First Schedule
Code of conduct and disciplinary rules for mediators
Preamble
This Code of Conduct is provided by the Chief Justice to guide the Mediation Committee’s work under Rule 2 of the Court Connected Mediation Rules 2021, as well as Mediators in the practice of mediation.The Code of Conduct also sets out the parameters of acceptable conduct for Mediators and the practice of mediation, giving force to recognised ethical standards.The overriding objective
Mediation is a dispute resolution mechanism that provides an alternative mode for the settlement of disputes, while maintaining the privacy and confidentiality of all parties involved in the proceedings as well as fostering an atmosphere of trust.The hallowed principles of self-determination, impartiality, integrity, and conflicts of interest, competence, confidentiality, advertising and solicitation, informed consent, and the advancement of mediation practice further this overriding objective. This Code of Conduct ensures that they are adhered to in a meaningful manner.The main objective of this Code of Conduct is to promote ethical conduct and professionalism in Mediators in the Turks and Caicos Islands, and to provide sanctions for the breach of the prescribed conduct.The Code provides standards of comportment for Mediators and is the regulating tool of the Mediation Committee for assuring acceptable conduct, as it provides guidelines for sanctions for breaches.Part I
1. Self-determination
1.1Mediation shall be based on the principle of self-determination. A Mediator shall respect and abide by this fundamental principle by—i.informing the parties of his role as a neutral and not the decision-maker;ii.assisting the parties to make their own voluntary, uncoerced decision regarding a possible resolution;iii.guiding the parties to an informed decision by providing the parties with pertinent information, including possible outcomes.1.2A Mediator shall not provide legal or professional advice to the parties but may advise the parties of the need to consult with other professionals to help them make informed decisions where it becomes apparent that a party may not appreciate how a settlement may affect legal rights or obligations.1.3A Mediator may also, where both parties seek such information, express an opinion on the matters at issue, and may identify evaluative approaches to assist the parties.2. Independence and impartiality
2.1A Mediator shall be wholly independent and wholly impartial and must shun the appearance of bias at all times.2.2Before or immediately after accepting an appointment as Mediator in a dispute, a Mediator shall disclose to the ADR Administrator in writing any circumstance that could potentially give rise to a reasonable apprehension of a lack of independence or impartiality in the mediation of the dispute.2.3The ADR Administrator shall seek advice from the Chairperson of the Mediation Committee as to whether the Mediator may be appointed to mediate for the reasons given.2.4If the Mediator who has made a disclosure under paragraph 2.2 is appointed to mediate, he shall make further disclosure under paragraph 5.1 to the parties who may consent to have him or request for another Mediator from the ADR Administrator.2.5A Mediator shall not exhibit bias of any form, nor may he favour one party to the dispute, and shall have no personal interest in the terms of the settlement.2.6A mediator’s opinion of a party or the matter in issue, must not influence how he conducts the mediation.3. Confidentiality
3.1A Mediator has a duty to maintain the privacy and confidentiality of all to foster an atmosphere of trust.3.2No part of the proceedings may be used by the Mediator or disclosed to third parties without the permission of the parties.3.3A Mediator shall inform the parties and any experts, advisors, and any other persons who accompany a party to a mediation session of the confidential nature of mediation, and that same shall not be disclosed by the Mediator except in the following circumstances—i.with the parties’ written consent;ii.if ordered to do so by a court or there is a requirement to do so by law, such as a criminal design;iii.if the information discloses an actual or potential threat to human life.4. Integrity
A Mediator shall conduct himself in a manner which shall instil confidence in the mediation process and confidence in his integrity, that he will act in good faith, be diligent, and seek to only advance the interests of the parties. He shall assist the parties to come to their own informed decision and shall not force a decision on the parties, or push for a certain course of action.5. Conflicts of interest
