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ADRA's Complaints Handling for Mediation Practitioners

Introduction

These procedures have been developed by an industry forum coordinated by the Australian Dispute Resolution Association (ADRA). The purpose is to encourage best practice in complaints handling and to meet National Accreditation Standards.

The procedures are in two distinct stages. The first stage sets out principles and an example set of procedures in a format suitable for adoption by Registered Mediation Accreditation Bodies and other professional mediation bodies for use when handling complaints by parties to a mediation.

The second stage establishes an industry body, probably State-wide, which may receive complaints about mediators that are not, or are no longer, the appropriate body to deal with complaints. The industry body will also maintain and report on complaints about mediators acting in a professional capacity.

The guidelines are based on the following industry needs which have been identified by the industry forum as essential elements of a complaints handling system:

  1. an accessible and transparent complaint handling system,
  2. resolution or appropriate response to conflict,
  3. timely response with care to all involved in the complaint,
  4. confidentiality in relation to any signed confidentiality agreements,
  5. clarity regarding expectations of the complainant and
  6. a system that connects the insight gained from complaints back into the mediation industry (known as feedback or reflective practice).

Preamble

Complaint handling processes are designed to deal with distress in a constructive way.

The cost of having a single mishandled complaint can be damaging to the reputation of the individual, the organisation and the mediation profession. As our industry prides itself on a non-adversarial approach to conflict it is important that our processes reflect this fundamental philosophy.

Complaint handling needs to be a high priority and the approach taken needs to be viewed as an opportunity for better understanding and insight for professional development in the future.

Background

The commencement of National Standards in January 2008 highlighted the need for a complaints handling system to meet the needs of the industry. Organisations in NSW recognised the benefits of developing a consistent approach by the mediation profession. Thirty three practitioners representing the key organisations in NSW participated in the development of the complaints handling system.

ADRA initiated the coordination process of the DR organisations in Sydney in about November 2006 and held monthly meetings via its subcommittee until July 2008. The role of the subcommittee was to take the best features from the templates of the Sydney DR organisations and refine them to form the final template. This final template was added to the work of the national committee involving 33 organisations and was accepted as a viable template for all organisations in the DR industry of Australia. It was through this process that ADRA resolved not to be a training organisation but to become an RMAB (Registered Mediation Accreditation Body).

The final draft completed in August 2008.

Considerations

  • Recognition that the processes should be consistent with the principles of mediation.
  • Premise was to resolve complaints quickly at the source.
  • Initial focus on 'good listener approach' to clarify and if appropriate resolve complaints at first contact.
  • Stage 1 is an internal process for organisations using a facilitative approach to dispute resolution.
  • Review of 'best practice' complaints handling procedures both within Australia and overseas were considered in developing the final document.
  • Stage 2 was identified as a key element in the design of an industry Complaints Handling System. Organisations recognised that some complaints may need an independent process and a'peer review'approach using representatives from RMAB's was seen as the best solution.
  • The complaints handling system was developed as a model to be adopted by RMAB's and Service Providers on a voluntary basis.
  • Complaints would be accepted within 28 days of the mediation based on the members experience and the desire to deal with issues relating to the mediation process only.
  • Stage 2 is not seen as a review panel or appeals panel but rather an independent resolution process resulting in recommendations.

Stage 1 - For Implementation by RMABs and other professional mediation bodies

1. DEFINITION OF A COMPLAINT

  • A complaint is any expression of dissatisfaction or concern made about a mediator when the mediator is acting in a professional role.
  • Complaints may be made either verbally (and documented by the complaint handler) or in writing.
  • Complaints will be accepted only if made within 28 days of the mediation where the complaint arose.

2. GUIDING PRINCIPLES

Overarching principles:

  • ADRA recognises that people are free to raise complaints and have them resolved in a manner that is fair, sensitive and prompt.
  • ADRA recognises complaints as a feedback mechanism to improve the organisation's practices, policies and procedures.
  • ADRA will support a cooperative process in managing complaints.

