Mediator Code of Conduct

Personal Injury Commission Mediator Code of Conduct

Purpose

1. This Code of Conduct is issued by the President of the Personal Injury Commission of New South Wales under section 16 of the Personal Injury Commission Act 2020 (the PIC Act).
2. Mediators are engaged in work of significant public service. They must use their best endeavours to bring the parties to agreement on the claim.  The resolution of these disputes can be life-changing for injured workers.  The successful resolution of a dispute also saves injured workers considerable stress, costs and delay in court proceedings.
3. This Code sets out principles of conduct and professional behaviour to guide Mediators in the performance of their statutory functions and to promote discussion and awareness of issues of conduct.
4. This Code also informs Commission users about the values, principles and standards of professional conduct expected of Mediators.
5. Compliance with this Code will enhance public confidence in the Commission and its processes and is an important aspect of the Commission meeting the objects of the PIC Act. It is also designed to promote collegiate, professional and harmonious relations among Mediators.
6. This Code may be varied from time to time to ensure its relevance.

Definitions

1. The following definitions apply to this Code:
   1. Commission – refers to the Personal Injury Commission of New South Wales;
   2. Commission Rules and Procedural Directions – refers to the practice and procedure to be followed in proceedings before the Commission;
   3. Confidential information – materials and information, both printed and electronic, that are provided to Mediators in the course of their duties for the Commission are confidential unless they are otherwise available in the public domain, such as on the Commission’s website;
   4. Division Head – refers to Division Head, Workers Compensation Division;
   5. Enabling legislation – refers to the workers compensation legislation and the motor accidents legislation as defined in section 5 of the PIC Act;
   6. Member – refers to all members of the Commission including Presidential, non-Presidential and sessional members;
   7. Mediator – refers to all persons appointed as Mediators for the purposes and functions specified in the enabling legislation;
   8. Mediator Reference Group – the representative group of Mediators that liaises with the Division Head and other Commission members and staff regarding practice, procedure, professional development and policy issues, and is a point of contact for Mediators;
   9. PIC Act – means the Personal Injury Commission Act 2020, and
   10. Social media – websites and applications that enable users to create and share content or to participate in social networking.

Responsibility of the President and Division Head

1. It is the responsibility of the President and Division Head to assist Mediators to comply with this Code and to perform their responsibilities as Mediators, through the provision of appropriate training, leadership, advice and support.

Upholding the Objects of the PIC Act

1. The objects of the PIC Act are set out under section 3 and include:
   1. ensuring the Commission:
      1. is independent (s 3(a));
      2. is accessible, professional and responsive to the needs of its users;
      3. is open and transparent about its processes, and
      4. encourages early dispute resolution (s 3(b));
   2. enabling the Commission to resolve the real issues in proceedings, justly, quickly, cost effectively and with as little formality as possible (s 3(c));
   3. ensuring that the decisions of the Commission are timely, fair, consistent and of a high quality (s 3(d)), and
   4. promoting public confidence in the decision-making of the Commission and in the conduct of its Members
      (s 3 (e)).
2. Mediators are expected to perform their duties and conduct themselves consistently with these objects.

General Responsibilities

1. Mediators have the following general responsibilities, both in their functions as a Mediators and in their personal activities:
   1. to uphold the law, including being aware of and complying with legislation dealing with privacy, discrimination and corruption;
   2. to uphold high standards of ethics, integrity and honesty, and
   3. to maintain high professional standards of conduct.
2. Mediators are to ensure that their accreditation under the National Mediator Accreditation System remains current, including meeting the hours of professional development and practice required in each accreditation period.

Commission Values

13.  In performing their duties, Mediators should at all times strive to give effect to the following values (derived from A Guide to Standards of Conduct for Tribunal Members issued by the Administrative Review Council).

Respect for the Law

14.  Mediators should demonstrate respect for the law in the performance of their functions, including demonstrating an awareness and understanding of statutory obligations, rules, procedural directions and procedural requirements imposed by the Commission.