5.1A Mediator shall make full disclosure at the beginning of the mediation process, regarding anything that might compromise the parties’ willingness to continue the process.5.2Parties to a dispute may following the disclosure made by the Mediator under paragraphs 2.2 and 5.1, give their consent in writing to the Mediator to continue to mediate their dispute.5.3The Mediator must not be related to any of the parties or have an interest in the subject matter of the dispute or any matter related to it.6. Competence
Notwithstanding the acquisition of the basic skill of mediation, a Mediator has an added obligation to acquire and maintain professional skills and the ability to uphold the quality of the mediation process.7. Quality of the process
7.1Before the start of mediation, a Mediator shall inform the parties about the mediation process and its implications, and endeavour to make the parties understand the mediation process.7.2A Mediator shall act professionally at all times and shall not engage in conduct that may bring the Mediator or the mediation process into disrepute.7.3A Mediator shall conduct a mediation in a manner that encourages respect among the parties and shall take reasonable steps to limit abuse of the mediation process without interfering with the parties’ right to determine their own outcome.7.4During the mediation process, a Mediator shall not use any honorific title to which he is accustomed and/or may be entitled.8. Advertising and promotion of mediation services
A Mediator shall in advertising or offering services to clients or potential clients—i.provide accurate information about his or her education, background, mediation training and experience, in any oral or written representation or biographical or promotional material;ii.refrain from making promises guaranteeing settlement, or a specific outcome;iii.refrain from pretending competency in areas in which he lacks qualification and/or experience.9. Advancement of mediation practice
A Mediator shall advance the development of mediation in these Islands by—i.participating in outreach and education efforts to assist the public to develop an improved understanding of, and appreciation for, mediation;ii.assisting newer mediators through training, mentoring, and networking;iii.encouraging parties and counsel to fill out the evaluation forms at the end of the mediation process.10. Termination or suspension of mediation
The Mediator may suspend or terminate the mediation—i.if requested, in writing, by one or more of the parties to do so;ii.if the parties are at an impasse and further efforts at mediation would not be useful at this time;iii.in any circumstance in which the subject of mediation may be inimical to the public good, including the furtherance of the commission of a crime.Part II
11. Sanctions
11.1A complaint against a Mediator by a person who has been subject to the mediation process shall be made in writing to the Chairperson of the Mediation Committee through the Office of the ADR Administrator11.2The Chairperson shall place the complaint before the Mediation Committee which shall for such purpose, be constituted as the Disciplinary Committee.11.3The Disciplinary Committee shall review the complaint to determine whether the allegations, if found to be true, would constitute a violation of this Code of Conduct.11.4The Disciplinary Committee shall dismiss the complaint if it would not constitute a violation of this Code of Conduct.11.5Where on the face of the complaint, the Disciplinary Committee is of the view that the allegation if proven, would constitute a violation of the Code of Ethics, the Disciplinary Committee shall cause to be served on the named Mediator, either electronically, by personal service or by registered mail—i.a copy of the complaint;ii.a written request of the Disciplinary Committee for the named Mediator to provide, a written response to the allegations.11.6If the Mediator/Respondent fails to respond to the complaint in writing within 14 days of service of the complaint, the allegations shall be deemed to be admitted.11.7The Disciplinary Committee may, in its discretion, refer the complainant and the named Mediator to mediation conducted by a volunteer Mediator to resolve the issues raised by the complainant.11.8If the issues raised by the complainant are not resolved through mediation, the Disciplinary Committee shall hear and determine the complaint observing the rules of natural justice including representation by counsel, the tendering of both oral and documentary evidence.11.9The Disciplinary Committee shall submit its report to the Chief Justice and recommend appropriate the sanction.11.10If the complaint is found to be justified, Chief Justice, shall approve the sanction recommended and forward the approval to the Committee for implementation.11.11The Mediation Committee will then impose sanctions on the Mediator in accordance with these Disciplinary Rules.11.12Sanctions may include the following—i.the issue of a private reprimand;ii.the ordering of corrective action;iii.suspension from the Register for a prescribed period; and/oriv.removal from the Roster of Mediators, with or without conditions for reinstatement.11.13Sanctions imposed against the Mediator pursuant to paragraphs 10(11) of this Code shall be a matter of public record, but the files of the Disciplinary Committee and the Chief Justice on the matter shall remain confidential.11.14A Mediator who is aggrieved by the sanction may appeal to the Chief Justice for reconsideration or relief not more than fourteen days after the Mediation Committee imposes sanction on the Mediator.Second Schedule
