Mediation

Mediation

Mediation is defined as a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute. It is for the parties to determine the outcome of the mediation.

The parties to a dispute may engage in mediation as a means of attempting to resolve the dispute. Participation in mediation is voluntary at all times.

The fact that proceedings have been issued in relation to the dispute shall not prevent the parties from engaging in mediation at any time prior to the resolution of the dispute.

The fees and costs of the mediation shall not be contingent on its outcome.

Withdrawal

A party may—

• withdraw from the mediation at any time during the mediation,
• be accompanied to the mediation, and assisted by, a person (including a legal advisor) who is not a party, or
• obtain independent legal advice at any time during the mediation.

The mediator and the parties shall, having regard to the nature of the dispute, make every reasonable effort to conclude the mediation in an expeditious manner which is likely to minimise costs.

The mediator may withdraw from the mediation at any time during the mediation by notice in writing given to the parties stating the mediator’s general reasons for the withdrawal.A withdrawal by the mediator from the mediation shall not of itself prevent the mediator from again becoming the mediator in that mediation.

Where the mediator withdraws from the mediation the mediator shall return the fees and costs paid in respect of that portion of time during which the mediator was paid to act as the mediator and for which he or she will no longer act as the mediator.

Agreement to mediate

Prior to the commencement of the mediation, the parties and the proposed mediator shall prepare and sign a document ( an “agreement to mediate”) appointing the mediator and containing the following information:

• the manner in which the mediation is to be conducted;
• the manner in which the fees and costs of the mediation will be paid;
• the place and time at which the mediation is to be conducted;
• the fact that the mediation is to be conducted in a confidential manner;
• the right of each of the parties to seek legal advice;
• the manner in which the mediation may be terminated;
• such other terms (if any) as may be agreed between the parties and the mediator.

Initial Obligations of Mediator

The mediator shall, prior to the commencement of the mediation—

make such enquiry as is reasonable in the circumstances to determine whether he or she may have any actual or potential conflict of interest, and not act as mediator in that mediation if, following such enquiry, he or she determines that such conflict exists.

He shall furnish to the parties the following details of the mediator that are relevant to mediation in general or that particular mediation qualifications, training and experience, continuing professional development training, and  furnish to the parties a copy of any code of practice published or approved under section 9 to which he or she subscribes in so far as mediation is concerned.

Role of mediator

The mediator shall—

• during the course of the mediation, declare to the parties any actual or potential conflict of interest of which he or she becomes aware or ought reasonably to be aware as such conflict arises and, having so declared, shall, unless the parties agree to him or her continuing to act as the mediator, cease to act as the mediator,
• act with impartiality and integrity and treat the parties fairly,
• complete the mediation as expeditiously as is practicable having regard to the nature of the dispute and the need for the parties to have sufficient time to consider the issues, and
• ensure that the parties are aware of their rights to each obtain independent advice (including legal advice) prior to signing any mediation settlement.

The outcome of the mediation shall be determined by the mutual agreement of the parties and the mediator shall not make proposals to the parties to resolve the dispute. The mediator may, at the request of all the parties, make proposals to resolve the dispute, but it shall be for the parties to determine whether to accept such proposals.

Codes of practice

The Minister shall prepare and publish a code or codes of practice to set standards for the conduct of mediations or approve a code or codes of practice prepared by a person other than the Minister which purports to set standards for the conduct of mediations.

A code of practice referred  may include provisions in relation to any of the following:

• continuing professional development training requirements for mediators;
• procedures to be followed by mediators in the conduct of a mediation;
• procedures to be followed by mediators in the conduct of a mediation requiring consultation, by a mediator, with a child;
• ethical standards to be observed by mediators during a mediation;
• confidentiality of a mediation;
• procedures to be followed by a party for redress in the event of dissatisfaction with the conduct of a mediation;
• determination of the fees and costs of a mediation;
• any other matters relevant to the conduct of mediation.

Confidentiality

All communications (including oral statements) and all records and notes relating to the mediation shall be confidential and shall not be disclosed in any proceedings before a court or otherwise. This does not apply to a communication or records or notes, or both, where disclosure—

• is necessary in order to implement or enforce a mediation settlement,
• is necessary to prevent physical or psychological injury to a party,
• is required by law

It does not apply to a disclosure which is necessary in the interests of preventing or revealing—

• the commission of a crime (including an attempt to commit a crime),
• the concealment of a crime, or
• a threat to a party,or
• is sought or offered to prove or disprove a civil claim concerning the negligence or misconduct of the mediator occurring during the mediation or a complaint to a professional body concerning such negligence or misconduct.

Evidence introduced into or used in mediation that is otherwise admissible or subject to discovery in proceedings shall not be or become inadmissible or protected by privilege in such proceedings solely because it was introduced into or used in meditation.

Enforceability of Mediated Settlements

The parties shall determine if and when a mediation settlement has been reached between them, and whether the mediation settlement is to be enforceable between them.

Aa mediation settlement shall have effect as a contract between the parties to the settlement except where it is expressly stated to have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties.

A court may, on the application of one or more parties to a mediation settlement, enforce its terms except where the court is satisfied that the mediation settlement—

• does not adequately protect the rights and entitlements of the parties and their dependents (if any),
• is not based on the full and mutual disclosure of assets, or
• is otherwise contrary to public policy, or
• a party to the mediation settlement has been overborne or unduly influenced by any other party in reaching the mediation settlement.

Where a mediation settlement relates to a child, a court, in determining any application with regard to the mediation settlement, shall be bound by statutory considerations of the bests interest of the child.

Fees and costs

Unless ordered by a court or otherwise agreed between the parties, the parties shall pay to the mediator the fees and costs agreed in the agreement to mediate or share equally the fees and costs of the mediation.

The fees and costs of a mediation shall be reasonable and proportionate to the importance and complexity of the issues at stake and to the amount of work carried out by the mediator.

In awarding costs in respect of proceedings, a court may, where it considers it just, have regard to—

• any unreasonable refusal or failure by a party to the proceedings to consider using mediation, and
• any unreasonable refusal or failure by a party to the proceedings to attend mediation,

following an invitation to do so by the court.