Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired. Should the mediation process not succeed in delivering a settlement of the dispute between the parties the matter immediately and automatically progresses to arbitration.
Arbitration in this instance is a process in which the secretariate of the CCT per the arbitration agreement between parties, appoint an neutral person from its panel of med-arb members whose duty it is, as with a court of law, to adjudicate over a dispute between those parties.
For purposes of this Code of Conduct :
1.1 ‘Arbitrator’ means a member of a mediator/arbitrator appointed to the panel of mediators and arbitrators of the Consumer Claims Tribunal;
1.2 ‘Mediator’ means a member of a mediator/arbitrator appointed to the panel of mediators and arbitrators of the Consumer Claims Tribunal;
1.3 ‘Mediator/Arbitrator’ within the context of the med-arb process used by the CCT has the combined meaning of 1.1 and 1.2 above;
1.4 ‘Candidate’ means an individual whose name is on the list of mediators/arbitrators as referred to in 1.1 and 1.2 above and who is under consideration for selection as a mediator/arbitrator with reference to a specific case;
1.5 ‘Proceeding’, unless otherwise specified, means a med-arb proceeding in terms of the Rules of CCT; and
Panel of Mediators & Arbitrators
2.1 The panel of mediators/arbitrators of CCT consist of practicing attorneys and advocates of impeccable character and integrity with at least 8 years experience in practice as members of their respective profession.
2.2 By accepting their appointment to the panel, members do accept this Code of Conduct and agree to abide to the letter and spirit thereof.
2.3 Any breach of this Code of Conduct may lead to the removal of such guilty member’s name from the panel and such sanction as may be provided for by law. Member specifically indemnifies the CCT against any claims and/or damages of whatever nature that may be caused as a result on his/her non-compliance with this Code.
2.1 A mediator shall conduct a mediation part of proceedings based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.
2.2 Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with this Code of Conduct.
2.3 A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should, when necessary, make the parties aware of the importance of consulting other professionals to help them make informed choices.
2.4 A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.
2.1 A mediator/arbitrator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.
2.2 A mediator/arbitrator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.
2.3 A mediator/arbitrator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason.
2.4 A mediator/arbitrator should neither give nor accept a gift, favor, loan or other item of value that raises a question as to the mediator’s actual or perceived impartiality.
2.5 If at any time a mediatorarbitrator is unable to conduct a mediation/arbitration in an impartial manner, the mediator/arbitrator shall withdraw.
Conflicts of Interest
3.1 A mediator/arbitrator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation/arbitration. A conflict of interest can arise from involvement by a mediator/arbitrator with the subject matter of the dispute or from any relationship between a mediator/arbitrator and any mediation/arbitration participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s/arbitrator’s impartiality.
3.2 A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s/arbitrator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.
3.3 A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator/arbitrator and could reasonably be seen as raising a question about the mediator’s/arbitrator’s impartiality. After disclosure, if all parties agree, the mediator/arbitrator may proceed with the mediation/arbitration.
3.4 If a mediator/arbitrator learns any fact after accepting a mediation/arbitration that raises a question with respect to that mediator’s/arbitrator’s service creating a potential or actual conflict of interest, the mediator/arbitrator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator/arbitrator may proceed with the mediation.
3.5 If a mediator’s/arbitrator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation/arbitration, a mediator/arbitrator shall withdraw from or decline to proceed with the mediation/arbitration regardless of the expressed desire or agreement of the parties to the contrary.
3.6 Subsequent to a mediation/arbitration, a mediator/arbitrator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation/arbitration. When a mediator/arbitrator develops personal or professional relationships with parties, other individuals or organizations following a mediation/arbitration in which they were involved, the mediator/arbitrator should consider factors such as time elapsed following the mediation/arbitration, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.
4.1 A mediator/arbitrator shall mediate/adjudicate only when the mediator/arbitrator has the necessary competence to satisfy the reasonable expectations of the parties.
4.2 Any member of the panel of Mediators/Arbitrators of CCT may be selected as a mediator/arbitrator, provided that the parties are satisfied with the mediator’s/arbitrator’s competence and qualifications. Training, experience in mediation/arbitration, skills, cultural understandings and other qualities are often necessary for mediator/arbitrator competence.
