Part 4Part 4 Alternative dispute resolution
(1) The purpose of this Part is to enable the Tribunal to refer matters for mediation or neutral evaluation if the parties to the proceedings concerned have agreed to that course of action.(2) This Part does not prevent:(a) the parties to proceedings from agreeing to and arranging for mediation or neutral evaluation of any matter otherwise than as referred to in this Part, or(b) a matter arising in proceedings from being dealt with under the provisions of the Community Justice Centres Act 1983.
In this Part:mediation session means a meeting arranged for the mediation of a matter under this Part.
mediator means a person to whom the Tribunal refers a matter for mediation under this Part.
neutral evaluation session means a meeting arranged for the neutral evaluation of a matter under this Part.
neutral evaluator means a person to whom the Tribunal refers a matter for neutral evaluation under this Part.
101 Meaning of “mediation” and “neutral evaluation”
(1) In this Act, mediation means a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute.(2) In this Act, neutral evaluation means a process of evaluation of a dispute in which the neutral evaluator seeks to identify and reduce the issues of fact and law that are in dispute. The neutral evaluator’s role includes assessing the relative strengths and weaknesses of each party’s case and offering an opinion as to the likely outcome of the proceedings.
(1) The Tribunal may, by order, refer a matter arising in proceedings before it for mediation or neutral evaluation if:(a) the Tribunal considers the circumstances appropriate, and(b) the parties to the proceedings consent to the referral.(c) (Repealed)(2) The mediator or neutral evaluator may, but need not be, a person whose name is on a list compiled under this Part.
103 Mediation and neutral evaluation to be voluntary
(1) Attendance at and participation in mediation sessions or neutral evaluation sessions are voluntary.(2) A party to a mediation session or neutral evaluation session may withdraw from the session at any time.
104 Costs of mediation and neutral evaluation
The costs of mediation or neutral evaluation, including the costs payable to the mediator or neutral evaluator, are to be borne by the parties to the proceedings in such proportions as they may agree among themselves or, failing agreement, in such manner as may be ordered by the Tribunal unless the Tribunal decides to bear the costs itself.
105 Agreements and arrangements arising from mediation sessions
(1) The Tribunal may make orders to give effect to any agreement or arrangement arising out of a mediation session.(2) (Repealed)(2A) On any application for an order under this section, any document signed by the parties is admissible as to the fact that an agreement or arrangement has been reached and as to the substance of the agreement or arrangement.(3) This Part does not affect the enforceability of any other agreement or arrangement that may be made, whether or not arising out of a mediation session, in relation to the matters the subject of a mediation session.
106 Mediators and neutral evaluators
(1) The President may compile a list or lists of persons considered by the President to be suitable to be mediators for the purposes of this Part.(2) The President may compile a list or lists of persons considered by the President to be suitable to be neutral evaluators for the purposes of this Part.(3) Different lists may be compiled for different types of matters or to take account of any other factors.(4) A person may be included in a list under this section only if:(a) the person consents to being included in the list, and(b) the person agrees to comply with the provisions of this Part and of any regulations or rules of the Tribunal made for the purposes of this Part.(5) The President may amend or revoke any list compiled under this section for any reason that the President considers appropriate.(6) The President is to review at least annually any list compiled under this section.(7) Nothing in this Act or any other law prevents an assessor from being included in a list compiled under this section or being appointed as a mediator or neutral evaluator.
(1) In this section, mediation session or neutral evaluation session includes any steps taken in the course of making arrangements for the session or in the course of the follow-up of a session.(2) The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to:(a) a mediation session or neutral evaluation session, or(b) a document or other material sent to or produced to a mediator or neutral evaluator, or sent to or produced at the Tribunal or the office of the Registrar, for the purpose of enabling a mediation session or neutral evaluation session to be arranged.(3) The privilege conferred by subsection (2) only extends to a publication made:(a) at a mediation session or neutral evaluation session, or(b) as provided by subsection (2) (b), or(c) as provided by section 108.(4) Subject to subsection (5) and section 105 (2A):(a) evidence of anything said or of any admission made in a mediation session or neutral evaluation session is not admissible in any proceedings before any court, tribunal or body, and(b) a document prepared for the purposes of, or in the course of, or as a result of, a mediation session or neutral evaluation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.(5) Subsection (4) does not apply with respect to any evidence or document:(a) if the persons in attendance at, or identified during, the mediation session or neutral evaluation session and, in the case of a document, all persons identified in the document, consent to the admission of the evidence or document, or(b) in proceedings instituted with respect to any act or omission in connection with which a disclosure has been made under section 108 (c).(6) (Repealed)
A mediator or neutral evaluator may disclose information obtained in connection with the administration or execution of this Part only in any one or more of the following circumstances:(a) with the consent of the person to whom the information relates,(b) in connection with the administration or execution of this Part,(c) if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property,(d) if the disclosure is reasonably required for the purpose of referring any party or parties to a mediation session or neutral evaluation session to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the mediation session or neutral evaluation session for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner,(e) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth.
109 Exoneration from liability for listed mediators and neutral evaluators
No matter or thing done or omitted to be done by a mediator or neutral evaluator subjects the mediator or neutral evaluator to any action, liability, claim or demand if:(a) the matter or thing was done in good faith for the purposes of a mediation session or neutral evaluation session under this Part, and(b) when the subject-matter of the mediation or neutral evaluation was referred for mediation or neutral evaluation, the mediator’s or neutral evaluator’s name was included in a list compiled under this Part.
This Part does not apply to the following:(a) proceedings in the Legal Services Division, or(b) such other classes of proceedings as may be prescribed by the regulations.
111 Regulations for the purposes of this Part
Regulations may be made for or with respect to mediation and neutral evaluation.