15.  Mediators should also demonstrate respect for the law in their private lives.

Conflicts of Interest

16.  Mediators must:

1. if engaged in another profession, occupation or business, take care to ensure that those activities do not conflict with or undermine the discharge of their responsibilities as Mediators;
2. refrain from partisan political activity which may be considered related to the work of the Commission or which may impinge upon the perception of impartiality of the Mediator or the Commission;
3. never provide comment to the media on matters that are before the Commission for mediation, assessment or determination, or have been dealt with by the Commission;
4. if providing comment to the media on a matter unrelated to their Commission functions and responsibilities, they should not identify themselves as Mediators;
5. refrain from holding positions on any committee, board or other group whose purpose includes advocacy on behalf of the legal profession or in relation to changes that may directly or indirectly affect the operation of the Commission, Workers Compensation Scheme or CTP Scheme;
6. refrain from personally participating in any commentary, advocacy or political activity pertaining to the PIC Act or its enabling legislation, and
7. declare any close personal relationships or pecuniary interests that may give rise to a possible conflict of interest. Such declarations are to be made to the Division Head and are to be treated with confidence.

17.  Mediators must satisfy themselves that no conflict exists in the discharge of their duties to the Commission. Where the Mediator perceives a conflict may exist, they must immediately report it to the Division Head and obtain instructions on how the matter should proceed.

18.  From time to time it is understood that mediators will receive invitations to functions at law firms, insurance companies, barristers’ chambers and other relevant stakeholder bodies. These invitations may include opportunities for the mediator to present a paper or give a seminar or to be involved in a public discussion about matters relevant to mediation generally. Care should be taken with respect to such invitations. Generally, if the invitation is from a law firm, insurance company, barristers’ chamber or other stakeholder who is a user or who appears before the Commission, prior approval is required from the President. However if the entity has no connection with the Commission, such approval is not required. Obviously each situation needs to be judged on its merits and the mediator should exercise judgment as to whether or not the President’s approval is required and if there is any doubt, in the first instance the matter should be discussed with the Division Head.

Independence

19.  Mediators are to perform their duties independently, free from external influence and free from fear of adverse consequences.

20.  Mediators should not allow themselves to be put in a position where their independence may be compromised or perceived to be compromised

21.  If Mediators have a professional legal practice in addition to being Mediators, they:

1. cannot appear before the Commission as a representative of a party or other person;
2. cannot advise individuals or bodies concerning Commission proceedings or potential proceedings involving those individuals or bodies;
3. cannot act for or against or provide services to individuals or bodies who are litigants before them in the Commission, and
4. cannot challenge or defend the decisions of Members or Commission decision-makers of the same division as the Mediator. Such challenges include (but are not limited to) appeals against a Member’s decision to a Presidential Member, appeals against a Medical Assessor’s medical assessment and any applications made to a higher court.

Diligence and Timeliness

22.  Mediators are to be diligent and timely in the performance of their duties. They should take all reasonable steps to maintain and enhance the knowledge, skills and personal qualities necessary for the performance of their duties.

23.  Mediators are to:

1. conduct mediations with due rigour, diligence and intellectual honesty;
2. perform their duties in the Commission to mediate in a timely and appropriate manner with a view to ensuring that the Commission’s mediation process is efficient, effective and inexpensive;
3. undertake and participate in professional development and Commission training programs to enhance relevant knowledge and skills;
4. keep informed of developments in substantive and procedural matters within the jurisdiction of the Commission relevant to their duties;
5. support and encourage, where possible, the professional development of colleagues, and
6. become proficient in the use of technology including the Commission’s electronic case management system, digital provision of documents, the Commission’s extranet, conducting mediations by audio-visual link and other technological developments implemented by the Commission.

Integrity

24.  Mediators should act with honesty, fairness, respect and commitment.

25.  Mediators should:

1. not knowingly take advantage of or benefit from information, not publicly available, obtained in the course of performing their functions;
2. not use their position as a Mediator improperly to gain or seek to gain any advantage or benefit for themselves or any other person;
3. be scrupulous in the use of Commission resources, and
4. refrain from conduct which would bring the Commission and/or Mediators into disrepute.

Accountability and Transparency

26.  Mediators are accountable for their role in the mediation process and have a responsibility to be open and frank about their actions and inaction in relation to their duties.

27.  Mediators are to:

1. participate in performance evaluations conducted by the Commission;
2. co-operate fully in complaint investigations carried out by the Commission in accordance with the Complaints Policy, and
3. regularly review and evaluate their own performance and capacity.

Respect for Persons

28. Mediators are to conduct all interactions in the course of their functions in the Commission in a manner that is patient, courteous and respectful of all parties, interpreters, representatives, Commission staff and others with whom Mediators have to deal.

29.  Mediators should endeavour to understand and be sensitive to the needs of persons involved in proceedings before the Commission, including:

1. demonstrating patience, courtesy and respect in their own conduct and demeanour;
2. communicating in a clear and plain manner so as to be understood by the parties, and
3. being aware of and responsive to cultural and other sensitivities in relation to forms of address, conduct and dress.

