ONLINE CONSUMER MEDIATION CENTRE
CODE OF CONDUCT, 2016
Effective as on 11th April 2016
The Online Consumer Mediation Centre (the Centre) recognises technology based consumer dispute resolution across a wide spectrum; from complaint diagnosis, to promoting communication between parties, to settlement of disputes.
The Centre recognises and honours that the use of technology in consumer dispute resolution is aimed at increasing parties’ access to justice. However, the Centre provides an option for both alternative dispute resolution (ADR) in the form of negotiation and/or mediation for those who do not have the means to interact through Information and Communication Technology or with a limited knowledge of technology and Online Dispute Resolution (ODR) in the form of negotiation and/or mediation for those who could profit from use of ODR.
The Centre’s Code of Conduct sets forth the minimum principles and standards that underlie professional responsibilities and conduct for the Centre and the third-party mediators empaneled with the Centre. The principles and standards aim to serve three primary goals – to guide the conduct of mediators, to inform the mediating parties and to promote public confidence in mediation as a process to resolving disputes.
The Code does not exhaust the moral and ethical consideration that should guide the Centre and the Mediators. Rather, it provides a framework for high ethical practices considered essential in the conduct of mediation.
- The online platform (as defined under the Centre’s Mediation Rules) shall at every stage of the dispute resolution reflect an ease of use to all system users. The platform shall provide for adequate help content and tutorials readily available to users and keep the user interfaces as simple and intuitive as possible.
- Parties shall be able to download and print all the information contained in the online platform, including such information related to their individual cases.
Transparency and Fairness
- The Centre’s online platform shall be transparent in terms of the governing structure, physical location of the platform and other contact information such as e-mail address of the Centre and telephone numbers, applicable law which serves as the basis for decision making, background information about mediators empanelled with the Centre, the identities and affiliations of the technology associates of the platform and the security efforts undertaken by the Centre to safeguard user data and identity and general statistics on the dispute resolutions through the Centre.
- The Centre shall be unbiased towards any individual participant in the process and shall not offer any systemic benefit to one party over another.
- The Centre shall take all such measures to ensure that any confidential communications in the context of the dispute resolution are appropriately secure from unauthorised access, and to authenticate the identity of the parties in the process of online communications.
Privacy and Confidentiality
- All the information contained and distributed shall observe the data protection law and confidential requirements established for the time being in force in India.
- The Centre shall make reasonable efforts to maintain high level of privacy and confidentiality with respect to access to case files and other data.
- The mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.
- If the parties to mediation agree that the mediator may disclose information obtained during the mediation, the mediator may do so.
- A mediator should not communicate to any non-participant information about how the parties acted in the mediation. A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution.
- If a mediator participates in teaching, research or evaluation of mediation, the mediator should protect the anonymity of the parties and abide by their reasonable expectations regarding confidentiality.
- A mediator who meets with any persons in private session during mediation shall not convey directly or indirectly to any other person, any information that was obtained during that private session without the consent of the disclosing person.
- A mediator shall promote understanding among the parties of the extent to which the parties will maintain confidentiality of information they obtain in mediation.
Self – determination
- Dispute resolution through the Centre shall be conducted based on the principle of party self-determination.
- For the purpose, the online platform shall provide adequate information to the parties to dispute with respect to the options of negotiation and mediation available to resolve their disputes through the Centre, participation in and withdrawal from the process, voluntary and uncoerced nature of the dispute resolution, such that the parties make free and informed choices as to the process and outcome.
- Where the parties choose to resolve their dispute through mediation, the mediator shall inform the parties, at or prior to the start of mediation, that resolution of disputes through mediation is a voluntary arrangement of the Parties. The mediator shall also inform the Parties about their relevant background and experience, applicable code of conduct and its availability for access, the process that will apply in the unlikely event of a party believing that the mediator has not met the standards stated in the Code of Conduct.
- Where appropriate, the Centre/ mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.
- If at any time the Mediator believes that any party to the mediation is unable to understand the process or participate fully in it, the Mediator will limit the scope of the mediation process in a manner consistent with the party’s ability to participate, and/or recommend that the party obtain appropriate assistance in order to continue with the process.
Independence and Impartiality
- The Centre acts as an independent body and shall not have any representation of either the business or consumers on Board. The service providers of the Centre and the mediators appointed by the Centre shall be independent neutral third parties, without any type of professional or personal relationship with any of the third parties.
- Impartiality means freedom from favouritism, bias or prejudice both in conduct and appearance. The Centre and the mediators involved in the mediation process shall conduct the mediation in an impartial manner and avoid any such conduct that gives the appearance of partiality.
- Neither the Mediator nor any personnel of the Centre or associated with the Centre should neither give nor accept a gift, favour, loan or other item of value that raises a question as to the actual or perceived impartiality.
