Complaint Process for Mediators

Background

The Board’s mediation process is voluntary (unless the application relates to a care home transfer).  This means that a party can refuse to participate in mediation at the time it is offered, or where mediation does occur, a party can stop the mediation at any time and return to the regular hearing stream. 

As a result, it is anticipated that where a party is of the belief that the mediation process does not serve their needs, they will terminate the mediation immediately.  Regardless of whether or not the mediation is terminated, clients occasionally express concerns about the conduct of a mediator or their mediation session.

Purpose

The purpose of this procedure is to set out a process by which complaints about a mediator, or the way in which a mediation session was handled, will be received, reviewed and resolved.

Form of the Complaint

All complaints should be made in writing. The complaint should identify the application and the mediator and it should clearly describe the concern that the client has.  It should also include the client’s name, address and telephone number.

If the complaint contains insufficient information, the Regional Manager should contact the client to obtain the additional information required to deal with and respond to the concern.  Where the client fails to identify themselves or where they fail to provide additional information upon request, the manager may decide to disregard the complaint. 

In most cases, oral complaints will not be accepted.  However, if a client insists on relaying a complaint orally, they should be referred to the appropriate Regional Manager.  The Regional Manager will then inquire as to why the client is unwilling or unable to submit their concern in writing and decide whether or not to pursue the complaint.

Where an oral complaint is accepted, the Regional Manager should ensure that they fully understand the concern and that they record all relevant information.  Where a Regional Manager refuses to accept an oral complaint, the client should be advised that the complaint must be in writing before any action will be taken to look into it.

Receiving the Complaint

All complaints relating to the conduct of a mediator should be directed to the Regional Manager to whom the mediator reports.  If the concern is sent to the wrong Regional Manager, or to another person within the Board, it should be forwarded to the appropriate Regional  Manager immediately. 

In most cases the Regional Manager to whom the mediator reports will deal with the complaint (especially if the complaint is about the behaviour or conduct of the mediator).  However where a mediator mediates in more than one region, both the Regional Manager to whom the mediator reports and the Regional Manager responsible for the file should inform each other of the complaint.

Acknowledging Receipt

The Regional Manager is responsible for acknowledging receipt of the complaint.  This can be done orally at the time of the conversation, or in writing.  Written acknowledgement is not necessary where a response will be forthcoming within a few days of the receipt of the concern (for example, where no investigation is necessary - this is addressed further below).

Determining Whether or Not to Proceed

The Regional Manager is responsible for conducting any investigation and implementing any action that should occur as a result of the complaint.

There are some circumstances in which the Regional Manager may decide not to conduct an investigation.  This would be appropriate where the concern relates to a standard policy or procedure of the Board, where sufficient information or detail cannot be obtained from the complainant, or where the concern does not appear to be initiated in good faith.

If it is decided that an investigation will not be conducted, the person who raised the concern should be advised.  It is preferable that this communication be in writing.

Disclosure to the Mediator

Where the Regional Manager does not conduct an investigation to look into the client’s concern for any of the reasons stated above, the mediator does not need to be formally advised of the receipt of the complaint.  However it is strongly recommended that the issues (without identifying the specific mediator or file) be communicated to all mediators in the office so that the mediators are familiar with client concerns.  Managers may also identify the issues (again without identifying the specific mediator or file) to other Regional Managers where appropriate so they can decide whether mediators in their offices should also be aware of incoming concerns.  For example, a manager may tell their mediators that three concerns have been received in two different offices from clients who were unaware that the Board does not keep copies of mediated agreements on file.  This will ensure that mediators are aware of the issues and can take steps to ensure that this type of information is clearly communicated in future mediation sessions.

Where the Regional Manager does conduct an investigation, the mediator will always be informed of the receipt and content of the complaint and be given an opportunity to respond.

The Investigation

An investigation refers to any investigation into a complaint about a mediator’s conduct or a mediation session.  The mediator will be given an opportunity to provide an oral or written response to the Regional Manager to address the allegations set out in the complaint.  Where the information provided from the complainant and the mediator’s response are sufficient, the investigation can be concluded.

If the Regional Manager feels that additional information would be beneficial, they may take any other investigatory steps that are appropriate under the circumstances to obtain such information.  This could include interviewing other people who may have witnessed the event, such as other parties or staff.  Where witnesses are canvassed, the manager should ask them to provide a written or oral account of the incident without identifying that a formal complaint has been received.  Other investigatory steps could include reviewing additional documentation, liaising with legal or head office staff, and any other steps as appropriate. 

The Regional Manager shall not disclose any information to other mediators that would identify the mediator about whom the complaint has been made or the file to which a concern relates.  However they may ask other mediators how they would handle certain situations in the context of mediation without disclosing that a complaint has been filed.

The Regional Manager may terminate an investigation at any stage if:

  • the person expressing the concern refuses to identify themself, or provide additional information or clarification and there is insufficient information to proceed with an investigation,
  • the client has requested that the investigation be terminated and the Regional Manager believes this to be appropriate
  • the Regional Manager believes the complaint does not warrant any further investigation
  • the concern does not qualify to be addressed through this procedure.  (for example, where a party complains that the terms of the mediated agreement were not met, they should be referred to the appropriate venue, such as re-opening the application or filing a section 78 application as the case may be.)

Findings

After a complaint has been received, and if necessary, any investigation has been conducted, the Regional Manager will make all findings in relation to the concern and determine whether any subsequent action should be taken.

The mediator will be informed of the Regional Manager’s findings as well as any action that will result.  The Regional Manager will also inform the client in writing that the matter has been concluded and that appropriate measures, if necessary, have been taken.  The letter to the client will not, however, set out any remedy or action that has or will be taken with respect to the mediator.