05 Sep 2024
Rules for the Handling of Complaints Against an Accredited Mediator
(adopted by the Council of the HKIAC on 28 July 2006)
- For the purposes of these Rules, except where the context otherwise requires or permits, the following words shall have the meanings respectively attributed to them below:
"Accredited Mediator" shall mean a person who has been accredited by the MAC and whose name appears on one or more of the Panels at the relevant time.
"CAAM" shall mean an Accredited Mediator against whom a Complaint has been made.
"Code" shall mean the General Ethical Code and/or the Guidelines for Professional Practice of Family Mediators of The Hong Kong Mediation Council, a division of the HKIAC (the HKIAC Mediation Interest Group as it was known at the time the said Code and Guidelines were initially adopted), in effect at the time the events which give rise to a Complaint take place.
"Complaint" shall mean a complaint made against an Accredited Mediator with respect to the latter's (i) alleged conduct or behaviour in connection with a mediation proceeding; and/or (ii) alleged conduct or behaviour not connected with a mediation proceeding which might be seen to call into question the CAAM's suitability to remain as an Accredited Mediator.
"Complainant" shall mean a person making a Complaint.
"CDC" shall mean a Complaint Determination Committee appointed pursuant to 5(1) below.
"HKIAC" shall mean the Hong Kong International Arbitration Centre.
"Improper Conduct" shall mean an act or behaviour, including without limitation an act of omission, on the part of an Accredited Mediator which a reasonable and objective person, knowing the facts of the matter, would consider same to:
(1) be such a serious breach of the Code; and/or
that the continued presence of the Accredited Mediator in question on the Panels is no longer merited.
(2) so seriously bring the Accredited Mediator's professional abilities and/or personal temperament into question; and/or
(3) so seriously bring discredit upon and/or damage to the HKIAC, the MAC and/or the Panels;
"MAC" shall mean the Mediator Accreditation Committee of the HKIAC.
"Panels" shall mean the Panels of Accredited Mediators established by the MAC and existing at the relevant time.
"Rules" shall mean these Rules.
"Secretary-General" shall mean the Secretary-General of the HKIAC.
- As used in these Rules and where the context so requires or permits, words importing the masculine shall include the feminine and vice versa and words importing the singular shall include the plural and vice versa.
At the MAC Level
- Any Complaint must be made in writing and submitted to the Secretary-General and must be accompanied with all the evidence and/or statements upon which the Complaint is based. Once a Complaint has been duly received the Secretary-General shall immediately make a record of the date the Complaint is received, the name of the Complainant, the name of the CAAM and the nature of the Complaint. As soon as possible thereafter, the Secretary-General shall write to the Complainant acknowledging receipt of the Complaint. At the same time the Secretary-General shall notify the CAAM in writing that the Complaint in question has been made, and provide to the CAAM a copy of the Complaint, a copy of the evidence and/or statements upon which the Complaint is based and a copy of the Rules and shall invite the CAAM to submit in writing within twenty-one (21) days of the notification by the Secretary-General any comments the CAAM might wish to make in the circumstances. In addition, the Secretary-General shall as soon as possible forward to the Chairman of the MAC a copy of the Complaint and the evidence and statements in support of the Complaint submitted by the Complainant and any comments thereon submitted by the CAAM.
- (1) As soon as possible after receipt by the Chairman of the MAC from the Secretary-General of a copy of the Complaint and the evidence and statements in support of the Complaint submitted by the Complainant as well as any written comments the CAAM in question may wish to make within the twenty-one (21) days provided for in 3 above, the Chairman of the MAC shall convene a meeting of the MAC in order to review and investigate the Complaint to determine whether in its view there is a prima facie case of Improper Conduct to answer.
(2) Save as otherwise provided for in these Rules, the MAC shall have the power to conduct its review and investigation of a Complaint in such manner as it considers appropriate. All decisions of the MAC shall be made by majority of the members and the Chairman of MAC shall have a casting vote. The MAC may take into consideration and act on any information available to it whether or not such information would be admissible in a court of law.
(3) (a) If after conducting its review and investigation of a Complaint pursuant to 4(2) above the MAC is satisfied that there is no prima facie case of Improper Conduct to answer the MAC shall dismiss the Complaint and shall instruct the Secretary-General to notify in writing both the CAAM and the Complainant informing them of the MAC's decision.
(b) If after conducting its review and investigation of a Complaint pursuant to 4(2) above the MAC is satisfied that there is a prima facie case of Improper Conduct to answer the MAC shall instruct the Secretary-General to write to both the CAAM and the Complainant informing them of the findings and advising them that the matter is being referred to a CDC.
At the CDC Level
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(1) As soon as possible after having satisfied itself pursuant to 4(3)(b) above that there is a prima facie case of Improper Conduct to answer, the Chairman of the MAC shall appoint a Complaint Determination Committee, consisting of three (3) members who shall be selected from amongst:
1. former Chairmen of the HKMC;
2. former Chairmen of the MAC;
3. existing or former members of the HKMC Committee (none of whom may have been members of the MAC which found that there was a prima facie case of Improper Conduct to answer); and
4. existing or former members of the MAC (none of whom may have been members of the MAC which found that there was a prima facie case of Improper Conduct to answer)
to investigate and determine whether or not there was Improper Conduct on the part of the CAAM. The Chairman of the MAC shall appoint one of the three (3) CDC members to chair the CDC.
