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HKMAAL Rules for the Handling of Complaints Against an Accredited Mediator (updated 13 September 2024)
Section 1
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 HKMAAL and whose name appears on one or
more of the Panels at the relevant time, and/or who has been accredited as a Greater
Bay Area Mediator.
"Greater Bay Area Mediator” shall mean a person whose
application for accreditation is made from Hong Kong, has been reviewed and
approved by the Guangdong-Hong Kong-Macao Greater Bay Area Mediation Working
Group, and has in turn been endorsed by the Guangdong-Hong Kong-Macao Greater Bay
Area Legal Departments Joint Conference, and whose name appears on the consolidated
panel of Guangdong-Hong Kong-Macao GBA Mediators.
"CAAM"
shall mean an Accredited Mediator against whom a Complaint has been made.
"Code" shall mean the Hong Kong
Mediation Code, the Hong Kong Professional Code of Conduct for Guangdong-Hong
Kong-Macao Greater Bay Area Mediators and/or the Guidelines for Professional
Practice of Family Mediators of the HKMAAL, 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 Section 5(1)
below.
"HKMAAL"
shall mean the Hong Kong Mediation Accreditation Association Limited.
"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:
a) be such a serious
breach of the Code; and/or
b) so seriously bring
the Accredited Mediator's professional abilities and/or personal temperament
into question; and/or
c) so seriously bring
discredit upon and/or damage to the HKMAAL, the Council and/or the Panels,
that the continued presence of the Accredited Mediator in
question on the Panels is no longer merited.
"Panels"
shall mean the Panels of Accredited Mediators established by the HKMAAL and
existing at the relevant time, and/or, where applicable, the consolidated panel
of Guangdong-Hong Kong-Macao GBA Mediator.
"Rules"
shall mean these Rules.
Section 2
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 HKMAAL Council
Level
Section 3
Any Complaint must be made in writing and submitted to the HKMAAL Council 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 HKMAAL
Secretariat 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 HKMAAL Secretariat shall
write to the Complainant acknowledging receipt of the Complaint. At the same
time the HKMAAL Secretariat 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 HKMAAL Secretariat any comments
the CAAM might wish to make in the circumstances. In addition, the HKMAAL
Secretariat shall as soon as possible forward to the Chairman of the HKMAAL
Council and the Department of Justice* 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.
(*where the CAAM is a Greater Bay Area Mediator)
Section 4
(1) As soon as possible after receipt by the Chairman of the HKMAAL Council
from the Secretariat 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 Section 3 above, the Chairman of the HKMAAL Council shall
convene a meeting of the HKMAAL Council 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
HKMAAL Council shall have the power to conduct its review and investigation of
a Complaint in such manner as it considers appropriate. All decisions of the
HKMAAL Council shall be made by majority of the members and the Chairman of
HKMAAL Council shall have a casting vote. The HKMAAL Council 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 Section 4(2) above the HKMAAL Council is satisfied
that there is no prima facie case of Improper Conduct to answer the HKMAAL
Council shall dismiss the Complaint and shall instruct the HKMAAL Secretariat
to notify in writing the CAAM, the Complainant and the Department of Justice* informing
them of the HKMAAL Council's decision or recommendation*.
(3)(b) If after conducting its review and investigation
of a Complaint pursuant to Section 4(2) above the HKMAAL Council is satisfied
that there is a prima facie case of Improper Conduct to answer the HKMAAL
Council shall instruct the Secretariat to write to the CAAM, the Complainant
and the Department of Justice* informing them of the findings and advising them
that the matter is being referred to a CDC.
(*where the CAAM is a Greater Bay Area Mediator)
At the CDC Level
Section 5
(1) As soon as possible after having satisfied itself pursuant to Section
4(3)(b) above that there is a prima facie case of Improper Conduct to answer,
the Chairman of the HKMAAL Council shall appoint a Complaint Determination
Committee, consisting of three (3) members who shall be selected from amongst
- former
Chairmen of the HKMAAL Council;
- Chairman
of the HKMAAL Council;
- existing
or former members of the HKMAAL Council
(none of whom may have been the attending members of the HKMAAL Council
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 HKMAAL Council 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, the Complainant and the Department of
Justice* that the CDC has
been established.
(3)(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.
(3)(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.
(3)(d) Unless otherwise agreed between the CDC, the
Complainant and the CAAM, a hearing shall take place at the premises of the
HKMAAL 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.
(3)(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 HKMAAL
Council, who in turn shall note the decision and instruct the Secretariat to
write to the Complainant, the CAAM and the Department of Justice* advising them
of the CDC's decision or recommendation*.
(4)(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 HKMAAL
Council, who in turn shall note the decision and instruct the Secretary-General
to write to the Complainant, the
CAAM and the Department of Justice* advising them of the CDC's decision or
recommendation of removing the name of the CAAM from the Panel(s)*.
(5) Where the CAAM is an HKMAAL Accredited Mediator 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 HKMAAL Council and the latter
has procured the Secretariat to notify, the Complainant and the CAAM as set out
in 5(4)(b) above and the Secretariat has duly done so, the Chairman of the
HKMAAL Council shall convene a meeting of the HKMAAL Council and present the
findings of the CDC and shall order the Secretariat to remove the CAAM from all
the HKMAAL Panels on which the name of the CAAM in question appears and
instruct the Secretariat to write to the CAAM advising him/her of the HKMAAL
Council's action, and the Secretariat shall do so forthwith and request the
CAAM in question to return immediately to the Secretary-General any outstanding
Certificate evidencing accreditation of the CAAM by the HKMAAL Council.
(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.
(*where the CAAM is a
Greater Bay Area Mediator)
Miscellaneous
Section 6
(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 HKMAAL, the HKMAAL Council, 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) Where the CAAM is an HKMAAL Accredited Mediator, all decisions by
the HKMAAL Council or a CDC shall be final and neither the HKMAAL Council 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 HKMAAL Council, and a CDC shall be
indemnified out of the assets of the HKMAAL 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 of Accredited Mediators established by the HKMAAL and
existing at the relevant time, and/or a recommendation for removal from the
consolidated panel of Guangdong-Hong Kong-Macao GBA Mediators*, 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 of Accredited
Mediators established by the HKMAAL and existing at the relevant time, and/or a recommendation for removal from the consolidated panel of
Guangdong-Hong Kong-Macao GBA Mediators*, requires serious and impartial exercise of judgment on
the part of those whose task it is to make such a determination under the
Rules.
(*where the CAAM is a Greater Bay Area Mediator)
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