30.  The Commission recognises the importance of fairness, dignity and respect for others in the workplace. Each person in the workplace, including Commission staff, mediator staff and Mediators, should have a safe and secure place in which to work. The Commission does not tolerate inappropriate workplace behaviour, which includes bullying, harassment, sexual harassment, other forms of unlawful discrimination, vilification and violence.

31.  Mediators must be familiar and comply with all relevant policies in relation to workplace behaviour.

Privacy and Confidentiality

32.  Mediators and those subject to their direction and control must respect the confidentiality of the work injury damages disputes that are referred for mediation and not disclose any confidential information otherwise than as permitted by law.

33.  Otherwise than in the exercise of Commission functions, Mediators must comply with:

1. Information Protection Principles in Part 2, Division 1 of the Privacy and Personal Information Protection Act 1998, and
2. Health Privacy Principles in Schedule 1 of the Health Records and Information Privacy Act 2002.

Particular Issues

Gifts, Benefits and Hospitality

34.  Where gifts or benefits are offered, or social invitations extended, by parties or representatives in Commission proceedings, to Mediators, these should be declined.

35.  Mediators may seek advice from the Division Head in relation to social invitations received and whether they should be declined.

36.  In circumstances where gifts cannot be or it is inappropriate for a gift to be declined, the Principal Registrar should be informed so that it may be recorded in the Commission’s gift register. The gift may be retained, donated to a charity, used for the benefit of Mediators or staff generally or publicly display in the Commission’s premises may be appropriate, depending on the circumstances.

Public Engagements

37.  Mediators should inform the Division Head of any presentations being given in relation to the personal injury dispute resolution schemes.

38.  Mediators must seek approval from the Division Head to deliver presentations, papers and publications about the PIC practice and procedure, the PIC Act and enabling legislation.

Committee Membership and Other Groups

39.  Mediators should inform the Division Head of any positions held on any committee, board or other group and must withdraw from any discussions about the operation of the PIC Act or its enabling legislation.

40.  The Principal Registrar may keep a register of positions held by Mediators.

Social Media

41.  Mediators must ensure that they do not engage in any of the following activities on social media:

1. create content that is relevant to the business of the Commission;
2. discuss or share posts on topics that directly or indirectly reflect on the practices and operations of the Commission, and
3. engage with any content that falls within the above definitions in non-written ways including but not limited to “liking” or “reposting” such content.

Corrupt Conduct

42.  If a Mediator becomes aware of an instance of behaviour that could be corrupt conduct, maladministration, or criminal conduct, relating to the Commission, the Mediator should report it promptly to the President or Division Head, and/or, if appropriate, to the Independent Commission Against Corruption. (Refer to section 8 of the Independent Commission Against Corruption Act 1988 for guidance regarding the general nature of corrupt conduct.)

Post Service Conduct

43.  After ceasing to be a Mediator of the Commission, it is expected that a former Mediator:

1. would continue to behave in a way that upholds the integrity and good reputation of the Commission, and
2. would not use or take advantage of confidential information obtained in the course of his or her duties as a Mediator.

Complaints and Concerns

44.  Complaints to the Commission in relation to Mediators will be dealt with as outlined in Commission’s Complaints Policy.

45.  Mediators may raise, with the Division Head and/or the Mediator Reference Group, any concerns regarding other Mediators, Commission Members and staff, and Commission practice and procedure.

Protection of Mediators

46.  Any thing done or omitted to be done by a Mediator in exercising the functions conferred or imposed by or under the PIC Act or its enabling legislation does not, if the thing was done or omitted to be done in good faith, subject the Mediator personally to any action, liability, claim or demand.

47.  A Mediator is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which the Mediator was involved in the course of exercising the functions conferred or imposed by or under the PIC Act or its enabling legislation.

48.  Mediators may seek advice, guidance and legal assistance from the Division Head in relation to any external complaint, action, request or demand made on or against them in relation to undertaking their functions as a Mediator.

Compliance with this Code

49.  If a Mediator does not comply with this Code, the President may direct the Mediator to take specified action to rectify their conduct and further work may not be allocated to the Mediator until the breach is rectified. In cases of serious breaches, the President may suspend the Mediator’s appointment and/or terminate the appointment.

50.  This Code does not stand alone but forms part of the accountability framework within which both the Commission and Mediators operate. It is complementary to the Commission’s procedures and policies, including the Terms of Appointment, Mediator professional development framework and the Commission’s complaints process.

His Hon Judge Gerard Phillips

President

1 March 2021