The principles of diligence, independence, neutrality, impartiality, fairness and integrity are vital to the mediation process, and are set out in IBA-DRF Code of Professional Conduct. Users of mediation services are entitled to trust that IBA-DRF Mediators adhere rigorously to these principles. In the unlikely event of a failure to observe the Code of Conduct, a Party to the mediation can apply to have the Mediator's conduct independently assessed under this process.
The Assessment Process involves up to four steps:
3. Professional Conduct Assessment
4. Appeal Board
All complaints must first be discussed with the Mediator. If this does not resolve the complaint an application must be made to activate the Mediation Step. If the Mediation Step fails to resolve the complaint, the Party may file a formal request for complaint. One possibility of appeal is available.
The complaint process does not deprive any party of any alternative complaint or disciplinary process by which the Mediator's conduct can be governed, or any other applicable national process from being invoked.
1. Discussion Step
A Party in a mediation who believes that the appointed Mediator failed to comply with the IBA-DRF's code of conduct, and who wishes to file a complaint, must first raise the matter with the Mediator in person within one month of becoming aware of the alleged breach of the Code. Mediators may invite another IBA-DRF Mediator to become involved to provide the Party and the Mediator an independent source with whom to discuss the issue informally. This Discussion Step will take place in confidence, and all parties will be bound to treat all non-public information as confidential.
2. Mediation Step2.1 If the matter is not resolved through the Discussion Step within two months of the Discussion Step having been started, the Party may file a written Complaint and attempt to resolve the issue during the Mediation Step in good faith.
2.2 To activate the Mediation Step, the Party shall complete the Mediation Request Form (Mediator Complaint Form). IBA-DRF will promptly acknowledge receipt and send a copy to the Mediator whose conduct is the subject of the complaint.
2.3. Within two weeks of receipt of the Mediation Request Form, IBA-DRF will appoint a Neutral to address the complaint. The Neutral, who will be independent of both the Party and the Mediator, will aim to handle the complaint within six weeks after the date on which the Mediation Request Form was received. This mediation may be dealt with in person, online, by email or by telephone conferences. In exceptional circumstances, this period may be extended by a further four weeks and the Neutral will give the Party and the Mediator advance notice of any intended extension. The Neutral will decide how the Mediation Step will be handled in order to maximize the prospects of a satisfactory resolution of the matter for both the Party and the Mediator.
2.4 If the Mediation Step does not result in a resolution, and if the Party and the Mediator both agree, the Neutral may provide the Party and the Mediator with a non-binding opinion and recommendation. This opinion and recommendation may include a statement as to whether, in the opinion of the Neutral, the Party has a sufficient cause for complaint to merit a full Professional Conduct Assessment (section 3, below). This non-binding opinion and recommendation may be summarized in writing by the Neutral and filed with IBA-DRF, where it will be held in confidence. The Neutral will not be authorized to give a binding decision, or to impose sanctions.
2.5 The Neutral and all parties will be obliged to maintain the confidentiality of all information relating to the Complaint, with the sole exception of the written summary referred to in paragraph 2.4 above which will be filed in confidence.
2.6 The costs of the Mediation Step including the fees of the Neutral and any applicable mediation institution fees (but not any of the parties' legal fees) will be borne equally by the parties.
3. IBA-DRF Professional Conduct Assessment Process
3.1 The Professional Conduct Assessment Process may be activated by a Party in a mediation to seek redress for an alleged code of conduct breach if the Mediation Step has not resolved the issue. To activate the Assessment Process, the Party is asked to complete the Professional Conduct Assessment Application. IBA-DRF will promptly acknowledge receipt and send a copy to the Mediator whose conduct is the subject of the Complaint. The language of the proceedings shall be the language of the original mediation.
3.2 After having received notice of an admissible Application, IBA-DRF will promptly appoint a Professional Conduct Assessor being an independent lawyer or other professional qualified to hear the complaint and the Mediator's case and decide upon the resolution.
3.3 Parties are required to disclose if they have filed or intend to file a complaint against one-another under any other laws, codes or rules of any professional or other organization or pursuant to any agreement. IBA-DRF may declare an application to activate the Professional Conduct Assessment process inadmissible if an action under any arbitration or legal proceedings against the Mediator have already been concluded or are pending in any country or if, in its opinion, these matters have been or will be better dealt with by other proceedings which the Party has filed or intends to file.
3.4 Once formally appointed, the Assessor will decide the appropriate process in each case, which may involve one or more hearings in person, to be conducted by written, electronic, video or telephonic communications, or any suitable combination. The Assessor will in all cases strive to understand all relevant facts, and allow the Party and the Mediator full opportunity to present their respective cases and to rebut the other side's arguments. Each will have the right to be assisted by counsel, and the Assessor may call and hear witnesses and experts. The Assessment sessions will be private and confidential.
3.5 The Assessment Process will last no more than three months following appointment of the Assessor. At the end of the Assessment Process, the Assessor will issue a decision having one or more of the following outcomes:
i) Reject all or part of the Application or Complaint;
ii) Uphold all or part of the Application or Complaint, but without issuing any sanction;
iii) Issue a written warning or reprimand;
iv) Suspend the Mediator for up to one year;
v) Permanently withdraw Mediators Certification;
vi) Make an order as to costs of the Assessment Process if the parties do not agree to share the costs of the Assessment Process equally.
3.6 The decision of the Assessor will be accompanied by its reasons. The decision will become effective as an arbitral ruling within one month from the date of the Assessor's decision having been issued in writing, unless an appeal has been filed within that one month period. In that case the decision will be suspended pending the outcome of the appeal.
3.7 When imposing the sanction of suspension or permanent withdrawal of the Mediator's Certification(s), the Assessor may determine that this sanction will be suspended unless on a subsequent occasion the Mediator is in further breach of the Code of Professional Conduct within a certain period.
3.8 The Assessor will immediately send a copy of their decision to the:
2. Mediator against whom the complaint is directed
3.9 Subject to section 3.5(vi), the costs of the Assessment Process will be shared equally by the Party and the Mediator.
4. Appeal from a Decision of the Professional Conduct Assessor
4.1 Within four weeks after receipt of the decision of the Assessor, the Party or the Mediator may lodge an appeal with the IBA-DRF Appeals Board. The appeal procedure will begin by either the Party or the Mediator filing an Appeal Application IBA-DRF. Within one week, IBA-DRF will acknowledge receipt and send a copy to the opposing side.
4.2 Within four weeks of receipt of the Appeal Application, IBA-DRF will convene the IBA Appeals Board to address the appeal. The Chair of the Appeals Board will determine how the appeal will be handled. The Appeals Board will hear the appeal within eight weeks of being convened. An Appeal will suspend the enforcement of the decision of the Assessor until the Appeal has been decided. Decisions of the Appeals Board will be final and binding in all respects.
4.3 The costs of the Appeal will be carried entirely by the appellant.
5. Assessors and Appeals Board
5.1 Assessors will be appointed from time to time by IBA-DRF and will be independent of IBA-DRF.
5.2 The Appeals Board will comprise the Chair [can we ask board members of IBA to hear the appeals?] or other suitably qualified professionals.
5.3 Assessors will not be members of the Appeals Board in the same case.
5.4 IBA-DRF will strive to appoint Assessors who are reasonably local to the Parties and the Mediator in each case in order to contain costs.
5.5 An estimate of costs will be provided to the parties promptly after the Assessor and Appeals Board have been appointed in each case.
5.6 The Assessor and a member of the Appeals Board may be challenged by the Party or by the Mediator, in the event of actual or potential conflict of interest or for any other valid reason which could compromise impartiality. Decisions on challenges will be made by the Chair of the Board of IBA.
5.7 Any challenge by the Party or Mediator must be presented to IBA-DRF no later than 7 days after notification of the identity of the Assessor or Appeals Board, and be fully supported by reasons.
5.8 The Party and the Mediator will be informed in writing of all decisions relating to appointments an Assessor and an Appeal Board.
Assessors and the members of the Appeals Board, as well as all parties and IBA-DRF are under an obligation to maintain confidentiality of all information to which they become exposed during the Mediation Step, the Assessment Process and any Appeal, except to the extent that publication of a final and binding decision may be ordered.
IBA-DRF will have the power to publish the decisions of the Disciplinary Commission or of the Appeals Board in such manner(s) as it may deem appropriate, but will not publish any details which may enable the identification of the parties or disclose any confidential information.
8. Dispute Resolution
This Professional Conduct Assessment Process will be exclusively governed by the law of any applicable mediation agreement between the parties, but in the absence of such agreement will be governed by the laws of Pakistan.