Forms
Form 1 - Application to be trained as a mediator and/or to be placed on the roster of mediators
Please take notice that:1.I, __________________________ the undersigned, apply:(Please check as applicable)to be trained as a Mediatorto be placed on the Roster of MediatorsI confirm that:(For Applicants for Training)I shall attend the Mediation Training which is offered by the Judiciary of Turks and Caicos Islands free of charge. (For Roster Applicants)that I have completed the Mediation training offered for the Judiciary of Turks and Caicos Islands by the University of the West Indies;that I am a fit and proper person to work as a Mediator in the Judiciary of Turks and Caicos Islands;that I do not hold a criminal conviction involving fraud or other dishonesty.that as much as practicable, I shall take up an assignment by the ADR Administrator to conduct mediation, and notify the ADR Administrator of my availability.that I shall disclose any interest I have in a case that may be potentially assigned to me.that I shall use my best endeavours to help parties settle their disputes without partiality.that I shall abide by the Code of Conduct for Mediators and Disciplinary Rules.Name ____________________________Residential Address ________________Postal Address ____________________Telephone/Email Address ______________Signed:______________ Date ________________Form 1A - Application for referral to mediation
Between
A.B. Plaintiff/Claimant
and
C.D. Defendant
PLEASE TAKE NOTICE THAT:1.We the undersigned herein, apply for referral to mediation of a dispute between the above parties.Particulars:PLAINTIFF/CLAIMANTName /Company Name __________________Residential Address ______________________Business Address ________________________Postal Address __________________________Landline/Mobile Phone __________________E-Mail Address __________________________DEFENDANTName /Company Name __________________Residential Address______________________Business Address ________________________Postal address __________________________Landline/Mobile Phone __________________E-Mail Address __________________________Signed:1.____________________________ Plaintiff/Claimant.____________________________ Attorney for Plaintiff/Claimant________________________________________________(Name, address, telephone number, email of Attorney)*Please attach copies of relevant documents and/or mediation bundle if immediately available2.____________________________ /Attorney for Defendant(Name, address, telephone number, email)____________________________________________________________________________*Please attach copies of relevant documents and/or mediation bundle if immediately available.To:The Registrar andThe ADR AdministratorForm 2 - Mediation referral order
Between
A.B. Plaintiff/Claimant and
C.D. Defendant
OrderMade the ________________ day of ________________ 20 ____________Upon this matter coming on before:The Registrar/Magistrate/ JudgeAnd Upon Hearing ______________________________ the Plaintiff/Claimant or Counsel; and the Defendant or CounselAND UPON THE COURT being of the opinion that the parties should try to resolve their dispute in a non-litigious manner by way of Mediation;THE PARTIES having been provided with information regarding Alternative Dispute Resolution, and in particular, Mediation.AND THE PARTIES having consented to refer the matter to mediation;IT IS ORDERED THAT:(1)The parties to these proceedings attend a mediation session with a Mediator selected by them or at their direction from the Roster of Mediators (as well as two Alternates), within 10 days of today’s date.(2)If the parties fail to select a Mediator or cannot agree upon a mutually acceptable Mediator, within 5 days of this Order, the ADR Administrator shall select a Mediator from the Roster of Mediators, in consultation with the parties where applicable.(3)The parties shall sign a Mediation Consent Form as well as a Confidentiality Agreement before the ADR Administrator.(4)The parties (or counsel as applicable) shall each prepare a bundle setting out the issues to be resolved, and all the documents they intend to rely on as evidentiary material, and lodge same with the ADR Administrator at least 3 days before the commencement of the mediation session.(5)These proceedings are stayed pending the outcome of mediation.