In particular:

  • ADRA will encourage complaints to be raised at an early stage.
  • ADRA will handle complaints promptly, and advise complainants of appropriate timeframes at all stages of the process.
  • ADRA will treat complaints seriously and sensitively.
  • ADRA will encourage the complainant to raise the complaint with the mediator in the first instance. If the complaint cannot be resolved informally at that stage, it will be progressed through the complaints handling process with the least level of intervention possible. ADRA will ensure that a mediator will not handle a complaint about himself/herself or about any process in which he/she took part.
  • ADRA will ensure that each person has a right to be heard, to be treated without bias, to be informed of complaints being made, to have a right to respond and to have information about the status of the complaint. That is, complaints will be handled with procedural fairness.
  • All information will be treated with due confidentiality.
  • ADRA will use information gained out of the complaint process as feedback to improve the practice of mediation, wherever possible.
    A complaint that cannot be resolved within the organisation may be referred to an independent industry body.

3. ACCESSIBILITY

To ensure the complaints handling process is accessible to mediators and parties to mediation:

  • ADRA will advise the parties of ADRA's code of practice, including the availability of the complaints handling process, prior to mediation.
  • ADRA will advise mediators of the complaint handling procedure adopted by ADRA upon appointment.

4. POSSIBLE OUTCOMES

A range of outcomes may result from the complaints handling process. These may include, but are not limited to, any of the following:

  • The matter is resolved.
  • The complaint handler may determine that the matter cannot proceed further.
  • The complaint handler may recommend that the mediator receives professional development such as coaching, further training, education, mentoring or supervision.
  • The complaint handler may refer an issue that is the subject of the complaint to ADRA to be addressed by way of, for example, policy review and/or development.
  • The complaint may be referred to an industry body if the complaint cannot be resolved within ADRA.

5. CONFIDENTIALITY

  • ADRA and the complaint handler will ensure that confidentiality arising from any signed agreements regarding the initial mediation (the subject of the complaint) will be maintained.
  • The complaint handler will ensure that information regarding the complaint is handled appropriately. Those who have access to any information regarding the complaint will only have access to the information necessary for them to carry out their role.
  • The complaint handler should keep clear and objective records which show how the complaint has been handled. Records of any agreements and outcomes should also be kept. The outcomes and agreements may be provided to the complainant and the mediator, and to ADRA.
  • ADRA will ensure that any documents or records kept, arising from a complaint or its investigation, will be held in a safe and secure place. Documents should be kept for a period of two years to allow access for analysis and/or research.

6. INSIGHT AND DEVELOPMENT

  • Any insights gained during the complaints handling process will be reflected back to ADRA with a view to improving mediation practice and organisational systems.
  • For this purpose, ADRA will maintain statistics showing the number of complaints, the type of complaints, how they were dealt with, the amount of time taken to deal with each matter and the outcome (without identifying characteristics).
  • Where appropriate such insight may be shared within the mediation industry.

EXAMPLE COMPLAINTS HANDLING PROCEDURES

The following procedures detail the steps that will be taken by ADRA in the event of one or more parties to a mediation raising a complaint about a mediator whilst the mediator was acting in a professional capacity.

Step 1

The complaint handler will make initial contact with the complainant within 2 working days.

Step 2

The complaint handler will conduct an initial assessment which will involve discussing with the complainant the concerns and the desired outcome. The complaint handler will listen to the complainant and, if it is appropriate, resolve the matter at this initial point of contact.

Step 3

lf appropriate, the complaint handler may facilitate the complainant to discuss the issues with the mediator directly if this has not already been tried. This meeting may be facilitated by the complaint handler to ensure both parties communicate openly in a problem solving environment.

If steps 2 and 3 are unsuccessful, the following process will be undertaken.

Step 4

In the case of a verbal complaint being made, the complainant will be asked to put the complaint in writing, but is not required to do so. The organisation will offer assistance to the complainant to put a complaint in writing.

Step 5

The complaint handler will ask the complainant's permission to take notes.

Step 6

The complaint handler will ask the complaintant's permission to inform the mediator of the details of the complaint, including the complaintant's name. If the complaintant does not agree to the mediator being given the details of the complaint, the complaint handler will inform the complaintant that this may limit the effectiveness of the complaints handling process.

Step 7

The complaint handler will conduct an initial assessment which will involve:

a. discussion with the mediator, informing him her of the complaint and listening to the response,

b. assessment of the willingness of all parties to cooperate with the complaint handling process,

c. assessment of the nature of the complaint and

d. selection of a dispute resolution process to suit the circumstances.

Step 8

Following the initial assessment, the complaint handler will provide information to the complainant and the mediator about the process to be adopted, within seven days after initial contact if practical.

The complaint handler will inform both the complainant and the mediator of the expected timeframe of the complaint handling process and will keep them informed of any changes to the expected timeframe.

