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Code of conduct for ADR practitioners
|CODE OF CONDUCT FOR ADR PRACTITIONERS|
VERSION: MAY 2016
|PART A: GENERAL CLAUSES|
|1.1. The terms in these rules shall have the meanings respectively assigned to them as stated in the Global Network Group (GNG) list of terms and definitions.|
|2.1. These regulations bear the following name: Code of conduct and procedure requirements ADR Register (Global Network Group).|
|3.1. To promote and maintain the quality of professional action and behaviour of the certificate holders, in the broadest sense.|
|4.1. The code of conduct applies to all ADR practitioners.|
4.2. An ADR practitioner may not ignore the code of conduct.
4.3. The code of conduct will also apply to the ADR practitioner who has been suspended.
4.4. Cancellation, termination or annulment of an ADR practitioners’ certification, for whatever reason, does not relieve the ADR practitioner from having the code of conduct apply to his or her actions if these took place in the period in which the certification was valid.
|5.1. The ADR practitioner must carry out the assignment given to him/her to the best of his/her ability. |
5.2. The ADR practitioner must not accept any assignment for which he/she lacks the knowledge and/or skills to carry it out, unless he is able to subcontract the assignment to one or more colleague ADR practitioners who do have the necessary knowledge and/or skills with the approval of the principal.
5.3. The ADR practitioner him/herself must be physically and mentally capable of carrying out the assignment.
|6.1. An ADR practitioner must never give the impression that he or she has more authority than he/she has actually been given.|
|7. EMPLOYEE AND/OR THIRD PARTY SKILLS|
|7.1. An ADR practitioner will make sure that his/her employees possess the highest level of professional skills possible in his or her field.|
7.2. The previous paragraph also applies to any knowledge acquired externally – be this through a temp agency or subcontracted – and activities or actions carried out by third parties other than the ADR practitioner’s own employees.
|8. DAMAGES TO AND/OR LOSS SUFFERED BY COLLEAGUES|
|8.1. An ADR practitioner should refrain from taking part in any activity or behaviour which may cause damage or harm to other ADR practitioners and/or certified colleagues, in general and in relation to his or her principals.|
|9. FRATERNAL OFFERINGS|
|9.1. If the assignment is offered to him by a colleague, an ADR practitioner must provide clear communication on whether the assignment parties were known to him through a colleague or another reliable source.|
9.2. If the assignment parties were not known to him, a reasonable fee will be agreed upon.
|10. ANNOUNCEMENTS AMONG COLLEAGUES|
|10.1. Announcements made by ADR practitioners among themselves and those made to their customers will be dealt with in a businesslike, responsible and confidential way.|
|11. AMICABLE EMPLOYEES|
|11.1. An ADR practitioner should refrain from encouraging a colleague’s employee from ending his/her contract with that colleague.|
11.2. However, if an ADR practitioner is approached by a colleague’s employee because the employee wishes to collaborate with him or wants to work for him, the ADR practitioner should discuss this possibility with his colleagues before entering into an agreement with said employee.
|12. MAINTAINING ONE'S NAME AND FAME|
|12.1. The ADR practitioner will refrain from making remarks to third parties which will potentially damage the name and fame of said colleague.|
|13. DISPUTES AMONG COLLEAGUES|
|13.1. In case of a dispute with a colleague, an ADR practitioner must assume a fair position towards him/her and attempt to resolve the dispute amicably.|
|14. USE OF A DISTINCTIVE TITLE|
|14.1. With due regard to the provisions of this code of conduct and the area in which the ADR practitioner is certified, there are no limitations to the use of the title ‘ADR practitioner’.|
|15. OPERATING PROCEDURE|
|15.1. The ADR practitioner will carry out activities and/or tasks commissioned by a customer promptly and in an honest and insightful way.|
|16. DESCRIPTION OF INSTRUCTION|
|16.1. The ADR practitioner and customer must always agree upon the terms of reference, prior to carrying out the instruction.|
16.2. If an ADR practitioner works with a set of terms and conditions, these are considered to be part of the terms of reference.
|17.1. Upon the request of an ADR practitioner, a colleague of the ADR practitioner, an aggrieved third party or the customer, the actions, doings or failings of one or more ADR practitioners, a group of ADR practitioners or a colleague ADR practitioner may be examined for compatibility with the code of conduct and standing rules regulating complaints and disciplinary actions.|
17.2. Such testing/review will always be based solely upon the code of conduct and the regulations or disciplinary rules applicable at the time when the action, doing or failure took place.