(6)Following Mediation, the ADR Administrator shall forward the Outcome of Mediation Form as well as the Terms of Settlement Form to the Registrar along with the file on the matter.(7)The Registrar shall refer the file to the court which shall—a.enter judgment in accordance with the terms of Settlement;b.fix the matter for directions, orc.where no defence was filed, order that the defence be filed for the suit to take its normal course.(8)If any party fails to attend the mediation session without reasonable notice, the file will be returned to the Registrar who shall place same before the Court. If the defaulting party is the plaintiff, the claim will be dismissed with costs; if the defendant, judgment shall be entered against him with costs.(9)Where a party unreasonably terminates a mediation session, or refuses to complete the Evaluation Form, the Court shall take that fact into account when making any order as to costs in the proceedings.(10)In Court-Aided Mediation, the parties shall pay the prescribed fees at least 7 days before the Mediation session.(11)Where a party who has consented to attend Court-Aided Mediation fails to attend, he/she shall forfeit the fees paid.Registrar/Magistrate/JudgeForm 3 - Consent to mediation form
ADR FILE NO ____________________________REFERRING COURT ______________________DATE OF REFERRAL ______________________CASE TITLE ______________________________The Judge/Magistrate/Registrar, having explained to the parties and their Attorneys (as applicable), the nature of the confidential mediation process, the parties to this action confirm their voluntary consent to mediation.Proposed Date of Session ________________________Mediator Agreed on by the Parties ________________CONSENT GIVEN BY:Plaintiff(s)/Applicant(s) Nameand Signature of:1.Plaintiff(s)/Applicant(s) __________________2.Plaintiff(s)/Applicant(s)Attorney(s) ______________________________Defendant(s)/Respondent(s) Nameand Signature of:1.Defendant(s)/Respondent(s) __________________2.Attorney(s) __________________Declared this ______________ day of ______________ 20After the content had been read over/interpreted to______________________________Which he/she seemed to understand before signing/making of mark______________________________Judge/Magistrate/RegistrarForm 4 - Confidentiality Agreement
Between
A.B. Plaintiff/Claimant and
C.D. Defendant
The parties will participate in a mediation session to be conducted in accordance with the Practice Direction No.1 of 2021 The parties agree that:(1)statements made and documents produced in a mediation session and not otherwise discoverable are not subject to disclosure through discovery or any other process and are not admissible into evidence for any purpose, including impeaching credibility;(2)the notes, records and recollections of the Mediator conducting the session are confidential and protected from disclosure for all purposes;(3)where a mediation has been finalised all notes taken at any session in respect of the mediation shall be destroyed in the presence of the parties;(4)no recordings or capture of information by electronic devices shall be allowed in any mediation session;(5)at no time shall any party summon, subpoena or call the Mediator as a witness to testify as to the fact of the mediation or as to any oral or written communication made at any stage of the mediation;(6)this Agreement shall be binding;Each of the parties and their Legal Practitioners have read this Agreement and agree to proceed with the mediation on the terms contained herein.Dated:________________Plaintiff/Claimant ________________ Defendant ________________Attorney for the Plaintiff/Claimant ________________ Attorney for the Defendant ________________To: ADR ADMINISTRATORForm 5 - Notice of selection of Mediator
Between
A.B. Plaintiff/Claimant and
C.D. Defendant
PLEASE TAKE NOTICE that the parties have selected ______________ as Mediator and ______________ and ________________ as an Alternate from the Roster of Mediators.Dated: ________________PLAINTIFF/CLAIMANTSigned: ________________________PLAINTIFF/CLAIMANT’S ATTORNEY____________________________________(Name, address, telephone number, email)DEFENDANTDated:Signed:________________________DEFENDANT’S ATTORNEY________________________(Name, address, telephone number, email)To: ADR Administrator(Name, address, telephone number, email)Form 6 - Notice of Scheduled Mediation
Between
A.B. Plaintiff/Claimant and
C.D. Defendant
Notice of Scheduled MediationTAKE NOTICE that the parties/the Court have/has selected (Name of Mediator) from the Roster of Mediators. The mediation is scheduled to take place on the ____________ day of __________(date) from ______ to ________ (time) at the Office of the ADR Administrator at ________________________________ (When you attend the mediation session, you should bring with you any documents that you consider of central importance to your case. You should plan to remain throughout the scheduled time.Dated:Signed:________________________ADR Administrator(Name, address, telephone number, email)To: The Mediator(Name, address, telephone number, email)To: Plaintiff/Claimant’s Legal Practitioner(Name, address, telephone number, email)And To: Defendant/Defendant’s Legal Practitioner(Name, address, telephone number, email)Form 7 - Certificate of non-compliance
Between
A.B. Plaintiff/Claimant and
C.D. Defendant
PLEASE TAKE NOTICE thatThe Claimant/Plaintiff failed to attend the mediation session.The defendant failed to attend the mediation session.The claimant or his/her representative opted out of the mediation session after it started terminated the mediation session without just cause.The defendant or his/her representative opted out of the mediation session after it started/ terminated the mediation session without just cause.Dated:Signed:________________________Mediator(Name, address, telephone number, email)To: ADR AdministratorAnd to: The RegistrarForm 8 - Terms of settlement form
Between
A.B. Plaintiff/Claimant and
C.D. Defendant
PLEASE TAKE NOTICE that the parties herein have settled their disputeDATE OF SETTLEMENT ____________________REFERRING COURT ________________________TERMS OF SETTLEMENT____________________Plaintiff(s)/Claimant(s)Name and Signature of:1.Plaintiff(s)/Claimant(s)________________________2.Plaintiff(s)/Claimant(s) Attorney(s) ____________________Defendant(s)Name and Signature of:1.Defendant(s ____________________2.Attorney(s)____________________Form 10 - Evaluation form
FOR PARTIESPlease fill out this form after the mediation session and return it to the ADR Administrator. All responses to this questionnaire are strictly confidential.Name of the Mediator ____________________Date of the Mediation: ____________________Please circle as appropriate:— Plaintiff ____________ Defendant ____________ Other ______________1.Were you represented by an Attorney in this case? yes ________ no __________(b)If NOT, did you have any difficulty representing yourself? yes ________ no __________2.Did you reach an Agreement and settle your case? yes ________ no __________3.If YES,(a)Were you satisfied with the terms of the Settlement Agreement?(b)Do you believe the terms of the Settlement Agreement will finally settle the dispute? yes ________ no ________If NO,Do you think that the Mediator did everything he/she could to bring about a Settlement Agreement? yes ________ no________Was your mediation conducted in person or remotely (electronic)Were you satisfied with the mode of mediation (in person/electronic)Were you satisfied with the mediation facilities and surroundings? yes ________ no ________If NO, please identify any areas of dissatisfaction:________________________Please circle the number, which best reflects how you feel about each of the following statements.1 - strongly agree 2 - disagree 3 - not sure(1)The Mediator explained the mediation process clearly so that I knew what to expect during the mediation session. 1 2 3(2)The Mediator allowed me / my Attorney to fully present my case. 1 2 3(3)The Mediator carefully listened to my side of the case. 1 2 3(4)The Mediator asked appropriate questions to determine the facts in the case. 1 2 3(5)The Mediator helped me/my Attorney to generate options for settling the dispute. 1 2 3(6)The Mediator treated all parties equally. 1 2 3(7)Overall, I was satisfied with the mediation session itself. 1 2 3(8)Overall, I was satisfied with the way the Mediator handled the session. 1 2 3(9)If I become a litigant in the future I would try mediation again. 1 2 3Please provide any comments you wish to make regarding the Mediator or the mediation process on this form.Thank you.Form 11 - Withdrawal from mediation
Between
A.B. Plaintiff/Claimant and
C.D. Defendant
Please take notice that I, ________________________________ hereby apply to withdraw from the Mediation scheduled to take place between the parties on ______________________ Before ______________ (Mediator)My reasons for withdrawal are as follows: ____________________________(Please check as applicable)□ I wish the court to determine the dispute between the parties□ I wish to submit to the judgment of the court□ I wish to withdraw my claim before the court.SIGNED __________________ DATE __________________To the ADR AdministratorAnd To: The Registrar/Clerk of CourtForm 12 - Monthly return form
Month ________________ Year __________________| Date | Names of mediators | No. of cases pending for mediation during the period | No. of cases referred to mediation during the period | Number of mediation sessions(include casesnot settled | No. of mediation sessions aborted and the reasons for non-completion | No. of cases settledand disposed of through mediation |
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