4.3 A mediator/arbitrator should attend educational programs and related activities to maintain and enhance the mediator’s/arbitrator’s knowledge and skills related to mediation.
4.4 A mediator/arbitrator should have available for the parties’ information relevant to his/her training, education and experience.
4.5 If a mediator/arbitrator, during the course of a mediation/arbitration determines that the mediator/arbitrator cannot conduct the mediation/arbitration competently, the mediator/arbitrator shall discuss that determination with the parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, withdrawing or requesting appropriate assistance.
4.6 If a mediator’s/arbitrator’s ability to conduct a mediation/ arbitration is impaired by drugs, alcohol, medication or otherwise, the mediator/arbitrator shall not conduct the mediation/arbitration.
4.7 A mediator/arbitrator will respond to all communications professionally, cordially and without any delay.
5.1 A mediator/arbitrator shall maintain the confidentiality of all information obtained by the mediato/arbitrator in mediation/arbitration, unless otherwise agreed to by the parties or required by applicable law.
5.2 If the parties to a mediation/arbitration agree that the mediator/ arbitrator may disclose information obtained during the mediation/arbitration, the mediator/arbitrator may do so.
5.3 A mediator who meets with any persons in private session during a mediation shall not convey directly or indirectly to any other person, any information that was obtained during that private session without the consent of the disclosing person.
5.4 A mediator shall promote understanding among the parties of the extent to which the parties will maintain confidentiality of information they obtain in a mediation.
5.5 Depending on the circumstance of a mediation/arbitration, the parties may have varying expectations regarding confidentiality that a mediator/arbitrator should address. The parties may make their own rules with respect to confidentiality, or the accepted practice of an individual mediator/arbitrator or institution may dictate a particular set of expectations.
Quality of the process
6.1 A mediator/arbitrator shall conduct a mediation/arbitration in accordance with this Code of Conduct and in a manner that promotes kindness, diligence, timeliness, cost minimisation, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.
6.2 A mediator/arbitrator should agree to mediate only when the mediator is prepared to commit the attention essential to an effective mediation/arbitration.
6.3 A mediator/arbitrator should only accept cases when the mediator can satisfy the reasonable expectation of the parties concerning the timing of a mediation/arbitration.
6.4 The presence or absence of persons at a mediation/arbitration depends on the agreement of the parties and the mediator/arbitrator. The parties and mediator/arbitrator may agree that others may be excluded from particular sessions or from all sessions.
6.5 A mediator should promote honesty and candor between and among all participants, and a mediator shall not knowingly misrepresent any material fact or circumstance in the course of a mediation.
6.6 The role of a mediator differs substantially from other professional roles. Mixing the role of a mediator and the role of another profession is problematic and thus, a mediator should distinguish between the roles. A mediator may provide information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with th-s Code of Conduct.
6.7 A mediator/arbitrator shall not conduct a dispute resolution procedure other than med-arb but label it mediation or arbitration in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation or arbitration.
6.7 A mediator may recommend, when appropriate, that parties consider resolving their dispute through counseling, neutral evaluation or other processes. The mediator shall however not adjudicate the dispute, make any recommendations to the parties or advise any party on the merits of the dispute.
6.8 If a mediation/arbitration is being used to further criminal conduct, a mediator/arbitrator should take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation/arbitration.
6.9 If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation/arbitration, the mediator/arbitrator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination.
6.10 If a mediator believes that participant conduct, including that of the mediator, jeopardizes conducting a mediation consistent with this Code of Conduct a mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.
Fees and other charges
7.1 A mediator/arbitrator shall provide each party or each party’s representative true and complete information about fees, expenses and any other actual or potential charges that may be incurred in connection with a mediation/arbitration.
7.2 The tariff of fees that is payable to mediators/arbitrators are fixed in the Rules of the CCT. Fees are payable directly to CCT for remittance to the mediator/arbitrator. The mediator/arbitrator may not demand or receive any further or additional remuneration or payments from any party directly.