(2) Save as otherwise provided for in these Rules, a CDC shall have the power to conduct its proceedings in such manner as it considers appropriate. All decisions shall be made by a majority of the members of the CDC. The CDC may take into consideration and act on any information available to it whether such information would or would not be admissible in a court of law. In dealing with all matters before the CDC, the Complainant and the CAAM may act on their own respective behalves or be represented by another person of his/her own choice. A CDC may appoint a solicitor or barrister to advise it as to the manner in which it exercises its functions.
(3) (a) As soon as possible, but in any event no later than fourteen (14) days after the CDC has been established, the Chairman of the CDC shall notify in writing the CAAM and the Complainant that the CDC has been established.
(b) The Complainant shall have up to thirty (30) days from the date of the notice referred to in 5(3)(a) above to file with the CDC a restatement of the Complaint which must be accompanied by or cross-referenced to the evidence and statements the Complainant wishes to rely on in support of the Complaint. Copies of such filings must be sent to the CAAM or his/her duly designated representative at the same time as they are filed with the CDC.
(c) The CAAM shall have up to thirty (30) from the date of the Complainant makes his/her filing set out in 5(3)(b) above to file with the CDC a written response, which should be accompanied with such evidence and statements which the CAAM may wish to rely upon in support of his/her response. Copies of such filings must be sent to the Complainant or his/her duly designated representative at the same time as they are filed with the CDC.
(d) Unless otherwise agreed between the CDC, the Complainant and the CAAM, a hearing shall take place at the premises of the HKIAC or at such other place in Hong Kong which the CDC may designate, on a date fixed by the CDC, which date shall not be earlier than thirty (30) days nor later than ninety (90) days from the date of the filing of the response by the CAAM pursuant to 5(3)(c) above.
(e) At a hearing held pursuant to 5(3)(d) above, the Complainant or his/her duly authorised representative shall present to the CDC all the information and evidence, including witnesses, if any, available to the Complainant in relation to its Complaint and the CAAM or his/her duly authorised representative shall present all the information and evidence available to him/her, including witnesses, if any, in support of the CAAM's response.
(4) (a) If after considering all the evidence, information and representations in the matter, and hearing the witnesses, if any, the CDC concludes that in the circumstances there was no Improper Conduct on the part of the CAAM, the CDC shall in writing so inform the Chairman of the MAC, who in turn shall note the decision and instruct the Secretary-General to write to the Complainant and the CAAM and the HKMC Committee advising them of the CDC's decision.
(b) If after considering all the evidence, information and representations in the matter, and hearing the witnesses, if any, the CDC concludes that in the circumstances there was Improper Conduct on the part of the CAAM, the CDC shall in writing so inform the Chairman of the MAC, who in turn shall note the decision and instruct the Secretary-General to write to the Complainant, the CAAM and the MAC advising them of the CDC's decision.
(5) In the event a CDC has concluded that in the circumstances there was Improper Conduct on the part of a CAAM and has so informed the Chairman of the MAC and the latter has procured the Secretary-General to notify, the Complainant and the CAAM as set out in 5(4)(b) above and the Secretary-General has duly done so, the Chairman of the MAC shall convene a meeting of the MAC and present the findings of the CDC and the MAC shall order the Secretary-General to remove the CAAM from all the Panels on which the name of the CAAM in question appears and instruct the Secretary-General to write to the CAAM advising him/her of the MAC's action, and the Secretary-General shall do so forthwith and requesting the CAAM in question to return immediately to the Secretary-General any outstanding Certificate evidencing accreditation of the CAAM by the MAC.
(6) Notwithstanding anything else herein contained, a CDC shall have the power to extend any of the time limits and/or deadlines set out in this Section 5 in such manner as the CDC in its entire discretion sees fit.
(7) A CDC shall have no power to award costs, whether or not a Complainant and/or a CAAM is represented by a legally qualified person.
Miscellaneous
- (1) All matters relating to a Complaint and its disposition, save and except the due removal of an Accredited Mediator from the Panels, the whole pursuant to these Rules, shall be kept strictly confidential by all concerned.
(2) Notwithstanding anything else herein contained none of the HKIAC, the HKMC, the MAC, a CDC, shall be liable for the travel and/or legal and/or other expenses or costs whatsoever incurred by any person in connection with any proceeding, matter, hearing or otherwise in connection with a Complaint or its disposition pursuant to these Rules.
(3) All decisions by the MAC or a CDC shall be final and neither the MAC or a CDC shall be required to give any reasons for any decision made by them respectively pursuant to these Rules.
(4) All members of the MAC and a CDC shall be indemnified out of the assets of the HKIAC against any liability and expense incurred by him or her, including without limitation the costs of legal representation in defending any court proceeding which may be taken by any person in regard to matters arising out of or in connection with these Rules.
The Rules are meant to filter out frivolous complaints no matter what the motivation.
An Accredited Mediator shall be liable of Improper Conduct in such cases which are adjudged to be so serious that the Accredited Mediator in question merits removal from the Panels. It should be noted that a finding of Improper Conduct on the part of an Accredited Mediator will lead to removal from all Panels to which the Mediator in question is accredited.
Poor performance as a mediator by an Accredited Mediator, even if such amounts to negligence in law, does not usually constitute Improper Conduct. Mere error on the part of an Accredited Mediator is not sufficient to amount to Improper Conduct.
In the event that a Complaint alleges negligence or incompetence on the part of a CAAM, the negligence or incompetence must be so gross and inexcusable that it can be fairly interpreted as Improper Conduct.
Determination as to whether adequate level of non-compliance or misconduct by an Accredited Mediator has arisen so that it might be concluded that a CAAM merits removal from the Panels requires serious and impartial exercise of judgment on the part of those whose task it is to make such a determination under the Rules.