Step 9

A dispute resolution process may include:

  • discussion between the complainant and the mediator,
  • negotiation between the parties,
  • mediation of the complaint, if both parties agree, and/or
  • other third party assisted dispute resolution.

lf the complaint cannot be resolved through any of the  above methods, an investigation of the complaint by the complaint handler may be appropriate. Any investigation will result in a recommendation.

Step 10

Subsequent to the conclusion of the dispute resolution process:

  • feedback will be given to fhe complainant and the mediator about the outcome of the process and
  • ADRA (or other central body) will be informed of the complaint and the outcome.

CONTACT

The person/position with overall responsibility for the complaints handling system is [name] who can be contacted on [contact details].

Stage 2 - Mediation Industry Body

  • A Mediation Industry Body will be established in each State for handling complaints about a mediator referred when the organisation receiving the complaint is not, or is no longer, the appropriate body to handle the complaint. The State-based bodies will confer on a regular basis.
  • The body shall consist of one nominee each from any number of membership organisations. From time to time, any member organisation may chose not to nominate anyone. Nominations will be called for half the panel on alternate years. It is expected that nominees will remain on the panel for a minimum of two years, and may be re-nominated.
  • The Chair will be selected by the nominees from amongst their number. The Chair allocates each matter to a panel. The Chair allocates matters at his/her discretion. The Chair rotates annually or bi-annually.
  • A panel may consist of one or three members. The Chair may be a member of any panel, subject to not having a conflict of interest. If the Chair is not a member of the panel, he/she will nominate one member as Acting Chair.
  • Acceptance to participate in a panel is subject to panel members signing a form declaring no conflict of interest.
  • All material relevant to the complaint is to be made available to the panel, who may choose to receive further written or verbal submissions from the parties.
  • The panel is not empowered to make determinations. The panel may make a non-binding recommendation. The Chair (or Acting Chair) will make the recommendation known to the parties.
  • Member organisations will be asked to report back to the Chair, if practical, on whether or not any recommendation was abided by.
  • The process of complaint handling is confidential, at all levels.
  • Statistics are to be maintained by the Chair, showing the number of complaints, the type of complaints, how they were dealt with, the amount of time taken to deal with each matter and the outcome (without identifying characteristics). Statistics may be reported annually to membership organisations and other interested parties.
  • The Chair, or his/her delegate, will also maintain relevant statistics about complaints handling in the industry, including statistics supplied about complaints resolved without referral to the industry body.

ACKNOWLEDGEMENTS

ADRA wishes to acknowledge the advice and assistance given in the development of this document by the following individuals and organisations:

  • Michelle Brenner, ADRA
  • Salli Browning, Dispute Resolution Consultant
  • Paula Castile, ADRA
  • Andrea Cotter-Moroz
  • Micheline Dewdney, ADRA
  • Trina Duffy
  • Mark England, ADRA
  • Ann Fieldhouse, Kirribilli Mediation Centre
  • Fiona Hollier, LEADR
  • David Holst, Mediate Today Pty Ltd
  • Naomi Holtring, InterMEDIATE Dispute Management
  • Jane Houselander, The Business Psychologist
  • Peter Irving, Migration Agents Registration Authority
  • Debbie Jamieson, Debbie Jamieson Consulting Pty ltd
  • Katherine Johnson, ADRA
  • Kerrie Leotta
  • Paul Lewis, Robyn Sexton & Associates
  • Julia Lines, Health Care Complaints Commission
  • Robert Lopich, Collaborative Lawyers Pty Ltd
  • Jean-Marcel Malliate, InterMEDIATE Dispute Management
  • Emma Matthews, Australian Commercial Disputes Centre (now Australian Disputes Centre)
  • Alan McDonald, Mediated Solutions
  • Janice McLeay, ADRA
  • Allan Parker, Peak Performance Development Pty ltd
  • Gigi Raad, Australian Commercial Disputes Centre (now Australian Disputes Centre)
  • Lynne Richards, Australian Commercial Disputes Centre (now Australian Disputes Centre)
  • Val Sinclair, ADRA
  • Tania Sourdin
  • Amelia Taeuber, Legal Services Commission
  • Ian Thurgood, Health Care Complaints Commission
  • Sally Trevena, SOCAP Australia - Society of Consumer Affairs Professionals
  • Michael Whelan, Institute of Arbitrators and Mediators of Australia
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