17.3. Testing will be based upon a complaint made by a stakeholder or someone who has incurred a loss.
17.4. In the general interest of the profession, GNG and/or any other trade or legitimate professional organisation – to the extent to which their clauses of association demonstrate this – is/are authorized, either independently or in commission, to lodge a complaint if there is no aggrieved party or stakeholder at hand.
|18. PROCEDURE REQUIREMENTS ADR REGISTER|
|18.1. All certificate holders are subjected to the procedure requirements ADR Register. These requirements apply for all certificate holders.|
|19. SPECIAL PROVISIONS|
|19.1. In cases not provided for by this code of conduct, the point of departure will be that an ADR practitioner's conduct must be in keeping with the standing of the profession as laid down in the relevant certification scheme and standards, including all underlying documents and regulations set by the GNG; this behaviour must not damage the image of the profession or its members.|
|20. FINAL CLAUSES|
|20.1. Liability. GNG does not accept any liability whatsoever for actions and/or behaviour resulting from this document. GNG emphatically denies liability of any kind. |
20.2. Authority. GNG is authorized to set and alter this code.
20.3. Confidentiality. GNG, its management, its committees as well as individual committee members are obliged to keep their knowledge of certificate holders and/or third parties, information regarding companies, agencies, and any organizations and/or persons about which they have information as a result of their role within GNG strictly confidential. Any breach of confidentiality is grounds for the removal of the person from his/her position and if they are certificate holders grounds for examination of compatibility with the code of conduct and the standing rules regulating complaints and disciplinary action.
20.4. Disputes. Should a dispute occur because this code does not or does not adequately cover a situation, GNG is authorized without prejudice to the provisions of the articles of association to leave no stone unturned to alter the statutes of GNG. If the GNG does not settle the dispute, the dispute will be subject to mediation. If mediation is not successful, the dispute will be brought before a Dutch court.
20.5. Multilingual. In cases where more than one language is in use, English will be the language of choice.
20.6. Law. These rules shall be governed by Dutch law only.
|PART B: ADDITIONAL CLAUSES FOR MEDIATORS ONLY|
|Those who trust to chance, must abide by the results of chance.|
(President John Calvin Coolidge)
|21.1. All ADR mediators are submitted to the IMI Code of Professional Conduct as published at the IMI website https://www.imimediation.org/. If the ADR mediator is not IMI registered the IMI code will apply based on analogy; in that case substitute IMI by ADR Register or ADR.|
21.2. The IMI code of conduct is published at the IMI website https://www.imimediation.org/
21.3. Trust underpins the mediation process. If the parties do not trust a mediator's integrity in terms of competence diligence, neutrality, independence, impartiality, fairness and the ability to respect confidences, mediation is unlikely to succeed.
21.4. The IMI Code of Professional Conduct ("the Code") provides users of mediation services with a concise statement of the ethical standards they can expect from Mediators who choose to adopt its terms and sets standards that they can be expected to meet.
21.5. Users who believe the standards established in this Code have not been met may file a complaint with ADR Register or activate the IMI Professional Conduct Assessment Process.
21.6. IMI mediators are required to make known to users which code of conduct governs their professional mediation practice. They are not required to select this Code provided they have subscribed to a code, and that they indicate this to users.
|22.1. For the purposes of this Code, Mediation is defined as a process where two or more parties appoint a third-party neutral ("Mediator") to help them in a non-binding dialog to resolve a dispute and/or to conclude the terms of an agreement.|
22.2. An ADR/IMI mediator (also called a Mediator in this Code) is a person:
|23. MEDIATOR APPOINTMENT|
|23.1. In the event that an IMI mediator fails to maintain IMI's requirements for certification, or no longer qualifies as an IMI mediator, use of the title IMI mediator and use of IMI's name and logo will end, and the Mediator's Profile will no longer be included on the IMI web portal.|
23.2. Subject to applicable laws and to regulations governing professional practice, Mediators will present and promote their practice in a truthful way. They may quote freely from, and link to, their Profile on the IMI web portal and they are free to replicate that Profile, or extracts from it, for their own professional purposes.
23.3. Before the mediation begins, Mediators will advise the parties (eg by way of directing them to the Mediator's Profile on the IMI web portal, or in the mediation agreement):
|24. DILIGENCE, INDEPENDENCE, NEUTRALITY, IMPARTIALITY|
|24.1. Mediators may accept an assignment to act as Mediator in any situation where they feel competent to serve in that capacity.|
24.2. Mediators will not accept an appointment without first disclosing anything within their knowledge that may, or may be seen to, materially affect their independence neutrality or impartiality. This duty to disclose is a continuing obligation throughout the mediation process.
24.3. The existence of circumstances potentially affecting, or appearing to affect, a Mediator's independence, neutrality or impartiality will not automatically imply unfitness to act as a mediator provided these circumstances have been fully disclosed and addressed to the satisfaction of the parties and the Mediator.
24.4. Mediators will always act in an independent, neutral and impartial way. They shall act in an unbiased manner, treating all parties with fairness, quality and respect.
24.5. If at any time a Mediator feels unable to conduct the process in an independent, neutral and impartial manner, (s)he will express that concern and will offer to withdraw from the mediation. Such circumstances include:
|25. CONFLICT OF INTEREST|
|25.1. Mediators will conduct reasonable inquiries to determine if any conflicts of interests or potential biases may exist. They will have a continuing duty to disclose any interests, conflicts of interests or potential biases that may become apparent during the mediation process.|
25.2. Following any such disclosures, a Mediator will decline to participate as a mediator in a particular case if any of the parties raises an objection, unless a contract or applicable law or Court Order nevertheless requires the Mediator's participation. Even then, if a Mediator personally believes that the matters disclosed would inhibit their actual impartiality, the Mediator should withdraw as the mediator.