- If at any time prior to or during the dispute resolution, the Centre or the Mediator is unable to conduct the process in an impartial or prejudicial manner, the Centre or the Mediator shall inform the parties and withdraw from providing such services.
- Mediators must be competent and knowledgeable in the process of mediation. Relevant factors include proper training and continuous updating of their education and practice in mediation skills, having regard to any relevant standards or accreditation schemes.
- Mediator for the purpose of empanelment with the Centre shall have mandatorily undergone 40 hour training in Mediation imparted by any High Court or Mediation Centre/s established by such High Court/s or who has undergone a formal course of study or training in Mediation imparted by any recognised University/Institution (whether in India or abroad).
- Mediators with special qualification or expertise in the area of Consumer Laws in India or with a proven record of handling consumer disputes shall be given preference while nominating mediators for the panel.
- Mediators empanelled with the Centre are expected to periodically engage in various forms of continued education to refine and improve their mediation knowledge and skills.
- If a mediator, during the course of a mediation determines that the mediator cannot conduct the mediation competently, the mediator shall discuss that determination with the parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, withdrawing or requesting appropriate assistance.
- If a mediator’s ability to conduct mediation is impaired by drugs, alcohol, medication or otherwise, the mediator shall not conduct the mediation.
- Mediators must confer with the parties regarding suitable dates on which the mediation may take place. Mediators must verify that they have the appropriate background and competence to conduct mediation in a given case before accepting the appointment. Upon request, they must disclose information concerning their background and experience to the parties.
Participation in Mediation
- The mediator shall respect the right of each party to decide the extent of his/her participation in the mediation including the right to withdraw from the mediation at any time upon notice to the Mediator that the party intends to do so; and
- The mediator shall refrain from coercing any Party to make a decision or to continue to participate in the mediation. However, this does not prohibit the Mediator from encouraging a Party to continue with the mediation or persuade a Party to understand the value of continued participation.
- If the Mediator senses that a Party is participating involuntarily then he/she will carefully explore the issue and strive to ensure that the concerns of the hesitant Party regarding the mediation process are addressed.
- In the event that any Party suffers from a mental or a physical impairment, the Mediator should not continue with the process or accept any decision of such a Party until the Mediator is convinced that informed consent of such a Party or his/her authorised representative has been obtained for participation and for any decision made during the process for the purposes of arriving at a settlement.
- The Parties to the dispute resolution shall ensure that they do not use offensive and abusive language at any stage during the course of the process.
Conflict of Interest and Disclosure
- A mediator shall make reasonable effort to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator.
- The mediator shall disclose, as soon as practicable, all such actual and potential conflicts of interest. After disclosure, if the parties agree, the mediator may proceed with the mediation.
- If a mediator learns any such fact/s after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it to the Centre as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.
- If the Parties request appointment of a different Mediator or if the Mediator declines the mediation, the Centre shall appoint another mediator from the Centre’s Mediation Panel.
- A mediator shall conduct the mediation proceedings in compliance with the Centre’s Mediation Rules, 2015.
- A mediator should only accept cases when the mediator can satisfy the reasonable expectation of the parties concerning the timing of mediation.
- The Mediator should ensure that all Parties and Participants understand the mediation process at the time of commencement of the mediation process.
- If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination.
- The Mediator must review and study all the documents and briefs submitted before the mediation and make sure he/she is well prepared for the mediation.
- A Mediator shall not knowingly misrepresent any material fact or circumstance in the course of the mediation and shall encourage honesty and candour between and among all the Parties and the Participants.
- If a mediator is made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.
- A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator’s qualifications, experience, services and fees.
- A mediator should not include any promises as to outcome in communications, including business cards, stationery, or computer-based communications.
- A mediator should only claim to meet the mediator qualifications of a governmental entity or private organization if that entity or organization has a recognized procedure for qualifying mediators and it grants such status to the mediator.
- A mediator shall not solicit in a manner that gives an appearance of partiality for or against a party or otherwise undermines the integrity of the process.
- A Mediator shall not make any unilateral arrangements with any of the Parties or Participants with respect to remuneration or otherwise exploit information acquired through the mediation process for personal gain.
- Mediator should not guarantee any results from mediation.
- The mediator may consult the Centre for any clarifications with respect to any professional conduct in his capacity as a mediator.
- A party to mediation who believes that there is a lack of compliance of the Code of Conduct by the mediator shall submit a complaint to the Centre through a written complaint or through the Centre’s electronic resource.
Withdrawal from Mediation
- A Mediator shall withdraw from the mediation process on one or more of the following circumstances:
- Party or parties to mediation request for removal of mediator.
- Where the process of mediation is being used to further any such acts contrary to law or public interest.
- Mediator is unable to uphold the Code of Conduct;
- Where the Mediator believes or is of the opinion that the Parties are not able to voluntarily arrive at a settlement.
- Any such withdrawal shall be made to the Centre in writing.
- The Code of Conduct may be amended or modified by the Centre at any time without notice.