25.3. After accepting appointment, and until the mediation process ends, Mediators will not enter into financial, business, professional, family or social relationships or acquire financial or personal interests that are likely to affect or might reasonably create the appearance of conflict of interest, partiality or bias, without making a prior disclosure to all the parties and gaining their consent.
25.4. Within 12 months following the end of a mediation, Mediators will not represent in an advisory capacity any party to a mediation in the same or a substantially related matter, unless all parties to the mediation expressly consent to that representation after full disclosure.
25.5. Acting as a neutral in other dispute resolution proceedings (eg as a mediator or arbitrator) that may involve some or all of the parties will not be considered a representation in an advisory capacity for the purposes of this clause.
25.6. At no time following the end of a mediation will Mediators adduce evidence or testify on behalf of one of the parties in making or defending a claim against another party to the same mediation where they have acquired confidential information from the other party, unless all that information is no longer confidential or unless the party protected by the confidentiality gives consent.
|26. MEDIATION PROCESS|
|26.1.1. Mediators will satisfy themselves that the parties to the mediation and their advisers understand the characteristics of the mediation process, their roles as parties and advisers, and the role of a mediator. |
26.1.2. The Mediator will ensure that before the mediation begins, the parties have understood and agreed the terms and conditions which will govern the mediation including those relating to obligations of confidentiality on the Mediator and on the parties.
26.1.3. It is best practice for those terms to be contained in a written Mediation Agreement unless the parties or the circumstances dictate otherwise.
|26.2. FAIRNESS AND INTEGRITY OF THE PROCESS|
|26.2.1. Mediators will explain the mediation process to the parties and their advisers, and be satisfied that that they consent to the process being used and to the Mediator selected (unless applicable law, court rules or contract require use of a particular process and/or mediator). |
26.2.2. Mediators will ensure that, if there are to be any pre-mediation private communications with the Mediator, all parties are aware they will have equal opportunity to raise issues.
26.2.3. Mediators will conduct the process with fairness to all parties and will take particular care to ensure that all parties have adequate opportunities to be heard, to be involved in the process and to have the opportunity to seek and obtain legal or other counsel before finalizing any resolution.
26.2.4. Mediators will take reasonable steps to prevent any misconduct that might invalidate an agreement reached at a mediation or create or aggravate a hostile environment.
26.2.5. Mediators will also be satisfied that the parties have reached agreement of their own volition and knowingly consent to any resolution.
|26.3. TERMINATION OF THE PROCESS|
|26.3.1. The Mediator will ensure the parties understand that they may withdraw from the mediation at any time by informing the Mediator and all other parties without being required to give any justification for doing so.|
26.3.2. Mediators may withdraw from a mediation if a negotiation among the parties assumes a character that to the Mediator appears unconscionable or illegal.
|26.4.1. Unless inappropriate in the circumstances, Mediators will, at the conclusion of a mediation, invite the parties and advisers and any co-mediators or assistant mediators, to complete an IMI Feedback Request Form and return it to the Reviewer indicated by the Mediator in his/her IMI Profile to assist in the preparation of the Mediator's Feedback Digest.|
|26.5.1. Mediators will, before accepting appointment, agree with the parties how their fees and expenses will be calculated, and how they will be paid by the parties (and if shared between the parties, in what proportions). |
26.5.2. Mediators who withdraw from a case will return to the parties any fees already paid relating to the period following withdrawal.
26.5.3. Mediators will not suggest to the parties that their remuneration should be based on or related to the outcome of the mediation.
|26.6.1. Mediators will keep confidential all information acquired in the course of serving as a mediator in a mediation unless:|
26.6.3. Mediators will discuss confidentiality with the parties before or at the beginning of the mediation and obtain their consent to any communication or practice by the Mediator that involves the disclosure of confidential information.
26.6.4. Mediators may use or disclose confidential information obtained during a mediation when, and to the extent that, they believe it to be necessary to prevent death or serious physical harm or damage from arising or believe an illegal act may realistically arise.
26.6.5. Before using or disclosing such information, if not otherwise required to be disclosed by law, Mediators must, if they consider it appropriate, make a good faith effort to persuade the party and/or the party's counsel or other advisers, to act in such a way that would remedy the situation.
|27. PROFESSIONAL CONDUCT ISSUES AND COMPLAINTS|
|27.1. An IMI mediator may consult his/her Reviewer about any professional or ethical dilemmas.|
27.2. Where an IMI mediator is subject to the Code, a party to a mediation who believes there has been a lack of compliance with this Code may activate the IMI Professional Conduct Assessment process.
27.3. This IMI Code of Professional Conduct may be adopted by any IMI mediator irrespective of nationality or professional background.
27.4. This IMI Code is inspired by and based on: