Australian Essential Dispute Resolution (Australian Essentials)

ESSENTIAL DISPUTE RESOLUTION CP Cavendish Publishing (Australia) Pty Limited Sydney • London Titles in the series:...

Author: Spencer

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ESSENTIAL DISPUTE RESOLUTION

CP

Cavendish Publishing (Australia) Pty Limited

Sydney • London

Titles in the series: Essential Administrative Law Essential Australian Law Essential Constitutional Law Essential Contract Law Essential Corporate Law Essential Criminal Law Essential Dispute Resolution Essential Equity and Trusts Essential Evidence Essential Family Law Essential International Trade Law Essential Management Law Essential Professional Conduct: Legal Accounting Essential Professional Conduct: Legal Ethics Essential Tort Law

ESSENTIAL DISPUTE RESOLUTION David Spencer, BA, LLB, LLM Lecturer in Law, Department of Law Macquarie University Solicitor of the Supreme Court of New South Wales and the High Court of Australia General Editor Professor David Barker Dean of the Faculty of Law, University of Technology, Sydney

CP

Cavendish Publishing (Australia) Pty Limited

Sydney • London

First published 2002 by Cavendish Publishing (Australia) Pty Limited, 3/303 Barrenjoey Road, Newport, New South Wales 2106 Telephone: (02) 9999 2777 Facsimile: (02) 9999 3688 Email: [email protected] Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com © Spencer, D 2002

All rights reserved. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, photocopying, recording or otherwise, without the prior permission of the publisher and copyright owner. Any person who infringes the above in relation to this publication may be liable to criminal prosecution and civil claims for damages.

National Library of Australia Cataloguing in Publication Data Spencer, David Dispute resolution 1 Dispute resolution (Law) – Australia I Title (Series: Australian essentials) 347.9409

ISBN 1 876905 13 1 Printed and bound in Great Britain

I dedicate this book to my wife, Mary-Anne, whose love and support has always been the motivation behind my work and to my two year old daughter Millicent whose smile and unconditional love kept me balanced and focused whilst writing through many a late night.

Foreword This book is part of the Cavendish Essential Series. The books in the series constitute a unique publishing venture for Australia in that they are intended as a helpful revision aid for the hard-pressed student. They are not intended to be a substitute for the more detailed textbooks which are already listed in the current Cavendish catalogue. Each book follows a prescribed format consisting of a checklist covering each of the areas in the chapter, and an expanded treatment of ‘essential’ issues looking at examination topics in depth. The authors are all Australian law academics who bring to their subjects a wealth of experience in academic and legal practice. Professor David Barker General Editor Dean of the Faculty of Law, University of Technology, Sydney

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Preface This book is intended to provide students and legal practitioners with a basic understanding of the various methods of dispute resolution being practised in Australia. It is designed to apprise its readers of the philosophical and practical elements of dispute resolution and to provide a basic understanding of the body of statute and case law emerging in this burgeoning area of the law. As to the practical elements of dispute resolution, this book is one author’s view on the flexible nature of dispute resolution in Australia, and in that respect, takes a traditionalist approach to the procedural elements of dispute resolution. Dispute resolution is a discipline that has developed many hybrid forms. Its ability to adapt into many hybrid forms is part of its strength. This book is not able to discuss all the different hybrid forms of dispute resolution currently being used throughout Australia. As to the substantive law elements of dispute resolution, the law is stated as it was on 1 January 2002. David Spencer April 2002

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Contents Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xiii Table of Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xvii Table of Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xxxiii 1 Introduction – Defining ‘Dispute Resolution’ . . . . . . . . . . . . . . .1 2 Negotiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 3 Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59 4 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107 5 Statutory Schemes and Industry Codes – Commonwealth and New South Wales . . . . . . . . . . . . . . . . . . .151 6 Statutory Schemes – Other States and Territories . . . . . . . . . . .205 7 Enforceability of Dispute Resolution Clauses . . . . . . . . . . . . .255 8 Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .277 1 Revised guidelines for solicitors who act as mediators . . . . .277 2 Guidelines for legal representatives in a mediation . . . . . . . .285 3 Law Society of NSW Charter on Mediation Practice – A Guide to the Rights and Responsibilities of Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .287 4 Agreement to Mediate (including a confidentiality agreement to be signed by third parties) . . . . . . . . . . . . . . . . .292 5 Model Clause making ADR Mandatory and Mediation Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .296 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

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Table of Cases AWA Ltd v Daniels t/a Deloitte Haskins & Sells & Others 24 Feb 1992 NSWSC CD50271/91; 7 ACSR 463 . . . . . . . . . . . . . . . . .88, 93 Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .256, 263, 272, 275 Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 . . . . . . . . . . . . . . .273 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Anderson v Wallace (1835) 6 ER 1347 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .113 Australis Media Holdings Pty Ltd & Others v Telstra Corporation Ltd & Others (1998) 43 NSWLR 104 . . . . . . . . . . . . . . . . .256 BP Refinery (Westenport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 . . . . . . . . . . . . . . . . . . . . . .266 Boles v Esanda Finance Corp Ltd (1989) 18 NSWLR 666 . . . . . . . . . . . . . . .127 Capolingua v Phylum Pty Ltd (As Trustee for the Gennoe Family Trust and Others) (1989) 5 WAR 137 . . . . . . . . . . .80, 273 Chilton v Saga Holidays Pic [1986] 1 All ER 841 . . . . . . . . . . . . . . . . . . . . .116 Clements v Simto Pty Ltd [2001] WASC 183 . . . . . . . . . . . . . . . . . . . . . . . . .146 Coal Cliff Collieries Pty Ltd & Another v Sijehama Pty Ltd & Another (1991) 24 NSWLR 1 . . . . . . . . . . . . . .256, 269, 272, 273 Cockatoo Dockyard Pty Ltd v Commonwealth of Australia (No 3) (1994) 35 NSWLR 689 . . . . . . . . . . . . . . . . . . . . . . . . .140 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1981) 149 CLR 337 . . . . . . . . . . . . . . . . . . . . . . . . . .266 Commissioner of Main Roads v Leighton Contractors Pty Ltd 4 Jul 1986 NSWSC CLD14573/86 . . . . . . . . . . . . .118 Commonwealth v Tasmania; Attorney-General (TAS) v Commonwealth (Tasmanian Dams case) (1983) 158 CLR 1 . . . . . . . .103 Computershare Limited v Perpetual Registrars Limited & Others (No 2) [2000] VSC 233 . . . . . . . . . . . . . . . . . . . .267, 270 Cott UK Limited v FE Barber Limited [1997] 3 All ER 540 . . . . . . . . . . . . .269

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Courtney and Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd & Another [1975] 1 All ER 716 . . . . . . . . . . . . . . . . . . . . . .256 Cufone v Curse [2000] SASC 304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115 Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709 . . . . . . . . . . . . . .259, 262, 271–73, 275, 296 Esso Australia Resources Ltd v The Honourable Sidney James Plowman (Minister for Energy and Minerals) (1995) 128 ALR 391 . . . . . . . . . . . . . . . . . . . . . . .114 Faure, Fairclough Ltd v Premier Oil and Cake Mills Ltd [1968] 1 Lloyd’s Rep 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115 Finney Lock Seeds Ltd v George Mitchell (Chesterhall) Ltd [1979] 2 Lloyd’s Rep 301 . . . . . . . . . . . . . . . . . . . . . . .115 Fitzgerald & Another v Masters (1956) 95 CLR 420 . . . . . . . . . . . . . . . . . . .270 Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (No 3) (1995) 14 WAR 293 . . . . . . . . . . . . . . . . . . . . . . . .148 Henderson v Henderson (1843) 3 Hare 100 . . . . . . . . . . . . . . . . . . . . . . . . .128 Hillas and Co Limited v Arcos Limited (1932) 147 LT 503 . . . . . . . . . .86, 271 Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194 . . . . . . . . . . . . . . . . . . . . .256, 258, 272, 296 Hopcraft v Hickman (1824) 57 ER 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114 Kursell v Timber Operators and Contractors Ltd [1923] 2 KB 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114 Langhorn v Jimmy Kim Constructions Pty Ltd 30 Jul 1993 NSWSC CM55049/93 . . . . . . . . . . . . . . . . . . . . . . . . . . .114 Leighton Contractors Ltd v Western Australian Government Railways Commission (1966) 115 CLR 575 . . . . . . . . . . . . . . . . . . . . . . .134 McKenzie v McKenzie [1970] 3 All ER 1034 . . . . . . . . . . . . . . . . . . . . . . . . . .64 Macpherson Train & Co Ltd v J Milhem & Sons [1955] 1 Lloyd’s Rep 597 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115 May and Butcher Limited v R [1934] 2 KB 17 . . . . . . . . . . . . . . . . . . . . . . . .271 Multiplex Constructions Pty Limited v Suscindy Management Pty Limited [2000] NSWSC 484 . . . . . . . . . . . . . . . . . . . .144 xiv

TABLE

OF

CASES

National Distribution Services Ltd v IBM Australia 21 Dec 1990 NSWSC CD50682/90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114 Neale v Richardson [1938] 1 All ER 753 . . . . . . . . . . . . . . . . . . . . . . . . . . . .113 Oakland Metal Co Ltd v D Benaim & Co Ltd [1953] 2 QB 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115 Pan Atlantic Group Inc v Hassneh Insurance Co of Israel Ltd [1992] 2 Lloyd’s Rep 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110 Phoenix v Pope [1974] 1 WLR 719 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128 Rolland v Cassidy (1888) 13 AC 770 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139 Ruddock v Vadarlis [2001] FCA 1329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103 Ruffles v Chilman [1998] WASCA 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 Scott v Avery (1856) 10 ER 1121 . . . . . . . . . . . . . . . . . . . . . . . . . . .255, 257, 258 Stannard v Sperway Constructions Pty Ltd [1990] VR 673 . . . . . . . . . . . . .141 State Bank of NSW v Freeman 31 Jan 1996 NSWSC CLD12670/95 and ALD30101/95 . . . . . . . . . . . . . . . . . . . . . . .274 Sullivan v Department of Transport (1978) 1 ALD 383 . . . . . . . . . . . . . . . .114 Tempo Shain Corp v Bertek Inc (1997) 120 F 3d 16-20 (2d Cir) . . . . . . . . . .115 Tiki International Ltd, Re [1994] 2 Qd R 674 . . . . . . . . . . . . . . . . . . . . . . . . .138 Trustees Executors and Agency Company Limited and Another v Peters (1959) 102 CLR 537 . . . . . . . . . . . . . . . . . . . . . . .270 WFA v Hobart City Council [2000] NSWCA 43 . . . . . . . . . . . . . . . . . . . . . .115 Walford & Others v Miles & Another [1992] 1 All ER 453 . . . . . .256, 272, 273 Water Furnace Australia Pty Ltd v Hobart City Council 5 Jun 1998 NSWSC CM55017/98 . . . . . . . . . . . . . . . . . . . . . . . .114 Western Australia v Taylor (Njamal People) (1996) 134 FLR 211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274 Woodbud Pty Ltd v Warea Pty Ltd & Others (1995) 125 FLR 346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .122, 132

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Table of Legislation Commonwealth Administrative Appeals Tribunal Act 1975 . . . . . . . . . .151 s 34A . . . . . . . . . . . . . . . . . . . . .17 s 34A(1), (2), (4)–(8) . . . . . . . .152 Aged Care Act 1997 . . . . . . . . . . .152 s 963(2) . . . . . . . . . . . . . . . . . .152 Agricultural and Veterinary Chemicals Act 1994 . . . . . . . .154 Agriculture and Veterinary Chemicals Code Act 1994 . . .154 ss 57(4), 63–65, 69 . . . . . . . . . .154 Agricultural and Veterinary Chemicals Code Regulations 1995— reg 29 . . . . . . . . . . . . . . . . . . .154 Commonwealth Constitution— s 4(1) . . . . . . . . . . . . . . . . . . . . . .6 s 51(xx), (xxix) . . . . . . . . . . . .105 s 51(xxxv) . . . . . . . . . . . . . .6, 107 Conciliation and Arbitration Act 1904 . . . . . . . . . . . . . . . . . . .5 Copyright Act 1968— s 195AZA . . . . . . . . . . . . . . . .159 Corporations Act 2001— s 241 . . . . . . . . . . . . . . . . . . . .159 Courts (Mediation and Arbitration) Act 1991 . . . . .16, 23 Evidence Act 1995— s 131 . . . . . . . . . . . . . . . . . . . .207

Family Law Act 1975 . . . . .16, 17, 23, 162, 170, 173 Pt III . . . . . . . . . . . . . . . . . . . .162 Pt VII . . . . . . . . . . . . . . . . . . . .167 s 13B . . . . . . . . . . . . . . . . . . . .163 s 14 . . . . . . . . . . . . . . . . . . . . .162 ss 19A, 19AA, 19AAA, 19B . . . . . . . . . . . .163 s 19BA . . . . . . . . . . . . . . . .17, 163 s 19J . . . . . . . . . . . . . . . . . . . . .164 s 19M . . . . . . . . . . . . . . . .164, 168 s 19N . . . . . . . . . . . . . . . . . . . .168 s 61B . . . . . . . . . . . . . . . . . . . .167 Family Law Reform Act 1995 . . . .23 Family Law Regulations 1984 . . .162 reg 59 . . . . . . . . . . . . . . . . . . .164 reg 60 . . . . . . . . . . . . . . . .164, 165 reg 60(2), (3) . . . . . . . . . . . . . .165 regs 61, 62 . . . . . . . . . . . . . . . .165 reg 62(2) . . . . . . . . . . . . .165, 166 reg 62(3), (4) . . . . . . . . . . . . . .166 reg 63 . . . . . . . . . . . . . . . . . . .167 reg 63(2) . . . . . . . . . . . . . . . . .168 regs 64, 65 . . . . . . . . . . . . . . . .166 Family Law Rules 1984 . . . . . . . .162 Ord 25A r 6 . . . . . . . . . . . . . .168 Ord 25A r 11 . . . . . . . . . . . . . .169 Ord 25A rr 12–15, 20 . . . . . . .169 Federal Court of Australia Act 1976 . . . . . . . . . . . . . . .16, 17 s 53A . . . . . . . . . . . . . .16, 93, 170 s 59(2) . . . . . . . . . . . . . . . . . . .170 Federal Court Rules— Ord 35 r 10 . . . . . . . . . . . . . . .172 Ord 72 . . . . . . . . . . . . . . . . . . .171

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Federal Court Rules (Contd)— Ord 72 rr 1, 3–5 . . . . . . . . . . .171 Ord 72 r 5(3) . . . . . . . . . . . . . .172 Ord 72 rr 6, 7 . . . . . . . . . . . . .172 Ord 72 rr 8, 21, 46 . . . . . . . . .173 Federal Magistrates Act 1999 . . .173 s 31 . . . . . . . . . . . . . . . . . . . . .173 s 34 . . . . . . . . . . . . . . . . . . . . .174 s 34(1) . . . . . . . . . . . . . . .173, 174 s 34(4), (5) . . . . . . . . . . . . . . . .174 s 35(1), (3), (5) . . . . . . . . . . . . .174 ss 36–38 . . . . . . . . . . . . . . . . . .174 Industrial Relations Act 1988 . . . . .6 International Arbitration Act 1974 . . . . . . . . . . . . . . . . .113 s 16 . . . . . . . . . . . . . . . . . . . . .113 Sched 2 . . . . . . . . . . . . . . . . . .113 Migration Act 1958— s 318 . . . . . . . . . . . . . . . . . . . .176 Migration Agents Regulation 1998 . . . . . . . . . . .176 National Health Act 1953 . . . . . .175 s 82ZSB . . . . . . . . . . . . . . . . . .175 Native Title Act 1993 . . . . . .176, 274 s 44B . . . . . . . . . . . . . . . . . . . .176 s 44B(1) . . . . . . . . . . . . . .176, 177 s 44B(3) . . . . . . . . . . . . . . . . . .176 ss 44B(4), 44F, 44G . . . . . . . . .177 s 66 . . . . . . . . . . . . . . . . . . . . .178 s 86A . . . . . . . . . . . . . . . . . . . .177 s 86A(1), (2) . . . . . . . . . . . .178–80 s 86B . . . . . . . . . . . . . . . . . . . .178 s 86B(1) . . . . . . . . . . . . . .178, 179 s 86B(2) . . . . . . . . . . . . . . . . . .178 s 86B(4), (5) . . . . . . . . . . . . . . .179 s 86C . . . . . . . . . . . . . . . . . . . .179 s 86C(1)–(5) . . . . . . . . . . . . . . .180

xviii

Native Title Act 1993 (Contd)— s 86C(1)–(3) . . . . . . . . . . . . . . .179 ss 86D, 131B, 136A . . . . . . . . .180 s 136A(5), (6) . . . . . . . . . . . . .181 s 136D . . . . . . . . . . . . . . . . . . .180 s 136G . . . . . . . . . . . . . . . . . . .181 Native Title Act 1996 . . . . . . . . . . .23 Superannuation (Resolution of Complaints) Act 1993 . . . .181 ss 27–30 . . . . . . . . . . . . . . . . . .181 s 30(2) . . . . . . . . . . . . . . . . . . .182 s 31 . . . . . . . . . . . . . . . . . . . . .182 Telecommunications Legislation Amendment Act 1999 . . . . . .182 ss 152BBA, 152BBC . . . . . . . .182 Trade Practices Act 1975 . . .182, 263 s 51AE . . . . . . . . . . . . . . . . . . .174 Trade Practices (Industry Codes-Franchising) Regulations 1998 . . . . . . . . . .174 regs 25–27 . . . . . . . . . . . . . . . .174 reg 29(1), (2) . . . . . . . . . . . . . .174 reg 29(3), (5) . . . . . . . . . . . . . .175 regs 30, 31 . . . . . . . . . . . . . . . .175 Workplace Relations Act 1996 . . . . . . . . . . . . . .23, 156 s 100(1), (2) . . . . . . . . . . . . . . .156 ss 104, 105 . . . . . . . . . . . . . . . .156 s 520(1) . . . . . . . . . . . . . .156, 157 s 520(2), (3) . . . . . . . . . . . . . . .157 Workplace Relations Regulations 1996 . . . . . . . . . .157 Sched 9 . . . . . . . . . . . . . . . . . .157 Workplace Relations and other Legislation Amendment Act 1996 . . . . . . . .6

TABLE

Australian Capital Territory Commercial Arbitration Act 1986 . . . . . . . . . . . . . . .6, 107 Pts I–VII . . . . . . . . . . . . . . . . .108 s 3 . . . . . . . . . . . . . . . . . .108, 109 s 3(2), (4), (5) . . . . . . . . . . . . . .109 s 3(6) . . . . . . . . . . . . . . . . . . . .108 s 4 . . . . . . .108, 110, 138, 141, 142 s 4(2) . . . . . . . . . . . . . . . . . . . .109 Pt II . . . . . . . . . . . . . . . . . . . . .110 ss 6, 7 . . . . . . . . . . . . . . . . . . . .110 s 8 . . . . . . . . . . . . . . . . . . . . . .111 s 8(1), (3) . . . . . . . . . . . . .111, 112 s 8(4) . . . . . . . . . . . . . . . . . . . .112 s 8(5) . . . . . . . . . . . . . . . . . . . .111 ss 9–11 . . . . . . . . . . . . . . . . . . .112 s 11(1), (2) . . . . . . . . . . . . . . . .112 Pt III . . . . . . . . . . . . . . . . . . . .113 s 14 . . . . . . . . . . . . . . . . . . . . .113 ss 17, 18 . . . . . . . . . . . . . . . . . .116 s 18(1), (2) . . . . . . . . . . . . . . . .116 s 18(3) . . . . . . . . . . . . . . . . . . .117 s 19 . . . . . . . . . . . . . . . . . . . . .117 s 19(1) . . . . . . . . . . . . . . . . . . .117 s 19(3) . . . . . . . . . . . .117, 118, 138 s 20 . . . . . . . . . . . . . . . . . . . . .118 s 20(3), (4), (6) . . . . . . . . . . . . .119 s 22 . . . . . . . . . . . . . . . . . .119, 132 s 22(1) . . . . . . . . . . . . . . . . . . .119 s 22(2) . . . . . . . . . . . . . . . .120–22 s 23 . . . . . . . . . . . . . . . . . . . . .124 s 27 . . . . . . . . . . . . . . .117, 124–26 s 27(1)–(4) . . . . . . . . . . . . . . . .125 s 27(3) . . . . . . . . . . . . . . . . . . .126 Pt IV . . . . . . . . . . . . . . . . . . . .127 s 28 . . . . . . . . . . . . . . . . . . . . .127 s 29 . . . . . . . . . . . . . . . . . . . . .115 s 29(1), (2) . . . . . . . . . . . . . . . .130 s 30 . . . . . . . . . . . . . . . . .131, 132

OF

LEGISLATION

Commercial Arbitration Act 1986 (Contd)— s 30(c) . . . . . . . . . . . . . . . . . . .133 s 33 . . . . . . . . . . . . . . . . . . . . .132 s 34 . . . . . . . . . . . . . . . . . . . . .133 s 34(1), (6), (7) . . . . . . . . . . . . .134 s 37 . . . . . . . . . . . . . . . . . . . . .134 Pt V . . . . . . . . . . . . . . . . . . . . .135 s 38 . . . . . . . . . . . . . .123, 131, 135 s 38(1) . . . . . . . . . . . . . . . . . . .137 s 38(2) . . . . . . . . . . . .130, 135–37 s 38(3)–(7) . . . . . . . . . . . . . . . .136 s 38(4) . . . . . . . . . . . . . . . . . . .135 s 40 . . . . . . . . . . . . . . . . . . . . .136 s 42 . . . . . . . . . . . . . .130, 137, 141 s 42(1)(a) . . . . . . . . . . . . .139, 140 s 42(1)(b) . . . . . . . . . . . . . . . . .140 s 43 . . . . . . . . . . . . . . . . . . . . .131 s 44 . . . . . . . . . . . . . .112, 113, 141 s 44(1)(a) . . . . . . . . . . . . . . . . .142 s 46 . . . . . . . . . . . . . . . . . . . . .143 s 46(2) . . . . . . . . . . . . . . .144, 146 s 46(2)(a) . . . . . . . . . . . . . . . . .146 s 46(3)(a) . . . . . . . . . . . . . . . . .146 s 53 . . . . . . . . . . . . . . . . . . . . .257 Domestic Relationships Act 1994— ss 6–9 . . . . . . . . . . . . . . . . . . . .205 Legal Practitioners Act 1970 . . . . . . . . . . . . . . . . .205 s 191ZC . . . . . . . . . . . . . . . . . .205 Mediation Act 1997 . . . . . . . . . . .206 ss 3–5 . . . . . . . . . . . . . . . . . . . .206 ss 6–12 . . . . . . . . . . . . . . . . . . .207 Residential Tenancies Act 1997 . . . . . . . . . . . . . . . . .208 ss 72, 73, 75, 76, 129 . . . . . . . .208

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Residential Tenancies Regulations — reg 7 . . . . . . . . . . . . . . . . . . . .208 Tenancy Tribunal Act 1994 . . . . . . . . . . . . .208, 209 s 6 . . . . . . . . . . . . . . . . . . . . . .208 ss 13(6), (7), 17–22, 47, 49, 59 . . . . . . . . . . . . . . .209 Victims of Crime Act 1994 . . . . . . . . . . . . . . . . .209 Victims of Crime Regulations 1999 . . . . . . . . . .209

New South Wales Administrative Decisions Tribunal Act 1997 . . . . . . . . .183, 186–89, 196–98, 200, 201 ss 99–111 . . . . . . . . . . . . . . . . .183 s 99 . . . . . . . . . . . . . . . . . . . . .204 s 99(1), (2) . . . . . . . . . . . . . . . .183 s 100 . . . . . . . . . . . . . . . . . . . .204 ss 101, 102 . . . . . . . . . . . .183, 204 s 102(2) . . . . . . . . . . . . . . . . . .184 ss 103–106 . . . . . . . . . . . .184, 204 s 106(4), (5) . . . . . . . . . . . . . . .184 s 107 . . . . . . . . . . . . . . . .184, 204 s 107(4), (5) . . . . . . . . . . . . . . .185 ss 108, 109 . . . . . . . . . . . .185, 204 s 111 . . . . . . . . . . . . . . . . . . . . .204 Agricultural Tenancies Act 1990 . . . . . . . . . . . . . . . . .204 ss 20, 26B–26H, 29 . . . . . . . . .204 Anti-Discrimination Act 1977 . . . . . . . . . . . . . . .16, 23 s 106 . . . . . . . . . . . . . . . . . . . . .16

xx

Associations Incorporation Act 1984 . . . . . . . . . . . . . . . . .194 Associations Incorporation Regulation 1994— Sched 1 . . . . . . . . . . . . . . . . . .194 Children and Young Persons (Care and Protection) Act 1998 . . . . . . .185 ss 16A, 22, 117 . . . . . . . . . .185–86 Commercial Arbitration Act 1984 . . . . . . . . . . . . .3, 6, 107 Pts I–VII . . . . . . . . . . . . . . . . .108 s 3 . . . . . . . . . . . . . . . . . .108, 109 s 3(2), (4), (5) . . . . . . . . . . . . . .109 s 3(6) . . . . . . . . . . . . . . . . . . . .108 s 4 . . . . . . . . . . . . . .108, 110, 138, 141, 142 s 4(2) . . . . . . . . . . . . . . . . . . . .109 Pt II . . . . . . . . . . . . . . . . . . . . .110 ss 6, 7 . . . . . . . . . . . . . . . . . . . .110 s 8 . . . . . . . . . . . . . . . . . . . . . .111 s 8(1), (3) . . . . . . . . . . . . .111, 112 s 8(4) . . . . . . . . . . . . . . . . . . . .112 s 8(5) . . . . . . . . . . . . . . . . . . . .111 ss 9–11 . . . . . . . . . . . . . . . . . . .112 s 11(1), (2) . . . . . . . . . . . . . . . .112 Pt III . . . . . . . . . . . . . . . . . . . .113 s 14 . . . . . . . . . . . . . . . . . . . . .113 ss 17, 18 . . . . . . . . . . . . . . . . . .116 s 18(1), (2) . . . . . . . . . . . . . . . .116 s 18(3) . . . . . . . . . . . . . . . . . . .117 s 19 . . . . . . . . . . . . . . . . . . . . .117 s 19(1) . . . . . . . . . . . . . . . . . . .117 s 19(3) . . . . . . . . . . . .117, 118, 138 s 20 . . . . . . . . . . . . . . . . . . . . .118 s 20(3), (4), (6) . . . . . . . . . . . . .119 s 22 . . . . . . . . . . . . . . . . . .119, 132 s 22(1) . . . . . . . . . . . . . . . . . . .119 s 22(2) . . . . . . . . . . . . . . . .120–23 s 23 . . . . . . . . . . . . . . . . . . . . .124

TABLE

Commercial Arbitration Act 1984 (Contd)— s 27 . . . . . . . . . . . . . . .117, 124–26 s 27(1)–(4) . . . . . . . . . . . . . . . .125 s 27(3) . . . . . . . . . . . . . . . . . . .126 Pt IV . . . . . . . . . . . . . . . . . . . .127 s 28 . . . . . . . . . . . . . . . . . . . . .127 s 29 . . . . . . . . . . . . . . . . . . . . .115 s 29(1), (2) . . . . . . . . . . . . . . . .130 s 30 . . . . . . . . . . . . . . . . .131, 132 s 30(c) . . . . . . . . . . .122, 123, 133 s 33 . . . . . . . . . . . . . . . . . . . . .132 s 34 . . . . . . . . . . . . . . . . . . . . .133 s 34(1), (6), (7) . . . . . . . . . . . . .134 s 37 . . . . . . . . . . . . . . . . . . . . .134 Pt V . . . . . . . . . . . . . . . . . . . . .135 s 38 . . . . . . . . . . . . . .123, 131, 135 s 38(1) . . . . . . . . . . . . . . . . . . .137 s 38(2) . . . . . . . . . . . .130, 135–37 s 38(3)–(7) . . . . . . . . . . . . . . . .136 s 38(4) . . . . . . . . . . . . . . . . . . .135 s 40 . . . . . . . . . . . . . . . . . . . . .136 s 42 . . . . . . . . . . . . . .130, 137, 141 s 42(1)(a) . . . . . . . . . . . . .139, 140 s 42(1)(b) . . . . . . . . . . . . . . . . .140 s 43 . . . . . . . . . . . . . . . . . . . . .131 s 44 . . . . . . . . . . . . . .112, 113, 141 s 44(1)(a) . . . . . . . . . . . . . . . . .142 s 46 . . . . . . . . . . . . . . . . .143, 145 s 46(2) . . . . . . . . . . . . . . .144, 146 s 46(2)(a) . . . . . . . . . . . . . . . . .146 s 46(3)(a) . . . . . . . . . . . . . . . . .146 s 53 . . . . . . . . . . . . . . . . . . . . .257 Commercial Arbitration (Amendment) Act 1990 (NSW) . . . . . . . . . . .124 Community Justice Centres Act 1983 . . . . . . . . . . . . . .8, 9, 23, 186, 194, 204 ss 4, 11 . . . . . . . . . . . . . . . . . . .204 s 22 . . . . . . . . . . . . . . . . . . . . .186

OF

LEGISLATION

Community Justice Centres Act 1983 (Contd)— s 23 . . . . . . . . . . . . . . . . . . . . .204 s 25 . . . . . . . . . . . . . . . . . . . . .186 ss 27–29 . . . . . . . . . . . . . . . . . .204 Community Justice Centres (Pilot Project) Act 1980 . . . .8, 23 Community Land Management Act 1989 . .187, 204 ss 3, 65, 66, 68, 69, 70, 70A . . . . . . . . . . . . .204 Community Land Management Regulation 2000 . . . . . . . . . . .187 regs 13, 14 . . . . . . . . . . . . . . . .187 Compensation Court Act 1984 . . . . . . . . . . . . . . . . . .18, 187, 204 s 12A . . . . . . . . . . . . . . . . . . . .187 ss 38A–38L . . . . . . . . . . . . . . .204 Compensation Court Rules 1990 . . . . . . . . . . . . . . . .187 rr 2–4, 7, 8 . . . . . . . . . . . . . . . .187 Cooperatives Act 1992 . . . . . . . . .188 s 105E . . . . . . . . . . . . . . . . . . .188 Courts Legislation (Mediation and Neutral Evaluation) Amendment Act 1994 . . . .17, 18, 183 s 110K . . . . . . . . . . . . . . . . . . . .18 Crimes (Administration of Sentences) Act 1999 . . . . . . . .188 s 213 . . . . . . . . . . . . . . . . . . . .188 District Court Act 1973 . . . . .18, 183, 188, 204 ss 162–164H, 164J . . . . . . . . . .204 Dust Disease Tribunal Act 1989 . . . . . . . . . . . . . . . . .204 ss 32G–32R . . . . . . . . . . . . . . .204

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Electricity Supply (General) Regulation 2001 . . . . . . . . . . .188 ss 92–94, 96 . . . . . . . . . . . . . . .188 r 97 . . . . . . . . . . . . . . . . . . . . .189 Fair Trading Act 1987 . . . . . . . . . .263 Fair Trading Tribunal Act 1998 . . . . . . . . . .183, 189, 204 ss 49, 51, 52, 54–58 . . . . . . . . . . . . . . . . . .204 Fair Trading Tribunal Regulations 1999 . . . . . . . . . .189 Farm Debt Mediation Act 1994 . . . . . . . . . . . . . .23, 189 ss 5, 6 . . . . . . . . . . . . . . . . . . .190 s 8 . . . . . . . . . . . . . . . . . .190, 192 ss 9, 10 . . . . . . . . . . . . . . . . . . .190 s 11 . . . . . . . . . . . . . . . . . . .190–92 s 11(1B), (2) . . . . . . . . . . . . . . .191 s 11(2)(c) . . . . . . . . . . . . . . . . .192 s 11(3), (5) . . . . . . . . . . . . . . . .191 ss 11A, 12, 13 . . . . . . . . . . . . .192 ss 14–17 . . . . . . . . . . . . . . . . . .193 ss 17(3), (4), 18 . . . . . . . . . . . .194 Industrial Relations Act 1991 . . . .18 Hawkesbury-Nepean Catchment Trust Regulation 1993— ss 6, 7 . . . . . . . . . . . . . . . . . . .194 Health Care Complaints Act 1993 . . . . . . . . . . . . . . . . .195 ss 47–52 . . . . . . . . . . . . . . . . . .195 s 53 . . . . . . . . . . . . . . . . . . . . .196 Land and Environment Court Act 1979 . . . . . . . . .16, 18, 196, 204 s 18 . . . . . . . . . . . . . . . . . . . . .196 ss 61A–61L . . . . . . . . . . . . . . .204

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Land and Environment Court Rules 1996 . . . . . . . . . . . . . . . .196 rr 3–8 . . . . . . . . . . . . . . . . . . . .196 Legal Aid Commission Act 1979 . . . . . . . . . . . . .197, 204 ss 60A–60D, 60F, 60G . . . . . . .204 Legal Profession Act 1987 . . . . . .204 ss 124, 144–147 . . . . . . . . . . . .204 Local Courts (Civil Claims) Act 1970 . . . . . . . . . . . . . .18, 204 ss 21I–21T . . . . . . . . . . . . . . . .204 National Parks and Wildlife Act 1974 . . . . . . . . . . . . . . . . .197 National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 . . . . . . .197 ss 71F, 71I, 71K . . . . . . . . . . . .197 Professional Standards Act 1994 . . . . . . . . . . . . . . . . .198 s 43 . . . . . . . . . . . . . . . . . . . . .198 Real Property Act 1900 . . . . . . . .198 s 135 . . . . . . . . . . . . . . . . . . . .198 Residential Parks Act 1998 . . . . . . . . . .183, 198, 204 ss 91–94 . . . . . . . . . . . . . . . . . .204 Residential Tenancies Tribunal Act 1998 . . . . . . . . . .198 Residential Tribunal Act 1998 . . . . . . . . . . . . .183, 204 ss 49, 51, 52, 54–58 . . . . . . . . .204 Retail Leases Act 1994 . . . . .199, 200 ss 65–69 . . . . . . . . . . . . . . . . . .199 s 74(1) . . . . . . . . . . . . . . .199, 200 s 74(2) . . . . . . . . . . . . . . . . . . .200 Rural Lands Protection Act 1998 . . . . . . . . . . . . . . . . .200 s 234 . . . . . . . . . . . . . . . . . . . .200

TABLE

Strata Schemes Management Act 1996 . . . . . . . . . . . . .183, 204 ss 128, 129, 131–134 . . . . . . . .204 Strata Schemes Management Act 1997 . . . . . .200 Strata Schemes Management Regulation 1997— regs 21, 22 . . . . . . . . . . . . . . . .200 Supreme Court Act 1970 . . . .18, 183, 201, 204 s 110K . . . . . . . . . . . . . . .201, 204 ss 110I–110K . . . . . . . . . . . . . .204 s 110L . . . . . . . . . . . . . . . . . . .201 ss 110M–110S . . . . . . . . . . . . .204 Supreme Court Rules 1970 . . . . . . . . . . . .201, 257 Ord 72C rr 2–4, 6, 7 . . . . . . . .201 Water Act 1912 . . . . . . . . . . . . . . .202 s 170B . . . . . . . . . . . . . . . . . . .202 Workplace Injury Management and Workers Compensation Act 1998 . . . . . . . . . . . . .202, 203 ss 76, 78, 79 . . . . . . . . . . . . . . .202 ss 79(2), 80, 82, 86, 89 . . . . . . .203

Northern Territory Adoption of Children Act 1994— s 86 . . . . . . . . . . . . . . . . . . . . .210 Commercial Arbitration Act 1985 . . . . . . . . . . . . . . .6, 107 Pts I–VII . . . . . . . . . . . . . . . . .108 s 3 . . . . . . . . . . . . . . . . . .108, 109 s 3(2), (4), (5) . . . . . . . . . . . . . .109 s 3(6) . . . . . . . . . . . . . . . . . . . .108 s 4 . . . . . . . . . . . . . .108, 110, 138, 141, 142

OF

LEGISLATION

Commercial Arbitration Act 1985 (Contd)— s 4(2) . . . . . . . . . . . . . . . . . . . .109 Pt II . . . . . . . . . . . . . . . . . . . . .110 ss 6, 7 . . . . . . . . . . . . . . . . . . . .110 s 8 . . . . . . . . . . . . . . . . . . . . . .111 s 8(1), (3) . . . . . . . . . . . . .111, 112 s 8(4) . . . . . . . . . . . . . . . . . . . .112 s 8(5) . . . . . . . . . . . . . . . . . . . .111 ss 9–11 . . . . . . . . . . . . . . . . . . .112 s 11(1), (2) . . . . . . . . . . . . . . . .112 Pt III . . . . . . . . . . . . . . . . . . . .113 s 14 . . . . . . . . . . . . . . . . . . . . .113 ss 17, 18 . . . . . . . . . . . . . . . . . .116 s 18(1), (2) . . . . . . . . . . . . . . . .116 s 18(3) . . . . . . . . . . . . . . . . . . .117 s 19 . . . . . . . . . . . . . . . . . . . . .117 s 19(1) . . . . . . . . . . . . . . . . . . .117 s 19(3) . . . . . . . . . . . .117, 118, 138 s 20 . . . . . . . . . . . . . . . . . . . . .118 s 20(3), (4), (6) . . . . . . . . . . . . .119 s 22 . . . . . . . . . . . . . . . . . .119, 132 s 22(1) . . . . . . . . . . . . . . . . . . .119 s 22(2) . . . . . . . . . . . . . . . .120–22 s 23 . . . . . . . . . . . . . . . . . . . . .124 s 27 . . . . . . . . . . . . . . .117, 124–26 s 27(1)–(4) . . . . . . . . . . . . . . . .125 s 27(3) . . . . . . . . . . . . . . . . . . .126 Pt IV . . . . . . . . . . . . . . . . . . . .127 s 28 . . . . . . . . . . . . . . . . . . . . .127 s 29 . . . . . . . . . . . . . . . . . . . . .115 s 29(1), (2) . . . . . . . . . . . . . . . .130 s 30 . . . . . . . . . . . . . . . . .131, 132 s 30(c) . . . . . . . . . . . . . . . . . . .133 s 33 . . . . . . . . . . . . . . . . . . . . .132 s 34 . . . . . . . . . . . . . . . . . . . . .133 s 34(1), (6), (7) . . . . . . . . . . . . .134 s 37 . . . . . . . . . . . . . . . . . . . . .134 Pt V . . . . . . . . . . . . . . . . . . . . .135 s 38 . . . . . . . . . . . . . .123, 131, 135 s 38(1) . . . . . . . . . . . . . . . . . . .137 s 38(2) . . . . . . . . . . . .130, 135–37

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Commercial Arbitration Act 1985 (Contd)— s 38(3)–(7) . . . . . . . . . . . . . . . .136 s 38(4) . . . . . . . . . . . . . . . . . . .135 s 40 . . . . . . . . . . . . . . . . . . . . .136 s 42 . . . . . . . . . . . . . .130, 137, 141 s 42(1)(a) . . . . . . . . . . . . .139, 140 s 42(1)(b) . . . . . . . . . . . . . . . . .140 s 43 . . . . . . . . . . . . . . . . . . . . .131 s 44 . . . . . . . . . . . . . .112, 113, 141 s 44(1)(a) . . . . . . . . . . . . . . . . .142 s 46 . . . . . . . . . . . . . . . . . . . . .143 s 46(2) . . . . . . . . . . . . . . .144, 146 s 46(2)(a) . . . . . . . . . . . . . . . . .146 s 46(3)(a) . . . . . . . . . . . . . . . . .146 s 53 . . . . . . . . . . . . . . . . . . . . .257 Cullen Bay Marina Act . . . . . . . .210 s 12A(2) . . . . . . . . . . . . . . . . . .210 Lands Acquisition Act— s 37 . . . . . . . . . . . . . . . . . . . . .212 Lands and Mining Tribunal Act . . . . . . . . . . . . . .213 s 36 . . . . . . . . . . . . . . . . .212, 213 Legal Practitioners Act— s 135N . . . . . . . . . . . . . . . . . . .212 Local Court Act 1989 . . . . . . . . . .211 s 16 . . . . . . . . . . . . . . . . . . . . .211 Local Court Rules— rr 32.04, 32.06, 32.08, 32.09, 32.10 . . . . . . . . . . . . .211 r 32.11 . . . . . . . . . . . . . . . . . . .212 Mining Act . . . . . . . . . . . . . . . . . .213 s 140G . . . . . . . . . . . . . . . . . . .213 Petroleum Act . . . . . . . . . . . . . . . .213 s 57H . . . . . . . . . . . . . . . . . . . .213 Small Claims Rules . . . . . . . . . . .212 rr 18.04, 18.08 . . . . . . . . . . . . .212 xxiv

Supreme Court Act . . . . . . . . . . .214 Supreme Court Rules . . . . . . . . . .213 r 48.13 . . . . . . . . . . . . . . . . . . .213 r 48.14 . . . . . . . . . . . . . . . . . . .214 Unit Titles Act . . . . . . . . . . . . . . . .214 s 106 . . . . . . . . . . . . . . . . . . . .214 Work Health Act . . . . . . . . . . . . . .214 s 69 . . . . . . . . . . . . . . . . . . . . .214 ss 103C, 103D, 103F . . . . . . . .215 ss 103G–103J . . . . . . . . . . . . . .216 Work Health Regulations . . . . . .216 ss 14A, 23.05 . . . . . . . . . . . . . .216

Queensland Body Corporate and Community Management Act 1997 . . . . . . . . . . . . . . . . .218 ss 203(1), 204, 206, 208, 210–212 . . . . . . . . . . . .218 Chicken Meat Industry Committee Act 1976 . . . . . . .217 s 16 . . . . . . . . . . . . . . . . . . . . .217 Commercial Arbitration Act 1990 . . . . . . . . . . . . . . .6, 107 Pts I–VII . . . . . . . . . . . . . . . . .108 s 3 . . . . . . . . . . . . . . . . . .108, 109 s 3(2), (4), (5) . . . . . . . . . . . . . .109 s 3(6) . . . . . . . . . . . . . . . . . . . .108 s 4 . . . . . . . . . . . . . .108, 110, 138, 141, 142 s 4(2) . . . . . . . . . . . . . . . . . . . .109 Pt II . . . . . . . . . . . . . . . . . . . . .110 ss 6, 7 . . . . . . . . . . . . . . . . . . . .110 s 8 . . . . . . . . . . . . . . . . . . . . . .111 s 8(1), (3) . . . . . . . . . . . . .111, 112 s 8(4) . . . . . . . . . . . . . . . . . . . .112

TABLE

Commercial Arbitration Act 1990 (Contd)— s 8(5) . . . . . . . . . . . . . . . . . . . .111 ss 9–11 . . . . . . . . . . . . . . . . . . .112 s 11(1), (2) . . . . . . . . . . . . . . . .112 Pt III . . . . . . . . . . . . . . . . . . . .113 s 14 . . . . . . . . . . . . . . . . . . . . .113 ss 17, 18 . . . . . . . . . . . . . . . . . .116 s 18(1), (2) . . . . . . . . . . . . . . . .116 s 18(3) . . . . . . . . . . . . . . . . . . .117 s 19 . . . . . . . . . . . . . . . . . . . . .117 s 19(1) . . . . . . . . . . . . . . . . . . .117 s 19(3) . . . . . . . . . . . .117, 118, 138 s 20 . . . . . . . . . . . . . . . . . . . . .118 s 20(3), (4), (6) . . . . . . . . . . . . .119 s 22 . . . . . . . . . . . . . . . . . .119, 132 s 22(1) . . . . . . . . . . . . . . . . . . .119 s 22(2) . . . . . . . . . . . . . . . .120–22 s 23 . . . . . . . . . . . . . . . . . . . . .124 s 27 . . . . . . . . . . . . . . .117, 124–26 s 27(1)–(4) . . . . . . . . . . . . . . . .125 s 27(3) . . . . . . . . . . . . . . . . . . .126 Pt IV . . . . . . . . . . . . . . . . . . . .127 s 28 . . . . . . . . . . . . . . . . . . . . .127 s 29 . . . . . . . . . . . . . . . . . . . . .115 s 29(1), (2) . . . . . . . . . . . . . . . .130 s 30 . . . . . . . . . . . . . . . . .131, 132 s 30(c) . . . . . . . . . . . . . . . . . . .133 s 33 . . . . . . . . . . . . . . . . . . . . .132 s 34 . . . . . . . . . . . . . . . . . . . . .133 s 34(1), (6), (7) . . . . . . . . . . . . .134 s 37 . . . . . . . . . . . . . . . . . . . . .134 Pt V . . . . . . . . . . . . . . . . . . . . .135 s 38 . . . . . . . . . . . . . .123, 131, 135 s 38(1) . . . . . . . . . . . . . . . . . . .137 s 38(2) . . . . . . . . . . . .130, 135–37 s 38(3)–(7) . . . . . . . . . . . . . . . .136 s 38(4) . . . . . . . . . . . . . . . . . . .135 s 40 . . . . . . . . . . . . . . . . . . . . .136 s 42 . . . . . . . . . . . . . .130, 137, 141 s 42(1)(a) . . . . . . . . . . . . .139, 140

OF

LEGISLATION

Commercial Arbitration Act 1990 (Contd)— s 42(1)(b) . . . . . . . . . . . . . . . . .140 s 43 . . . . . . . . . . . . . . . . . . . . .131 s 44 . . . . . . . . . . . . . .112, 113, 141 s 44(1)(a) . . . . . . . . . . . . . . . . .142 s 46 . . . . . . . . . . . . . . . . . . . . .143 s 46(2) . . . . . . . . . . . . . . .144, 146 s 46(2)(a) . . . . . . . . . . . . . . . . .146 s 46(3)(a) . . . . . . . . . . . . . . . . .146 s 53 . . . . . . . . . . . . . . . . . . . . .257 Courts of Conciliation Act 1892 . . . . . . . . . . . . . . .16, 22 Courts of Conciliation Act 1931 . . . . . . . . . . . . . . . . . .22 Courts Legislation Amendment Act 1995 . . . . . . .18 Criminal Offences Victims Act 1995— s 17 . . . . . . . . . . . . . . . . . . . . .229 Dispute Resolution Centres Act 1990 . . .23, 218, 219, 221, 225–27 ss 2, 19 . . . . . . . . . . . . . . . . . . .230 ss 28–30 . . . . . . . . . . . . . . . . . .219 ss 28, 31 . . . . . . . . . . . . . . . . . .230 ss 32, 33 . . . . . . . . . . . . . . . . . .219 ss 33–37 . . . . . . . . . . . . . . . . . .230 District Court Act 1967 . . . .219, 225, 229, 230 ss 89–110 . . . . . . . . . . . . . . . . .230 s 89 . . . . . . . . . . . . . . . . . . . . .219 ss 90, 91, 93, 95–97 . . . . . . . . .220 ss 97(4), 98, 100–102 . . . . . . . .221 ss 103, 105, 107–110 . . . . . . . .222 ss 391, 392, 394–396, 398, 400, 402 . . . . . . . . . . . .223 District Court Rules 1968 . . .223, 225 rr 384–403, 416–420 . . . . . . . .231

xxv


Electricity Act 1994— s 119 . . . . . . . . . . . . . . . . . . . .223 Environmental Protection Act 1994— s 87 . . . . . . . . . . . . . . . . . . . . .224 Freedom of Information Act 1992— s 80 . . . . . . . . . . . . . . . . . . . . .224 Industrial Relations Act 1999— ss 231, 242 . . . . . . . . . . . . . . . .224 Industrial Relations (Tribunals) Rules 2000 . . . . . . . . . . . . . . . .224 s 151 . . . . . . . . . . . . . . . . . . . .224 Justices Act 1886— s 53A(1) . . . . . . . . . . . . . . . . . .225 Legal Aid Queensland Act 1997— s 24 . . . . . . . . . . . . . . . . . . . . .225 Magistrates’ Court Act 1921 . . . .225 ss 21–42 . . . . . . . . . . . . . . . . . .230 Magistrates’ Court Rules 1960 . . . . . . . . . . . .223, 225 rr 335–354, 367–371 . . . . . . . .231 Mineral Resources Act 1989 . . . .226 ss 436, 436A, 491, 547, 547A . . . . . . . . . . . . . .226 Peace and Good Behaviour Act 1982— s 4 . . . . . . . . . . . . . . . . . . . . . .226 Peaceful Assembly Act 1992 . . . .226 s 13 . . . . . . . . . . . . . . . . . . . . .226 Powers of Attorney Act 1998 . . .227 ss 64, 95 . . . . . . . . . . . . . . . . . .227

xxvi

Queensland Building Tribunal Act 2000— s 64 . . . . . . . . . . . . . . . . . . . . .217 s 123(1), (2), (6) . . . . . . . . . . . .216 s 123(7) . . . . . . . . . . . . . .216, 217 ss 123(8), 124–127 . . . . . . . . . .217 Queensland Law Society Act 1952— s 51 . . . . . . . . . . . . . . . . . . . . .227 Queensland Law Society (Solicitors Complaints Tribunal) Rule 1997— s 18G . . . . . . . . . . . . . . . . . . . .227 Residential Tenancies Act 1994— ss 232–247 . . . . . . . . . . . . . . . .228 Retail Shop Leases Act 1994 . . . .228 s 5 . . . . . . . . . . . . . . . . . . . . . .230 ss 54–94 . . . . . . . . . . . . . . . . . .228 ss 61, 64, 65, 95, 100, 113–116 . . . . . . . . . . . .230 Sugar Industry Act 1991— ss 38, 45, 47, 52B . . . . . . . . . . .228 s 52B(3) . . . . . . . . . . . . . . . . . .229 s 52G . . . . . . . . . . . . . . . . . . . .228 Supreme Court of Queensland Act 1991 . . . .18, 229 ss 94–115 . . . . . . . . . . . . . . . . .230 s 102 . . . . . . . . . . . . . . . . . . . . .19 Workplace Relations Act 1997— ss 231, 242 . . . . . . . . . . . . . . . .224

South Australia Administrative Appeals Tribunal Act 1989 . . . . . . . . . .232 ss 33A, 34A, 43 . . . . . . . . . . . .232

TABLE

Commercial Arbitration Act 1986 . . . . . . . . . . . . . . .6, 107 Pts I–VII . . . . . . . . . . . . . . . . .108 s 3 . . . . . . . . . . . . . . . . . .108, 109 s 3(2), (4), (5) . . . . . . . . . . . . . .109 s 3(6) . . . . . . . . . . . . . . . . . . . .108 s 4 . . . . . . . . . . . . . .108, 110, 138, 141, 142 s 4(2) . . . . . . . . . . . . . . . . . . . .109 Pt II . . . . . . . . . . . . . . . . . . . . .110 ss 6, 7 . . . . . . . . . . . . . . . . . . . .110 s 8 . . . . . . . . . . . . . . . . . . . . . .111 s 8(1), (3) . . . . . . . . . . . . .111, 112 s 8(4) . . . . . . . . . . . . . . . . . . . .112 s 8(5) . . . . . . . . . . . . . . . . . . . .111 ss 9–11 . . . . . . . . . . . . . . . . . . .112 s 11(1), (2) . . . . . . . . . . . . . . . .112 Pt III . . . . . . . . . . . . . . . . . . . .113 s 14 . . . . . . . . . . . . . . . . . . . . .113 ss 17, 18 . . . . . . . . . . . . . . . . . .116 s 18(1), (2) . . . . . . . . . . . . . . . .116 s 18(3) . . . . . . . . . . . . . . . . . . .117 s 19 . . . . . . . . . . . . . . . . . . . . .117 s 19(1) . . . . . . . . . . . . . . . . . . .117 s 19(3) . . . . . . . . . . . .117, 118, 138 s 20 . . . . . . . . . . . . . . . . . . . . .118 s 20(3), (4), (6) . . . . . . . . . . . . .119 s 22 . . . . . . . . . . . . . . . . . .119, 132 s 22(1) . . . . . . . . . . . . . . . . . . .119 s 22(2) . . . . . . . . . . . . . . . .120–22 s 23 . . . . . . . . . . . . . . . . . . . . .124 s 27 . . . . . . . . . . . . . . .117, 124–26 s 27(1)–(4) . . . . . . . . . . . . . . . .125 s 27(3) . . . . . . . . . . . . . . . . . . .126 Pt IV . . . . . . . . . . . . . . . . . . . .127 s 28 . . . . . . . . . . . . . . . . . . . . .127 s 29 . . . . . . . . . . . . . . . . . . . . .115 s 29(1), (2) . . . . . . . . . . . . . . . .130 s 30 . . . . . . . . . . . . . . . . .131, 132 s 30(c) . . . . . . . . . . . . . . . . . . .133 s 33 . . . . . . . . . . . . . . . . . . . . .132 s 34 . . . . . . . . . . . . . . . . . . . . .133

OF

LEGISLATION

Commercial Arbitration Act 1986 (Contd)— s 34(1), (6), (7) . . . . . . . . . . . . .134 s 37 . . . . . . . . . . . . . . . . . . . . .134 Pt V . . . . . . . . . . . . . . . . . . . . .135 s 38 . . . . . . . . . . . . . .123, 131, 135 s 38(1) . . . . . . . . . . . . . . . . . . .137 s 38(2) . . . . . . . . . . . .130, 135–37 s 38(3)–(7) . . . . . . . . . . . . . . . .136 s 38(4) . . . . . . . . . . . . . . . . . . .135 s 40 . . . . . . . . . . . . . . . . . . . . .136 s 42 . . . . . . . . . . . . . .130, 137, 141 s 42(1)(a) . . . . . . . . . . . . .139, 140 s 42(1)(b) . . . . . . . . . . . . . . . . .140 s 43 . . . . . . . . . . . . . . . . . . . . .131 s 44 . . . . . . . . . . . . . .112, 113, 141 s 44(1)(a) . . . . . . . . . . . . . . . . .142 s 46 . . . . . . . . . . . . . . . . . . . . .143 s 46(2) . . . . . . . . . . . . . . .144, 146 s 46(2)(a) . . . . . . . . . . . . . . . . .146 s 46(3)(a) . . . . . . . . . . . . . . . . .146 s 53 . . . . . . . . . . . . . . . . . . . . .257 Conciliation Act 1929 . . . . . . . .16, 22 Cooperatives Act 1997— s 99 . . . . . . . . . . . . . . . . . . . . .233 District Court Act 1991— s 32 . . . . . . . . . . . . . . . . .233, 236 Electricity Act 1996— ss 55B, 55F . . . . . . . . . . . . . . .233 ss 55J, 55J, 55N . . . . . . . . . . . .234 Environment, Resources and Development Court Act 1993— s 28B . . . . . . . . . . . . . . . . . . . .234 s 28B(9) . . . . . . . . . . . . . . . . . .235 Gas Act 1997 . . . . . . . . . . . . . . . . .235 s 41 . . . . . . . . . . . . . . . . . . . . .235

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Industrial and Employee Relations Act 1994— s 197 . . . . . . . . . . . . . . . . . . . .235 s 201 . . . . . . . . . . . . . . . . . . . .235 s 203 . . . . . . . . . . . . . . . . . . . .236 Land Acquisition Act 1969— s 28A . . . . . . . . . . . . . . . . . . . .236 Magistrates Court Act 1991— s 27 . . . . . . . . . . . . . . . . . . . . .236 Mining Act 1971 . . . . . . . . . .236, 238 s 63K . . . . . . . . . . . . . . . . . . . .237 s 63L . . . . . . . . . . . . . . . .236, 237 ss 63M–63X . . . . . . . . . . . . . . .237 Opal Mining Act 1995— ss 53–66 . . . . . . . . . . . . . . . . . .238 Petroleum Act 2000 . . . . . . . . . . .238 s 62 . . . . . . . . . . . . . . . . . . . . .238 Petroleum Regulations 2000— reg 55 . . . . . . . . . . . . . . . . . . .238 Rail Safety Act 1996 . . . . . . .238, 239 s 17 . . . . . . . . . . . . . . . . . . . . .238 s 20 . . . . . . . . . . . . . . . . . . . . .239 Rail Safety Regulations 1998— reg 6 . . . . . . . . . . . . . . . . . . . .239 Residential Tenancies Act 1995 . . . . . . . . . . . . .239, 240 s 34 . . . . . . . . . . . . . . . . . . . . .239 ss 34(3)–(5), 106, 107, 113 . . . . . . . . . . . . . . . .240 Retail and Commercial Leases Act 1995 . . . . . . . . . . .240 ss 20H, 65, 66 . . . . . . . . . . . . .240

xxviii

South Australian Cooperative and Community Housing Act 1991 . . . . . . . . .232 s 84 . . . . . . . . . . . . . . . . . . . . .232 Statutes Amendment (Mediation, Arbitration and Referral) Act 1996 . . .19, 241 Statutes Amendment (Native Title) Act 1998 . . . . . .236 Supreme Court Act 1935 . . . .19, 241 s 65 . . . . . . . . . . . . . . . . . . . . . .19 s 65(1)–(3), (5)–(7) . . . . . . . . . .241

Tasmania Commercial Arbitration Act 1986 . . . . . . . . . . . . . . .6, 107 Pts I–VII . . . . . . . . . . . . . . . . .108 s 3 . . . . . . . . . . . . . . . . . .108, 109 s 3(2), (4), (5) . . . . . . . . . . . . . .109 s 3(6) . . . . . . . . . . . . . . . . . . . .108 s 4 . . . . . . . . . . . . . .108, 110, 138, 141, 142 s 4(2) . . . . . . . . . . . . . . . . . . . .109 Pt II . . . . . . . . . . . . . . . . . . . . .110 ss 6, 7 . . . . . . . . . . . . . . . . . . . .110 s 8 . . . . . . . . . . . . . . . . . . . . . .111 s 8(1), (3) . . . . . . . . . . . . .111, 112 s 8(4) . . . . . . . . . . . . . . . . . . . .112 s 8(5) . . . . . . . . . . . . . . . . . . . .111 ss 9–11 . . . . . . . . . . . . . . . . . . .112 s 11(1), (2) . . . . . . . . . . . . . . . .112 Pt III . . . . . . . . . . . . . . . . . . . .113 s 14 . . . . . . . . . . . . . . . . . . . . .113 ss 17, 18 . . . . . . . . . . . . . . . . . .116 s 18(1), (2) . . . . . . . . . . . . . . . .116 s 18(3) . . . . . . . . . . . . . . . . . . .117 s 19 . . . . . . . . . . . . . . . . . . . . .117 s 19(1) . . . . . . . . . . . . . . . . . . .117

TABLE

Commercial Arbitration Act 1986 (Contd)— s 19(3) . . . . . . . . . . . .117, 118, 138 s 20 . . . . . . . . . . . . . . . . . . . . .118 s 20(3), (4), (6) . . . . . . . . . . . . .119 s 22 . . . . . . . . . . . . . . . . . .119, 132 s 22(1) . . . . . . . . . . . . . . . . . . .119 s 22(2) . . . . . . . . . . . . . . . .120–22 s 23 . . . . . . . . . . . . . . . . . . . . .124 s 27 . . . . . . . . . . . . . . .117, 124–26 s 27(1)–(4) . . . . . . . . . . . . . . . .125 s 27(3) . . . . . . . . . . . . . . . . . . .126 Pt IV . . . . . . . . . . . . . . . . . . . .127 s 28 . . . . . . . . . . . . . . . . . . . . .127 s 29 . . . . . . . . . . . . . . . . . . . . .115 s 29(1), (2) . . . . . . . . . . . . . . . .130 s 30 . . . . . . . . . . . . . . . . .131, 132 s 30(c) . . . . . . . . . . . . . . . . . . .133 s 33 . . . . . . . . . . . . . . . . . . . . .132 s 34 . . . . . . . . . . . . . . . . . . . . .133 s 34(1), (6), (7) . . . . . . . . . . . . .134 s 37 . . . . . . . . . . . . . . . . . . . . .134 Pt V . . . . . . . . . . . . . . . . . . . . .135 s 38 . . . . . . . . . . . . . .123, 131, 135 s 38(1) . . . . . . . . . . . . . . . . . . .137 s 38(2) . . . . . . . . . . . .130, 135–37 s 38(3)–(7) . . . . . . . . . . . . . . . .136 s 38(4) . . . . . . . . . . . . . . . . . . .135 s 40 . . . . . . . . . . . . . . . . . . . . .136 s 42 . . . . . . . . . . . . . .130, 137, 141 s 42(1)(a) . . . . . . . . . . . . .139, 140 s 42(1)(b) . . . . . . . . . . . . . . . . .140 s 43 . . . . . . . . . . . . . . . . . . . . .131 s 44 . . . . . . . . . . . . . .112, 113, 141 s 44(1)(a) . . . . . . . . . . . . . . . . .142 s 46 . . . . . . . . . . . . . . . . . . . . .143 s 46(2) . . . . . . . . . . . . . . .144, 146 s 46(2)(a) . . . . . . . . . . . . . . . . .146 s 46(3)(a) . . . . . . . . . . . . . . . . .146 s 53 . . . . . . . . . . . . . . . . . . . . .257

OF

LEGISLATION

Electricity Supply Industry Act 1995 . . . . . . . . . . . . .241, 242 ss 45, 98 . . . . . . . . . . . . . . . . . .241 Land Use Planning and Approvals Act 1993 . . . . . . . .242 s 57A . . . . . . . . . . . . . . . . . . . .242 Magistrates Court (Small Claims Division) Act 1989— s 8 . . . . . . . . . . . . . . . . . . . . . .242 ss 22, 24 . . . . . . . . . . . . . . . . . .243 Resource Management and Planning Appeal Tribunal Act 1993— s 16A . . . . . . . . . . . . . . . . . . . .242 Supreme Court Rules 2000— Pt 20 . . . . . . . . . . . . . . . . . . . .243 ss 518, 519 . . . . . . . . . . . . . . . .243 ss 520–523 . . . . . . . . . . . . . . . .244

Victoria Associations Incorporation Regulations 1998— r 8 . . . . . . . . . . . . . . . . . . . . . .244 Sched 5 . . . . . . . . . . . . . . . . . .244 Commercial Arbitration Act 1984 . . . . . . . . . . .6, 107, 247 Pts I–VII . . . . . . . . . . . . . . . . .108 s 3 . . . . . . . . . . . . . . . . . .108, 109 s 3(2), (4), (5) . . . . . . . . . . . . . .109 s 3(6) . . . . . . . . . . . . . . . . . . . .108 s 4 . . . . . . . . . . . . . .108, 110, 138, 141, 142

xxix


Commercial Arbitration Act 1984 (Contd)— s 4(2) . . . . . . . . . . . . . . . . . . . .109 Pt II . . . . . . . . . . . . . . . . . . . . .110 ss 6, 7 . . . . . . . . . . . . . . . . . . . .110 s 8 . . . . . . . . . . . . . . . . . . . . . .111 s 8(1), (3) . . . . . . . . . . . . .111, 112 s 8(4) . . . . . . . . . . . . . . . . . . . .112 s 8(5) . . . . . . . . . . . . . . . . . . . .111 ss 9–11 . . . . . . . . . . . . . . . . . . .112 s 11(1), (2) . . . . . . . . . . . . . . . .112 Pt III . . . . . . . . . . . . . . . . . . . .113 s 14 . . . . . . . . . . . . . . . . . . . . .113 ss 17, 18 . . . . . . . . . . . . . . . . . .116 s 18(1), (2) . . . . . . . . . . . . . . . .116 s 18(3) . . . . . . . . . . . . . . . . . . .117 s 19 . . . . . . . . . . . . . . . . . . . . .117 s 19(1) . . . . . . . . . . . . . . . . . . .117 s 19(3) . . . . . . . . . . . .117, 118, 138 s 20 . . . . . . . . . . . . . . . . . . . . .118 s 20(3), (4), (6) . . . . . . . . . . . . .119 s 22 . . . . . . . . . . . . . . . . . .119, 132 s 22(1) . . . . . . . . . . . . . . . . . . .119 s 22(2) . . . . . . . . . . . . . . . .120–22 s 23 . . . . . . . . . . . . . . . . . . . . .124 s 27 . . . . . . . . . . . . . . .117, 124–26 s 27(1)–(4) . . . . . . . . . . . . . . . .125 s 27(3) . . . . . . . . . . . . . . . . . . .126 Pt IV . . . . . . . . . . . . . . . . . . . .127 s 28 . . . . . . . . . . . . . . . . . . . . .127 s 29 . . . . . . . . . . . . . . . . . . . . .115 s 29(1), (2) . . . . . . . . . . . . . . . .130 s 30 . . . . . . . . . . . . . . . . .131, 132 s 30(c) . . . . . . . . . . . . . . . . . . .133 s 33 . . . . . . . . . . . . . . . . . . . . .132 s 34 . . . . . . . . . . . . . . . . . . . . .133 s 34(1), (6), (7) . . . . . . . . . . . . .134 s 37 . . . . . . . . . . . . . . . . . . . . .134 Pt V . . . . . . . . . . . . . . . . . . . . .135 s 38 . . . . . . . . . . . . . .123, 131, 135 s 38(1) . . . . . . . . . . . . . . . . . . .137

xxx

Commercial Arbitration Act 1984 (Contd)— s 38(2) . . . . . . . . . . . .130, 135–37 s 38(3)–(7) . . . . . . . . . . . . . . . .136 s 38(4) . . . . . . . . . . . . . . . . . . .135 s 40 . . . . . . . . . . . . . . . . . . . . .136 s 42 . . . . . . . . . . . . . .130, 137, 141 s 42(1)(a) . . . . . . . . . . . . .139, 140 s 42(1)(b) . . . . . . . . . . . . . . . . .140 s 43 . . . . . . . . . . . . . . . . . . . . .131 s 44 . . . . . . . . . .112, 113, 141, 142 s 44(1)(a) . . . . . . . . . . . . . . . . .142 s 46 . . . . . . . . . . . . . . . . . . . . .143 s 46(2) . . . . . . . . . . . . . . .144, 146 s 46(2)(a) . . . . . . . . . . . . . . . . .146 s 46(3)(a) . . . . . . . . . . . . . . . . .146 s 53 . . . . . . . . . . . . . . . . . . . . .257 Cooperatives Act 1996— s 104 . . . . . . . . . . . . . . . . . . . .246 County Court Act 1958 . . . . . . . .246 ss 46, 47, 47A, 47B . . . . . . . . .246 County Court Rules of Procedure in Civil Proceedings 1999 . . . . . . . . . .248 s 50.07 . . . . . . . . . . . . . . . . . . .246 s 50.08 . . . . . . . . . . . . . . . . . . .247 Domestic Building Contracts Act 1995 . . . . . . . . . . . . . . . . .245 ss 53, 132 . . . . . . . . . . . . . . . . .245 Evidence Act 1958— ss 21J, 21L–21M . . . . . . . . . . .247 Legal Practice Act 1996 . . . . . . . .247 s 63U . . . . . . . . . . . . . . . . . . . .247 Magistrates’ Court Act 1989 . . . .248 ss 108, 108A . . . . . . . . . . . . . .248

TABLE

Public Sector Management Regulations 1993— reg 31 . . . . . . . . . . . . . . . . . . .248 Retail Tenancies Reform Act 1998 . . . . . . . . . . . . . . . . .248 ss 36, 39 . . . . . . . . . . . . . . . . . .249 Supreme Court Act 1986— s 24A . . . . . . . . . . . . . . . . . . . .248 Supreme Court Rules 1992— Ord 50 r 9 . . . . . . . . . . . . . . . . .17 Supreme Court Rules 1996— Ord 50 r 50.07 . . . . . . . . . . . . . .17 Supreme Court (General Civil Procedure) Rules 1996 . . . . . .248 Victorian Civil and Administrative Tribunal Act 1998 . . . . . . . . . . . . . . . . .245 ss 78, 88 . . . . . . . . . . . . . . . . . .245 ss 89–93 . . . . . . . . . . . . . . . . . .246

Western Australia Adoption Act 1994 . . . . . . . . . . . .249 ss 46, 47, 72, 79, 105, 106, 127 . . . . . . . . . . . .249 Agricultural Practices (Disputes) Act 1995— ss 4, 10 . . . . . . . . . . . . . . . . . . .250 Sched 1 . . . . . . . . . . . . . . . . . .250 Arbitration Act 1895 . . . . . . . . . . .135 Commercial Arbitration Act 1985 . . . . . . . . . . .6, 107, 251 Pts I–VII . . . . . . . . . . . . . . . . .108 s 3 . . . . . . . . . . . . . . . . . .108, 109

OF

LEGISLATION

Commercial Arbitration Act 1985 (Contd)— s 3(2), (4), (5) . . . . . . . . . . . . . .109 s 3(6) . . . . . . . . . . . . . . . . . . . .108 s 4 . . . . . . . . . . . . . .108, 110, 138, 141, 142 s 4(2) . . . . . . . . . . . . . . . . . . . .109 Pt II . . . . . . . . . . . . . . . . . . . . .110 ss 6, 7 . . . . . . . . . . . . . . . . . . . .110 s 8 . . . . . . . . . . . . . . . . . . . . . .111 s 8(1), (3) . . . . . . . . . . . . .111, 112 s 8(4) . . . . . . . . . . . . . . . . . . . .112 s 8(5) . . . . . . . . . . . . . . . . . . . .111 ss 9–11 . . . . . . . . . . . . . . . . . . .112 s 11(1), (2) . . . . . . . . . . . . . . . .112 Pt III . . . . . . . . . . . . . . . . . . . .113 s 14 . . . . . . . . . . . . . . . . . . . . .113 ss 17, 18 . . . . . . . . . . . . . . . . . .116 s 18(1), (2) . . . . . . . . . . . . . . . .116 s 18(3) . . . . . . . . . . . . . . . . . . .117 s 19 . . . . . . . . . . . . . . . . . . . . .117 s 19(1) . . . . . . . . . . . . . . . . . . .117 s 19(3) . . . . . . . . . . . .117, 118, 138 s 20 . . . . . . . . . . . . . . . . . . . . .118 s 20(3), (4), (6) . . . . . . . . . . . . .119 s 22 . . . . . . . . . . . . . . . . . .119, 132 s 22(1) . . . . . . . . . . . . . . . . . . .119 s 22(2) . . . . . . . . . . . . . . . .120–22 s 23 . . . . . . . . . . . . . . . . . . . . .124 s 27 . . . . . . . . . . . . . . .117, 124–26 s 27(1)–(4) . . . . . . . . . . . . . . . .125 s 27(3) . . . . . . . . . . . . . . . . . . .126 Pt IV . . . . . . . . . . . . . . . . . . . .127 s 28 . . . . . . . . . . . . . . . . . . . . .127 s 29 . . . . . . . . . . . . . . . . . . . . .115 s 29(1), (2) . . . . . . . . . . . . . . . .130 s 30 . . . . . . . . . . . . . . . . .131, 132 s 30(c) . . . . . . . . . . . . . . . . . . .133 s 33 . . . . . . . . . . . . . . . . . . . . .132 s 34 . . . . . . . . . . . . . . . . . . . . .133 s 34(1), (6), (7) . . . . . . . . . . . . .134 s 37 . . . . . . . . . . . . . . . . . . . . .134

xxxi


Commercial Arbitration Act 1985 (Contd)— Pt V . . . . . . . . . . . . . . . . . . . . .135 s 38 . . . . . . . . . . . . . .123, 131, 135 s 38(1) . . . . . . . . . . . . . . . . . . .137 s 38(2) . . . . . . . . . . . .130, 135–37 s 38(3)–(7) . . . . . . . . . . . . . . . .136 s 38(4) . . . . . . . . . . . . . . . . . . .135 s 40 . . . . . . . . . . . . . . . . . . . . .136 s 42 . . . . . . . . . . . . . .130, 137, 141 s 42(1)(a) . . . . . . . . . . . . .139, 140 s 42(1)(b) . . . . . . . . . . . . . . . . .140 s 43 . . . . . . . . . . . . . . . . . . . . .131 s 44 . . . . . . . . . . . . . .112, 113, 141 s 44(1)(a) . . . . . . . . . . . . . . . . .142 s 46 . . . . . . . . . . . . . .143, 147, 148 s 46(2) . . . . . . . . . . .144, 146, 148 s 46(2)(a) . . . . . . . . . . . . . . . . .146 s 46(3) . . . . . . . . . . . . . . . . . . .148 s 46(3)(a) . . . . . . . . . . . . . . . . .146 s 53 . . . . . . . . . . . . . . . . . . . . .257 Commercial Tenancy (Retail Shops) Agreements Act 1985— ss 19, 21 . . . . . . . . . . . . . . . . . .252

xxxii

Exotic Diseases of Animals Act 1993 — s 53 . . . . . . . . . . . . . . . . . . . . .251 Home Building Contracts Regulations 1992 . . . . . . . . . .251 Scheds 2, 3 . . . . . . . . . . . . . . .251 Professional Standards Act 1997 — s 12 . . . . . . . . . . . . . . . . . . . . .251 Public Sector Management Act 1994 — s 97 . . . . . . . . . . . . . . . . . . . . .252 Rules of the Supreme Court 1971— Ord 29, r 2 . . . . . . . . . . . . . . . .252 Ord 29, r 3 . . . . . . . . . . . . . . . .253 Supreme Court Act 1935 . . . . . . .252 s 167 . . . . . . . . . . . . . . . . . . . .252

Table of Abbreviations AAT

Administrative Appeals Tribunal (Commonwealth)

AC

Appeal Cases

ACCC

Australian Consumer and Competition Commission (Commonwealth)

ACSR

Australian Corporations and Securities Reports

ACT

Australian Capital Territory

ACDC

Australian Commercial Disputes Centre

ADR

Alternative Dispute Resolution

ADRA

Australian Dispute Resolution Association

ADRAQ

Alternative Dispute Resolution Association of Queensland

ADRJ

Australasian Dispute Resolution Journal

AILR

Australian Industrial Relations Reports

ALD

Administrative Law Decisions

ALD

Administrative Law Division (as a prefix to an unreported judgment file number)

All ER

All England Reports

ALJR

Australian Law Journal Reports

ALR

Australian Law Reports

BATNA

Best Alternative to a Negotiated Agreement

BJC

British Journal of Criminology

CA

Court of Appeal (as a prefix to an unreported judgment file number)

CD

Commercial Division (as a prefix to an unreported judgment file number)

CDRJ

Commercial Dispute Resolution Journal

CEDR

Centre for Dispute Resolution (London)

CJ

Chief Justice

CJC

Community Justice Centre

xxxiii


CLD

Common Law Division (as a prefix to an unreported judgment file number)

CLR

Commonwealth Law Reports

Cth

Commonwealth

CUDRC

Credit Union Dispute Resolution Centre

EFT

Electronic Funds Transfer

ENE

Early Neutral Evaluation

EPLJ

Environmental Planning Law Journal

EQD

Equity Division (as a prefix to an unreported judgment file number)

ER

English Reports

FCA

Federal Court of Australia

FCR

Federal Court Reports

FLR

Federal Law Reports

HCA

High Court of Australia

IAMA

Institute of Arbitrators and Mediators Australia

IJSL

International Journal of the Sociology of Law

J

Justice

JA

Appeal Justice

JIA

Journal of International Arbitration

KB

King’s Bench

LEADR

Lawyers Engaged in Alternative Dispute Resolution (now known as Leading Edge Alternative Dispute Resolution)

Lloyd’s Rep Lloyd’s Reports LT

Law Times

MLC

Member of the Legislative Council (NSW)

xxxiv

TABLE

OF

ABBREVIATIONS

NADRAC

National Alternative Dispute Resolution Advisory Council

NNTT

National Native Title Tribunal

NRA

National Registration Authority for Agricultural and Veterinary Chemicals

NSW

New South Wales

NSWSC

NSW Supreme Court

NSWCA

NSW Court of Appeal

NSWConvR NSW Conveyancing Reports NSWLR

NSW Law Reports

NT

Northern Territory

QB

Queen’s Bench

QCA

QLD Court of Appeal

Qd R

QLD Reports

QLD

Queensland

QSC

QLD Supreme Court

RAA

NSW Rural Assistance Authority

SA

South Australia

SASC

South Australian Supreme Court

SASR

South Australian State Reports

SPIDR

Society of Professionals in Dispute Resolution (USA)

TAS

Tasmania

VIC

Victoria

VR

Victorian Reports

VSC

Victorian Supreme Court

WA

Western Australia

WAR

Western Australian Reports

WASC

WA Supreme Court

WASCA

WA Court of Appeal

WLR

Weekly Law Reports

xxxv

1 Introduction — Defining Dispute Resolution

Until certainly the late 1980s, any suggestion that a barrister would be committed to any method of dispute resolution other than litigation, or infrequently arbitration, would have been dismissed as a piece of heresy. Like the Courts, the Bar saw its ‘business’ as litigation. Yet here today, a decade later, many barristers are not only heavily engaged in mediation, case appraisal and other methods of so-called ‘alternative’ dispute resolution, but the Bar Association is actively facilitating that, by providing appropriate physical premises. The Hon P de Jersey, Chief Justice of the Supreme Court of Queensland, at the opening of the Queensland Bar Association Dispute Resolution Centre on 4 June 1999.

The history of dispute resolution probably goes back to the dawn of time. Humans have been negotiating formally and informally well before historical journals recorded human endeavour in the field of dispute resolution. Consensual problem solving is not a new concept. The inherent desire of humans to resolve conflict means that dispute resolution is one of the oldest disciplines known to humankind. But what is ‘dispute resolution’ in terms of it being an organised discipline? One of the great benefits of dispute resolution is its flexible nature. Once a person understands the basics of negotiation and understands the procedural mechanisms of some of the formal types of dispute resolution, the process of resolving a dispute can develop and change in form to suit the type of dispute seeking to be resolved. Whilst the flexible nature of dispute resolution encourages the development of hybrid forms of dispute resolution processes, there are a number of recognised formal methods of dispute resolution employed by dispute resolution practitioners. Some of these are:

1


• Negotiation A process whereby two or more parties seek to reach a consensual agreement. There may be no third party involvement, therefore the principals usually act for themselves or have their legal representatives act for them. There are usually no rules of procedure imposed on such a process. • Conciliation A process whereby a third party seeks to bring the disputants together to settle the dispute. The conciliator may not see the parties together and in fact, the process may, like negotiation, not be governed by any set of procedural rules. Often conciliation will not necessarily focus on settlement, rather it may focus on the sharing of information and identification of issues and options for settlement. • Mediation A process whereby an impartial third party brings the disputants together, with a view to settling the dispute by the use of options to satisfy the interests of the disputants. The process can be distinguished from negotiation in that the mediator takes an active role in preserving the process while the disputants take an active role in determining the outcome or settlement. It is also unique in its use of private caucusing with each disputant, and hence, in legal parlance, its non-compliance with the notion of natural justice. • Expert appraisal A process whereby the disputants agree on an expert who, after investigating and hearing from each of the disputants, will tender an appraisal. Disputants may choose, prior to agreeing on the expert, to be contractually bound by the appraisal. • Early neutral evaluation (ENE) A process whereby the disputants are provided with an objective evaluation of the strengths and weaknesses of their respective cases. Usually a respected member of the legal profession will act as the evaluator and will also encourage settlement based on the objective evaluation of the matter. • Mini-trial A process whereby information is exchanged before a panel comprising representatives of the disputants who are authorised to 2

INTRODUCTION – DEFINING ‘DISPUTE RESOLUTION’

reach a settlement. Usually there will be an impartial third party who, with the rest of the panel, will hear both sides of the dispute and chair a question and answer session with all the participants, after which the panel will seek to negotiate a settlement. • Arbitration A process whereby an impartial third party conducts an arbitration hearing, after which the arbitrator hands down an award, which is binding on the parties (although may be appealed on a point of law). Arbitration is governed in each state by uniform legislation (in NSW the Commercial Arbitration Act 1984). Arbitrations are usually governed by procedures similar to court whereby witnesses may be examined and cross-examined. • Litigation A process characterised by its adversarial nature, where evidence is presented to a tribunal of fact consisting of a judge or a jury who make a determination based on the evidence presented to it in court. Where a jury is involved, the judge will be responsible for ensuring that evidence is submitted to the jury according to law, which usually means the tendering of facts according to the rules of evidence, whilst the jury are responsible for deciding the case according to the facts presented. Where a judge sits alone or with other judges, the judge or judges are responsible for the tendering of evidence according to the rules of evidence and consideration of a verdict based on the facts presented. The question of how these formal, non-adversarial dispute resolution processes evolved from the ad hoc process of resolving conflict between humans is an interesting story involving certain landmark events, which will now be discussed.

The advent of ADR The formalisation of Alternative Dispute Resolution (ADR) and its adoption as a branch of the law was arguably brought about by an American litigation lawyer called Eric Green, who first used the term ADR in an article entitled ‘Settling large case litigation: an alternative approach’ (1978) 11 Loyola of Los Angeles L Rev 493. Whilst practising as a lawyer for the Los Angeles firm of Munger, Tolles and Rickershauser, Green was instructed on a large scale commercial

3


dispute involving the alleged infringement of certain patents relating to computerised charge-authorisation and credit-verification devices. Legal proceedings had been commenced and pre-hearing discovery was well underway. Green estimated that both parties had spent several hundred thousand dollars during the two and a half years of preparation for the hearing, for which a date had not been set at the time of the parties investigating an alternative method of resolving the dispute, without recourse to litigation. The parties agreed to run a ‘mini-trial’ that involved the parties attending a two day ‘information exchange’ chaired by a neutral third party advisor, who was a former civil judge. The information exchange was designed purely to present each party’s version of the dispute to senior management from both sides and for the senior management to seek to resolve the dispute. The third party neutral’s role was to moderate proceedings and not to effect a compromise of the dispute. Certain rules as to process were agreed upon, such as the postponement of further discovery, the free exchange of documents without prejudice and the inapplicability of the rules of evidence. During the information exchange, parties were free to present any material they wished and limited time was allocated for that purpose. After two days of material being presented, senior management met for merely half an hour before reaching a settlement that saved the parties in excess of US $1 million in further litigation costs and months, possibly years, of anxiety waiting for a hearing and judgment. Green’s ‘alternative’ approach went on to become what we now know as ADR, and Green himself went on to become Professor of Law at Boston University. Since writing the article, Professor Green has become known as a leader in the American ADR movement and is the founder of two Boston firms specialising in ADR. By Professor Green’s own admission, the process used was a hybrid derivation of a combination of mediation, conciliation and negotiation, although the process most resembled ENE. Professor Green foreshadowed the rise of ADR and explained it by blaming the legal profession for not being more imaginative when thinking about resolving disputes between clients and the general unwillingness of the law to take risks outside the traditional methods of curial dispute resolution. Further, that the corporate world had a lot to answer for in relation to insulating themselves from the litigation process and leaving it to the legal profession, mistakenly believing that the complexities of the law are for lawyers only. In other words, the corporate world needed to take charge of disputation and be proactive in resolving it sooner rather than later by adversarial means.

4


The rise of dispute resolution Recording of the rise of dispute resolution has been poor, probably because of its wide usage by society and its flexible nature prior to its formalisation by the law. However, once established, ADR became very popular in a short space of time. The rise of dispute resolution in Australia can be attributed to a number of landmark events that have led to the formal recognition of it as part of the array of methods used by various professions to resolve disputes between parties. The most significant landmarks have been the establishment of organisations which have taken on the role of promoting the use of dispute resolution through training, education, accreditation and the practice of dispute resolution techniques. It is important to retrace the advent of such organisations, not in order of importance, but for the sake of convenience, in chronological order.

Arbitration Arbitration was probably the first type of formalised non-litigious dispute resolution to develop in Australia. It grew from the industrial relations sphere where conciliation and collective bargaining were methods of dispute resolution employed before curial resolution of disputes between employers and employees. In fact, the Commonwealth Conciliation and Arbitration Act 1904 established the Commonwealth Court of Conciliation and Arbitration to hear applications for the making of awards between employers and employees as well as the resolution of disputes between the said parties. The Court was constituted to exercise judicial and arbitral powers. In 1956, the Court was split into two separate organisations, being the Commonwealth Conciliation and Arbitration Commission and the Commonwealth Industrial Court, following the decision in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920), where the HCA found, amongst other things, that it was unconstitutional for an arbitral body to exercise judicial power. Thereafter, the arbitral functions of making awards and settling industrial disputes fell to the Commission, and the judicial function of prosecuting under the Conciliation and Arbitration Act fell to the Court. In 1973 the name of the Commission was changed to the Australian Conciliation and Arbitration Commission, and the Commonwealth Industrial Court became the Australian Industrial Court. Otherwise, 5


there were no changes to the functions of either body. However, in 1978 the judicial functions of the Australian Industrial Court were transferred to the Industrial Division of the Federal Court of Australia. Under the Commonwealth’s Industrial Relations Act 1988 the Australian Industrial Relations Commission was created which replaced the Australian Conciliation and Arbitration Commission. Once again, the arbitral functions of the newly created body are essentially the same as the old. The Commonwealth Industrial Relations Act 1988 was amended to create the Industrial Relations Court of Australia, whose jurisdiction was transferred to the Federal Court of Australia under the Commonwealth Workplace Relations and other Legislation Amendment Act 1996. Despite the rearrangement of the jurisdiction of the original Commission and the numerous name changes and transfers of jurisdiction, the Court and Commission have developed formal methods of conciliation and arbitration that have stood the test of time. The current system of dispute resolution employed in industrial relations will be discussed below in Chapters 5 and 6. Before finishing this section on arbitration, mention must be made of the introduction, from 1984 to 1990, of uniform legislation across all States and Territories of Australia in the form of the various Commercial Arbitration Acts. The reason that the Commonwealth, States and Territories adopted uniform legislation was that the Commonwealth Constitution did not give the Commonwealth Government the power to legislate for arbitration or the settlement of disputes, save for its power over conciliation and arbitration for the prevention and settlement of industrial disputes beyond State borders granted to it in s 51(xxxv) of the Commonwealth Constitution. Despite its title, the Act applies to arbitrations both commercial and noncommercial in nature. The definition of an arbitration agreement under s 4(1) of the Act is simply any agreement in writing to refer present or future disputes to arbitration. Therefore, any type of matter may be referred to arbitration, providing the parties agree to be bound by arbitration. The introduction of the uniform arbitration legislation has cemented arbitration as a major method of dispute resolution in the States and Territories of Australia and will be discussed in far greater detail below. Whilst arbitration is strictly an adversarial form of non-curial dispute resolution, it is its classification as being noncurial that brings it into the field of interest of this book. However, where this book refers to dispute resolution, it generally means a nonadversarial, non-curial means of dispute resolution unless otherwise stated.

6


Institute of Arbitrators and Mediators In 1975, the Institute of Arbitrators was established as a not-for-profit company limited by guarantee. More recently it changed its name to the Institute of Arbitrators and Mediators Australia (IAMA). The IAMA aims to serve the community, commerce and industry by promoting and facilitating efficient dispute resolution methods including mediation, arbitration and conciliation. It is Australia-wide, with chapters in each State and Territory of Australia. As well as promoting the use of dispute resolution, the IAMA administers accreditation of mediators and arbitrators, conducts professional development and training programmes, leading to accreditation as a mediator or arbitrator and facilitates mediation and arbitration through an efficient case management system of administration. According to the IAMA, its objectives are to: • Promote, encourage and facilitate the practice of settlement of disputes by arbitration and other forms of non-curial dispute resolution. • Serve the community, commerce and industry by facilitating efficient dispute resolution. • Afford means of communicating between professional arbitrators, mediators and other dispute resolvers on matters affecting their various interests. • Support and protect the character, status and interests of the dispute resolution profession generally. • Promote study of the law and practice relating to arbitration and dispute resolution. • Disseminate information amongst Members on all matters affecting dispute resolution practice and procedure. • Print, publish and circulate such journals, papers and other literary undertakings and to contribute articles to magazines as may seem conducive to any of these objects. • Form a library for the use of Members and to provide suitable rooms for the holding of hearings, conferences, lectures and meetings. • Provide means for training and testing the qualifications of candidates for admission to professional membership of the

7


Institute by examination and for such purposes to award certificates and establish scholarships, rewards and prizes. • Establish branches in important centres of the States and Territories of the Commonwealth.

Community Justice Centres (CJCs) In 1979, after seeing how community-based dispute resolution operated in America, the NSW State Government passed the Community Justice Centres (Pilot Project) Act 1980 and ran a pilot programme establishing a mediation programme at community level in Bankstown, Surry Hills and Wollongong in the suburbs of Sydney. The pilot project was independently assessed and was deemed to be successful enough for the NSW Government to back the project as an ongoing one and subsequently it passed the Community Justice Centres Act 1983, establishing centres in suburban Sydney and regional areas of NSW. Today, the CJCs in NSW employ some 466 sessional mediators and in the 1999/2000 financial year, reviewed 5,887 matters for mediation, of which 2,518 proceeded to mediation, with 84% of those ending in settlement. According to the NSW Attorney-General’s Department at its Community Justice Centres’ website: The purpose of the Community Justice Centres is to provide an expeditious, impartial, and accessible informal dispute resolution service to all sections of the community through an informed appreciation of their needs … and to provide for resolution of minor disputes, shown by experience to be unresponsive to conventional dispute resolution procedures. The CJCs use mediation as the preferred method of dispute resolution, although a conciliated settlement is achieved in around 10% of the caseload.

All mediations conducted by the CJCs are mediated by accredited community mediators and selected, trained and supervised by the CJCs. The CJCs use a co-mediation model whereby two mediators conduct each session. CJC mediators are specifically selected for each dispute from a panel of people composed of many different ages, backgrounds, social, cultural and ethnic groups. The training of mediators by the CJC is renowned throughout NSW and Australia as being rigorous and of a very high standard. Applicants for mediator training are not expected to have specific educational or professional qualifications and selection is based on criteria of personal suitability

8


and the ability to acquire and demonstrate the knowledge and skills needed for practice as a mediator. The CJCs have a four part selection process consisting of an information session, group discussion and two interviews. The training of CJC mediators includes a 75 hour course conducted over a period of usually eight weeks. Performance in the training course is fully assessed and after successful completion of the course, trainees are eligible for accreditation by the AttorneyGeneral under the Community Justice Centres Act 1983 (NSW). Mediators are then required to complete a number of mentored sessions working under the supervision of experienced and trained mentors. Victoria and Queensland established CJCs, or equivalent programmes under different names, in 1987 and 1990 respectively. In Victoria, legal aid solicitors first mooted the idea of neighbourhood mediation centres as a way to curb the increase in neighbourhood disputes. Meetings of stakeholders were held that included community groups, ethnic and indigenous groups, police and lawyers from local and State government who, using existing research on the success of such schemes, opened four mediation centres in the Melbourne suburbs of Heidelberg, Preston, Geelong and in the regional centre of Bendigo. Funding for the centres was provided by the Victorian State Government through the Victorian Legal Aid Commission. The impact of the CJCs should not be underestimated. They have provided a fertile ground for the dissemination of the philosophy and practice of dispute resolution and are a shining example of the successes of mediation programmes that are well organised and where only well trained mediators are allowed to mediate disputes.

Australian Commercial Disputes Centre (ACDC) In 1986, the New South Wales Government established the Australian Commercial Disputes Centre. The Centre was motivated by two events. First, a survey commissioned by the NSW State Government on the dispute resolution needs of the business community in Sydney. Secondly, this prompted the then Chief Justice of NSW, Sir Laurence Street, to suggest to the NSW State Government that a centre be opened that could develop a speedier method of resolving disputes outside of the court system that would be cheaper than the ever increasing cost of arbitration. The ACDC’s objective is to provide independent dispute resolution procedures to public and private

9


organisations throughout Australia. It achieves this through the promotion of dispute resolution in a number of ways, including the education of mediators, the supply of accredited mediators for commercial disputes and the production of literature that provides advice on, amongst other things, the process and practice of mediation and arbitration. The ACDC is also involved in designing dispute resolution systems for public and private organisations. The ACDC is a not-for-profit organisation that primarily promotes dispute resolution operating in the private sector as opposed to court-annexed or public sector programmes. It has training programs and accreditation procedures for special purpose mediation in the areas of: commercial mediation; building and development application mediation; and grievance and industrial mediation.

Law Societies In 1986 the NSW Law Society formed its ADR Committee. The Committee advises the Council of the NSW Law Society on ADR policy development, which ensures that lawyer Members are kept up to date with the latest developments in the law regarding ADR. Also, the Committee is a forum for the discussion of issues affecting the practice of ADR by legal practitioners. Areas such as the philosophy, process and practice of ADR are regularly reported on by the Committee as well as it being a consultative body for new legislation and the making of recommendations to investigative bodies, such as the various State and Federal Law Reform Commissions. According to the Committee itself, its functions also include: • developing and promoting dispute resolution programs; • dealing with court-annexed mediation and evaluation; • developing accreditation procedures for solicitor mediators; • maintaining proper standards for solicitor mediators and advising the Professional Standards Department when required; • liaising with individuals and organisations involved in or associated with dispute resolution; and • liaising with the community with regard to mediation. One of the Committee’s many successes has been the development of the NSW Law Society’s ‘Settlement Weeks’, which identified matters

10


languishing in court lists that were appropriate for mediation. The first settlement week was conducted in 1991, then successively in 1992 and 1993. Under the scheme, matters were listed for mediation by a solicitor for one of the disputing parties either referring matters in response to an invitation issued by the NSW Law Society or by simply volunteering matters to be mediated. All parties to the dispute had to agree to having the matter mediated and accredited mediators were brought in to mediate matters in an expedited fashion. From 1994, Settlement Week was promoted as being an ‘Ongoing Mediation Programme’, a year-round service funded by the Law Foundation of NSW and the NSW Department of Courts Administration. Between 1991 and 1995, the NSW Law Society was responsible for attracting some 900 cases for mediation with a settlement rate of approximately 70%. The Queensland Bar Association and Law Society of Queensland conducted their first Settlement Week in 1992 and achieved a settlement rate of approximately 86%. Most State and Territory Law Societies and Bar Associations have dispute resolution committees that advise various State-based bodies such as courts and government and also conduct programs for the training, accreditation and the practice of dispute resolution.

Australian Dispute Resolution Association (ADRA) One of the most influential events contributing to the rise of dispute resolution in Australia was the organisation of the first Australia Mediation Conference, hosted by the Australian Institute of Criminology and held in Canberra in 1986. Not only was it important from the point of view of having a forum for ideas to be shared, but it was also the genesis for the idea of forming a national interest group of dispute resolution practitioners. The idea gathered momentum and the Alternative Dispute Resolution Association of Australia Inc was formed in 1987. Two years later, the name was changed to the Australian Dispute Resolution Association Inc. The key stakeholders in ADRA, reflective in its first organising committee, consisted of academics and legal and dispute resolution practitioners who viewed ADRA as not only a support group but a way to promote the responsible use and development of dispute resolution in the community. ADRA was the first organisation to give a national voice to dispute resolution in Australia and its establishment of State-based

11


chapters has contributed greatly to the rise of dispute resolution in Australia. One of those groups is the Alternative Dispute Resolution Association of Queensland (ADRAQ), which was incorporated in 1997. ADRAQ was established in part because practising mediators in the Queensland Department of Justice saw a need to meet with other practitioners and people interested and enthusiastic about the growing field of dispute resolution and mediation in Queensland. Its aims focus on information sharing, promotion of ADR and professional development as well as complementing the roles of other ADR organisations in Queensland. ADRAQ is committed to the practice of dispute resolution which encourages people to reach their own solutions in a non-adversarial manner, and also to: • promote and advocate mediation and forms of conflict resolution consistent with the Association’s mission; • encourage and facilitate the sharing of information, ideas and experience in conflict resolution; • develop and promote standards for mediation and conflict resolution; • encourage the provision of high quality conflict resolution services to the community; • promote and provide education, training and professional development in conflict resolution; • provide and encourage the provision of information about conflict resolution services to the public; and to • work with other organisations in order to achieve the association’s objectives. ADRAQ has sister chapters in Victoria and South Australia with similar aims and objectives and provides a good compliment to the national bodies of ADRA and NADRAC (see below).

Leading Edge Alternative Dispute Resolvers In 1989, lawyers in NSW organised themselves into an interest group called ‘Lawyers Engaged in Alternative Dispute Resolution’ (LEADR), which gave a voice to lawyers who had been practising ADR for many years, without recognition of the skill being a formal part of legal practice, and those who wished to practise ADR in the future. The

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organisation has grown and in 2000 changed its name, albeit using the same acronym, to ‘Leading Edge Alternative Dispute Resolvers’ to reflect the involvement of the broader community in ADR. LEADR is a not-for-profit membership organisation that promotes and facilitates the use of ADR and whilst its head office is still in Sydney, it has chapters in every State and Territory of Australia as well as New Zealand. LEADR lists its aims as being to: • serve the community by promoting and facilitating the development, acceptance and usage of ADR; • promote education and research in ADR; and to • disseminate information for the benefit of its members and the community. In order to achieve its aims, LEADR offers the following services: • access to independent mediators accredited by LEADR; • advice and assistance in developing specialist panels of mediators to meet the needs of particular industries and organisations; • facilitation of mediations and conciliations; • training in all aspects of negotiation, mediation and conciliation; • ADR seminars; • a biennial International Conference on ADR; • a pro bono mediation service for legally aided parties; • assistance in identifying the most appropriate process for resolving a dispute; • assistance in encouraging disputing parties to use ADR model dispute resolution contract clauses; • designing in-house dispute resolution and complaints handling systems; • ADR publications and information including LEADR Brief and the Australasian Dispute Resolution Service published in association with LBC Information Services; • liaising with other internationally; and

ADR

organisations

nationally

and

• research and submissions on ADR issues.

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National Alternative Dispute Resolution Advisory Council (NADRAC) In 1994, the Access to Justice Committee chaired by the Honourable Justice Ronald Sackville handed to the Commonwealth AttorneyGeneral its report entitled Access to Justice – An Action Plan. The report recommended, amongst other things, the establishment of a national body to advise the Commonwealth Government and Federal courts and tribunals on issues involving ADR. The aim of such a body was to ensure the maintenance of consistently high standards in the provision of ADR services, to ensure accessibility to ADR programmes and to ensure appropriate integration of those programmes across the wide range of judicial services being provided by the Commonwealth. The recommendations of the report in respect of establishing such a body were implemented and the National Alternative Dispute Resolution Advisory Council was born the following year. It is a non-statutory body appointed by the Commonwealth Attorney-General with funding provided through the Commonwealth Attorney-General’s Department. NADRAC’s charter lists the following issues it will advise on: • minimum standards for the provision of ADR services; • minimum training and qualification requirements for ADR practitioners, including the need, if any, for registration and accreditation of practitioners and dispute resolution organisations; • appropriate professional disciplinary mechanisms; • the suitability of ADR processes for particular client groups and for particular types of disputes; • the quality, effectiveness and accountability of Commonwealth ADR programs; • ongoing evaluation of the quality, integrity, accountability and accessibility of ADR services and programs; • programs to enhance community and business awareness of the availability, and benefits, of ADR services; • the need for data collection and research concerning ADR and the most cost-effective methods of meeting that need; • the desirability and implications of the use of ADR processes to manage case flows within courts and tribunals;

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• the respective responsibilities of the courts and tribunals, government and private and community sector agencies for the provision of high quality ADR services; • ethical standards for practitioners; • the role of lawyers and other professional advisers in ADR; • legal and practical issues arising from the use of ADR services, such as the liability or immunity of practitioners, the enforceability of outcomes and the implications of confidentiality; and • the accessibility of ADR services. The establishment of NADRAC is a major step forward for the promotion of ADR within Australia and will provide for national standards to be established as well as some co-ordination of the implementation of ADR throughout the federation of Australia. NADRAC has achieved the first of its charter issues by publishing in April 2001 its report to the Commonwealth Attorney-General, entitled A Framework for ADR Standards, that sets out the current position of standards for ADR in Australia and on future directions for the development of standards within the ADR field.

Legislation The above events set out the landmarks in the development of ADR from the viewpoint of the organisations and government institutions that have grown from a desire to promote ADR in its various forms, mainly in the legal profession or related areas. Each State and Territory of Australia has its own success stories in relation to the establishment of organisations promoting the use of ADR; however, the breadth of this text does not allow for a full and detailed account of all the organisations that have contributed to the rise of ADR in Australia. Suffice to say that they have all, whether mentioned here or not, contributed to a greater understanding amongst the community of non-curial ways to resolve disputes. Together, they have ensured that ADR has become a major element in the delivery of judicial services throughout the country. Another group of people that have similarly made a significant contribution are the legislators throughout the Commonwealth and in each State and Territory of Australia, who have enacted laws that provide opportunities for willing and unwilling parties to attempt to settle disputes destined for court, by non-curial

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methods. These statutory schemes will be discussed in more detail below. However, it is beneficial to chart, in brief, some of the landmark statutes that have established ADR services particularly within the various court systems, because these legislative landmarks have made a vital contribution to the rise of ADR in Australia. It is difficult to accurately chart the first pieces of legislation that introduced dispute resolution, as opposed to the raft of determinative processes such as expert determinations and the use of referees, into what is now a plethora of statutory schemes. However, one of the very early attempts was the Queensland Government’s Courts of Conciliation Act 1892 (QLD). Now repealed, the Act sought to resolve disputes between neighbours by reference to non-compulsory conciliation. In 1929, the South Australian Parliament passed the Conciliation Act 1929 that sought to provide conciliation for both civil and criminal matters that had been brought before the court. Interestingly, the Act in its criminal jurisdiction only sought to conciliate compensation for the victim of crime. Conciliation under the Act took place in open court by a judicial officer. In 1977, the NSW Parliament passed the Anti-Discrimination Act 1977, that provided for the President of the Anti-Discrimination Board to conciliate complaints brought before the Board on the very wide range of discriminatory issues covered by the Act. Further, now under ss 94 and 106 of the Act, the Board may refer a complaint of discrimination to the recently established NSW Administrative Decisions Tribunal, and that Tribunal may conciliate the complaint. In 1979, the NSW Parliament passed the Land and Environment Court Act 1979, that provided for Assessors to conduct conferences whereby litigants were encouraged to seek a resolution of their dispute. Under amendments to the Act in 1998, the Assessors are now called Commissioners and the training received by these officers is generally in negotiation and mediation. Looking at the Commonwealth’s involvement in the promotion of dispute resolution in Australia, one has to take the commitment of the Labour Government prior to the 1990 Federal election as a good starting point. The then Prime Minister, The Honourable Bob Hawke, made a commitment, upon re-election, to introduce statutory schemes that would see the introduction of dispute resolution into all Federal courts. The Labour Government was re-elected and in 1991, the Commonwealth of Australia passed the Courts (Mediation and Arbitration) Act 1991 which amended the Federal Court of Australia Act 1976 (Cth) and the Family Law Act 1975 (Cth). In relation to the Federal Court of Australia Act 1976, s 53A was inserted to provide that the court could order mediation or arbitration with the consent of the 16


parties. Six years later, the Commonwealth Parliament passed an amendment to the Act that made such an order mandatory, that is, the court can now order parties to mediation or arbitration without their consent. That same year, a mediation program commenced at the Commonwealth Administrative Appeals Tribunal. Mediation can be directed by the President of the Tribunal under s 34A of the Administrative Appeals Tribunal Act 1975 (Cth) but only with the parties’ consent. In some Registries the program is now colloquially known as a conferencing program but, like most statutory schemes, the third party neutrals are generally trained in negotiation and mediation. In relation to the Family Law Act 1975, under the 1991 and subsequent amendments, the Family Court now encourages litigants to use what is known as ‘primary dispute resolution mechanisms’, listed as being: counselling; mediation; arbitration; and other means of conciliation or reconciliation in order to resolve matters in which a court order might otherwise be made. Under s 19BA, the Court can only advise parties to attend mediation if the Court thinks it will benefit the parties but has the power to stay proceedings to enable parties to attend mediation. Similarly, the recently created position of Federal Magistrate is vested with the power to order parties to mediation. In order to maintain high standards of expertise and service, organisations and individuals who wish to become Family Court mediators have to satisfy rather strict criteria before being authorised to so act. One of the first States to establish legislation to provide for a form of dispute resolution was Victoria, when in 1992 it amended its Supreme Court Rules to include Ord 50 r 9 that allowed the Supreme Court of Victoria to refer matters to mediation. Order 50 r 9 was replaced in 1996 by r 50.07, which now provides that the court can order mediation without the consent of the parties. NSW followed the lead of the Commonwealth and Victoria in 1994 when the New South Wales Parliament passed the Courts Legislation (Mediation and Neutral Evaluation) Amendment Act 1994 (NSW). NSW chose to establish statutory schemes for mediation and neutral evaluation at every level of the court structure within the State in a single piece of legislation. According to the Second Reading speech, by the Honourable RJ Webster, Minister for Planning and Housing, on behalf of The Honourable JP Hannaford, Attorney-General, New South Wales Legislative Council, on 4 May 1994, the purpose of the Act was: … to have umbrella enabling legislation that will provide broad parameters for individual courts to develop court annexed mediation and neutral evaluation, if they so choose.

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The Act amended the following six Acts, which, in turn, governed the administration of NSW courts of civil jurisdiction: • Compensation Court Act 1984; • District Court Act 1973; • Industrial Relations Act 1991; • Land and Environment Court Act 1979; • Local Courts (Civil Claims) Act 1970; and • Supreme Court Act 1970. The Schedule to the Act amended the above named Acts in identical form. Each amendment gave each court the power to refer a matter arising in proceedings before the court (other than criminal proceedings) for mediation or neutral evaluation. Prior to a court referral being made, the Act prescribed that the court consider whether: (a) the Court consider[s] the circumstances appropriate; and (b) the parties to proceedings consent to the referral; and (c) the parties to the proceedings agree as to who is to be the mediator or evaluator for the matter.

The Act stated that attendance at and participation in mediation or neutral evaluation sessions was voluntary and allowed a party to withdraw from a mediation or neutral evaluation session at any time. The voluntary nature of the amending Act has since been amended in the Supreme Court Act 1970 (NSW) via a new s 110K, to provide the Supreme Court of NSW with the power to order parties to mediation with or without their consent. The sunset clause of the enabling Act has been activated and amending legislation is in place in each piece of affected legislation dealing the administration of justice in NSW. The next State to pass legislation establishing a statutory dispute resolution scheme was Queensland, which in 1995 passed the Courts Legislation Amendment Act 1995 (QLD) that amended, amongst other things, the Supreme Court of Queensland Act 1991 (QLD) to allow the Supreme Court of Queensland to order disputes to mediation or case appraisal. The legislation provided that if the court ordered mediation or case appraisal, then the parties to the dispute were required to attend. It also provided for parties to agree to submit their dispute to mediation or case appraisal providing consent orders were filed with

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the court’s registrar. Like the NSW enabling legislation, the Queensland legislation provided, in the present s 102, a list of indicia the court may consider when ordering mediation or case appraisal. It states: Without limiting the court’s discretion, the court may take the following matters into account when deciding whether to refer a dispute to case appraisal: (a) whether the costs of litigating the dispute to the end are likely to be disproportionate to the benefit gained; (b) the likelihood of an appraisal producing a compromise or an abandonment of a claim or defence; (c) other circumstances justify an appraisal.

Finally, South Australia joined the other States and the Commonwealth in 1996 passing the Statutes Amendment (Mediation, Arbitration and Referral) Act 1996 (SA), which amended the Supreme Court Act 1935 (SA) by providing a new s 65 that allows a judge, with or without the consent of the parties, and a Master or Registrar, with the consent of the parties, to appoint a mediator and refer any civil proceeding for mediation. The above discussion highlights the development of some of the statutory schemes that must be considered to be landmark developments in the rise of dispute resolution in Australia. These schemes and others will be discussed in more detail below.

Legal education In terms of the rise of dispute resolution, the penultimate landmark to address in this chapter is the acceptance of dispute resolution as part of the legal education of law graduates. In a general sense, law schools are charged with the responsibility of, amongst other things, ensuring that graduates enter the legal profession with a thorough understanding of the doctrinal foundation of law. Further, practical legal training and the profession itself teaches law graduates to become lawyers by instructing them to apply the doctrinal foundation of law in a practical sense. So whilst there is a valid argument that dispute resolution falls into the latter as opposed to the former, that is, it is more a skill taught after the acquisition of the knowledge of the doctrinal foundation of law, law schools in Australia have adapted

19


dispute resolution in a way that fits into the academic programme of Universities, as opposed to being purely a skill developed after admission as a legal practitioner. This adaptation and formalisation of dispute resolution is a landmark achievement as it means that nearly all lawyers admitted in their respective States and Territories will enter the profession with some understanding of dispute resolution. Also, with nearly all law schools teaching some form of dispute resolution at undergraduate level, it has developed into a body of law that balances substantive law with philosophical elements of jurisprudence. So entrenched in the curriculum of undergraduate law is dispute resolution, that at some university law schools, chairs of law have been created that include a recognition of the discipline of dispute resolution. In addition to the growth of undergraduate courses on dispute resolution has been the burgeoning field of postgraduate studies in dispute resolution. Several Australian universities have developed a specialisation in the delivery of postgraduate studies in dispute resolution. This development has led to the study of subject specific dispute resolution and the teaching of many specialist areas of dispute resolution including, but not limited to: • commercial dispute resolution; • business dispute resolution; • victim-offender dispute resolution; • health complaints dispute resolution; • crisis-management dispute resolution; • family law dispute resolution; • court annexed dispute resolution; • Chinese negotiation; and • dispute systems design. These and other specialist dispute resolution courses can be studied as part of: many different types of master’s programmes, including those specialising in dispute resolution or as part of general master’s degrees in law, business or management, to name but a few; graduate certificates or diplomas in dispute resolution and other disciplines; doctor of juridical science coursework and research degrees; and doctor of philosophy research degrees. The development of such a wide range of postgraduate courses has contributed to the rise of dispute resolution by providing students with the opportunity to 20


continue their interests in the area and, through the interdisciplinary nature of university degrees, certificates and diplomas, to learn more about a particular area of dispute resolution without necessarily having to major in it. All of this contributes to a broadening of the knowledge base and acceptance of dispute resolution within society. In 1998 the University of Adelaide established the first national qualification for arbitrators and mediators. The one year course has been devised and managed by the University of Adelaide with Statebased providers teaching the various course components at local level. On successful completion of the Professional Certificate in Arbitration, and provided students are members of the IAMA, they may apply for grading as an Arbitrator and inclusion on the Register of Practising Arbitrators. In fact, the Institute requires all prospective new arbitrators to hold a Professional Certificate if they are to be considered for grading. Broadly speaking, the course includes the following topics: • Different approaches to conflict management including Negotiation, Litigation, Adjudication, Arbitration, Mediation and Conciliation. • The Commercial Arbitration Act. • The Law of Contract. • The Law of Torts. • Waiver and Estoppel. • The Trade Practices Act and Allied Legislation. • The Law of Evidence and the Expert Witness. • Arbitrability, Jurisdiction and Misconduct. • Rules for the Conduct of Proceedings. • Pre-hearing Processes for Formal Arbitration and Alternatives to Formal Hearings. • Opening Proceedings and Conduct of Formal Arbitration Hearings. • Section 27 Conferences and Mediation. • Awards and Award Writing. • Costs, Appeals and modifying Awards. • Powers of the Courts and Appeals to the Court. 21


Australasian Dispute Resolution Journal (ADRJ) The final landmark event to be mentioned here that has made a significant contribution to the rise of dispute resolution in Australia was the establishment in 1990 of what was at first known as the Australian Dispute Resolution Journal, but is now known as the Australasian Dispute Resolution Journal. The name change recognised the voracity of the publication and the recognition and growth of dispute resolution as a domestic and international discipline. The idea of a journal dedicated to dispute resolution issues came from members of the first ADRA Board in 1989. Since its inception, the ADRJ has maintained a high standard of publication in a wide variety of areas associated with dispute resolution, including articles on education and training, various types of dispute resolution and statutory schemes both in and outside Australia, the theory and practice of dispute resolution in its many forms and substantive law articles and case notes.

Conclusion What has been attempted above is a ‘cook’s tour’ of the landmarks contributing to the rise of dispute resolution in Australia. Readers may choose to agree or disagree with some or all of the above landmark events that have shaped dispute resolution in Australia. According to Peter Condliffe, Chief Executive Officer of the Institute of Arbitrators and Mediators Australia, in an article entitled ‘A short history of alternative dispute resolution in Australia: 1975–2000’ (in the Institute’s journal, The Arbitrator and Mediator, Volume 19, Number 2, November 2000), the key developments in Australian dispute resolution are as follows: • 1892 Courts of Conciliation Act (QLD). • 1904 Arbitration and Conciliation Court (Cth) provides for informal conferences. • 1929 Conciliation Act (SA) provides for pre-trial interviews. • 1931 Courts of Conciliation Act (QLD) amended to streamline procedures. • 1974 Consumer Claims Tribunal (NSW) adopted neutral third party referees.

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• 1975 Family Law Act (Cth) provides for counselling and conferences. • 1975 Establishment of Institute of Arbitrators in Canberra. • 1977 Anti-Discrimination Act (NSW) provides for conciliation. • 1979 Land and Environment Court (NSW) provides for conferences. • 1980 Community Justice Centres (NSW Pilot Project) Act (1979). • 1983 Community Justice Centres Act (NSW) provides for community-based services. • 1984 Norwood (SA) Community Mediation Service established. • 1985 Noble Park (VIC) Family Mediation Centre established. • 1986 Australian Commercial Dispute Centre (ACDC) established. • 1987 Neighbourhood Mediation Centres established by Legal Aid Dept (VIC). • 1988 ACT Conflict Resolution Service established. • 1990 Dispute Resolution Centres Act (QLD) proclaimed establishing Community Justice Program now known as Dispute Resolution Centres. • 1991 Courts (Mediation and Arbitration) Act (Cth) introduced voluntary (since 1997 mandatory as well) mediation to the Federal Court. • 1991 Canberra Mediation Service established. • 1993 Administrative Appeals Tribunal (Cth) introduced mediation conferences. • 1994 Farm Debt Mediation Act (NSW) gave farmers the opportunity to go to mediation in enforcement actions under a farm mortgage. • 1995 Family Law Reform Act (Cth) establishing centrality of ‘Primary Dispute Resolution’. • 1996 Native Title Act (Cth) amendments gave increased emphasis to mediation before the Native Title Tribunal. • 1996 Workplace Relations Act (Cth) referred to mediation for the first time in industrial disputes.

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Alternative or additional dispute resolution? Argument has raged within dispute resolution circles about the use of the word ‘alternative’, in ADR. Whilst litigators may see the word ‘alternative’ as being appropriate, many lawyers and non-lawyers, and for that matter litigators and non-litigators, see the word as being inappropriate and inaccurate. Over the years, some have suggested that the ‘A’ could refer to ‘assisted’ or ‘appropriate’ dispute resolution. Whichever choice of words is used, certainly the traditional ‘alternative’ is a misnomer. The reason behind this proposition is so logical that the popularity of the use of the word ‘alternative’ defies common sense. When a person first becomes embroiled in a dispute, of whatever type, she or he has many different ways of resolving the dispute. Some of those ways may include assisted or unassisted dispute resolution that may include negotiation, mediation, arbitration and litigation. None of these options acts as an alternative to another. One does not choose, for example, mediation as an alternative to litigation. In fact, a person may not have the choice to preclude litigation if the other party is motivated by whatever reason to have his or her day in court. So these options for dispute resolution, including litigation, are not ‘alternatives’ as such, because one does not choose to attempt one method at the exclusion of another. It is suggested that, of the matters that end up being heard by a tribunal of fact, most disputants have tried at least one method of dispute resolution before having the dispute finalised either by agreement or adjudication. Today, most commonly because of the large number of statutory schemes imposed on litigants, disputants are subjected to either mediation and litigation or arbitration and litigation as a way to resolve their dispute. In these cases, parties or the courts do not view, for example, mediation as being an alternative to litigation. On the contrary, parties and courts view mediation and arbitration programmes as being additional to the potential final resolution of a curial decision. A better phrase to describe ADR is simply to describe it as ‘dispute resolution’ that includes both curial and non-curial forms of resolution. In this respect, these forms of dispute resolution are not alternatives to each other, rather they are additional forms of dispute resolution to the traditional curial methods. In this book, unless otherwise stated, the phrase ‘dispute resolution’ will be used to describe the generic body of ADR that comprises non-curial dispute resolution.

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The regulation of dispute resolution Before embarking upon the three types of dispute resolution and other matters to be discussed in this book, a final word about the rise of dispute resolution and its regulation by the legal profession. As will be observed on reading this book, in the case of negotiation and mediation, the procedures described should be viewed as being very fluid and disputant driven. That is, the disputants themselves have control over the procedures to be adopted when negotiating or mediating. This is one of the strengths of dispute resolution. Also, that dispute resolution processes should be informal and given their informality, the parties should enjoy the opportunity to negotiate in an informal atmosphere that encourages discussion as opposed to the observance of rules and regulations. Even the informal attributes of the physical settings of dispute resolution are an attractive factor of the processes. For example, that parties are not required to dress up or use formal language and be forced to acknowledge any sort of hierarchy, are all seen as a positive hallmark of dispute resolution. However, in more recent times, the concern is that dispute resolution has become, and is continuing to become, over-regulated. A major contributor to this over-regulation is the statutory schemes that have developed and continue to develop at a fast rate. These schemes, sometimes described as court-annexed schemes, seek to regulate the behaviour of the parties so that proceedings fall within the court’s own agenda for case management and process. The simple proposition is that if some elements of curial practice and procedure are codified with some certainty, manifest in practice directions and rules of court, then so too should the non-curial court-annexed elements of the court. The rise of regulations controlling dispute resolution will be best illustrated in the chapters on statutory schemes below. The involvement of the court system in dispute resolution has been criticised by Sir Laurence Street in an article entitled ‘The court system and alternative dispute resolution procedures’ (1990) 1 ADRJ 5. The central argument of the paper is that the court’s sovereignty should not be compromised by alternative methods of dispute resolution. The judiciary is charged with the responsibility of being the custodian of the rule of law and to apply it in deciding cases. It does not exist to solve every problem society throws up. In this respect the courts risk compromising their role in the community by embarking upon methods of dispute resolution that are inconsistent with their core role, that of deciding cases according to law. Other concerns include the

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greying of the line between judicial officer and dispute resolver. Judicial officers are selected for a specific duty and they are well trained both prior to and after their appointment to the bench. To attempt to introduce another method of resolution may well blur the line between the two roles to a point where the role of the judicial officer is as confusing to her or him as it is to the public. This in turn may diminish the quality of judicial officers and cause confusion about the very role of the judiciary in society. Another concern about the court annexation of dispute resolution is the dangerous assumption that the court is the supplier of a variety of non-curial forms of dispute resolution. Once again, the danger is the blurring of the roles of the court. For some disputants, this blurring is counter-productive to the resolution of the dispute and the resumption of business or their life. Some disputants desire a court decision in the first place. Some disputants do not wish to be involved in the resolution of their own dispute and seek a curial solution. This has now become impossible with the rise of mandatory court-annexed schemes. Professor Laurence Boulle shares some of Sir Laurence Street’s concerns about the court annexation of dispute resolution in his book Mediation: Principles, Process and Practice (1996, Sydney: Butterworths), where he laments the demise of voluntary mediation because of the mandatory nature of the statutory schemes. Boulle is also concerned about dispute resolution becoming a method of litigation rather than remaining a non-curial method of dispute resolution. With the increasing regulation of dispute resolution, and its mandatory nature in most States of Australia, it is possible that dispute resolution will become a step on the way to hearing, thereby making it part of the litigation process. Like Street, Boulle emphasises the risk of discrediting the judiciary by confusing the roles of judicial officers and confusing the role of the court in the eyes of litigants who expect courts to adjudicate their dispute, and not force them into a courtannexed dispute resolution process. The dangers of having judicial officers involved in dispute resolution were raised in the case of Ruffles v Chilman (1998), where there was a finding of bias against a District Court judge who had spoken, in negative terms, about the cogency of certain evidence in the trial to a deputy registrar of the court, who was conducting the mediation. This sort of blurring of the roles of judicial officers is to be avoided if possible, as it affects the integrity of the court and the process of dispute resolution being employed by the court. Some might say that this sort of blurring is inevitable if the courts are

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involved in non-curial dispute resolution. Whilst the regulation of dispute resolution through the various court-annexed or statutory schemes has its critics, it must also be said that its regulation has elevated the level of professionalism within the ranks of non-curial dispute resolvers and contributed to a rise in the accessibility of such methods to people who otherwise may not have had access to dispute resolution processes. A good example of increased accessibility due to regulation is the NSW farm debt scheme, to be discussed below, where farmers in financial difficulties have a statutorily enforced opportunity to negotiate with their bank prior to any debt recovery proceedings being commenced.

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2 Negotiation

Introduction Many people struggle to negotiate effectively. The reason for this is probably that until very recently we were not trained to be able to negotiate a resolution to conflict occurring in our lives. In terms of the law, our adversarial system encourages lawyers not to negotiate well. Instead, lawyers are trained to argue the merits of a case based on promoting their client’s legal rights. It is these rights that drive the lawyer to phrase documents in a certain manner and to deal with other lawyers in a certain way. It is usually these rights that force the lawyer to recommend court action to their client and encourage lengthy and expensive litigation. And it is usually these rights that leave many a successful litigant feeling dissatisfied, after participating in a process that places greater emphasis on the rules of evidence, instead of the litigant’s own interests. In terms of the maintenance of a stable society that abides by the rule of law, this is the way it should be. People have the right to feel comfortable in the knowledge that the law will be there to protect them should the occasion arise. This is not a criticism of this basic concept of jurisprudence, rather it is an argument that insists that only important matters that have the real potential to create precedent should make it to court. If negotiation can avoid unnecessary litigation and at the same time allow parties to resolve disputes, thereby promoting the development of the doctrinal foundation of law by the courts, then society has probably done itself a good service.

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The reason negotiation is a different skill to be learned by lawyers is because a good negotiator will not just confine his or her mind to their client’s legal rights; in fact, some would say that the issue of a disputant’s legal rights has no place in negotiation. A skilled negotiator will discover what their client’s interests are and negotiate a solution based on those interests. The Harvard Negotiation Project, based at Harvard Law School in the United States of America, call this method ‘Principled Negotiation’, and define it as a method of deciding issues by looking for mutual gains and independent fair standards. This chapter will discuss principled negotiation as espoused by the Harvard Negotiation Project and will assist the reader to prepare for and conduct negotiations in a more efficient manner as well as provide the foundations for more successful outcomes. It is important to understand that whilst this chapter can provide some useful hints on how to negotiate better, no literature can substitute for experience. It is only through practice that negotiators can become better negotiators. Armed with the various bodies of theory on negotiation, negotiators can improve with each negotiation to a point where he or she displays a high rate of settlement. There is no rulebook for negotiation – only theory and practice. Negotiations tend to display their own individual attributes and may leave the negotiator with the feeling that he or she could have done something different so that a better outcome could have been achieved. Reading about negotiation is nothing more than supplying willing listeners with a negotiator’s ‘tool bag’ full of negotiating techniques or tools. During any given negotiation, a negotiator will almost certainly need to reach into the tool bag and take out a negotiating tool. The benefit of dealing with a skilled negotiator is that he or she will have many tools in the negotiation tool bag. If one tool does not work, then there are others just waiting to be tried. It is rare that a skilled negotiator will not have some form of success using the vast array of negotiating tools available. In this respect, negotiation is best characterised as a process conducted ‘by the seat of one’s pants’. That is, there are many unexpected twists and turns in any negotiation and a skilled negotiator is generally prepared to deal with anything that can happen.

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Negotiation fundamentals Unlike some other methods of dispute resolution which are often governed by complex rules, such as litigation, arbitration and sometimes even mediation, negotiation is a simple concept and fundamental to our lives, hence its lack of complexity and acceptability amongst the community. The Macquarie Dictionary defines negotiation as ‘mutual discussion and arrangement of the terms of a transaction or agreement’. A more thorough definition is provided by M Anstey in Negotiating Conflict: Insights and Skills for Negotiators and Peacemakers (1991, South Africa: Juta & Co, pp 91–92), where negotiation is described as: A verbal interactive process involving two or more parties who are seeking to reach agreement over a problem or conflict of interest between them and in which they seek as far as possible to preserve their interests, but to adjust their views and positions in the joint effort to achieve agreement.

From Anstey’s definition, we can state the general attributes of negotiation as being that it: • involves more than one party; • involves a joint agreement on the outcome; • usually requires movement of a party’s position and interests; • usually empowers its users by providing self-determination; • is non-interventionary (there is often no third party involved); • is often less expensive than other forms of dispute resolution; and • allows parties themselves to control the process and the outcome. Whilst there are many theories on the dichotomy of negotiations, many display similar characteristics in that they classify negotiations according to the relationships of the parties, that is, whether the parties have a relationship prior to the negotiation or whether they seek a relationship after the negotiation; whether the relationship has deteriorated and they seek dissolution or reconciliation of it; or whether they seek to renegotiate their relationship. Using relationships as the basis of a dichotomy of negotiation is acceptable from a theoretical and practical viewpoint. People learning the skill of effective negotiation sometimes ask whether there are any issues that cannot be negotiated. The answer to such a question is generally ‘no’,

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providing the parties are willing to negotiate, although, see the discussion below on matters not to be mediated. However, the willingness of parties to negotiate often comes down to the relationship between them. The relationship between disputing parties often comes down to the level of communication between them.

Communication skills Two of the great causes of disputes in our society are miscommunication and a lack of communication. Given this problem, a negotiator can be of little use if he or she is also a poor communicator. Therefore, skilled negotiators are generally good communicators. There have been many worthwhile texts written on communication skills and this chapter does not seek to be definitive by any means. However, there are a few basic skills that negotiators may adopt which may assist the effectiveness of the negotiation. Reframing The skill of reframing is one of the most important skills of a negotiator. It is simply the ability to capture the essence of what has been said by the disputants and verbalise it back to the party who said it. It is useful at various times throughout a negotiation. Generally, reframing shows that the negotiator has listened and has understood the speaker. Understanding the dispute and its elements is an important factor of dispute resolution. Most inexperienced negotiators make the common mistake of thinking that negotiation is about ‘changing the other side’s mind’. On the contrary, negotiation is not about changing the other side’s mind because in reality, rarely can a person in a dispute change another disputant’s mind. Negotiation is most successful when the disputants merely gain an understanding of the other side’s point of view on the issues in dispute. In this respect parties do not have to accept the other side’s point of view, so long as they understand it. In turn, this means that time does not need to be wasted in a negotiation with one party trying to change the mind of the other party. Reframing is an excellent way to help a party see the other side’s point of view. However, reframing is not just about regurgitating what was just said. It is about reframing what was just said in a way that focuses the disputants’ attention on the motivation

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behind the statement. For example, if a party to a dispute states, ‘I think you are deliberately making my life difficult because you won’t let me use the photocopier’, a skilled negotiator may reframe this back to the disputant as, ‘So you need access to the photocopier to efficiently perform your job?’. Reframing should seek to take the negative and confrontationist language out of the dispute. Another benefit of reframing is that it allows the speaker to listen to the problem in another contextual framework. If the problem is expressed differently, then the speaker may begin to view it differently. Reframing also focuses the disputants on what the problem is, rather than becoming lost in a maze of abuse and irrelevant material. In this respect, reframing helps separate the people from the problem, a topic to be discussed in more detail below. Another valuable skill when reframing is to attempt to reframe by crafting the reframe as a question. Most people, when they see a question, intellectually attempt to answer it. If negotiators reframe issues as questions to be answered, then the natural instinct of the disputants is to seek an answer to the question. This sort of intellectual willingness to solve the dispute provides an excellent start to the negotiation. This sort of skill needs practice and does not come naturally to all negotiators. However, once competency in the skill has been achieved, its effects can be quite impressive. Reframing shows the speaker that the negotiator has actively listened. It is quite impressive to have the problem reframed back in a clear and concise fashion by the listener. It also prevents reiteration of the dispute. Some disputants retell elements of the dispute repeatedly. A skilled negotiator will politely ask the speaker to wait before retelling the story, then reframe it, thereby allowing the speaker to realise that there is no need to retell the story again because the listener has heard and clearly understood the issue or issues. Reframing also places the statement in an objective frame of reference. Negotiators who are skilled in the art of reframing do not add opinion to the reframe, nor do they add anything that was not stated by the speaker. For example, a skilled negotiator will not reframe emotion to the speaker if the speaker did not originally express an emotion. Disputants generally do not like being told what their emotions were at a particular time in the dispute when they did not express such emotions.

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Open-ended questions Questions are one of the negotiator’s most important tools. It does not matter whether a negotiator is seeking information from a disputant or being an advocate for the disputant in a multitude of ways that may include court, company meetings or in a negotiation – the negotiator is continually questioning those around her or him for information that will assist in achieving resolution. Much has been much written about questioning techniques, but given the limited space of this book, only one form of questioning will be discussed, that of the open-ended question. An open-ended question seeks to elicit information from the receiver of the question. The skilled negotiator is a seeker of information that he or she will use to generate options that ultimately lead to settlement. The best way to receive the vital information needed to settle a dispute is not to ask questions which elicit a limited response, that is, those questions generally known as being closed-ended. Although, closed ended questions can be very valuable approaching the end of a negotiation when testing a proposed settlement for its ability to be implemented. An example of an open-ended question would be, ‘Tell me more about the reason you have gone on strike’. An example of a closedended question would be, ‘Have you gone on strike because of wages?’. The open-ended question will elicit the maximum amount of information. Closed-ended questions will generally elicit a ‘yes’ or ‘no’ response. In the example just given, there may be a multitude of reasons why a person or persons have gone on strike, such as hours, health and safety reasons, security of entitlements and more. The open-ended question is more likely to get at all the reasons for a person to commence dispute action, whereas the closed-ended question is only likely to disclose the issue already raised in the question – in our example, the issue of wages. Negotiators need as much information as they can get, particularly in the formative stages of a negotiation, in order to find out what is motivating the other side to conduct the dispute; therefore, the use of open-ended questions is vital to that fact-finding role, which the negotiator plays at the start of any negotiation.

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Sponging Sponging is a technique used selectively by negotiators. There may be times in a negotiation where emotions run high and the other party wants to ‘vent their spleen’, that is, tell you all about the dispute through an emotional frame of reference. Whilst the information gathered during this process may be largely irrelevant, without the other party articulating the emotions of the dispute, the other party may block a solution to the dispute. In this situation, the skilled negotiator uses the technique of sponging to deal with the latent or patent emotions at play in the dispute. Sponging means that the negotiator will need to sponge, or absorb, some of the emotional issues if those issues are acting as a bar to a negotiated settlement. This does not mean that the negotiator counsels the party with the emotional issues; on the contrary, counselling is now a recognised formal discipline within the health sciences and requires extensive training. Most negotiators are not trained counsellors, therefore they should not seek to counsel disputants. The use of sponging in a negotiation contributes to an atmosphere where emotions may be expressed. This allows the negotiator to empathise with those emotions where appropriate and then enable the disputants to move forward to deal with the substantive issue of the dispute. This process can be challenging but should not be seen as a sign of weakness; rather, sponging should be seen as a means to better understanding the issues surrounding the dispute that will ultimately assist its resolution. It should be noted that there is a limit on the amount of sponging to be performed during a negotiation. Clearly a negotiator cannot spend vast amounts of time listening to the continuing woes of the other side. Sponging comes with time limitations. A useful tool for ending the sponging process is the communication tool discussed above: reframing. By reframing, the negotiator can send a message to the other side that the emotions are understood, empathised with, and that the disputants can move on to substantive issues that will enable resolution. Silence Negotiations tend to be physically draining because skilled negotiators listen, frame thoughts and questions, manage the process of negotiation, seek options and outcomes, and promote their own or their client’s interests – they do all of this at the same time! The communication skill of silence can assist in reducing the exhaustion as

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well as assist in the efficient running of the negotiation. In some cultures, silence is an important element of negotiation. It allows time for reflection and the framing of an appropriate response. Many negotiators say things in the heat of the moment that they soon regret. Silence overcomes this problem. During a negotiation it is not out of place, despite being unusual in Western culture, to ask for a moment to think about a proposition, or to take a recess to consider the proposition or consult with others. Silence can be used effectively for both sides to reflect on the progress to date of a negotiation and should not be avoided for fear of lack of progress. Active listening The word ‘active’ means that skilled negotiators treat listening as an active, rather than passive, activity. Like any skill, active listening needs to be practised. There are a number of helpful hints that can be practised to improve a negotiator’s ability to listen: • Clear your desk so that there is nothing diverting your attention from the speaker. • Hold your phone calls so that other matters do not divert your attention from the negotiation. • Learn the skill of taking minimal, but relevant notes. You will minimise the impact of negative non-verbal communication if you do not have your head buried in a pad taking convoluted notes. • Face the other party and make constant eye contact. • Only interrupt to clarify something you do not understand. It is important not only to actively listen for the benefit of the negotiator, but to display active listening skills throughout the negotiation as this will assist in the progress of the negotiation. When a person is displaying signs that they have not listened to a proposition, the other party will often spend further time explaining the proposition a second or third time in order to ensure that the receiver of the communication has understood it. Apart from the waste of time, it can be frustrating for the party sending the communication and may block progress in the negotiation. There are two notable ways to display active listening skills. First, use positive non-verbal skills such as nodding your head to show you understand. Secondly, use verbal skills such as reframing to show that you

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understand. Some negotiators take notes and reframe from those notes. Note taking is a good way to record the negotiation, but negotiators should not become too obsessed by note taking. It can detract from the substance of the negotiation. Also, it is not conducive to effective communication because of the lack of eye contact. Quite simply, there is nothing worse than trying to negotiate with a person who has his or her eyes constantly fixated on the drafting of accurate notes. The skilled negotiator will take minimal but effective notes that record only the key issues. Body language There are many comprehensive texts on body language, and whilst skilled negotiators do not have to be experts in this subject, they can make simple observations of the other party that will assist in the assessment of the progress of the negotiation. The following comments are directed at negotiations generally involving parties from Western cultures only. Specific reference should be made to texts that deal with negotiations involving other cultural groups where the reading of body language differs from that in Western society. The most important hint is to observe. For example, note the posture of the other party. If one party sits facing away from the negotiator or creates a barrier, with objects such as books or furniture, then that party may be nervous or defensive. In a negotiation, this means that it may be difficult to discover the real issues driving the dispute or that some other issue, possibly an emotional issue, is preventing a disputant from being comfortable with the process. This valuable piece of observational information means that the negotiator needs to work harder to find out what is really causing the dispute and whether there are any emotional issues that need to be dealt with before meaningful progress can be achieved. If one party sits with their legs crossed or has their arms folded across their body, then an artificial wall has been set up that may be challenging for the negotiator to breach. Once again, the disputant may be uncomfortable with the way that the negotiation is proceeding. The problem may be one of substance, as discussed above, or it may be a problem as to the form of the negotiation. Attention to the physical elements of the negotiation is also an important element for the negotiator to consider. For example, a disputant may feel poorly treated because he or she was not offered a cup of coffee or was forced to sit in an uncomfortable chair or under a cold air conditioning duct. Whilst these excuses sound trivial, a skilled negotiator will not allow

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anything, whether it be a matter going to the substance or form of the negotiation, to prevent resolution of the dispute. Eye contact may disclose an interest in and a willingness to negotiate, whereas a lack of eye contact may disclose a lack of confidence in the process. In such cases the negotiator must reassure the disputant who has lost confidence in the process that negotiation can achieve a good result for the disputant providing he or she participates and contributes. Eye contact, or lack thereof, may also disclose honesty or lack of honesty respectively. In such cases, the negotiator needs to thoroughly check the information being presented. This will require detailed questioning and proof of certain key elements of the representations being made by the disputant. Only in this way will the truth be forthcoming and assist the negotiators to fashion a settlement. Irregular breathing patterns or sweaty palms may disclose nervousness or little confidence in that person’s own ability to negotiate, or suggest that they are not being as forthright as they could be. If a disputant is displaying a lack of confidence in their own ability to negotiate, then the negotiator should not take advantage of this situation, rather, the negotiator should assist such a disputant to accept the fairness of the process and that the disputant will not be forced into agreement. Taking advantage of such a situation will only lead to an unsatisfactory settlement that risks falling over at some later stage. Become an observer of body language and it will reveal truths about people that may assist you in negotiating.

The seven elements of negotiation As stated above, the Harvard Negotiation Project, based at Harvard Law School, has developed an internationally accepted model of negotiation, called ‘principled negotiation’. The model is explained in the landmark book entitled, Getting to Yes, by authors Roger Fisher, William Ury and Bruce Patton (1991, London: Random Century). Fisher went on to identify seven elements that should be a part of every negotiation in a second book entitled Getting Ready to Negotiate, co-authored with Danny Ertel (1995, New York: Penguin). The following discussion is an explanation of the seven elements and how they can assist negotiators in achieving successful negotiated outcomes.

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Interests Disputants often argue positions rather than interests when they attempt to negotiate. The definition of a position is simply ‘what you have decided’. The definition of an interest is ‘why you decided the way you did’. Generally, positions are the outward manifestation of interests. For example, the position of a disgruntled employee may be, ‘I want a pay rise’. However, the interest behind the position may be not the need for extra money, but the need for recognition within the organisation. Settling such a dispute may involve working out ways to give the employee more recognition within the workplace that may or may not involve a pay rise. So the settlement would be based on the interest of the employee as opposed to the employee’s position. It is important that negotiators have a clear understanding of their own interests, in order to fashion a settlement that suits interests as opposed to positions. Also, it is important to have some idea of the other side’s interests for similar reasons. Negotiators should go through the intellectual exercise of delineating between positions and interests in order to be certain that negotiations are proceeding on the right footing. It is generally acknowledged that a settlement based on positions will not last, if the interests of both sides have not been satisfied. Finding the underlying interests is the challenging part of negotiation. A negotiator’s own interests can be easily discovered by the negotiator asking him or herself or the client, what is actually driving the dispute and what the negotiator or the client wants out of the negotiation. More challenging is considering what the other side’s positions and interests are. To achieve this, it is necessary to ask openended and probing questions pertaining to the reasons behind the dispute and what the other side wants out of any partial settlement and why. It is a trial and error process, and after probing the other side for some time a negotiator begins to recognise and understand what the interests of the disputants are, after which it starts to become obvious what sort of solution will be necessary to resolve the dispute. Options Often considered the most important of the seven elements, option generation becomes particularly important when there are only one or two solutions to the dispute on the negotiating table. The central idea behind option generation is to increase the number of options, rather than try and distribute the existing option or options that may have

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caused the dispute in the first place. In other words, do not ask, ‘How can I get more out of an existing option?’; rather ask, ‘How might we create more options?’. If it is possible to create other options which satisfy the disputants’ interests, then the original options being argued may be reduced in importance to the point that agreement is reached. From a tactical point of view, entering a negotiation with only one option is inadvisable. If the other side dislikes the single option, then the negotiation is at an end. Multiple options assist the negotiator and make selecting a package of options that form the ultimate resolution of the dispute so much easier. There is only one other golden rule when it comes to generating options – make sure those options are parallel to the interests of the parties. If they are not, the negotiator is wasting everybody’s time. Clearly, options must satisfy the interests of the disputants. It is inevitable that some options will satisfy one disputant’s interests more adequately than the other’s interests. The skill of the negotiator is to tailor options that fit both disputants’ interests. In this respect, negotiators should educate disputants to the fact that interests may change or adapt to the available options. There are several ways to generate options. One of the most effective ways is through an option generation session (sometimes known as ‘brainstorming’). Such a session needs to be conducted carefully and with great patience. The only way to become skilled in option generation sessions is to run them as often as possible during negotiations. Negotiators should consider running an option generation session when any of the following events occur: • the negotiation is failing to achieve any agreement; • there is only one option for settlement on the negotiating table; or • the disputants have run out of ideas on any one issue in dispute. Running an option generation session is not difficult. At the appropriate time, mention to the other side that it may be a good time to hold such a session. Explain the rules of option generation, which are: • Create a non-judgmental atmosphere. The idea is to get as many options tabled as possible and in a short amount of time. It is important to try and get a momentum of ideas going. Do not stop and discuss the merits of each idea – that will come later. People will be afraid to come forward with ideas if they know that each idea is going to be subjected to scrutiny by the other participants. Ideas are more prolific in a non-judgmental atmosphere.

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• Options, not solutions. The aim of the exercise is not to generate solutions, rather, options that may be fashioned into solutions at a later time. Therefore, only seek ideas without any discussion on how any given idea will become a solution. • Seek multiple options. If a disputant comes to a negotiation with one option and the other side hates it, then the negotiation was a waste of time. The more options there are available, the more chance that some combination of those options will satisfy the disputants. • Encourage the use of zany ideas. Sometimes the craziest ideas spawn the winning idea. Therefore, encourage such ideas as they may provide the impetus for a workable solution. Option generation sessions can be made more productive by ‘going visual’. That is, by using white boards or similar visual aids, disputants are encouraged to contribute when they see ideas going up on a white board for all to see. A momentum starts to build and ideas encourage other ideas, to create a melting pot of options. One important factor in running successful option generation sessions is to ensure that everyone present is included and encouraged to contribute. Therefore, it is apparent that the success or failure of an option generation session comes down to the skill of the negotiator or negotiators running the session. Alternatives Negotiators should always be aware of the course of action to be taken if the negotiation is unsuccessful. In negotiator parlance, this is generally referred to as the best alternative to a negotiated agreement (BATNA). It is essential for the negotiator to have considered his or her own, or the client’s, BATNA before entering the negotiation, otherwise, how will the negotiator know when a settlement proposal is better than terminating the negotiation? In this respect, the BATNA is generally the outcome of the negotiator walking away from the negotiation: If you get pushed to your bottom line, should you walk away? You should do so only if your bottom line is based on what you could get elsewhere, your alternatives; and only if the best of those, your BATNA, is better than what is on the table [Fisher and Ertel, pp 45–46].

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Negotiators should use their BATNA to determine when a proposed settlement is a better alternative to walking away from the negotiation, and to focus on the interests motivating the negotiation. However, do not let BATNA rest there; rather, consider the other side’s BATNA for the same reasons. It is particularly important to clearly understand the other side’s BATNA in order to be able to make some assessment of when a settlement proposal should become attractive to that party. It also saves some time in making outrageous settlement proposals when you know such a proposal is far worse than the other side’s BATNA. In such a case, the other side would be better off walking away from the negotiation and living with their BATNA. Discovering the BATNA is relatively simple. From the negotiator’s own point of view, it is a matter of assessing what options are open should the negotiation fail. In other words, what will happen tomorrow morning if today’s negotiation fails to produce a result? The challenging task for negotiators is to discover the other side’s BATNA. This can generally only be done with some careful questioning about what the other side hopes to achieve from the negotiation and what they will do if the negotiation fails. Some common examples of BATNAs are: • going to court; • accepting the loss; • discontinuing business or personal relations with the other side; • keeping deposits or goods held; • facing a disciplinary tribunal; • ignoring the dispute; and • seeking another ADR process. The other useful element to understanding the other side’s BATNA is the opportunity that presents itself to deflate the other side’s BATNA. The other side may feel in a stronger position because his or her BATNA is stronger than that of the negotiator’s. For example, the negotiator’s BATNA may be going to court to recover money for a breach of contract, whereas the other side’s BATNA may be to continue not to pay the outstanding accounts. If the first party is in some difficulty regarding cash flow, then the second party’s BATNA is somewhat stronger than the first party’s. Therefore, if the first party has the power to deflate the second party’s BATNA, then that process

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will provide greater motivation for the second party to settle the dispute. Some reliable methods of deflating BATNAs are to mention: • adverse publicity; • costs – including management and administration costs to run the dispute, legal costs, opportunity cost (the cost of missing potential business whilst running the dispute), net present value of a settlement ($100,000 today may be better than $150,000 in 3 years’ time, being the time it might take to achieve resolution of the dispute); • lost time waiting for a hearing date and attending court and/or arbitration; • uncertainty of a judicial or arbitral decision; and • loss of relationship with the other disputant (in many relationships there may be a desire by one or more parties to maintain a relationship after the resolution of the dispute). Deflating BATNAs is about creating doubts about a party’s course of action should the negotiation fail. For example, asking the other side whether they have considered the adverse publicity should the dispute continue and how that publicity will affect the workforce, can create doubts in the other party’s decision to walk away from the negotiating table and allow the dispute to continue. Parties often obtain legal advice stating that they have a strong case, but in reality it is a fact that for every court decision there is a winning side and a losing side. Therefore, the best legal advice can still produce a losing case. Parties often do not understand the uncertainty of curial decision making and, once this is explored, that party’s BATNA may not look as good as it may have first appeared. Legitimacy Before a negotiator agrees to the settlement of a dispute, he or she needs the comfort of knowing that they have not been taken advantage of. In the case of negotiating the price of a new car, it is easy to check by looking in a newspaper or ringing other dealers. This is referred to in negotiation circles as using an external standard to provide legitimacy to the negotiated agreement: If I am going to persuade myself and the other side that a given agreement is fair, I will want to have on hand some external standards,

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precedents, or other objective criteria of legitimacy. Such principles and standards help negotiators choose among the options they have generated and give both sides something to point to when explaining why they accepted a negotiated settlement [Fisher and Ertel, p 61].

Legal precedent is a good example of external objective criteria that may be used to legitimate a negotiated agreement. Lawyers should be particularly comfortable with this notion of ensuring legitimacy in negotiations as they spend a large part of their professional lives referring to common law precedents. Other examples include: • moral standards; • professional standards; • scientific standards; • company practice; • market value; • tradition; • costs charged by external organisations or associations; and • seeking an objective expert opinion (for example, a valuer, engineer, accountant, etc). The act of legitimating a negotiated agreement is a matter of comparing the agreement with the external standard and determining whether the disputants are still willing to settle the dispute based on the agreed package of options. Communication As previously stated, many disputes exist because of mistaken, or a total absence of, communication between the parties. It is important to have in place a system of communication that allows each disputant to know and understand the status of the other side’s view on the dispute. From the outset, it may be unreasonable to ask either party to a dispute to agree with each other (otherwise there would not be a dispute in the first place), however, having an understanding of what the other side thinks about the dispute and how to resolve it is the key to a successful negotiation. Many people who are in dispute believe that simply arguing strongly will change the other side’s mind and an agreement will be reached. Those people have sadly missed the point when it comes to negotiation. In a negotiation, parties should not seek

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to change the other side’s mind; rather, parties should seek to ensure that they understand the other party’s interests. Generally, the best way of achieving this effectively is by agreeing on a method of communication that will allow a free flow of information without the usual subjective criticisms into which disputes often deteriorate. In relation to setting in place an effective method of communication, disputants should address their minds to: • clearly defined contact points; • clearly defined levels of delegated authority; • systems for the flow of information such as email, fax, surface mails and others; • reporting mechanisms; • clearly defined meeting agendas and templates for minutes and other key documents; • perhaps a dispute-specific venue for meetings; • clearly defined action lists for tasks to be completed during the negotiation and for implementation of any resulting settlement; and • any other simple but effective systems that will ensure that the parties have a workable level of communication that will enable the negotiation to proceed and for any settlement to be properly implemented. Encouraging disputants to communicate their own interests effectively in a negotiation is probably the most difficult task of all the seven elements. One way of successfully achieving a free flow of communication is via the use of role-plays or role reversals. This is the method of setting up an artificial situation whereby each party accepts the position and interests of the other and considers and argues those positions and interests. At the end of the exercise each party should have a greater understanding of the other’s view of the negotiation. Like most elements of negotiation, role-plays require practice. Relationship As well as trying to force the other side to change their mind, negotiators often make the mistake of believing that at the end of the negotiation, the parties should be best friends. This is clearly

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unrealistic. The aim, in terms of relationships, is to build some trust that any negotiated settlement will be adhered to and, should there be a desire to have a future relationship, attempt to lay the foundations for that future relationship. Another common mistake is that negotiators confuse the people who are involved in the dispute with the actual problem that has caused the dispute. The only method preventing this is to clearly understand the difference between a people issue (rudeness, arrogance, etc) and a problem issue (terms, conditions, timing, cost, etc). In this way, when negotiations go off the track and degenerate into personal abuse, the skilled negotiator can put negotiations back on track by referring to the actual substantive problem giving rise to the dispute. However, negotiators should not ignore relationships, as they may be critical to the success or failure of the negotiation. At the end of the day, what matters in terms of a resolution to the dispute is that there exists a sufficiently adequate relationship between the parties that will allow the negotiation to proceed and, should a resolution be reached, a sufficiently adequate relationship that will allow any settlement plan to be executed fully and in good faith. Whether the relationship will only last as long as any proposed settlement option or whether there is a desire for a longer relationship, the issue is best raised early in the negotiation and for intentions to be clearly stated. Treating each of the parties with some respect is a good starting point and will hopefully build the right sort of foundations for a trusting relationship, even if it only lasts until the end of the successful resolution of the dispute. Negotiators may have to consider being empathetic towards the other side and using some of the sponging techniques suggested above in order to achieve a useful relationship between the parties. Commitment Commitment generally refers to the negotiators being committed to the process and having a clear understanding of what that process should be. For example, a skilled negotiator should have a firm understanding of the result of any negotiation. This does not mean predicting the outcome of negotiations, rather, it means being able to accurately describe at what stage the negotiation should be, at any given point in time. To achieve this, negotiators may employ the ‘three Ps’ approach (Fisher and Ertel, pp 98–99):

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•

Purpose – plan the purpose of the meeting by knowing what product you hope to have in your hand at the conclusion of the meeting. For example, it may be a document or a white board full of options, which at the next meeting can be transformed into solutions.

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Product – define the product adequately so that participants know what they need to achieve and when they have fallen short of, or exceeded, the desired product.

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Process – plan the process for achieving the purpose and the product. For example, an agenda or set of guidelines may assist in achieving the process and producing the product.

Another good negotiating habit is to plan for commitment. In other words, decide how best to achieve commitment from the other side. It may be by drafting a document that forms the basis of the final agreement, or it may be by each party committing to return to the next meeting having completed some ‘homework’. It does not really matter what the commitment is, as long as there is some mechanism for building commitment into the final resolution.

Preparing to negotiate Whatever kind of negotiation we face – from international office problem to an international sale, from seeking a raise to buying a business, from dealing with a union to dealing with the Russians – lack of preparation is perhaps our most serious handicap. This is true whether the negotiation is ongoing or has not yet begun, and no matter how much experience we have. In fact, the more experienced we are, the greater risk that we fall into an established preparation routine that takes little account of the particular people with whom we are dealing or the particular problem with which we are confronted [Fisher and Ertel, p 3].

The above quote sums up the dilemma facing most negotiators after an unsuccessful negotiation. There is no substitute for preparation when it comes to negotiation. In fact, the level of preparation often determines the tone and outcome of the negotiation. Whilst there are various texts on how to negotiate, that is, what to do when you are in the room with your opposite number, there are very few texts on how to prepare for the negotiation prior to commencing the negotiation. Whilst different negotiators display different abilities to adequately prepare, a general rule of thumb is that negotiators should be

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spending half to two-thirds of the time spent actually negotiating, in preparing to negotiate. In Getting Ready to Negotiate, Fisher and Ertel produced a workbook-style text featuring forms designed to assist the novice negotiator in preparing to negotiate. Some of the forms are unnecessary and repetitive. Also, ritualistically filling out forms before a negotiation may seem to some to be trite. However, for those inexperienced in negotiation, using the forms may be a good discipline, as they put the negotiation in context and, if nothing else, provide a security blanket that some preparation has been completed before the big day. Even for experienced negotiators, using some of the forms may help order their thoughts and force them to think about issues, such as interests and BATNAs. What follows is a discussion of the sort of information which it is suggested negotiators address their minds to prior to negotiating. For a fuller discussion of the rationale underlying the forms, examples of the forms and fact situations featuring completed forms, the text itself should be consulted. Also, the text provides ‘sudden preparation’ and ‘priority preparation’ processes for negotiations with short notice. The forms are constructed around the seven elements of negotiation as outlined above. The following is a brief discussion of how to prepare for a negotiation based on Fisher and Ury’s seven elements. Preparation — interests When preparing to address interests, negotiators should assess their own interests, the other side’s interests, the reasons behind the interests and a rating of the importance of each interest. The rating is of particular importance as in any negotiation there are some interests that are linchpins to any potential settlement. Knowing which of the interests fall into this category is vital because negotiators will have knowledge of which issues are of most importance to the parties and, therefore, which issues may have little movement in terms of options. Negotiators should note why they believe the interest should be listed, as this will assist the negotiator in determining its rating, which in turn helps him or her to discover the priorities for both sides of the dispute. This becomes important when fashioning an agreement, as the negotiator will know which interests, in order of priority, need to be satisfied before the negotiation is likely to reach agreement.

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Preparation — options When assessing options, negotiators should list each of the negotiator’s own interests, as above, then match up similar interests that the other side may have. Having established the interests of all parties to the dispute, the negotiator should consider listing some possible options that will satisfy both sets of interests. The next step is quite a useful one – simply try to list the skills that both parties bring to the negotiation that will turn possible options into solutions. Further, list ways, using the combined skills of the parties to the dispute, of specifically satisfying the listed interests of the parties. Preparation — alternatives Preparing for the negotiation requires the negotiator to consider their own and the other side’s BATNA. It is important to note that in most cases there may be several alternatives to a negotiated agreement. Although the acronym BATNA refers to the ‘best’ alternative, the negotiator should list as many alternatives as possible for him or herself and the other side. Then, the negotiator should address her or his mind to how both parties could strengthen their BATNA and what circumstances could weaken their BATNA. Understanding BATNAs will assist you in determining when a proposed settlement is likely to be better than walking away from the negotiation, and when the other side will similarly recognise the benefits of a proposed settlement. This is invaluable information and can save a lot of wasted time in trying to fashion a settlement that is not more advantageous than the parties’ BATNAs. Preparation — legitimacy The negotiator should consider what substantive questions could arise during the negotiation and, should agreement not be immediately reached, what external objective criteria could be used to assist in reaching resolution on those questions. Examples could include, particularly where one of the issues is quantum, valuations from qualified valuers, estimates by quantity surveyors and independent analysis by accounting firms. Whatever criteria are chosen to legitimate the option or settlement, they must be seen to be objective in the sense of providing the parties with an unbiased assessment, and that usually means that it needs to be an assessment provided by a person or organisation external to the relationship of any of the

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parties. The credibility and ultimate acceptance of the option or settlement may hinge on how objective and external the criteria are, or are perceived by the parties to be. Preparation — communication When preparing for the negotiation, the negotiator should restate his or her own, or the client’s, interests and then attempt to reframe them in a way that removes any confrontationalist language and expresses the interests rather than the positions. The same exercise should be conducted for the negotiator’s expectations of the other side’s interests and positions. The advantage for the negotiator in conducting this intellectual step in the preparation for negotiation is that often the way ideas are received depends on the way they are stated. A well crafted restatement of an issue that is expressed as a positive question can help both parties to negotiate more effectively. Attempting to do this as the negotiation unfolds is a highly prized skill. Novice negotiators should prepare for this step in the negotiation process. Preparation — relationship The only way to fix relationship issues that may be hindering the negotiation process is to recognise them first. This element of the preparation enables negotiators to consider any potential relationship problems. Negotiators should attempt to describe the relationship between the parties – this should include past, present or future relationships. Once the relationship has been defined, it is necessary to relate the substantive issues and the relationship issues and then suggest ways as to how the relationship issues could be improved in relation to each of those substantive issues. For example, if the substantive issue that caused the dispute is the corporate restructure of an organisation and the relationship between the directors has deteriorated over the period of time prior to the negotiation, then perhaps the poor relationship between the directors will ultimately block any potential resolution. In this example, the negotiator will need to link the substantive issue with the relationship issue and seek from the parties an understanding of the need to establish a relationship that will adequately serve the negotiation and any subsequent resolution.

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Preparation — commitment The objective in preparing for commitment is to ensure a productive meeting by providing a purpose to the meeting and a tangible product at its conclusion. Aside from a negotiation, this is a useful process for all people who attend meetings and complain of them being poorly organised and run. Negotiators should simply list: the overall purpose of the negotiation (for example, to distil the issues involved in the dispute); the expected product of the negotiation (for example, a list of options for final agreement); the specific purpose of the meeting (for example, to introduce the parties and discover their interests); and the tangible product to come from the meeting (for example, an agreed list of issues). The importance of addressing the issue of commitment can mean the difference between a well run negotiation and a procedural disaster. Also, if parties know what the desired outcome of a negotiation meeting is, they will generally work towards achieving that outcome. This is good motivation for the negotiating parties. The process of agreeing on commitment is best done prior to the scheduled negotiation and should be a cooperative bi-partisan activity.

Principled negotiation — how to? People tend to negotiate based on their positions rather than their interests. In other words, people are naturally positional bargainers. They tend to do this either consciously or subconsciously. Chances are this is the way they have negotiated all their life and the way they are most comfortable negotiating. The reason they tend to do this is because arguing positions is easier than arguing interests. In other words, it is easier to simply argue what you want from the other side as opposed to why you want it. Also, some people think that disclosing their interests will weaken their chance of a suitable resolution to the dispute. Both reasons are flawed in their logic, however, when in a negotiation one party has little control over the other party being a positional bargainer. Or do they? When it comes to a negotiation, negotiators have clear choices. They can either negotiate based on positions and hope they can negotiate more convincingly than the other side or they can change the negotiating game and negotiate on interests. Negotiators who choose the former will probably need good luck! For a negotiator to commit him or herself to negotiate positions better than the opposite number is very brave indeed. Remember, the other side has probably been negotiating the

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same way all their life, and if they negotiate for a living, they are probably very good at it. Also, as previously stated, settlements based on positions have a poor chance of successful implementation. The best advice is not to attempt to negotiate based on positions. The other choice is to change the process by negotiating on interests. Change the dynamic of the negotiation by ensuring that the negotiation takes place based on the interests of the parties and not on their positions. Fisher and Ury have developed four very simple techniques which allow a negotiator to expertly move another negotiator from being a positional bargainer to being an interest-based bargainer. Objective criteria Negotiations often become stalled because of extreme positions that divert each party away from discussing the interests of the parties. This is the classic negotiating technique of a positional bargainer. In such situations, negotiators should call on any extreme positions to be justified by the party making it. Asking a person, who has just made a statement that promotes an extreme position, to justify the position, has a profound effect on that person and changes the dynamic of the negotiation significantly. First, it prevents any points being won on what is likely to be false information or just an extreme view of the outcome of the negotiation. Secondly, it can embarrass the advocate of an extreme position, because the chances are that he or she cannot justify the position, and therefore it assists in levelling any power imbalance present in the negotiation. Finally, it prevents future outbursts as the other side will begin to think twice before making any statements that contain extreme positions, knowing that a skilled negotiator will ask them to justify the statement. Another way to move a positional bargainer to participate in principled negotiation is to call for the use of objective criteria. This is a simple technique that involves testing the other side’s exaggeration or demand with, usually external, objective criteria. For example, if the other side argues that the quantum of a claim is to be assessed at no less than $250,000, then, before accepting that price, the skilled negotiator would check that estimate based on objective criteria, such as having the quantum checked by a valuer or quantity surveyor. Perhaps, to get a cross-section of objective criteria, if the money and the time are available, have two or more valuations and present an average as the objective value of the quantum claim. Here an external objective criterion has been used to challenge the opponent’s claim.

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Objective criteria are often hard to argue against. In this respect, they are a useful tool in ensuring that principled negotiation triumphs over positional bargaining. Other examples of objective criteria have already been discussed above but may include the acceptance of an industry wide standard, legal precedent, previous agreements between the parties and more. When raising the issue of objective criteria it is often best to phrase it as a question, for example, using the above quantum scenario. The purchaser may wish to ask the vendor: ‘Given that the quantum, based on a number of independent valuations, appears to average out at $200,000, persuade me why I should settle the dispute for the $250,000 you are currently insisting upon?’ In using objective criteria, Fisher and Ury suggest a three step approach (Fisher and Ury, pp 91–98). First, frame each issue as a joint search for objective criteria. In other words, if possible, do not approach the search for objective criteria as the negotiator’s own idea, otherwise the other side may reject it on that basis alone. If the negotiator has objective criteria in mind, do not present them as a fait accompli, rather phrase it in such a way that will lead the other side to believe it was their idea. Also, seek out the other side’s theory on finding objective criteria and then agree on what principles should govern such criteria. A series of questions governing these principles could be: • ‘If one were to exist, would you consider some sort of objective criteria?’ • ‘What criteria do you think would constitute such objective criteria?’ • ‘So we agree that a market value based on recent sales is an appropriate criterion?’ • ‘I believe that the Australian Institute of Valuers and Land Economists would be able to provide such information – would you like to request it?’ Secondly, it is important to be reasonable and open to other suggestions. Objective criteria will only guide the parties in reaching a resolution. They are not a panacea of negotiation. For example, in our dispute over the quantum of a claim scenario, an independent valuation may provide a figure of between $200,000 and $210,000 for the subject claim. But the plaintiff may argue that the goods were of a better quality than comparative goods, therefore, they were worth more. In this case, even though the defendant did not necessarily want goods of such high quality, he or she may have to be prepared to

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reason that given the quality of the goods, the additional value of the goods may be justified to a certain extent. Objective criteria will not always produce the final result that the negotiator seeks, but usually they will help to provide an objective foundation for the negotiators to build on. Thirdly, negotiators should never yield to pressure. Any negotiated settlement should satisfy the needs of the parties. Certainly negotiation is about compromise, but it is not about accepting something under pressure or duress. Leaving aside the legal ramifications of settling a dispute under duress, if put in a position of duress or pressure, a skilled negotiator may wish to conclude the negotiation without agreement or adjourn the negotiation to an occasion where the other side does not need to rely on pressure or duress. Separate the people from the problem Poorly skilled negotiators often focus their attention on the disputants rather than the substance of the dispute. As with most negotiating styles, this occurs either consciously or subconsciously. Once again, the problem with this sort of a focus in a negotiation is that the parties will not really discover each other’s interests because they are so focused on trying to establish liability. Whilst establishing liability is a necessary function of court hearings, it is a waste of time and energy in a negotiation. Negotiation clearly focuses on the future of the parties and how the dispute will be resolved, as opposed to looking at the past in order to establish liability. In short, there is no point in establishing liability in a negotiation. It will have no influence on the outcome of a dispute. A negotiator who focuses on the disputants as a method of resolving the dispute will find it very unnerving to put aside the people and start discussing the problem and the interests that are driving the dispute. Fisher and Ury call this ‘separating the people from the problem’. So another way of moving a positional bargainer to become an interest-based bargainer and therefore to participate in principled negotiation is to separate the people from the problem and focus on the interests, not on the positions. However, some people often mistake separating the people from the problem as an indication that they should ignore the people totally. This is not true. As discussed above, negotiators will need to deal with the ‘people’ issues in a negotiation if they are blocking a resolution. The communication skills

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of ‘sponging’ and ‘reframing’ discussed above will be of assistance to the negotiator experiencing people problems in a negotiation. People issues should not be swept under the carpet in the hope that they will go away. If the negotiator and the other side feel it is important, people issues should be addressed. In this respect, negotiators may have to listen and empathise with the other side. However, after having dealt with the emotions or relationships of the people involved, it is more constructive to move on to the substantive problem. The point is simply, do not allow the people issues to dominate the negotiation. There are a number of techniques for separating the people from the problem. First, do not assign blame. When negotiators start blaming each other, it becomes a classic example of putting people before the problem. Blaming is counterproductive. It matters little what has transpired prior to the day of the negotiation. Skilled negotiators look to what will happen tomorrow, not what happened yesterday or six months ago. Blaming is an exercise in history – negotiation is an exercise in the future. Secondly, recognise and legitimise the emotions. Contrary to popular belief, it is not only family law type disputes that have emotions at play. Even large scale commercial disputes can have emotions blocking the negotiation process. Often the dispute has escalated simply because of the emotions. As already foreshadowed, relationships and emotions cannot be ignored, however, if applicable they need to be acknowledged and respected. Only then can the substantive problem be tackled. Thirdly, try role reversals in order to have the other side understand the negotiator’s viewpoint. It is better to warn the other side of the role reversal rather than just springing it on them by taking the approach that the negotiator is having trouble understanding the other side’s interests in the dispute. Therefore, ask the other side if it would be suitable to try to advocate the other side’s position in the dispute, and after doing so, have the other side explain where the advocate has misunderstood. Then have the other side advocate the negotiator’s position in the dispute and try to distil the interests accurately. In a negotiation the other side does not want to feel on the defensive all the time, therefore, be prepared to be the first party to role-play. In fact, many skilled negotiators start off a role reversal by first reversing roles themselves, after which it does not seem too awkward for the other side to play along. An example of the type of wording to use may be:

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Let me step into your shoes for a moment. I would be very upset if my constant requests for payment of a debt were ignored and I would consider sending a statement of claim via a process server without any further notice. So I understand why you did it. However, if you now step into my shoes with the knowledge that I tried to reach you on several occasions to resolve the outstanding debt and the mistaken deliveries but was told on each occasion by your accounts clerk that your terms were 14 days and you would be taking court action, how would you feel?

Role reversals are difficult to run properly and novice negotiators may experience several disasters before perfecting the art of the role reversal. However, when a role reversal works, it usually has a dramatic effect, because for the first time the other side sees and understands the problem through a different set of eyes. Remember, the role reversal does not seek to change the other side’s mind, it only seeks to have the other side understand the negotiator’s interests. Finally, try to give the other side a stake in the outcome. When people feel a sense of ownership in a resolution, they are more motivated to ensure that it is successfully implemented. This generally means that settlements should be the result of a joint approach to option generation and a joint settlement fashioned from those options. Also, try to fashion settlements to be consistent with both sides’ values and perceptions. People will agree to the familiar far more quickly than the unfamiliar. Positions versus interests Positions are usually the first reaction to a dispute. Interests are what drives the positions. Therefore, it is important to find out what the interests are in order to understand the reason for the dispute and more importantly how a resolution may be reached. We all tend to be comfortable arguing the positions, believing these to be the key to resolving the dispute. Discovering the interests behind a dispute can be achieved by probing the other side to find out what is motivating them. Using open-ended questions will return information on what is behind the positions first espoused. Referring to our quantum scenario above, we may find that the plaintiff would consider reducing their claim to $230,000 because, for example, they have an annual interest repayment due on a loan. Their position is that if they can make that payment, then they will save $10,000 in carrying over the payment into the next financial year. Using some open-ended questions, such as ‘Are you in a hurry for the

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payment of any money agreed upon at this negotiation?’ may reveal the interest of the bank payment that is due by a certain date. Further questioning may result in the fact that the bank may call in the loan if the payment is not met by the due date and that this would create a problem for the plaintiff’s cash flow. Once the interests are exposed, the negotiation can canvass options to satisfy the interest, which may not necessarily involve the payment by the defendant to the plaintiff of $250,000 as per the original claim. Option generation Option generation has already been discussed above; however, Fisher and Ury suggest certain prescriptive measures other than option generation sessions to assist the process. First, look for mutual gains. People see things differently based on their experiences in life and the angle from which they approached the dispute. They see blame differently. They may have a different understanding of the facts. They may have a different perception of the outcome of the dispute. Negotiators should try to develop, with the other side, a single approach to the solution using mutual gains. For example, the first element in developing mutual gains is to identify shared interests. In nearly every dispute it is possible to develop shared interests. Even if it is only a desire to resolve the dispute, negotiators can build on the shared interest and use it as a foundation for resolution. Other shared interests may be a common desire to have a continuing relationship; to recommence the supply of goods or services; to have some form of payment made; or to stay out of each other’s way. Once mutual gains and common interests have been explored, option generation becomes a little easier, because both parties are theoretically thinking along similar lines. Common interests also assist in making decisions easier and at the end of the day option generation is about creating as many options as possible, then agreeing on which package of options will be suitable in order to end the dispute.

Using positional bargaining Interest-based bargaining will generally satisfy parties more often than any other form of negotiation, and it should therefore be used more frequently than any other model of negotiation. However, negotiators should not reject positional bargaining out of principle. It has its uses. For example, in a small scale dispute where the issue is a simple

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disagreement as to the value of a good or service, positional bargaining can be quick and cheap. For example, in the case of the sale of real property, parties are best placed to simply position bargain over the price. Generally there is neither the time nor the necessity to delve into the interests of the parties. A simple ‘Dutch auction’ can take place that will achieve the desired outcome for all involved. Another use of positional bargaining is after a lengthy interest-based negotiation where the only outstanding issue is that of quantum and the parties are not very far apart in terms of amount. It may be easier to ‘split the difference’ and bring the negotiation to a rapid close, than to try and establish an amount based on interests. At the end of the day it is up to the parties as to what they will accept or reject in terms of a potential settlement. Therefore, if the parties can live with a ‘Dutch auction’ or a ‘split the difference’ result, then so be it.

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3 Mediation

How mediations are negotiated The previous chapter focused on how to negotiate using the principled negotiation model: a model that promotes the idea of negotiation based on a person’s interests as opposed to their positions. This chapter will discuss the ‘classical mediation model’, by which is meant a series of procedural steps that are universally accepted as constituting mediation. But how do the negotiation model and the mediation model fit together? The negotiating model describes ‘what to do’, whilst the mediation model describes ‘how to do it’. Perhaps another way of stating this is to say that the negotiating model is the substance of dispute resolution, whilst the mediation model prescribes the form of dispute resolution. Apart from the strictly procedural steps being outlined in this chapter on mediation, those steps that require the mediator to discuss the issues, options and settlement with the parties are conducted under the umbrella of principled negotiation. In other words, when a mediator is trying to discover the issues, he or she will focus on discovering the interests of the parties. When the mediator is trying to generate options for settlement, he or she will adopt the option generation skills of the negotiation model as well as ensuring that people are separated from the problem. Also, the mediator may use external objective criteria to assist in order to test extreme positions and provide some element of legitimacy to the options being used to fashion the settlement. When the mediator is helping the disputants fashion a settlement proposal, she or he will ensure that the seven elements of negotiation have been addressed. So, whilst the mediation model sets out a procedural framework for the conduct of mediation, the negotiation model sets out how to get the disputants to negotiate during the mediation. Of course, the above references to the mediator being able to promote principled negotiation within the mediation model apply equally to the disputants being able to actively promote it. There would probably be

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less disputation if a large cross-section of the community had an understanding of principled negotiation and the process of mediation.

The mediation process What follows is a description of the ‘classical mediation model’ generally accepted as being the basic mediation model used in Australia and around the world. However, it is important to understand that one of the hallmarks of dispute resolution is its flexible nature. That is, dispute resolution is adaptable to the type of dispute being mediated and the personalities involved. In some respects, one of the great benefits of dispute resolution is that the disputants themselves are empowered to create a dispute resolution process that will assist them to resolve the dispute. Therefore, dispute resolution and, by association, mediation, is not rigid in terms of its ability to change to the needs of the disputants. So, whilst the classical model will be discussed below, dispute resolution practitioners should feel free to adapt the model to suit the needs of the disputants. It is, of course, essential that the disputants themselves drive any process of adaptation and mediators should also be sensitive to the fact that some disputants prefer the mediator to almost impose a procedure on them and police it during the mediation. The flexible nature of the process is what makes it so successful and ensures that the disputants themselves are actively involved in the outcome – something they do not get in curial dispute resolution.

Preparing for the mediation Some statutory schemes have intake or screening procedures where disputes are assessed for their suitability for mediation. Whilst the substance of some of the statutory schemes themselves will be discussed below, it is worthwhile briefly discussing the sort of issues to be addressed before matters are referred to mediation in some of the statutory schemes. Generally, most mediation programmes, other than those directly dealing with victim-offender issues, will not accept for mediation matters where there is any indication of violence, domestic or otherwise, or child abuse. The view of most mediation programmes is that these sorts of matters are best placed before the courts where State imposed sanctions deal with the issue and where resolution of a

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dispute is not really the issue. For other disputes, screening procedures for mediation generally involve a combination of the following criteria: • Motivation of the parties to attend and participate in mediation. • Desire to mediate after the disputants have been advised of what the mediation process involves. Some disputants shy away from mediation once they know that generally they have to take an active role in the process. • The availability of the disputants and whether they have authority to settle the dispute. This is particularly difficult in the case where a disputant is a corporation, and a Board of Directors have the ultimate decision making power on compromising a dispute. If it is not possible to have all the decision makers at the mediation, then alternative arrangements may need to be considered. • The availability of information and stakeholders in the dispute affecting the outcome, but only as it affects the implementation of potential settlements. If there are people and information that will be required to assist in the implementation of any agreed settlement, then the mediation will benefit by access to those people and information. • There are no insurmountable power imbalance issues. That is, are the parties willing to discuss in a rational environment free from intimidation? In a commercial context, is there a power imbalance in relation to legal might and finances to be expended in mediation? In a domestic context, is there a power imbalance in relation to, for example, intellectual or emotional intimidation? If the mediator detects any insurmountable power imbalances, then it may better not to proceed with a process that could make matters worse between the parties and entrench the dispute. Apart from the necessary process of assessing a dispute for its suitability for mediation, it is also useful to have some idea of the nature of the dispute and whether a particular type of mediator would be beneficial. For example, a complex technical matter may mean it is best to have a person with some understanding of technical issues. In this respect, an intake or screening process can also begin to canvass agreement on the mediator. The selection of a mediator is an important step in the process, not only from the procedural view of moving the mediation forward, but

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from the philosophical view of empowering the parties to determine for themselves who should act as the third party intermediary. This reinforces the philosophical cornerstone of mediation that the parties are responsible for the substance of the mediation that commences with the selection of the mediator. Where an agency is involved in arranging the mediation, disputants are usually asked either to suggest three mediators or to select three mediators from a choice of five submitted by the agency. The closest match will usually be asked to conduct the mediation. In considering mediators, disputants will have for their perusal: the fees charged by the mediator; his or her availability; and her or his level of expertise in mediating, and in mediating certain types of disputes. If an agency is involved in arranging the mediation, should the disputants not agree on a mediator, then the agency will generally select one based on the parties’ needs. Where there is a dispute resolution clause in a contract, a common way to resolve such a deadlock is for the President of the local Law Society or Institute to select a suitable mediator, again, usually based on the needs of the parties and the type of dispute. As alluded to above, the selection of the mediator is vital from the point of view of instilling confidence in the disputants themselves. That is, it is important that the disputants have confidence that the selected mediator will be unbiased and fair in his or her conduct of the mediation. The process of negotiation is hard enough without disputants feeling that they are not being treated in an even-handed fashion by the mediator. Once the dispute has passed through any intake or screening procedure and a mediator has been selected, the mediator will usually require a statement of issues from each party at least 14 days prior to commencement of the mediation. Where lawyers are acting for clients and the dispute is listed before a court, the temptation is to merely send the pleadings to the mediator as filed in court. This is not advisable. A mediator usually does not want to read the lawyer’s version of events as drafted in the pleadings. The mediator would much rather have the client’s view of the issues in their own plain language. The reason for this is that the client’s version of events is likely to be uncluttered by legal jargon. Also, it is unlikely to express facts relating to liability issues. As stated above, liability is somewhat irrelevant in mediation, rather the mediation seeks to address what will happen after the mediation as opposed to inquiring about previous facts leading to the assessment of liability. Mediators tend not to require extensive amounts of evidence such as lawyers prepare for

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court. Therefore, when mediators seek a statement of issues, they generally do not seek a statement setting out one disputant’s version of the liability issue supported by evidence intended for use in court. Prior to the commencement of the mediation, most mediators will require the disputants to enter some form of mediation appointment agreement that covers, amongst other things: • how the mediator is to be determined and a mechanism should the parties not agree; • the amount and payment of the mediator’s remuneration; • the basic procedures to be observed in the mediation; • confidentiality of the contents of the mediation; • an exclusion clause excluding the mediator from liability; • an indemnity, indemnifying the mediator against any claim relating to the mediator’s performance; • the requirement of the disputants that they send a party with the authority to settle the dispute; and • committing any settlement to writing. Disputants would be required to sign such an agreement and, given the confidentiality agreement contained within most mediation appointment agreements, any non-disputant party attending the mediation would also be required to sign the agreement. A copy of the NSW Law Society’s mediation appointment agreement appears as Appendix 4 to this book. Once these preliminary matters have been dealt with, the disputants and the mediator are ready for the actual mediation.

The opening statement Once the disputants have committed to mediation, the mediator has been selected, the disputants have given the mediator a statement of issues on the subject of the mediation and the appointment agreement has been signed, then mediation can proceed. Because of the need for neutrality, an issue to be discussed below in more detail, a neutral venue should be chosen for the mediation, the exception being where there is some benefit to conducting the mediation at a specific site related to the mediation for technical reasons, such as being able to

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understand the dispute more easily by reference to certain equipment on a site or because of the religious nature of the site in an indigenous land claim dispute. As previously stated, mediators are largely responsible for the process, whilst the disputants are largely responsible for the outcome. Therefore, the mediator should arrange suitable facilities, such as chairs, tables, whiteboards, audio-visual equipment and refreshments. Once the disputants arrive, the mediator should introduce him or herself and ensure that the disputants are acquainted with each other if they have not previously met, and with other people attending the mediation such as lawyers, accountants other experts and McKenzie friends (a person who a court will generally allow to assist an unrepresented person by quietly giving advice, see McKenzie v McKenzie (1970)). After making the disputants comfortable in the venue, the mediator should commence the mediation by making an opening statement. The opening statement is an important step in the mediation process. It is a time for the disputants to understand the process of mediation and ask any questions about how the mediation will operate and their role in it. Also, it is a time for the mediator to instil some confidence in the disputants by showing them that there is a process at hand which will give them the opportunity to resolve the dispute, and that the mediator is a competent person who understands the mediation process and can help the parties work their way through it to a potentially successful outcome. Therefore, the opening statement is as much about the parties understanding the mediation process and being comfortable with the mediator as it is about the mediator instilling in the parties confidence in him or herself and the mediation process. The elements of the opening statement will highlight its important role: • The mediator should introduce him or herself, welcome the disputants and their support teams and make them comfortable so they are ready to mediate. • The mediator should check the contact points of all the parties attending the mediation and their roles. It is important for all parties attending the mediation to know why people other than the disputants are present and what role they intend to play. The disputants themselves should be comfortable with other parties attending and this should perhaps be canvassed prior to the actual mediation in order not to waste people’s time and efforts in attending the mediation.

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• The mediator should check that the disputants and/or their support team have the authority to settle the dispute. There is nothing worse for the parties attending a mediation than to discover, after having worked for many hours fashioning a settlement, that one or more parties do not have the authority to actually settle the dispute. For example, where one or more disputants are corporations, mediators should always check if the Board of Directors have authorised the representative attending the mediation to settle the dispute. Or, in a quantum claim, if there is a maximum amount of money that the representative can go up to before having to receive the Board’s approval. If the representative is only authorised to go up to a certain amount of money in order to settle the dispute, then the representative should not be pressed to disclose that amount at this early stage of the mediation. Rather, the representative should be asked to advise the parties during the mediation when the proposed settlement has exceeded the representative’s authority. Where a disputant or representative does not have the authority to settle without somebody else’s approval, the mediation can still continue. However, all the parties need to be aware of this so that the mediation can proceed on the basis that authority needs to be sought before settlement. Another way to handle this situation is if there is a person or persons capable of instantly settling the dispute, then perhaps the parties to the mediation should consider adjourning the mediation until such time as those persons can be present. It does not matter which of the above methods is employed to handle the issue of a lack of authority, as long as all parties are aware of the issue and all parties agree as to how to handle it. • For parties attending the mediation who were not privy to the selection of the mediator, it might be a good idea for the mediator to briefly introduce her or himself canvassing the mediator’s qualifications, training and experience. • The mediator should make it clear that he or she does not have any connections with either of the disputants and that she or he is impartial as to the outcome of the dispute. This is an important step in the opening statement, because it relates once again to the confidence that the parties need to have in the mediator and the process. Even small issues like membership of one of the disputants (such as a motoring group or chain of video stores) is important to declare during the opening statement (and hopefully

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prior to the actual mediation) in order to dispel any possible accusation of bias against the mediator. Should there be a connection between the mediator and one of the disputants that comes to light during the mediation, the mediator should always seek the disputants’ approval for the mediator to continue. Once again, the power to decide who should mediate must always rest with the disputants – they must have confidence in the mediator’s ability to help them resolve the dispute. • The mediator should explain the procedures of the mediation that will include: ❍

the parties making an opening statement;

❍

the seeking of common ground;

❍

separate meetings with disputants;

❍

shuttle negotiating between the separated parties;

❍

final joint meeting;

❍

committing the settlement to paper; and

❍

practical implementation of the settlement.

Each of these procedural elements will be explained in more detail below. • The mediator should point out to the parties two of the philosophical hallmarks of mediation. First, that mediation is a voluntary process (except where court ordered) and the disputants may withdraw at any time if they do not feel comfortable with the process or that they cannot achieve an outcome that satisfies their interests. However, that serious consideration and discussion should take place prior to a disputant coming to that decision and in that respect the mediator can assist a party in considering the ramifications of withdrawing from a mediation. Secondly, that the mediation process is confidential and generally conducted on a without prejudice basis. Both of these issues will be discussed in more detail below. • Penultimately the mediator should check the availability of all parties to continue the mediation past any preset time, if the disputants agree that it would be worthwhile.

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• Finally, although the mediator should always accommodate questions arising along the way, it is important to offer the parties the opportunity to ask any questions about the process that has just been discussed. The disputants opening statements One of the key areas in which non-curial dispute resolution differs from curial dispute resolution is in the disputants’ involvement in the process of resolution. This is exemplified in the very early stages of mediation where the disputants themselves make an opening statement. Whilst the other disputant or the mediator rarely interrupts the disputant who is making his or her opening statement, mediators should be mindful of the elements of principled negotiation that provides that, for example, people should be separated from the problem. In other words, mediators should be mindful of the fact that personal abuse and too much emphasis on liability issues will be counterproductive to the mediation. Mediators often find that when it comes time for the disputants’ opening statement it is awkward determining who should speak first. This can be resolved in a number of ways. Firstly, the mediator can explain to the disputants that it does not matter who speaks first as both disputants will get as much time as they wish to speak, after which the mediator asks for a volunteer. Secondly, if the dispute has got to the point where it is in the court list, the mediator may ask the plaintiff to speak first, given that the plaintiff is the person who initiated the action. Other methods include tossing a coin or allowing whoever arrived at the mediation first to speak, but whilst the issue itself is seemingly insignificant, mediators should be on the look out for disputants who will take offence at not having some say in who speaks first or be satisfied by a logical approach, such as allowing the plaintiff to speak first. At the end of the day, the mediator is the guardian of the process and should determine a simple way to resolve this issue. As discussed above, the disputants should have supplied the mediator with a short statement of issues, so that the mediator will have a basic understanding of the dispute. A disputant’s opening statement is a time to inform the other disputant of matters that may be unknown to him or her and to give the mediator a fuller version of events than that supplied in the statement of issues. It is also a time for the other disputant and the mediator to ask questions, which will help fill out the details of the dispute. These sorts of questions should be

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encouraged, particularly questioning that opens a constructive dialogue between the disputants. If such a dialogue can be achieved early on the mediation, then the mediator’s job is made a little bit easier. However, mediators should be wary of a disputant’s natural tendency to defend him or herself during the other disputant’s opening statement. This is counterproductive to the process of creating a healthy dialogue and achieving a workable level of communication – one of the seven elements of principled negotiation. Therefore, this sort of behaviour must be controlled. Should this happen, mediators should politely point out to the interrupting disputant that she or he will have ample opportunity to rebut anything said when it is his or her turn to make an opening statement. As stated above, mediators should be reticent about interrupting the flow of a disputant during this crucial step in the mediation. It is important for the disputants to feel comfortable within the milieu of the mediation and to be able to speak their mind in a constructive fashion. However, mediators should attempt to establish the interests of the disputants at an early stage, so questioning techniques that target the interests can be of value. Also, if emotions are an element to the mediation, then an early expression of those emotions may help to remove any animosity between the parties. Depending on the nature of the dispute, some disputants will not be comfortable speaking on the real interests behind the dispute or their emotions at this early stage of the mediation. Therefore, mediators need to look for signs that a party is uncomfortable on these subjects and be prepared to raise them in separate session where the disputant will probably be more comfortable speaking on them. The mediator should impose no time limit on the disputants’ opening statements, unless the parties have agreed on strict time limits because of other commitments. After one disputant has made an opening statement, the mediator should allow the other disputant to make his or her opening statement. The other important element for the mediator in this opening stage of the mediation is to start understanding what the positions and the interests are of each of the disputants. This will prove invaluable for the next step in the mediation process. If the mediator is not satisfied about the positions and interests of the disputants, then the mediator should question the disputants until he or she is satisfied. Before moving to the next step of the mediation model, mediators should reframe the disputants’ statements to ensure that the mediator has understood the issues and that the disputants are satisfied that the correct issues raised by any one of the disputants have been explained thoroughly.

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Identifying issues and interests After the disputants have made their opening statements and replied to any issues raised, and both the disputants and the mediator have asked any questions relevant to the mediation, it is time to identify the issues to be mediated. Despite the fact that the disputants have already stated their view of the issues to the mediator prior to the commencement of the mediation, other issues may have surfaced during the opening statements. The mediator should identify the issues with the assistance of a visual aid such as a white board or even large pieces of paper that can be hung up on a convenient wall. The reason for ‘going visual’ is that it helps the disputants to see what the issues are to be discussed at the mediation and in that respect, it creates a quasi-meeting agenda for the disputants, thus satisfying the commitment element of the seven elements of negotiation as discussed in the previous chapter. Also, seeing the issues displayed visually can often have a comforting effect on the disputants as they see that the issues are not insurmountable, rather, they can be easily and simply expressed on a white board; therefore, they should be easily and simply resolved with some thought and cooperation. At this early stage of the mediation, the parties will be cognisant of their own and the other disputant’s positions, but they will have little appreciation of or understanding of the difference between a position and an interest. Therefore, it falls to the mediator to try and elucidate the interests of the parties. In this respect, the mediator not only acts as mediator for the disputants, but as an educator. That is, the mediator educates the disputants in principled negotiation by explaining the difference between positions and interests and asks them to consider their interests at this introductory stage of the mediation. The communication skill of ‘reframing’, as discussed in Chapter 2, is a very useful method of encouraging the disputants to recognise their own interests and help the mediator commit those interests to the agenda of issues to be resolved. In other words, the mediator reframes the issues by drawing out the interests at play. Whilst different mediators have different approaches to handling this stage of the mediation, one popular approach is for the mediator, with the help of the parties, to list the issues on the white board by phrasing those issues in the form of a question that discloses the interest of one or more disputants. For example, in a simple contract dispute over the delivery of and payment for goods, the plaintiff’s issue might be receiving payment for the goods from the defendant. However, if the defendant was one of the plaintiff’s largest customers,

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the interest may well be securing future business from the defendant. In which case the issue between the parties could be reframed as the following question: ‘How can the parties agree on a payment schedule that will allow the defendant to continue trading with the plaintiff?’ The other elegant feature of this method of identifying the interests and then posing them as questions is the reliance that once a question is posed, human nature dictates that we want to answer it. Seeing a question posed on a white board in mediation whets the disputants’ appetites to answer it. In mediation the motivation of the parties is vital in order to achieve resolution, therefore motivating disputants to answer questions for themselves is a valuable tool in achieving resolution. Hopefully at the end of this process the mediator, with the assistance of the disputants, has identified the issues and interests, and has committed them to a white board or similar visual tool in the form of a question, raising the interests of the disputants. The final element to this step in the mediation is to prioritise the questions to be answered. Like any meeting agenda, agenda items are numbered in some form of priority. Likewise in mediation, the questions should create the agenda and be prioritised in some order. There are several ways of doing this, but one of the most successful ways is to select the easiest questions to find resolution on and list those early in the agenda. If the disputants see some success early on in the mediation, it will have a positive influence on them for the latter, more difficult, questions. Once again, the skill of the mediator comes to the fore in suggesting to the parties an order for the questions to be dealt with, bringing forward the easier issues. It is important that the mediator always involves the disputants in any such process, as it is the disputants that determine the substance of any mediation and whilst prioritising questions may seem a procedural issue, it has a large impact on the substantive discussions in the mediation and the chances of success in finding a resolution to the dispute.

Identifying common ground Once the mediator has identified the interests of the disputants, it is worthwhile spending a small amount of time identifying any common ground between the parties. Sometimes, simple interests can be satisfied without much effort by the mediator and the disputants. On occasions, a disputant will make a concession just by virtue of the fact that the interest has been identified and written up on a white board.

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Mediators should always enthusiastically grasp a concession made by a disputant and use it as a basis for reaching further consensus. That is why it is sometimes useful to try and seek some common ground early in the mediation. The mediator should only seek common ground on small issues where the they believe some quick and easy agreement can be brokered. That means confining the discovery of common ground generally to issues that appear at the top of the prioritised list of questions developed from the previous step. Where a mediator has disputants that are reluctant to find common ground so early on in the process, the mediator should seek obvious common ground. Three examples of obvious common ground may be: • Agreement to end the dispute. Disputants will generally want to see an end to the dispute for a number of reasons. Perhaps the dispute has been in existence for too long and this may have caused expensive lawyers’ bills or a loss in business or just worry over the outcome. Whatever the reason is, the disputants agreed to and attended the mediation with a view to settling the dispute, therefore, they must be motivated to see an end to the dispute. The simple question, ‘Do you both wish to see an end to this dispute?’ will generally elicit an affirmative response that provides the mediator with the first piece of common ground between the disputants. Even at such an early stage of the mediation, the disputants have agreed on one thing – they want to see an end to the dispute. • Agreement to keep the dispute out of court. Once again, for a variety of reasons, the parties have chosen to mediate in the hope of resolving the dispute. Therefore, it is likely that another area of common ground is the desire to keep the matter out of court. • Agreement to keep the relationship on foot. The parties may wish to keep the relationship that they had prior to the dispute in place rather than let it collapse because of the dispute. Simple questioning of the disputants during the opening statements can establish this. Therefore, another issue on which there could be some common ground is whether the disputants wish to continue their relationship after resolving the dispute. The psychological impact of reaching agreement on areas of common ground should not be understated. Therefore, the mediator should attempt to commit the agreement of common ground to the white board, to remind the disputants that they have already reached

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agreement on some issues, thereby proving it can be done and providing further motivation to bargain based on their interests. Identifying early options for agreement Similar to the previous step in the mediation process, there may be some issues that are suitable for the discovery of early options, which will lead the disputants to agree without further investigation and option generation. If the mediator can identify those issues early on in the mediation and seek a resolution on them, then the disputants have saved some time and effort as well as providing some important motivation for the remainder of the mediation. In both this and the previous step in the mediation process, mediators should understand that they will not always be able to find common ground and identify early options for agreement. However, success in these early steps of the mediation process can often mean a good start to the mediation and on this basis mediators should attempt to reach agreement on them. Separate sessions The conduct of separate sessions means splitting the disputants up into different rooms and having the mediator shuttle between the disputants in order to conduct private discussions about issues, interests and options for resolution. Before examining this process in detail it should be mentioned that opinion is divided on whether separate sessions should be a compulsory part of mediation or whether it should be employed only as a tactic, for example, where disputants have reached an impasse. This book does not seek to argue one way or the other, rather, it seeks to describe the process and leave it to the mediator to determine its use. The one thing that can be said with some confidence is that in nearly every piece of commentary on mediation authored by practitioners and academics, separate sessions are noted and described. Perhaps this means that separate sessions are a recognised step of the mediation model. As suggested above, the purpose of separate sessions is to further explore issues, interests and options for resolution. Speaking privately to the disputants will allow the mediator to discuss issues that the disputants may be uncomfortable talking about in front of the other disputant. On many occasions disputants will not be comfortable disclosing their interests or divulging a certain piece of information in front of the other disputant as they feel this would be a sign of

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weakness and spoil their chances of settling the dispute. The separate session can alleviate this concern and at the same time give the mediator an understanding of what is really driving the dispute. Whilst a mediator would never disclose information discussed in separate session with the other disputant, unless the disclosing disputant had given the mediator permission to do so, the mediator can use such information to assist both disputants in settling on options that will satisfy interests. Separate sessions also allow the mediator to test information. Detailed questioning can take place which, if conducted in joint session, may embarrass one disputant. Separate sessions also prevent disputants losing face. That is, if there is information that would indicate liability and therefore create a false onus to settle, then it is better that that information be disclosed in separate session. If such information were to be disclosed in joint session, then the disclosing disputant may lose face and be in a weaker position for the rest of the mediation. Finally, there may just be information that, for various reasons, one disputant does not wish to share with the other disputant, in which case a separate session is the place to discuss such information. The information may be of embarrassment to the disclosing disputant or it may disclose private information of a personal or corporate nature. This latter category is particularly important if the disputants are competitors in a certain market place. During the early stages of the first and possibly subsequent separate sessions, the mediator will be asking open-ended questions with a view to seeking more information than was disclosed in the first joint session. The mediator may narrow the questioning as the separate sessions progress with a view of testing information and fashioning options for settlement. Another important use for separate sessions is the discovery of BATNAs. As discussed in chapter two, BATNAs are a vital piece of information for the mediator as they disclose when a settlement is better or worse than the disputants’ best alternative to a negotiated agreement. If the options being proposed as a settlement are worse than a disputant’s BATNA, then chances are that the disputant will not settle – they would be better off walking away from the mediation and living with their BATNA. The converse is also true, in that if the options being proposed as a settlement are better than a disputant’s BATNA, then the chances are that the disputant will agree to accept the settlement. Sometimes, disputants will disclose their BATNAs during the first joint session, but on most occasions disputants will keep that information secret until in separate session with the mediator. The reason this generally occurs is that disputants view this

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information as weakening their negotiating position should the other disputant discover the first disputant’s next move in the dispute. Once again, the mediator would never disclose this information to the other disputant unless given permission by the disclosing disputant, however, the value to the mediator of such information is that, armed with such information, the mediator can suggest when options may or may not be attractive to the other disputant. However, if disputants are encouraged to disclose their BATNAs to each other, it can have a positive effect on reaching resolution, because each disputant will begin to understand the ramifications of not settling the dispute at the mediation. Another valuable use of the separate session is when there are heightened emotions at play in the dispute. In such cases it is better to separate the disputants sooner rather than later. This will diffuse any tensions that threaten to destabilise the mediation. In some mediations, where disputants are displaying high levels of animosity towards each other, it may be appropriate to have a very short first joint session and then virtually break off into separate sessions as soon as the mediator has explained the process of the mediation – of course this should only be done in extreme circumstances. The converse is also true. Where disputants are happy to discuss the dispute in its entirety in joint session, then the mediator should not stop that process. Remember, mediation is really a process owned by the disputants and they should be allowed to dictate the procedure for reaching agreement. One word of warning though – the mediator must make sure that the interests have been disclosed to a point where any settlement will be based upon interests and not positions. The dangers of settling on positions as opposed to interests have been discussed above in Chapter 2. Once the mediator is satisfied that she or he has all the relevant information and has correctly identified the interests of the parties, above those disclosed in the first joint session, the mediator moves the disputants to commence option generation. In other words, each issue is raised in separate session and options are generated that may be acceptable to both parties in the final resolution of the dispute. One of the cornerstones of mediation is that the mediator him or herself does not merely decide the options on behalf of the disputants. The key to mediation’s success is to allow the disputants to design the settlement themselves and therefore be more motivated to ensure that the settlement is implemented fully. Therefore, the mediator should not be making suggestions as to what sort of options should constitute the

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settlement. However, if that rule were strictly adhered to, there would be fewer successful outcomes in mediation than are currently occurring. In truth, the mediator may need to take an active role in encouraging option generation by disputants. This in turn may involve the mediator cajoling disputants into making suggestions and this means that sometimes mediators may have to contribute ideas themselves in order to ‘get the ball rolling’. Mediators need to be proactive when it comes to option generation. They should employ visual aids to help motivate the disputants. For example, the mediator needs to list the issues and encourage the disputants to contribute options that may help fashion the ultimate settlement. Being very active, in the physical and intellectual senses, during this step in the mediation model can motivate the disputants to join in and contribute ideas. Ultimately, the mediator is looking for multiple options in order to present a package of ideas to the other disputants in the hope that some of them might be suitable enough to resolve the dispute. Once the mediator has had one or more separate sessions with one disputant to settle the issues and interests and to generate the first set of options, they should conduct the next separate session with the other disputant and follow the same process of option generation with them. After completing this first option generation session with the second disputant, the chances are that the mediator will find the option generation sessions with both disputants to have produced some options suggested by both disputants. Logically, these are the options that at first instance are most likely to be agreed upon by both disputants as constituting the basis for settlement. The mediator should go back to the first disputant with the good news that the second disputant has accepted some of the options suggested by the him or her. And so the mediator goes back and forth seeking agreement on the various options being suggested by the disputants for the various issues at stake. As the mediator works between the rooms containing the disputants, each package of options for each issue is refined to the point where the disputants have almost agreed to settle the dispute. As the mediator moves from option generation to fashioning a settlement on behalf of the disputants, he should reality test the options as they move from just being an option to being part of the settlement. Reality testing means testing the option for its potential to actually work as a settlement option. In other words, will the option practically work if the disputants agree on it? Also, how will the option work if the disputants agree on it? A good example, in disputes

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involving an issue of quantum, is where a party agrees to settle a dispute in part for an agreed sum of money. Reality testing would include discussing with the parties issues such as: (a) when the money is going to be paid; (b) how it will affect the cash flow of the drawer; (c) if the disputants have agreed on payment by instalments: (i) when the payments will be made; (ii) whether there is to be an interest component to the payments; (iii)how the will payments be made; (iv)how the will payments be receipted and whether there is any additional charge for such receipt; and (d) whether any litigation on foot will be discontinued or adjourned pending the successful implementation of the settlement agreement. These questions on how the settlement is to be practically implemented are important questions that the mediator has to raise with the disputants as they are the sort of issues that, if left outstanding, can cause an agreed settlement to not be honoured by one or more of the disputants. Mediators should not leave reality testing settlements too late in the mediation process. In fact, reality testing is best done in separate session as, once the parties feel as if they have agreed on a package of options that will form the settlement of the dispute, they dislike being asked to consider further terms to what they considered a final agreement. Figure 3.1 is a diagrammatical representation of the progression from identifying interests through the stages of separate sessions to finality of the dispute in settlement. The apex of the triangle indicates settlement, whereas the base of the triangle represents the opening stages of the mediation where issues and interests are discovered. As the mediation moves upwards from its base: interests are clarified; options are generated, refined and reality tested; and settlement takes place. In other words, the bottom of the triangle represents a large collection of options being considered, which are gradually refined as the disputants move into further separate sessions that seek to eliminate the options that are less attractive or are eliminated due to

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reality testing. The result at the apex is settlement. Translating this into the procedural aspects of mediation means the mediator will continue to fashion a settlement from the options and move the disputants towards settlement only reconvening the final joint session when the disputants are in the final stages of agreement on the settlement of the dispute.

Figure 3.1: Moving from joint to separate sessions and back again

Settlement (write up settlement)

Second joint session (final agreement on resolution)

Fourth separate session (refine options and reality test them)

Third separate session (test options and continue to option generate)

Second separate session (refine interests and option generate)

First separate session (clarify issues and interests)

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Final joint meeting When the mediator has negotiated with the disputants to the point of agreement on a range of options that will constitute the settlement and has reality tested those options so that the disputants are ready to formalise their agreement, the mediator will convene a final joint meeting. At this meeting the disputants will finalise the settlement and discuss any outstanding small issues yet to be canvassed in the separate sessions. The disputants should discuss implementation of the settlement and set timelines for the achievement of certain elements of the settlement agreement. Further, the disputants will determine whether they need to meet again and, if so, set a schedule of meetings to ensure the proper implementation of the settlement. Writing up the settlement Once agreement has been reached on a settlement, it should be committed to paper and signed by the disputants. This is to ensure that the disputants can recall the terms of the settlement in the future and properly implement it. It may not matter to the disputants whether the settlement is embodied in a deed or a contract. If the disputants wish to avoid paying consideration and State imposed ad valorem stamp duty on the agreement, then a deed may be more appropriate. However, disputants should always remember that equity will not assist a volunteer, meaning, for example, that should the deed not be complied with by one disputant, the innocent disputant’s remedies may be limited to that provided by the common law. In such cases, effective equitable remedies such as specific performance of the agreement may not be available to force the noncomplying party to implement the deed of settlement. Therefore, the disputants may be better off embodying the settlement in a contract, thereby accepting the payment of some form of consideration and ad valorem stamp duty. Disputants may wish for a lawyer to draft the settlement agreement into a document. Whilst this is always advisable, disputants should instruct their lawyers with some attention to detail about how the document is to be drafted. Many a settlement has fallen over because of overzealous lawyers trying to protect their client’s interests. Whilst lawyers should not be criticised for trying to protect their client’s interests, chances are that the lawyers were not privy to the mediation and, therefore, will not understand the discussions that led to the settlement. In other words, if disputants are giving up some

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of their rights in a mediated settlement, there is probably a good reason for doing so and unless the lawyers were privy to the negotiations that took place during the mediation, they may not understand why this is so. Another area of concern at this critical stage of the mediation is where lawyers seek to add further terms to the settlement that will benefit their own client. Again, whilst the lawyer is probably acting with good intention, disputants should be wary that this sort of post-mediation tactic can ruin the entire mediation and cause the dispute to flare up again. Once the document has been drafted and approved by both disputants, it should be signed and copies distributed to the disputants so that the implementation can commence. If the settlement is in deed form, then the deed should be witnessed. If the settlement is in the form of a contract, then no witnesses will be required. One thing that should be agreed upon and embodied in the document is who is to pay any stamp duty on the document, should such duty be payable in the jurisdiction the document is signed in. A fair way to resolve this issue is to have the disputants pay equal shares of the duty. One of the disputants should take the responsibility to ensure that the relevant government authority validly stamps the document and its duplicate and then the duplicate sent to the other disputant.

What if the disputants do not settle? Not every mediation manages to settle a dispute. Should a disputant or disputants decide to terminate the mediation, the mediator should take two steps before allowing the disputants to leave the mediation. First, the mediator should discuss the reasons for terminating the mediation. Perhaps, as a final effort to salvage the mediation, the disputants and the mediator can solve the issue that is causing the mediation to fail. If the problem is merely the failure to resolve an issue to the satisfaction of one or more disputants, then the mediator should suggest moving on to other issues and discussing later the issue causing the potential termination. If the disputants themselves are having personality clashes, then the mediator should try helping the disputants to separate the people from the problem as discussed in Chapter 2. A good way to do this is to use separate sessions to ensure that the people do not get mixed up in the problem. There is nothing wrong with finishing a successful mediation in separate session, although it is always desirable to finish with a joint session. To summarise, the first thing a mediator should do when termination is

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suggested is to try and save the mediation by speaking with the disputants about the progress that has been made, the disputants’ BATNAs and the potential for success. Only when the mediator has tried to save the mediation should step number two be used. Step number two is to try and allow the disputants to leave the mediation with something constructive in the way of resolving the dispute. This is best understood in light of the judgment by Ipp J in Capolingua v Phylum Pty Ltd (As Trustee for the Gennoe Family Trust and Others) (1989) 5 WAR 137 at 140, a case discussed in more detail below, where his Honour stated: In my view where, at a mediation conference, a party to an Expedited Proceeding under O 31A adopts an obstructive or uncooperative attitude in regard to attempts to narrow the issues, and where it is subsequently shown that, but for such conduct, the issues would probably have been reduced, the extent to which the trial is in consequence unnecessarily extended is a relevant factor when deciding upon an appropriate award of costs.

In other words, one of the benefits of mediation is that it can promote the process of narrowing issues for resolution either by curial or noncurial means. In the above case, the court deprived the winning party, the defendant, of their costs because of their obstructive conduct during the mediation process. It is generally accepted that one of the benefits of mediation is its ability to assist the disputants to narrow issues and identify which of the issues identified should be mediated. In this respect, it would be a shame, should the mediation not settle, for any achievements on the narrowing of issues to be lost merely because the dispute was to continue or be listed for hearing in court. The mediator can serve a vital role in helping the disputants identify those issues that may ultimately be arbitrated, litigated or the subject of any other form of dispute resolution. The mediator should help the disputants document any narrowing of issues so that it may assist in the further resolution of the dispute in some other forum. Should it be appropriate, the mediator may refer disputants to other agencies that may assist in the resolution of the dispute, such as counsellors or the CJCs.

Mediation — a moveable feast! The classical mediation model, as discussed above, sets out a step-bystep process of conducting mediation. However, as has been stated above, it should not be viewed as being a rigid model that must be 80

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adhered to. The beauty of dispute resolution is its flexible nature and in this respect the above model should be applied flexibly. For example, the running of separate sessions is at the discretion of the mediator and the disputants, as is the reconvening of joint sessions throughout the mediation. Mediators should reconvene a joint session if there is an issue that needs joint discussion or where a joint option generation session would be of value. Sometimes the dynamic of having the disputants in the same room can provide the impetuous for a more fruitful option generation session. Another reason to reconvene joint or separate sessions is if the disputants request it – remember, even though the advancement of the process is the responsibility of the mediator, the disputants are responsible for the outcome and whether the mediation proceeds in joint or separate session could certainly affect the outcome. Figure 3.2 is a diagrammatic representation of the classical mediation model that not only sets out the steps of mediation, but also suggests that mediation can be split into two phases. First is the investigative phase that requires the mediator and the disputants to seek a better understanding of the dispute by using questioning techniques to discover the issues, positions and interests of the dispute. Not only does the mediator and the disputants probe each other for information, they also check information by closed ended and circular questioning techniques. At the end of this first phase the mediator and the disputants should have a greater understanding of what is driving the dispute in terms of the disputants’ interests and what their BATNAs are likely to be. Also, any potential common ground should have been established and agreed upon by the disputants. Once the mediator is satisfied as to the adequacy of the investigation and that there is a threshold of information available to begin working on the resolution of the dispute, the mediator should move to the next phase of the mediation, that is the option generation phase. In this phase the mediator and the disputants proceed to generate options based on their understanding of the interests at play in the dispute. Just because the mediator has moved to the option generation phase of the mediation does not mean that the investigation of issues and interests ceases. Often new issues will emerge or interests may change during the option generation phase of the mediation. Mediators have to be prepared to address new issues and interests in these circumstances and be able to jump back into the investigative phase should circumstances dictate.

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Figure 3.2: The classical mediation model

{ {

Investigation phase

Option generation phase

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Mediator’s opening statement

Disputants’ opening statements

Identifying the issues

Identifying common ground

Identifying early options and agreement

Separate sessions

Final joint meeting

Writing up the settlement

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The hallmarks of mediation The philosophy of mediation revolves around five hallmarks that have set mediation apart from any other curial or non-curial form of dispute resolution. When mediation was recognised as a formal method of dispute resolution it was distinguished on the basis of these hallmarks. However, today it appears that some of these hallmarks have been compromised and may have fallen by the wayside These hallmarks have been the subject of great debate and whilst this book advocates the flexible nature of dispute resolution, it is submitted that mediation probably works best if these hallmarks are allowed to exert their influence on the process. However, the process belongs to the disputants and if a hybrid form of mediation assists them in resolving their dispute, then the existence of the hallmarks becomes moot. Confidentiality The issue of confidentiality in the classical mediation model is best summed up by Folberg and Taylor in their landmark book: Mediation: A Comprehensive Guide to Resolving Conflict Without Litigation (1984, San Francisco: Jossey Bass), where they state, at 264: Mediators are bound not to discuss with other people what is revealed to them in mediation unless such revelations are agreed to by the participants or compelled by a court order or statute.

In this respect, mediations are generally conducted behind closed doors with no observers from the public unless the disputants agree to such a presence. Generally there is no transcript of proceedings and any notes taken by the mediator are generally destroyed at the conclusion of the mediation. Confidentiality is a hallmark of the classical mediation model because Western society is used to internalising disputes. That is, Western society generally characterises conflict as being unwanted, embarrassing and to be avoided at all costs. The private nature of Western society is such that they generally do not make public what they consider to be private. The element of confidentiality of the mediation process is seen as a major incentive for people to attend in the first place. Confidentiality arises in a number of ways in mediation. It may arise throughout the course of the mediation where disputants may discuss certain issues in separate session with the mediator that are not to be revealed to the other disputant. The only exception to this is

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where the disclosing disputant gives permission for the mediator to divulge such information. If mediators divulge such confidential information, they risk losing the confidence of the disputants as well as having committed a major breach of their ethical duty towards the disclosing disputant. If there was no guarantee of confidentiality in mediation, then disputants may not be willing to discuss certain information that could assist in the discovery of interests and BATNAs and this would seriously undermine the prospects of resolution and therefore the value of mediation. Confidentiality as it pertains to statutory schemes will be discussed in more detail in Chapters 5 and 6, so the remainder of this discussion will deal with contractually prescribed confidentiality and common law confidentiality. Dealing with the former first, it can be said that the most common form of the requirement of confidentiality arises by the disputants and other attendees at the mediation signing an agreement that prohibits the disputants, other parties and the mediator disclosing the contents of the mediation. The NSW Law Society’s Agreement to Mediate appears as Appendix 4 and sets out the parameters of confidentiality that contractually bind the disputants and other parties to the mediation: 15 The parties and the mediator will not disclose to anyone not involved in the mediation any information or document given to them during the mediation unless required by law to make such a disclosure. 16 The parties and the mediator agree that subject to Clauses 20 and 21, the following will be privileged and will not be disclosed in, or be the subject of a subpoena to give evidence or to produce documents, in any proceedings in respect of the Dispute: 16.1 Any settlement proposal whether made by a party or the mediator. 16.2 The willingness of a party to consider any such proposal. 16.3 Any statement made by a party or the mediator during the mediation. 16.4 Any information prepared for the mediation.

The NSW Law Society provides a raft of directions on the issue of confidentiality. Its suggested dispute resolution clause for inclusion in contracts states: 17 A party may prove objective facts, whether or not confidential, by direct evidence in any proceedings in respect of the Dispute. Subject

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to that, all confidential information disclosed during the mediation, including the preliminary steps: 17.1 may not be disclosed except to a party or a representative of that party participating in the mediation or if compelled by law to do so; and 17.2 may not be used for a purpose other than the mediation.

Clause 17 needs to be read with clause 25, which provides: 25 In the event that part or all of the Dispute is settled either party will be at liberty: 25.1 To enforce the terms of the settlement by judicial proceedings. 25.2 In such proceedings to adduce evidence of and incidental to the settlement agreement including from the mediator and any other person engaged in the mediation.

The NSW Law Society’s Revised Guidelines for Solicitors who Act as Mediators states: 6.1 The mediator shall not voluntarily disclose information obtained during the mediation process without the prior consent of both parties. 6.2 The obligations of a solicitor relating to confidentiality as between solicitor and client shall apply as between the mediator and the participants. 6.3 If subpoenaed or otherwise notified or requested to testify, the mediator shall inform the remaining participants immediately. 6.4 Information received by the mediator in private session shall not be revealed to the other parties without prior permission from the party from whom the information was received. 6.5 The mediator shall, prior to entering into the mediation process, obtain all parties’ agreement not to require the mediator to give evidence or to produce documents in any subsequent legal proceedings concerning the issues to be mediated upon. 6.6 The mediator shall inform the parties that, in general, communications between them, and between them and the mediator, during the preliminary conference and the mediation, are agreed to be confidential. In general, they cannot be used as evidence in the event that the matter does not settle at the mediation

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and goes to a court hearing. The mediator shall also inform the parties that they should consult their legal representatives if they want a more detailed statement of the position or if they have any specific questions about it. 6.7 The mediator shall render anonymous all identifying information when materials are used for research or training purposes. 6.8 The mediator shall maintain confidentiality in the storage and disposal of records.

And the NSW Law Society’s Charter on Mediation Practice – A Guide to the Rights and Responsibilities of Participants, states: What is discussed in mediation is confidential unless disclosure is required by law. This means that in nearly all cases, confidentiality will be maintained. Mediators cannot be called as witnesses in any court proceedings which may take place in the future. The mediator will not mention anything discussed by you during a private session to other parties during the mediation (unless you request the mediator to let the other parties know), or to anyone else following the mediation.

What the above documentation seeks to do is to ensure confidentiality between the disputants, other parties to the mediation and the mediator, thus preserving one of the philosophical hallmarks of mediation. Whilst Australian courts have not addressed the issue of a direct breach of a confidentiality clause in a mediation agreement, there have been several cases where a court has admitted evidence of the proceedings at a mediation to adjudicate on applications to have settlement agreements set aside on the basis of duress and capacity. It is likely that should a case be litigated where mediation failed and one disputant seeks to adduce evidence of, for example, certain admissions made by the other disputant, then it is likely that the court will probably enforce the confidentiality clause of the agreement on the basis of public policy. That is, the court will want to encourage the use of dispute resolution by disputants, and by not enforcing such a clause, the courts would be discouraging a full and frank discussion of the issues that could lead to resolution. This view is consistent with clause 6 of the NSW Law Society’s Revised Guideline for Solicitors who act as Mediators. As well as the public policy view, the courts would probably apply the accepted view espoused by the House of Lords in Hillas and Co Ltd v Arcos Ltd at 512 that ‘the problem for a court of construction must always be so to balance matters, that without violation of essential principle the dealings of men may as far as possible be treated as effective, and that the law may not incur the

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reproach of being the destroyers of bargains’. In other words, the courts will try to encourage disputants to be bound by their own agreements, and the courts will not destroy those bargains that disputants have agreed upon in contract. Even if disputants have not signed a mediation agreement providing for confidentiality between the disputants, the common law may still seek to preserve confidentiality between them. It must be remembered that confidentiality operates to the benefit of the disputants. The mediator has no interest in compromising the confidentiality of the mediation. It is the disputants who wish to prevent certain information from being disclosed into the public domain or from being admitted into evidence in curial proceedings that may flow should the mediation either not be successful or after a successful mediation a breach of the subsequent settlement agreement occurs. Once again, to preserve and encourage disputants to resolve their own disputes, the common law provides some protection over the confidentiality of those negotiations. The common law protection is generally known as ‘without prejudice privilege’. Providing three basic conditions are complied with, the common law will protect the discussion of certain information and prevent it from being adduced into evidence in court. First, there must be a dispute between the parties. Secondly, the discussions must be with a view to resolve the dispute. Finally, there must be some offer or prospects of an offer to settle emanating from the discussions. This last step is to prevent ‘fishing trips’ by overzealous litigators being disguised as without prejudice negotiations. The one notable exception to without prejudice privilege is where agreement has been reached and one or more disputants breach the settlement agreement. In such cases a court must be able to hear evidence, parole and otherwise, in order to decide whether to enforce the settlement agreement. This is consistent with clause 25 of the NSW Law Society’s suggested dispute resolution clause for contracts, extracted above. Providing the above three common law requirements are met, the law will generally apply without prejudice privilege thereby protecting the confidentiality of mediation. However, to be clear about its operation, disputants should perhaps expressly establish it which is why the heading ‘without prejudice’ often appears at the top of correspondence seeking to resolve disputes between disputants. Again, for public policy reasons courts will generally allow common law privilege to apply to third parties of a privileged negotiation or mediation.

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Another area to be careful of is the production of documents at mediation. In some cases these documents will not be immune from discovery. In AWA Ltd v Daniels (t/a Deloitte Haskins & Sells) & Others, AWA sued its former auditors for breach of duty and in a mediation conference disclosed the existence of deeds denying any negligence of its directors and fully indemnifying them against any claim in relation to the matter before the court. When the mediation was unsuccessful, the defendants issued notices to produce the deeds. AWA claimed that the mediation was carried out without prejudice and on a confidential basis. The Supreme Court of NSW – Commercial Division, accepted the defendant’s argument that their solicitors knew of the existence of the deeds prior to the mediation and that their production should have occurred at the discovery stage of the interlocutory proceedings prior to hearing. This judgment provides a stern warning for disputants, that documents referred to in mediation, providing they are admissible under general law, will not be protected by the confidentiality of the mediation process. Voluntariness Another of the hallmarks of mediation is its voluntary nature. That is, disputants should come to mediation on a voluntary basis and not be forced into participating in the process. The reason voluntariness is a hallmark of mediation is that if the disputants come to mediation of their own volition, then it is assumed that they are more committed to the process of seeking a non-curial resolution of their dispute. In this respect the disputants will be more committed to participate in good faith and to find and implement a settlement of their dispute. However, whilst private mediation still requires the disputants to attempt mediation on a voluntary basis, the voluntary nature of mediation has been compromised by the advent of court annexed mediation schemes. In NSW, Victoria, Queensland and South Australia, as well as in the Federal jurisdiction, courts can order mandatory mediation if it considers the circumstances appropriate with or without the consent of the disputants to the proceedings. Two propositions flow from this. Firstly, the mediation purists may say that the imposition of mandatory mediation is a retrograde step in the establishment of a culture of dispute resolution. Secondly, mediation rationalists may say that the voluntary nature of mediation has been so convincingly compromised over the past decade by legislation in Australia, that this hallmark of dispute resolution has changed forever. One of the reasons legislators have embraced dispute resolution is

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because it allegedly reduces court delays and the costs of litigation. Upon the introduction of mandatory mediation legislation in NSW on 8 June 2000, the then Attorney-General, the Honourable Jeff Shaw MLC, stated in the NSW Legislative Council: The bill reflects the current view that many matters are better dealt with by alternative dispute resolution forms rather than the expense and formality of litigation. That does not deprive the parties – the plaintiffs or the defendants – of their ultimate rights to have matters determined by a court. I would adhere to that as a matter of principle. The bill provides alternative, less formal and less expensive modes of resolution of controversies between citizens, and I believe makes a significant contribution to that process.

However, not all practitioners and commentators agree with this proposition. Barrister and critic of mandatory mediation, TFM Naughton QC, has criticised mandatory mediation in the courtannexed scheme operating in the NSW Land and Environment Court in an article entitled ‘Mediation and the land and environment court of New South Wales’ (1992) 9 EPLJ 219: Compulsory mediation is a contradiction in terms and likely to lead to increased, rather than reduced, cost and delay. Mediation is a voluntary process of negotiation facilitated by an independent third person chosen, or approved of, by the parties themselves. As Hilary Astor and Christine Chinkin say in their recent [sic] book Dispute Resolution in Australia: ‘Any sort of compulsion or encouragement to attend mediation from a person in authority, however it may be subverted, compromises its consensual character, and the reality of consensuality is most likely to be compromised by some form of close connection with courts.’

In an article by Professor Jennifer David entitled ‘Designing a dispute resolution system’ (1994) 1 CDRJ 26 at 32–33, David discusses the ‘willingness factor’ of ADR and how a desire to settle is the hallmark of most dispute resolution: Experience has shown that willingness to negotiate and to bargain in good faith is the decisive factor in whether a case is suitable for conferencing or mediation. The experience of the Commonwealth Administrative Appeal Tribunal is that: ‘No dispute whether before the Tribunal or elsewhere is incapable of resolution if all the parties want to resolve and want to participate in the process of exchange of information permitting the generation of settlement options.’ All cases are suitable so long as parties are committed to finding a solution to their problem.

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It is said that mandatory ADR removes the ‘willingness’ element of the process and does not give the disputants the appropriate motivation to settle. Not only does this factor affect the rate of settlements but also, some would say more importantly, the rate of effectiveness of settlements. That is, whether settlements last until implementation and finalisation – a point not lost on David, at 34–35: Experience is that settlement rates are lower when mediation is compulsory. It is possible to coerce parties into mediation, but it is not possible to give them the desire to settle. When parties choose mediation voluntarily it is because they really desire to settle, whereas when they are coerced they are usually not so willing to look for possible solutions.

A pioneer of mediation in the Commonwealth Administrative Appeals Tribunal (AAT), Senior Member John Handley, also has strong views on the value, if any, of mandatory mediation that he expressed in an article entitled ‘Mediation in the Commonwealth Administrative Appeals Tribunal’ (1995) 6 ADRJ 5, at 8: It is our belief that parties will not enter mediation in good faith nor will they be willing to work towards resolving conflict if they enter the process by an Order or a Direction of the tribunal. Voluntary participation also ensures that mediation will not be used as a case management tool or used by the tribunal to ensure or manipulate speedy resolution of applications for the sake of case management.

Lawyer Michael Dawson stated the disadvantages of mandatory ADR as being essentially twofold, in an article entitled ‘Non-consensual alternative dispute resolution: pros and cons’ (1993) 4 ADRJ 173. Firstly, a mandatory scheme disadvantaged poorer litigants. Dawson’s reasoning was that, given that about 90% of civil disputes settle before final hearing, the imposition of a mandatory ADR process placed an additional financial burden upon disputants who may have settled anyway. He stated, at 176: Encouraging settlement by necessity disadvantages poorer disputants. The poorer litigant is generally more susceptible to an early settlement which may be significantly less than that to which he or she is entitled.

Secondly, Dawson alleged that mandatory ADR compromised personal rights. Dawson stated, again at 176: Encouraging settlement also promotes the dominance of State rights over those of the individual. The informal nature of settlements inhibits change and, therefore, developments. Legitimate grievances and rights are compromised and suppressed. Individual rights will not expand and develop under mandated ADR.

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As well as this notion of inhibiting rights comes the argument that the State plays a larger role in the lives of the citizenry as opposed to the independent judiciary, a situation that in the United States has raised some concerns over constitutional rights, such as the right to trial by jury and the separation of powers. Another argument against mandatory mediation centres on the spirit and ethics of the process. In order to achieve settlement that satisfies the interests of the disputants, the disputants themselves must attend and participate in the spirit required by the process. This spirit has been referred to above as the ‘willingness’ to seek a settlement that more often than not will include compromise. In an article entitled ‘Court-ordered ADR: sanctions for the recalcitrant lawyer and party’ (2000) 11 ADRJ 12, lawyer Garnt Dearlove stated, at 16: In a process that is voluntary, parties enter it cognisant of the spirit that is required to achieve the primary objective of resolution. With courtannexed mediation the involuntary nature of the exercise requires the court to remind the parties of the spirit in which it should be conducted.

In other words, a party which is forced to attend a dispute resolution process may not possess the spirit to seek settlement and the job of the court will be to continually remind that party of the spirit of the process. This once again proves the point of dispute resolution purists who suggest that the voluntary nature of such processes is an important hallmark because the third party intermediary need not be intrusive in reminding the disputants of the spirit of the process and the disputants themselves are motivated to attend. Balancing the negatives of mandatory mediation with its positives, David, above at 35, stated her views on the positive effects of mandatory ADR programmes. She quoted the National Standards for Court-Connected Mediation Programs of the USA Institute of Judicial Administration, which suggested that mandatory mediation should be imposed if it was more likely to serve the interests of the disputants, the justice system and the public than would voluntary attendance. Perhaps this is the sort of guidance Australian courts will need to follow when making orders under mandatory mediation legislation. Further, mandatory mediation should: be publicly funded; ensure there is no pressure to settle exerted on the disputants; ensure high quality programmes; be easy to access; permit party participation; allow legal representation if desired; and provide clear and complete information about the process and procedures to be followed. David highlighted the Law and Policy Committee of the Society of Professionals in Dispute Resolution (SPIDR)’s report on mandatory

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mediation, which listed the positive effects of mandatory mediation as being that disputants frequently respond positively to face to face meetings and that mandatory programmes improved the low rates of voluntary usage. Dawson listed the advantages of mandatory ADR as being: (a) The parties frequently respond favourably to mandated dispute resolutions. Some are glad to have the court control the procedures. (b) Because parties or their lawyers may be more accustomed to the litigation process, rates of voluntary usage are often low. Mandating the use of such processes may increase substantially the total number of cases settled through their use. (c) Effective dispute resolution programmes require adequate administrative support. By increasing the caseload, mandated participation allows the administration to be provided on a costeffective basis. (d) The expanded use of these processes as a result of mandating participation will serve to educate parties and their lawyers, resulting in an increased bond for use of dispute resolution programmes outside the court processes … (e) The many general institutionalised.

advantages

of

ADR

are

becoming

(f) The timing and type of ADR can be controlled in order to save court and litigants’ expenses, for example, enforcing ADR at a stage immediately before a significant expense is to be undertaken. (g) Lawyers and participants are becoming educated to consider settlement even before litigation. (h) Corporations are being forced to make decisions or involve themselves in ADR. Litigation is often the path of least resistance particularly when corporations are involved. Junior executives can explain bad results by blaming it on the court. The result of an ADR process is much more confrontational and, therefore, avoidable unless compulsory.

A common theme running through the above arguments in favour of mandatory mediation is that participation in mediation might do the disputants some good despite their original reticence. In an article entitled ‘The courts, tribunals and ADR: assisted dispute resolution in the Federal Court of Australia’ (1996) 7 ADRJ 138, the Chief Justice of the Federal Court of Australia, the Honourable Justice Black, speaking

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in 1996, and foreshadowing recommendations that resulted in amendments to s 53A of the Federal Court of Australia Act 1976 (Cth) changing participation in mediation from consensual to mandatory, stated his view at 144, on the advantages of mandatory participation in court-annexed mediation: The proposal that there should be power to direct mediation even when the parties do not consent recognises that there may be some cases in which, despite the initial opposition of one or more parties, mediation can be valuable. This is not to say, of course, that if the power was available, it should be exercised frequently; clearly, the desirability of ordering mediation will depend upon all circumstances of a particular case. As in all cases, but especially in the context of a compulsory referral to mediation, care should be taken to guard against a party being disadvantaged by the mediation process.

Once again, we see some guidance on the use of the power of a court to order mandatory participation in mediation. In short, such power should be used in consideration of the impact that mediation will have on the disputants involved. Continuing on the theme of mediation being ‘good for’ the disputants, Justice Rogers, the then Chief Judge of the Commercial Division of the Supreme Court of New South Wales, stated in AWA Ltd v Daniels t/a Deloitte Haskins and Sells & Others (1992): ... the question is whether there is any utility in requiring parties, who are clearly bent on being difficult, to submit to conciliation processes. In my view there is. An independent third party can bring a different perspective into such procedures and can bring about a settlement even between parties who are evidently bent on litigation.

The arguments for and against mandatory mediation are compelling. It seems that forcing disputants to participate in such processes may do damage to the philosophical base of mediation. Yet maybe forcing disputants into mediations may benefit them in the short term should they reach a settlement or, at the very least, define more narrowly the issues for litigation. Revisiting the two propositions first stated: firstly, from mediation purists, who may take the view that the imposition of mandatory mediation is a retrograde step in the establishment of a non-curial dispute resolution culture in society. To this it can be said that in terms of the philosophical base, the proposition is probably correct. There is no doubt that making mediation mandatory compromises its consensual nature, said to be one of the hallmarks of mediation. Secondly, from the mediation rationalists, the proposition that the

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voluntary nature of mediation has already become so compromised by its rise in popularity, that making it mandatory is of little or no consequence. To this, it could be said that the mythology of ADR probably outweighs its reality. Finally, it could be said that mandatory mediation would probably not do any irreparable harm to the philosophy and practice of mediation in Australia. The one compelling factor is that whilst forcing disputants to participate in mediation will probably not do them any harm, and may in fact surprise them in relation to what may be achieved, it may also assist them to resolve or narrow issues that will be of benefit should the matter proceed to litigation. Also, whilst disputants may be forced to participate in mediation, at the end of the day, they still control the process of settlement. Empowerment There is a popular belief amongst those involved in mediation that it is a process that empowers disputants by allowing them to control the process and the outcome. In an article by A Davis and R Salem entitled ‘Dealing with power imbalances in the mediation of interpersonal disputes’ (1984) Mediation Quarterly, No 6 at 17, the authors state that ‘mediation is empowering because it is a voluntary process and that the fact that the parties are in mediation means that they have chosen to take responsibility for working on their own solutions’. In this respect, mediation is said to return to the disputants the power to deal with the dispute on their own terms as opposed to having a resolution imposed on them by a third party. On one level this may be true. That is, mediation allows disputants to become involved in the resolution of their own dispute by contributing to the outcome. However, whilst empowerment is said to be one of the hallmarks of mediation, its ability to empower its users is gradually being whittled away, mainly by state control, as is its use as a tool to depoliticise conflict and stabilise power within society. Disputes are a valuable commodity and like any object of value in capitalist society, it is susceptible to being stolen. The larceny of disputation is perpetrated by the State through its instrumentalities such as: police; courts, tribunals and commissions; government departments; and publicly funded advocacy groups. In the private sphere, dispute thieves are generally: psychologists; psychiatrists; social workers; and lawyers. Most of these dispute thieves, whether employed by the State or by the private capitalist owners of

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production, owe their very existence to the theft of disputation. In an article by N Christie entitled ‘Conflicts as property’ (1977) 17 BJC 1, disputation or conflict thieves are described, at 7, as being: ... particularly good at stealing conflicts. They are trained for it. They are trained to prevent and solve conflicts. They are socialised into a subculture with a surprisingly high agreement concerning interpretation of norms, and regarding what sort of information can be accepted as relevant in each case.

The theft of disputes is no accident. Disputation thieves encourage society to leave their disputes available for theft. They create a system that is unfriendly to society. For example, the legal system consists of courts that are situated in administrative centres away from where individuals live. The courts themselves are complex and formal to the point of intimidating any disputant brave enough to enter without a lawyer. They discourage lack of representation and involvement directly by the disputants by creating a plethora of complex rules, regulations and procedures. In criminal matters, the State assumes the role of one of the parties, almost always the victim, and does not allow that party to be engaged in the resolution of the conflict. The result of disputation theft is that society comes to accept the role of the thieves. So accepting is it, that it allows the thieves to: encourage the theft through advertising; organise themselves into cooperatives, unions or professional bodies; charge fees for the handling of disputes; lobby governments that they are the only members of society capable of handling disputation; and continue to encourage the complexity of dispute management in order to perpetuate the larceny. Society’s response to disputation becomes simply to hand their dispute to the nearest, cheapest or most convincing thief. They become fearful of moving without professional advice and precedent. It is because of the commercialisation of dispute handling that professional thieves have appropriated disputation as their own. In the law, this is evidenced by the professional organisations that have evolved since the formal advent of dispute resolution, some of which have encouraged dispute resolution accreditation for their members. In an article entitled ‘Social work and mediation: hemlock is the flavour of the month’ (1992) 45 Australian Social Work 17 at 18, W De Maria argued that the appropriation of dispute resolution by lawyers is a cause for concern. The belief stems from the fact that because lawyers are task-monopolists and largely conservative, dispute

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resolution will become, if it has not already become, ‘professional artifacts, copyrighted income, locked up within the lawyering role, not to be shared, but to be given down at a fee’. Disputation thieves are also responsible for the loss of local resolution strategies which are outside of the State’s control. Not only have the thieves deprived society of a solution to any given dispute, they have also prevented long term dispute resolution strategies from being instituted because society no longer understands how to handle disputation, or to even follow a dispute resolution precedent. This runs counter to the notion that dispute resolution educates people to deal with future disputes. In most dispute resolution processes, the education is centred on the disputation thief assisting the disputants. The disputants themselves leave the process understanding that the disputation thief is knowledgeable about dispute resolution processes and that they themselves are not – otherwise, why would they have participated in the dispute resolution process in the first place? The disputants rely heavily on the disputation thief to solve the problem for them by invoking a dispute resolution process. Given the growth of a multi-million dollar dispute resolution industry and the polarisation of society in handling disputes brought about largely because of the disputation thieves, Christie suggests that perhaps it is time society reclaimed its own disputes, or at least begin to take preventative measures to stop the theft. The rise of dispute resolution can be explained alongside the change in the nature and domination of State power that, as will be shown, is the very antithesis of empowerment. In the area of dispute resolution, for example, we have seen a growth in community advocacy services. This places increased pressure on the State and its ability to deal equitably with the needs of those grassroots movements. The State usually responds by introducing rights-based legislation and the financing of advocacy groups. Access to justice to solve disputation has become more available through State-funded mechanisms, which attempt to control the increased demand brought about by the heightened activity of grassroots movements. Examples of such State funded mechanisms are the various State Legal Aid Commissions, the various nationwide community legal centres, the various State branches of the Environmental Defenders Office and other organisations that act as advocates for grassroots movements. Whilst the State attempts to stem the increased demand on its services by diverting disputes through State funded advocacy services, ultimately, upon those services failing to reduce the increased demand, the disputes revert to formal dispute resolution mechanisms.

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If the State cannot adequately respond to the increased demand on the formal dispute resolution mechanisms, it must either spend more money on increased resources or find other methods of resolving disputation. To this end, the cost of dispute resolution is generally said to be less than that of curial dispute resolution. Dispute resolution is seen, particularly by those with a vested interest in reducing the demand placed on State controlled mechanisms of dispute resolution, as a cost efficient alternative to the formal processes already available. In an interesting article entitled ‘Law and community: the changing nature of state power in late capitalism’ (1980) IJSL 379 at 389, B Santos argued that informal methods of dispute resolution stabilised power relations in society. Informal methods of dispute resolution mean that the users remain powerless and the balance between social relations in society will be restored since ‘no dramatic changes can be expected from institutions or settings which, due to the limits of their coercive powers, will be orientated to consensus and harmony’ (at 389). Santos has touched upon two central issues. First, social balance is restored because dispute resolution is informal and does not carry the same impact as the formal systems of dispute resolution. This means that the parties are not empowered, because the process they are participating in will not create a precedent or effect any worthwhile change in society. Second, it is argued that there can be no empowerment through a system that is consensus orientated. Whilst a balance of power may occur, one or more disputants will always have to give up power in order for the balance to exist. Thus, a consensual outcome may actually disempower some disputants. The result of the changing role of the State in dispute resolution is the increase in State control over social relations. Not only does the State remain in control of formal dispute resolution processes, it now has control over the informal ones, whose disputants may not have come to the attention of the State, had it not been for the informal processes. Nowhere is this more prevalent than in the area of community dispute resolution. In New South Wales, Victoria and Queensland, the CJCs and their equivalents operate within the State controlled Attorney-General’s Department. Over half of all matters mediated by the CJCs are referrals from chamber magistrates, courts, solicitors and police. Therefore, not only are over half of the referrals coming from State controlled instrumentalities, but under half of the disputes experienced by society are being brought into the purview of the State under the guise of empowering disputants to deal with their own disputation. The State has achieved the dual task of better distributing its resources and controlling a greater share of disputation thereby increasing its social control. 97


The legislation creating the CJCs or their equivalents are directive pieces of legislation which allow the State to exercise greater control over society’s ability to deal with disputation. In this respect they do little to empower disputants, rather they allow the State to become the controller of disputation on behalf of society. The power of the State under the legislation is best exemplified by the fact that it may refuse to mediate any dispute. In other words, the State has discretion to accept or reject any dispute it chooses. The power to use State run dispute resolution services is removed from the very society it seeks to empower. Further, the legislation gives the State, through the State employed mediator or official, the power to terminate any mediation session. According to De Maria, at 23, given the legislation, the CJCs or their equivalents are: ... nothing more than decentralised government agencies. The relationship a disputant has with one of these centres is the same as the traditional citizen-bureaucracy relationship. Similarly, the relationship mediators have with their centre is the same as any public servant has with their employing authority.

The legislation is a good example of a State strategy to control conflict. So bureaucratised are the State-run dispute resolution programs, that they are now just a part of the State-run bureaucracy that informalises and privatises justice. A by-product of State control over dispute resolution is that it becomes an over-regulated process, as opposed to the philosophical concept of it being a process determined by the disputants, thereby empowering them through control over the procedures and the outcome. Dispute resolution can thus be categorised as a process governed by a distinct set of rules. Any process governed by rules enshrined in legislation begs the question: how can such a process possibly be construed as empowering disputants? In most statutory dispute resolution schemes, the State determines the procedures for commencing and conducting a mediation session. The power to determine the procedures for resolving the dispute are removed from the disputants and placed under the control of the State. Similarly, most statutory dispute resolution schemes exclude the public from the dispute resolution process, and prevent friends, family members or supporters of a disputant from attending, unless with the permission of the State. The State now has control over who can bear witness to disputation and its resolution. It is suggested that dispute resolution does not necessarily empower its users, thereby casting into doubt the idea that the

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empowerment of disputants is a central hallmark of mediation. Logic tells us that if a third party is brought into a dispute, then the group dynamics are changed significantly enough to render a different distribution of power between the disputants. Given this intervention, whilst it must surely be conceded that dispute resolution does not restore absolute power to the disputants, it can be stated that some forms of dispute resolution, such as mediation, provide a better distribution of power than, for example, the absolute power of the State in matters proceeding to court. The juxtaposition of a State imposed decision compared to, for example, a mediated resolution, is profoundly different in terms of the restoration of power to the disputants. Perhaps it may be said that there are different levels of empowerment. Some may argue that dispute resolution does not provide any level of empowerment because of its inherent interventionary strategy. Others may argue that a process which allows a greater level of self-determination in terms of procedure and outcome, must surely empower its users. Perhaps within the theory of dispute resolution lies another dichotomy, that is, a scale where State controlled dispute resolution is associated with lower gradations of empowerment because of the level of State involvement and its associated implications and, at the other end of the scale, private dispute resolution, characterised as providing higher levels of empowerment because of the disassociation of the State. The problem dispute resolution faces is that any level of intervention can conceivably lead to gradations of disempowerment. What society needs to weigh up is whether levels of disempowerment serve it better than no empowerment at all. Neutrality The penultimate hallmark of mediation is said to be that the mediator is a neutral third party to the dispute. Neutrality, in this sense, relates to the mediator being neutral to the outcome of the dispute. In considering the process of mediation, it could be said that mediators have considerable power in mediation and that there is the potential for mediators to not always exercise that power in a neutral fashion. It is likely that mediators come to mediation with their own subjective notions of the outcome of the dispute. As well as this, mediators, like any human being, have their own views on a wide range of issues that may touch and concern any given mediation. In this respect the mediator’s ‘baggage’ could be said to impinge on any notion of absolute neutrality. This means that mediators can never be truly

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neutral – a problem that Western mediators have been grappling with for some time. However, in other cultural groups, the issue is well settled. In an article entitled ‘Mediating in Aboriginal communities’ (1996–97) CDRJ 245, the author explains how Australian Aborigines deal with the issue of neutrality, based on his experience in designing and teaching mediation for the NSW Aboriginal Land Council. The following expurgated extract, at 251 (omitting footnotes), explains how Australian Aborigines have resolved the neutrality issue long before Western culture realised the problem existed. The Citizens’ Advice Bureau Family Mediation Service, is based in Western Australia and provides mediators for disputes involving: family separation and divorce; married and de facto relationships; custody of children and access issues; finance and property disputes; and adults and young people in conflict. The Bureau had not, at 1992, mediated any disputes involving Aborigines. It had received a referral from the Western Australian Department of Community Development to mediate a dispute where one party was Aboriginal, however, the mediation did not go ahead because of a withdrawal. Its Director stated, ‘Aboriginal people are unlikely to use the service, because they would prefer to have members of their own cultural group as mediators’. This idea that Aboriginal people prefer third parties to be Aboriginal, is confirmed in studies by the Australian Institute of Aboriginal Studies, ‘Anyone dealing with Aborigines must be accorded a degree of insider status. One way this is marked is by adoption into the kinship system’. In a project proposal for the Queensland Department of the AttorneyGeneral, Joan Welsh considered the issue of Aboriginal versus nonAboriginal mediators to be uncontentious. She preferred to emphasise the importance of outsiders being brought in to mediate: Although the concept of training community mediators to empower the local community is attractive, most people regarded outsiders, particularly Europeans, as being seen to be the most unaligned group. They would need to be appropriate people who could show respect for the culture and use acceptable processes. In keeping with the policy of self-determination, Aborigines generally want to have their own people in the field equipped with the skills to manage and assist in the resolution of disputes arising between themselves, and between themselves and non-Aborigines. It is felt that, culturally, third parties who have some cultural understanding of Aborigines should resolve disputes. Also, that settlement of disputes is more likely to be implemented if the process is seen by Aborigines to be legitimate.

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The above discussion raises the question of how neutral a mediator can be, in a culturally different milieu where they are required to have some knowledge of the culture and, because of the community ownership of disputes, some understanding of the dispute itself and quite probably the parties involved in it. It appears that Aboriginal people experience extended family responsibilities and relationships bound by kinship ties that lie at the very heart of their civilisation. This is one reason that Aborigines display community ownership of disputes. In terms of Aboriginal mediator neutrality, this means: Aboriginal people don’t expect other Aboriginal people to be neutral. Being neutral for Aboriginals means the ability to be fair minded, but not detached because Aboriginals see feuding as being a shared experience. Neutrality in relation to feuding is something you won’t get Aboriginal people to understand or accept. Because of the community ownership of disputes, mediators are assumed to have an opinion on the dispute, even if they are not personally involved in it. Tribal elders, who are expected to take on the role of resolving disputes, have preconceived ideas about the dispute because of their own kinship ties and family networks. It has been found that there is an expectation that heads of families or tribal elders, who command the respect of the family or tribe, will advise people during a dispute. These people are best placed to act as mediators as they take on this natural role in their own communities and the parties are more likely to honour and respect the assistance given to them by such a person. It also assists in keeping control of difficult parties to a dispute – an outsider, not respected by the community may have difficulty in preserving the mediation process in these circumstances.

It seems that Australian Aborigines can clearly differentiate between neutrality and impartiality, impartiality meaning the ability of a mediator not to be biased towards or against any of the disputants in the mediation. So whilst it is not desirable for Aboriginal mediators to be neutral, they can certainly be impartial as to their treatment of the process and the outcome of mediation. Professor Hilary Astor has recently rethought the issue of neutrality in an article entitled ‘Rethinking neutrality: a theory to inform practice’ (2000) ADRJ 73 and 145, by acknowledging the ‘baggage’ carried by mediators and suggesting that mediation reject neutrality and focus instead on maximising the disputants’ control of the mediation. Astor stated, at 145: We should stop asking whether the mediator is neutral or not and instead ask what the mediator is doing to ensure that, to the maximum extent possible, the parties control the content and the outcome of the dispute. 101


Astor suggested that focusing on the disputants’ control of the mediation concentrates on the task of mediating rather than the mediator’s bona fides as to neutrality. This is consistent with the philosophy that mediation is a process whereby the disputants own the process and the outcome, the mediator being merely the guardian of the process. This approach seeks to question the mediator only on what she or he is doing to achieve the philosophical outcomes of mediation. Next, it recognises that the philosophy of mediation dictates that the disputants’ control should be maximised at all times. Given her hypothesis rejecting the idea of mediator neutrality, Astor asked the prophetic question as to whether such a rejection would destroy the legitimacy of mediation. She answered it in the negative, believing that mediator neutrality merely supported the disputants arriving at a consensual outcome themselves. In this respect, when disputants and mediators seek to maximise the disputants’ control over the process and outcome of mediation, this takes the focus off the mediator’s neutrality and all the parties to the mediation can stop pretending that the mediator has no impact on the outcome of the mediation due to the baggage that he or she brings to the mediation. The only sensible qualification Astor placed on this view of mediation was that mediators must inform the disputants that their opinions will impinge on the mediation and seek their consent to proceed with the mediation in this knowledge. It would seem sensible to point out that every mediator will bring some form of baggage to the mediation and, providing that the disputants are prepared to be responsible for the process and outcome, then mediator neutrality should not be of concern. The disputants own solution The final hallmark of mediation is said to be that the disputants fashion their own solution to the dispute, and in this way they are more committed to its good faith implementation. This hallmark of mediation is probably one of the most understated of the five. The importance of disputants being able to decide on the outcome of their dispute is enormous. Not only does mediation allow for settlements that may be outside of the range of remedies offered by curial dispute resolution, but it allows the disputants to reject proposed settlement options that do not satisfy their interests. The creative licence afforded to mediation by this process alone makes it a very distinctive method of dispute resolution. Disputants can be as creative as they wish when

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fashioning settlements, and virtually any option for settlement can be accepted or rejected by them. Given the disputants’ involvement in the settlement, it is obvious that there is a high level of commitment when it comes to implementing it. Whilst court orders are disobeyed at a disputant’s risk, the fact that the settlement was imposed as opposed to agreed upon, means that the enthusiasm with which implementation will occur would be greatly different. Court imposed resolution is generally begrudgingly carried out, whereas an agreed settlement is generally carried out with more enthusiasm and better quality.

When is mediation inappropriate? It is arguable that there are some disputes that should not be mediated. Some people view mediation as appropriate for every type of dispute providing the disputants themselves are willing to participate in good faith. Others view mediation as being only suitable in a limited number of matters, based on the substantive qualities of the dispute and its significance to the wider community. The following is a nonexhaustive list of some of the types of disputes that may be unsuitable for mediation: • Publicity. Where a disputant or disputants are seeking publicity as opposed to resolution, then mediation may not be appropriate. Examples of such situations are environmental matters such as the dispute over the construction of the Gordon-below-Franklin river dam in Tasmania (Commonwealth v Tasmania; Attorney-General (TAS) v Commonwealth (Tasmanian Dams case) (1983)) and immigration matters such as the Tampa asylum seekers (Ruddock v Vadarlis (2001)). Both of these matters benefited at least one of the disputants but also the public, in terms of being informed about the actions of the Executive arm of State and Federal governments. In these sorts of disputes, whilst mediation would undoubtedly provide a satisfactory resolution to the dispute, it is important for the resolution to be decided in open court where the community can hear the evidence presented and bear witness to the resolution of the dispute rather than it being resolved behind closed doors in mediation. The confidentiality of mediation would not serve the community well in such cases where the voting public need to know what actions the Executive arms of government are taking on their behalf.

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• Delay. It is true that, as unethical as it sounds, some disputants delay resolution for their own advantage. The advantage being sought might be the poor health of the other disputant or the other disputant’s lack of financial resources to fight the dispute. In such cases mediation should not delay proceedings. In fact the delayed disputant should be seeking expedition of the matter in the court list, not negotiating the name of a mediator, the venue and suitable dates and times. In such cases the courts have special procedures in place for disputants to seek expedition and under those circumstances it may be inappropriate to delay proceedings any further by mediation. Even the promise of concurrent mediation with litigation is still diverting resources away from the dispute being heard and should perhaps not be considered. • Reticence. Some disputants shudder at the thought of the process of mediation. They cannot and do not want to participate in a process that requires them to speak about the dispute whether it be with a view to discovering issues, interests, BATNAs or even just telling their side of the story. In short, they do not wish to handle their own dispute or be actively involved in its resolution. Chances are that they have employed a lawyer in order to resolve the dispute via curial dispute resolution. In these sorts of disputes a curial resolution is clearly a better method of resolution. It is pointless pursuing mediation where one or more disputant feels this way. If mediation were pursued in such circumstances then the mediator risks conducting a mediation with a chronic power imbalance that could result in an unfair settlement that may not last through to complete implementation. • Power imbalance. In disputes where the disputants display a power imbalance, it may be better to have the dispute resolved by curial resolution in order to reduce the power imbalance. Power imbalances occur in a variety of circumstances. For example, where domestic violence is involved, it is very hard to see how mediation will allow the victim and the perpetrator to sit down on equal terms and seek a resolution to the dispute. In such cases the State has determined that the dispute is one where potentially a crime has been committed against the State and the State has statutorily defined sanctions for such behaviour that do not involve noncurial dispute resolution. Mediation should not prevent the State sanctions from applying and the various State statutory schemes generally exclude, for example, court ordered mediation in criminal matters. Another example is where the financial,

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educational or social imbalance is so great that mediation cannot reduce the imbalance to a point where the disadvantaged disputant can begin to negotiate with a view to satisfying interests. Such power imbalance does not miraculously disappear in curial proceedings. However, it is able to be controlled to a certain degree by the presiding judicial officer who is bound to apply the rule of law in an even-handed fashion to all who come before the courts. In short, the rules of evidence apply whether a disputant is represented by counsel or not, has financial resources or not and is a leading member of the community or not. Certainly the quality of the legal argument may vary in a case of a financial power imbalance, but in such cases, court is still likely to produce a more balanced resolution than a non-curial resolution dependant on the disputant’s own ability to articulate his or her interests and fashion a settlement balanced in satisfying those interests. • Precedent. The creation of precedent is a very important element of the development of the rule of law. It is vital that the rule of law changes and adapts to a developing society. Law changes according to public opinion by the constituency exerting pressure on legislators. The courts can similarly be responsive to community change through the interpretation of legislation whilst not offending the separation of powers doctrine. Therefore, the courts have a vital role to play in the development of the law. In such cases, curial dispute resolution is more appropriate than mediation. For example, in the aforementioned Tasmanian Dams case the Commonwealth Government successfully tested its corporations and external affairs power under s 51(xx) and (xxix) respectively of the Commonwealth Constitution. This was a very important case that established an important line of authority on the use of these powers, which is still good law today. In such circumstances it is vital that precedent be established so that the community and the Executive arm of government know the limits of the latter’s power.

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4 Arbitration

The Uniform Legislation Because the Commonwealth of Australia does not have power under the Commonwealth Constitution to pass Federal legislation regulating arbitration (other than arbitration and conciliation for the prevention and settlement of industrial disputes extending beyond the limits of any one state under s 51(xxxv), by agreement) each State and Territory has enacted uniform legislation regulating arbitration. The various Acts were enacted in the following order: • Commercial Arbitration Act 1984 (NSW) • Commercial Arbitration Act 1984 (VIC) • Commercial Arbitration Act 1985 (WA) • Commercial Arbitration Act 1985 (NT) • Commercial Arbitration Act 1986 (ACT) • Commercial Arbitration Act 1986 (SA) • Commercial Arbitration Act 1986 (TAS) • Commercial Arbitration Act 1990 (QLD) These Acts shall be colloquially known throughout this chapter as ‘the Acts’. Given the Commonwealth’s lack of jurisdiction, it was seen as being necessary to enact State and Territory-based uniform legislation in order to provide some certainty amongst the Australian business community. However, it should be noted that certain differences have crept into the legislation, mainly based on the rules and statutory interpretation that may have its own State or Territory nuances. This text does not seek to cover these differences. Like most Australian Acts of Parliament, the uniform arbitration Acts are divided into various

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parts. Part I deals with preliminary matters such as the Acts’ short titles, transitional and application provisions, definitions and the fact that the Acts bind the Crown in right of the State, should the State be a party to an arbitration agreement. Part II addresses the appointment of arbitrators and umpires. Part III enacts provisions concerning the conduct of arbitration proceedings. Part IV deals with awards and costs. Part V addresses the powers of the court, particularly in relation to judicial review of awards and the removal of arbitrators. Part VI provides for general provisions as to arbitrations, such as the authority and liability of arbitrators and the power to stay proceedings. Finally, Part VII enacts provisions over miscellaneous matters, such as the service of notices and the establishment of rules and regulations. Given the space limitations of this text, this chapter will deal only with selected sections of the Acts.

Commercial Arbitration Acts — Part I Whilst the Acts are known as the Commercial Arbitration Acts, there is nothing in the Acts which prescribe that only commercial disputes are to be arbitrated. Therefore, the title of the Acts is rather misleading, in that any dispute may be arbitrated provided the dispute qualifies under s 3 of the Acts. However, readers should note s 3(6), which precludes certain statutory arbitrations under relevant Supreme Court and District Court (or equivalent) legislation. Section 4 Before dealing with the issue of when the Acts are invoked by virtue of s 3, it is necessary to state the relevant definitions of words and phrases found in the Acts. Section 4 is the definitions section and defines the following words and phrases used in the Acts and referred to in this chapter: • ‘arbitration agreement’ means an agreement in writing, which refers present or future disputes to arbitration; • ‘award’ means a final or interim award; • ‘misconduct’ includes corruption, fraud, partiality, bias and a breach of the rules of natural justice; • ‘party’, in relation to an arbitration agreement, includes any person claiming through or under a party to the arbitration agreement;

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• ‘power of appointment’ or ‘power to appoint’, in relation to an arbitrator or umpire, means power to appoint an arbitrator or umpire, to join in the appointment of an arbitrator or umpire, to concur in or approve of the appointment of an arbitrator or umpire, or to take any other step in or towards the appointment of an arbitrator or umpire; • ‘the Court’ means, subject to sub-s (2), the Supreme Court. In relation to the definition of ‘the court’, sub-s (2) states that where an arbitration agreement provides that the District Court shall have jurisdiction under the Acts, or the parties to an arbitration agreement have agreed in writing that the District Court shall have jurisdiction under the Acts and that agreement is in force, a reference in these Acts to the Court is, in relation to that agreement, a reference to the District Court (or its equivalent depending on the State or Territory). Section 3 The first issue to discuss is what trigger mechanism enables a dispute to be arbitrated. However, before discussing this, it is worth discussing when the Acts apply to disputes. Section 3(2) provides that the Acts apply to an arbitration agreement and to an arbitration under such an agreement. Section 3(4) of the Acts provides that if another Act of Parliament specifies arbitration for the resolution of a dispute, then the Acts shall apply as if the other legislation was an arbitration agreement. The trigger mechanism for arbitration under the Acts is s 3(5), which provides that arbitration shall be deemed to have been commenced when a dispute to which the relevant arbitration agreement applies has arisen, and when either: a party to the agreement has served on another party to the agreement a notice requiring that other party appoint an arbitrator or concur in the appointment of an arbitrator in relation to the dispute; or a party has served on another party to the agreement a notice requiring that the dispute be referred to arbitration; or a party has taken any other step contemplated by the agreement or at law with a view to referring the dispute to arbitration or appointing an arbitrator in relation to the dispute.

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Commercial Arbitration Acts — Part II Section 6 Section 6 simply provides that an arbitration agreement shall provide for the appointment of a single arbitrator unless the arbitration agreement specifies otherwise or the parties to a dispute agree otherwise in writing. The way the definition of an arbitration agreement is worded in s 4 of the Acts means that parties can agree to subject a dispute to arbitration under the Acts after a dispute has arisen, despite the fact that there was no arbitration agreement in place prior to a dispute arising. Similarly, para (b) allows the parties to agree on the appointment of an arbitrator after a dispute has arisen, despite the fact that there is no arbitration agreement in place. Section 7 Section 7 ensures that unless the parties have otherwise agreed, the appointment of the arbitrator shall be by agreement between the parties. Given the technical nature of some disputes and the complexities of conducting arbitration, parties may choose to appoint an arbitrator with relevant technical knowledge. In this case, if the parties have agreed to the appointment of such a person, then the award of a person without that technical knowledge will be void. Therefore, if parties can foresee the need, they should either specify certain qualifications of an arbitrator in their agreement or, as soon as a dispute arises, reach written agreement on the qualifications of the arbitrator. In Pan Atlantic Group Inc v Hassneh Insurance Co of Israel Ltd (1992), an arbitration agreement specified the appointment of two arbitrators who were to be disinterested executive officials of any insurance company. A dispute arose, and one of the arbitrators appointed a person qualified under the appointment clause in the agreement, who had retired from the respective insurance company and commenced work with a firm of solicitors specialising in insurance litigation. At first instance, an application to have the arbitrator removed, on the grounds that the arbitrator was no longer qualified under the appointment clause in the arbitration agreement, failed. On appeal, the English Court of Appeal dismissed the application on the basis that the purpose of the appointment clause was to ensure that a qualified person acted as an arbitrator and in that respect the appointment clause had achieved its purpose. The clause did not specify that the arbitrator had to remain an executive official of

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an insurance company once appointed as arbitrator. Jacobs M in Commercial Arbitration Law and Practice (update 51) at para [10.200], Sydney: Lawbook Co) lists eight formal requirements when appointing an arbitrator: (1) The arbitrator must be notified of his or her appointment. (2) The arbitrator must consent to act expressly or impliedly. (3) The name of the arbitrator and the fact of the appointment must be communicated to the other party or parties. (4) Unless otherwise agreed, the appointment must be a joint one. (5) The arbitrator must be independent and impartial even if the parties have chosen an arbitrator who they know is familiar with the dispute. (6) If a mandatory method of appointment is prescribed it must be strictly adhered to. (7) The arbitrator appointed must possess the qualifications agreed upon by the parties. (8) The notice of dispute must identify the dispute with sufficient particularity. Section 8 Section 8(1) provides that where a person has the power to appoint an arbitrator but fails to exercise that power, then a party to the arbitration agreement may, by notice in writing, require the person in default to exercise the power to appoint within a certain period of time, that being not less than seven days. If the defaulting party declines to appoint after receiving the notice, then the party serving the notice may propose that a named arbitrator be appointed, whose name will appear in the notice. The timing of when a person is to exercise the power under s 8(1) is covered in sub-s (5) and provides that the person should exercise the power within the time specified in the arbitration agreement or, if no time is fixed, within a reasonable time. As in all agreements or contracts, defining reasonable time will depend on the facts of each case, including the type of dispute, the urgency of resolving the dispute and the time provisions set out in the remainder of the agreement. Section 8(3) enforces the default provisions in sub-s (1) and provides that if a party defaults under subs (1) then the arbitrator proposed by the non-defaulting party shall be

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deemed to have been appointed. A party which is dissatisfied with the operation of sub-ss (1) and (3) may make application to the court under sub-s (4) to have the appointment set aside and for the court to make its own appointment. The other statutory means to remove an arbitrator is covered in s 44, to be discussed below. Section 9 Section 9 simply provides a mechanism for replacing an arbitrator should she or he die or otherwise cease to hold office as an arbitrator. In such circumstances, the person or persons charged with the authority to appoint the arbitrator(s) is also charged with the responsibility of replacing the arbitrator(s). Section 10 Section 10 gives the court a general power to fill vacancies in the office of arbitrator where neither the Acts nor the arbitration agreement provides for the filling of such vacancies, or if the mechanism for filling such vacancies in the Acts or agreement fails. In such cases, and upon an application by one or more of the parties to the arbitration, the court has the power to fill the vacancy or vacancies. Consistent with the rules of statutory interpretation, the word ‘may’ is characterised as being directory as opposed to mandatory; therefore, the court has discretion to appoint an arbitrator to fill a vacancy in arbitration. In some circumstances, albeit a limited number, a court may choose to exercise its discretion and not appoint an arbitrator. For example, if the arbitration lacked the proper jurisdictional basis, such as there being no agreement to arbitrate. Clearly, under such conditions, it would be futile for the court to appoint an arbitrator. Section 11 Whilst s 10 dealt with the court’s power to fill a vacancy, s 11(1) deals with the court’s power to appoint a person as arbitrator where an arbitrator has been removed. Where an arbitrator has been removed, an issue discussed in greater detail below, the court has the power to appoint an arbitrator in place of the removed arbitrator, or order that the arbitration agreement shall cease to have effect with respect to the dispute the subject of the arbitration. Sub-section (2) provides that the court may not order that the arbitration agreement shall cease to have

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effect with respect to the dispute the subject of the arbitration, unless all the parties to the arbitration agreement are domiciled or ordinarily resident in Australia at the time that the arbitration agreement was entered into. This sub-section clearly seeks to overcome the problem of enforcing court orders in jurisdictions outside of Australia. However, it was made almost ineffective after the adoption by the Commonwealth of the United Nations Commission on International Trade Law (UNCITRAL) Model law on International Commercial Arbitration, which was passed by UNCITRAL in 1985 and manifested in the Commonwealth International Arbitration Act 1974, as amended. In other words, should a party or parties to an arbitration be foreign, then the parties may invoke the Commonwealth Act, which in turn adopts, via s 16 and reproduced in totality in Sched 2, the Model law which provides for the termination of arbitration under article 32(2), thereby overcoming most jurisdictional problems.

Commercial Arbitration Acts — Part III Section 14 Section 14 grants power to the arbitrator, in that they may conduct proceedings in such a manner as they see fit. The Acts do not define this power in much more detail, and as is the case in common law countries such as Australia, the courts have, over the years, developed a body of case law that defines the parameters of the arbitrator’s power. Jacobs, at 13.190-14.380, has developed a list of powers and duties bestowed on the arbitration tribunal that have been developed from the general law. The following is a summary of Jacobs’ list, and his suggested cases from which the propositions of law flow. Generally, an arbitrator may only delegate her or his power if the arbitrator is authorised to do so by the arbitration agreement. This means that an arbitrator cannot delegate the role of arbitrator to another (Neale v Richardson (1938)), and that an arbitrator cannot substitute the opinion of others for that of the arbitrator, thereby delegating the arbitrator’s authority to decide the substantive issues (Anderson v Wallace (1835)). Arbitrators may, of course, hear in evidence the opinions of experts in areas pertinent to the substantive issues of the arbitration, but arbitrators must base an award upon their independent view of the evidence presented before the arbitration tribunal, and cannot substitute an expert opinion for that independent

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view. An arbitrator may come to the same conclusion as an expert opinion that has been received into evidence during the arbitration, providing the arbitrator’s independent mind has assessed the merits of such evidence and still formed an independent view to adopt the findings in whole or in part of the opinion (Hopcraft v Hickman (1824)). Where arbitrators hear expert opinions, the parties to the arbitration must be given the opportunity to examine the opinion or advice and confirm or rebut it as they see fit during the arbitration (Kursell v Timber Operators and Contractors Ltd (1923)). In observing the predominance of the arbitration agreement, arbitrators are bound to exercise only those powers granted under the arbitration agreement. In Phoenix v Pope (1974), a partnership agreement between 12 partners in a real estate agency lacked any terms for the dissolution of the partnership, and specified arbitration, should a dispute arise from the agreement. Eleven of the 12 partners served a notice of expulsion on the 12th partner, who sought an order from the court dissolving the partnership. The remaining partners sought a stay of proceedings on the dissolution proceedings so that the matter could be arbitrated. The plaintiff partner claimed that the arbitrator had no power to dissolve the partnership under the arbitration agreement. The court found that the power conferred on the arbitrator under the arbitration agreement was wide enough to include all matters raised in the plaintiff partner’s action and, accordingly, the arbitrator had the power to determine whether he should order that the partnership be dissolved. Other powers conferred on arbitrators, referred to by Jacobs, include: • power to grant equitable relief (National Distribution Services Ltd v IBM Australia (1990)); • power to adjourn the arbitration (Sullivan v Department of Transport (1978)); • power to direct parties to provide security of costs for the arbitration (Langhorn v Jimmy Kim Constructions Pty Ltd (1993)); • power to direct confidentiality over documents (Esso Australia Resources Ltd v The Honourable Sidney James Plowman (The Minister for Energy and Minerals) (1995)); • power to extend time limits even if altering the terms of an arbitration agreement (Water Furnace Australia Pty Ltd v Hobart City Council (1998));

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• power to make declaratory relief (Cufone v Curse (2000)); and • power to expedite arbitration proceedings (Jacobs, at 13.465/10, notes that there is no Australian authority on this point, but that American authority should be followed. In this respect, see Tempo Shain Corp v Bertek Inc (1997)). As previously stated, Jacobs also suggests that the general law has set out a number of duties which arbitrators must observe under the Acts, including: • a duty with regard to evidence that includes: ❍

❍

❍

❍

❍

a duty to hear all relevant evidence, and a prohibition against preventing a party from leading relevant evidence (WFA v Hobart City Council (2000)); a duty only to exclude evidence for a valid reason, such as waiver by the parties (Macpherson Train & Co Ltd v J Milhem & Sons (1955)) or an agreement to exclude evidence (Oakland Metal Co Ltd v D Benaim & Co Ltd (1953)); a duty to exercise carefully the discretion to exclude evidence; a duty not to form a view in advance of evidence (Faure, Fairclough Ltd v Premier Oil and Cake Mills Ltd (1968)); a duty not to consider matters alleged to be ‘without prejudice’ (Finney Lock Seeds Ltd v George Mitchell (Chesterhall) Ltd (1979));

• a duty to keep a record of proceedings; • a duty to give an expeditious decision; • a duty not to receive information privately or to have private communications without the other party being present (an issue discussed further below); • a duty to keep proceedings private. Arbitrations are generally held in camera and should not be open to people not associated with the arbitration unless the parties agree to the attendance of such people; • a duty not to proceed ex parte without adequate justification; • a duty to give reasons for the award (further discussed below with s 29);

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• a duty to allow cross-examination of witnesses unless the parties have expressly or impliedly agreed otherwise (Chilton v Saga Holidays Pic (1986)); and • a duty to fix dates for the arbitration hearing so that all the parties have a fair chance of attending. Section 17 Section 17 of the Acts provides that upon application by any party to an arbitration agreement, the court may issue subpoenas requiring persons to attend for examination before the arbitrator and/or requiring a person to produce certain documents specified by the subpoena. It is important to note that the arbitrator her or himself does not have the power to summon people to appear at arbitration, or to produce documents – this power is vested in the parties making application to the court. Given that the subpoena is issued by the court, logically it is returnable to the court. Therefore, a person may attempt to resist the subpoena by applying to the court to have the subpoena set aside. In this respect normal court rules, applicable to the respective State or Territory, will need to be complied with in the making of such an application as will the threshold of evidence required by the respective court to set aside such a subpoena. The most common ways of having a subpoena set aside are, for example: where the subpoena to produce documents is drafted so widely that it is apparent that the applicants are setting out on a ‘fishing trip’ looking for verbal or documentary evidence; where the documents or information are privileged (most commonly, legal professional privilege); and where there is no arbitration clause in existence, thereby denying the subpoena jurisdiction. Section 18 Section 18 of the Acts provide for the situation whereby a party has not complied with a subpoena issued under s 17. In such cases, under s 18(1), the party to the arbitration agreement may apply to the court and the court may order the person in default to attend before the court for examination or to produce the documents set out in the subpoena. Section 18(2) provides that where the court has made an order under sub-s (1), it may make additional orders for the transmission to the arbitrator of a record of any evidence given

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pursuant to the order, or any document produced pursuant to the order and any such evidence or document shall be deemed to have been done in the course of the arbitration. Most importantly, sub-s (3) does not hold up the arbitration proceedings, should a person not attend the court or produce the required documents under subpoena. In such cases the Acts authorise the arbitrator to continue with the arbitration proceedings. In such cases the arbitrator should always ascertain why a person or documents have not appeared and consider whether there is enough evidence to continue through to the making of an award. Section 19 Section 19(1) provides the arbitrator with the power to accept evidence orally or in writing, and for such evidence to be given under oath, affirmation or affidavit. The language in sub-s (1) is straightforward and opens up the possibilities of arbitrations being conducted entirely on paper if appropriate, and presumably with the agreement of the parties. Again, parties can vary the application of sub-s (1) by stipulating terms in the arbitration agreement, which reflect their agreement on or variation of this section. Sub-section (3) provides that unless otherwise agreed in writing by the parties to the arbitration agreement, an arbitrator, when conducting proceedings, is not bound by the rules of evidence, but may inform him or herself in relation to any matter, in such a manner as they see fit. This sub-section gives the arbitrator a very wide discretion – in fact, wider discretion than a court of law. The purpose of the sub-section is to provide arbitration with a more flexible procedural base and to make arbitration more userfriendly, thus encouraging its use as a preferred method of dispute resolution. Such provisions reduce the time taken to hear matters and allow parties to represent themselves, thus reducing the costs to consumers. Despite the wording of s 19(3), it is generally accepted that, whilst it empowers the arbitrator to dispense with the rules of evidence, it does not allow an arbitrator to conduct arbitration without adherence to the rules of procedural fairness. The issue of procedural fairness or, as it is sometimes known, natural justice, will be discussed in more detail below with s 27. For now, suffice it to say that natural justice requires that parties be able to hear the evidence against them and to test such evidence. Given this, some rules of evidence will need to be adhered to or dispensed with by arbitrators in order to observe the

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rules of natural justice. Rules of evidence such as the prohibition against tendering hearsay evidence, despite the fact that it may contain exculpatory elements, should be considered before the rule is strictly adhered to. The rules of evidence governing the cross-examination of witnesses may have to be entertained in order to ensure that the evidence presented before the arbitration tribunal is tested for its probative or prejudicial value, before being accepted by the tribunal as fact. A curious piece of wording in sub-s (3) is that, notwithstanding dispensing with the rules of evidence, the arbitrator ‘may inform himself or herself in relation to the matter’. The purpose of this wording is to allow arbitrators to take on an almost inquisitorial role, rather than allowing the arbitration to be strictly an adversarial proceeding. This is a particularly useful element of arbitration, given the often-technical nature of the subject matter of arbitrations. For example, in a matter where the substantive issue is quantum of losses, the expertise of an arbitrator who is or was a quantity surveyor, may assist the parties in presenting information that is directly relevant to the arbitrator’s award. The converse of this, in strictly adversarial proceedings, is for the arbitrator (or tribunal of fact) to take a passive role in the process and hopefully allow the parties or their advocates to introduce relevant material, which will lead to a just and fair award. Allowing an arbitrator to take a more inquisitorial role may assist the arbitration by finding a fairer award than would otherwise be found. Section 20 Section 20 provides that a party to an arbitration agreement may be represented in arbitration proceedings by a legal practitioner, but only if: the other party is a legal practitioner, or is represented by a legal practitioner; or where all the parties agree to representation; or where the amount of the claim exceeds $20,000; or where the arbitrator gives leave for such representation. It is obvious that the drafting of s 20 was designed to actively discourage the representation of parties by legal practitioners. Parliament’s view was that this would reduce the time and therefore the cost of arbitration proceedings and make them a real alternative to litigation in the array of dispute resolution processes available to parties. Smart J, in The Commissioner of Main Roads v Leighton Contractors Pty Ltd (1986), set out a number of considerations arbitrators should consider when deciding to allow legal representation. They are:

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• the amount in dispute; • the nature and complexity of the issues; • the nature and extent of the evidence to be adduced; • whether cross-examination is likely to be required by the parties or the arbitrator; • the capacity and the willingness of the parties to represent themselves, and their experience in doing so; • the questions of law likely to arise; • the costs of legal representation; and • whether the granting of leave to allow legal representation would be likely to shorten the arbitration and/or reduce its costs. This last point is reflected in sub-s (3), which provides that, if a party applies for leave permitting representation by a legal practitioner, leave shall be granted if the arbitrator is satisfied that the granting of leave is likely to shorten the arbitration proceedings or that the applicant would, if leave were refused, be unfairly disadvantaged. Penultimately, sub-s (4) provides that a party is entitled to be represented by a legal practitioner on leave granted under sub-s (3), notwithstanding any agreement to the contrary between the parties. This overcomes the problem of parties agreeing to arbitrate in the future should a dispute arise, and then, when a dispute arises, the parties realising that the dispute has developed into, or contains, a complex technical or legal question requiring legal representation to ensure a fair hearing. Finally, legal practitioner is defined in sub-s (6) as a person who is admitted or entitled to practise as a barrister, solicitor or legal practitioner in their respective home State or Territory or any other place within or outside Australia. The sub-section also provides for persons who are not so admitted but have such qualifications or experience in law, whether gained within or outside Australia, as in the opinion of the arbitrator would be likely to afford an advantage in the proceedings. Section 22 Section 22(1) provides that unless otherwise agreed in writing by the parties to the arbitration agreement, any question that arises for determination under the agreement shall be determined according to law. Prima facie this provision of the Acts does not seem to be

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contentious until one asks: ‘What law applies to arbitration agreements?’ Whilst this is a question for a text on private or public international law, the basic rule relating to the proper law of an agreement is that the law governing the agreement is the law that the parties intended and, where there is a lack of intention displayed in the document, the proper law of the agreement is the jurisdiction that the transaction has its closest and most real connection to. Parties often express in the agreement the proper law governing the agreement, so parties often draft agreements stating that the law of, for example, Victoria, will apply to the agreement. In such cases, the parties have obviously chosen a certain jurisdiction to govern their relationship and courts will generally uphold that choice. However, in cases where the parties have not expressed the proper law governing the agreement, the courts have to determine what jurisdiction has the closest and most real connection to the transaction covered by the agreement. In determining the proper law of an arbitration agreement the court may look at: • the place where the agreement was executed; • the place for performance of the agreement; • the place(s) of residence of the parties to the agreement; • the place(s) of business of the parties; • the nature of the agreement (the rights and liabilities between the parties); and • the subject matter of the agreement (for example, where goods or services have to be delivered or carried out). The court will consider the merits of each case when giving weight to any of the above matters for consideration and no one consideration will be decisive in deciding the proper law of an agreement. One final note on deciding the proper law of an agreement: deciding the proper law of an agreement is determined at the date of the making of the agreement, that is, the date and time that the offer is accepted, and good consideration is conveyed from the promisee to the promisor. Sub-section (2) provides that if the parties to an arbitration agreement agree in writing, the arbitrator may determine any question that arises for determination under the agreement by reference to considerations of general justice and fairness. An arbitrator that invokes sub-s (2) is often known as an ‘amiable compositeur’, that is, a friendly arbiter or compositor. In such cases, the arbitrator will seek to settle the dispute ex aequo et bono, that is, on the basis of what is fair and right. This sub-section runs counter to the notion that arbitrators 120

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have to run arbitration proceedings strictly according to law, and unfortunately tends to imply that the law is not ‘fair and right’. Of course, both assumptions are incorrect. It is a measure of the value of arbitration that it is flexible enough to allow resolution to move outside the strict rules of evidence and the general law. In terms of the law being ‘fair and right’, this merely exposes the justifiably rigid nature of the law, which is essential for the citizenry to be conscious of the rule of law. Therefore, sub-s (2) sits well within its role as a resolution mechanism that offers parties the opportunity to participate in formal adversarial proceedings that produce a generally quicker and cheaper alternative to litigation, but which also offer parties the chance to resolve their dispute by less formal methods of adversarial dispute resolution, and to base an award on something other than rigid rules of law. As to the meaning of determining questions arising under the arbitration agreement by reference to considerations of general justice and fairness, Jacobs, at para 21.100 (citing Mustill & Boyd, Commercial Arbitration), suggests the following interpretation of the amiable compositeur section in the Acts: 1

The clause empowers the arbitrator to adjust the bargain in the light of changed circumstances. This power may be exercised as regards future obligations, in addition to those which are the subject of dispute. The powers extend to a revision of the express terms of the contract, as well as those which are imposed or implied by law.

2

Once the arbitrator is seised of a dispute as to obligations existing or said to have existed in the past, the clause frees him [sic] from any duty to respect the rules of law when deciding upon the merits of the dispute.

3

The clause has the same effect as set out in (2) above, except that the arbitrator is obliged to give effect to rules of public policy.

4

The clause has the same effect as set out in 2 or 3 above, except that the arbitrator cannot depart from the express terms of the contract.

5

The clause empowers (and indeed requires) the arbitrator to supply a system of law, but not a system which is that of any individual state.

6

The clause enables the arbitrator to ignore technicalities and strict construction.

7

The purpose of the clause is only to ensure that the arbitrator need not conform with ordinary legal procedures when conducting the reference.

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Whilst sub-s (2) allows the arbitrator, as amiable compositeur, to disregard the rules of law, it does not require of the arbitrator a mandatory rejection of them. In fact, an arbitrator may adopt the rules of law if he or she believes that by adopting them a fair and just outcome will be achieved. The rules of law that may be rejected by an arbitrator acting as amiable compositeur include common law, statute and rules of statutory interpretation that affect the application of statute. There have been no judicial decisions that explore the meaning of the notion of amiable compositeur, however, Young J, of the New South Wales Supreme Court, discussed the application of the term in obiter in Woodbud Pty Ltd v Warea Pty Ltd & Others (1995). In this case, the dispute that gave rise to the arbitration was between the defendant, Warea Pty Ltd, a building company, and the plaintiff, Woodbud Pty Ltd, trading as Sherwood Detailed Cabinet Makers, a sub-contractor who was contracted to supply and install a kitchen and a laundry at a residential premises at Point Piper in Sydney. The contract between the parties, executed on 13 January 1993, specified that Pimas Group Pty Ltd was the sub-contractor. On 1 August 1994, the arbitrator handed down an interim award in favour of the defendant builder for the sum of $36,287.45 plus interest. The arbitrator handed down a final award on 9 August 1994, for the same amount plus the costs of the arbitration, being $7,800 with a further order that the sub-contractor pay the defendant’s costs. The subcontractor wrote to the defendant on 31 October 1994 claiming that the arbitrator had made the award against the wrong party, and that the true party was the plaintiff. On 23 January 1995, the arbitrator purported to correct the award pursuant to s 30(c) of the Commercial Arbitration Act 1984 (NSW) (‘the Act’), which provides that where an award contains a material mistake in the description of a person, the arbitrator may correct the award. The plaintiff sought a declaration that the purported award of the arbitrator was void and came about as a denial of natural justice. The court found that there was no material mistake in the description of the person under s 30(c) of the Act. However, what is of interest is his Honour’s view of applying s 22(2) of the Act. Young J stated that there was no doubt that the parties had agreed in writing, in the sub-contract, that words to the effect of s 22(2) were invoked and allowed the arbitrator to act as an amiable compositeur. But in terms of ascribing a meaning to the power granted under s 22(2), his Honour stated that the section did not entitle an arbitrator to disregard the law

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completely. Young J addressed his mind to the parameters of the power, and stated at 355–56: Probably the clause goes further than evidentiary and procedural problems and permits an amiable compositeur to disregard such rules as the parol evidence rule, the rule that contracts by speciality cannot be varied by oral contract … the rule that one cannot look to subsequent conduct to construe a contract … The amiable compositeur may also disregard the rule that collateral contracts cannot be inconsistent with the main contract, he or she may apply principles of rectification and perhaps may also supplement the contract by filling out the contractual regime in areas where the parties have not thought it through. It is uncertain how far, if at all, the amiable compositeur can go beyond this. Certainly the absolute ceiling is where the doctrine of manifest disregard by the arbitrator of his mandate comes into play …

His Honour found that it was unnecessary to look at what the absolute ceiling of an arbitrator’s disregard of the law could be when acting as an amiable compositeur, as in this case, the changing of the name of the plaintiff occurred after the arbitration and not in the course of the arbitration as s 22(2) of the Act prescribed. In this respect, the arbitrator had discharged his duties as arbitrator and could not change the name of the plaintiff after the conclusion of the arbitration when the final award had been handed down. Because of this, s 22(2) of the Act and the arbitration agreement did not absolve the arbitrator from acting strictly in accordance with the law and, in this respect, s 30(c) of the Act did not give the arbitrator power to change the name of the plaintiff to that of another. Therefore, Young J found that the final award, handed down on 9 August 1994, was final and binding on the parties and the changing of the name of the plaintiff was declared a nullity. Given that an arbitration may be conducted outside the rules of law, the question of whether judicial review is available from an award made by an arbitrator acting as an amiable compositeur becomes a matter of interest, given the provisions of s 38 of the Acts, which allow an appeal to be brought against an award on a question of law. Given the restrictions on the right of judicial review save for errors of law, it is questionable whether an award handed down by an arbitrator acting as amiable compositeur would be subject to judicial review. This is because such an award was determined by reference to considerations of general justice and fairness, not law, which is the trigger mechanism for judicial review under s 38 of the Acts. This is an issue still awaiting resolution by the courts.

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Section 23 Section 23 of the Acts provides that unless a contrary intention is expressed in the arbitration agreement, the arbitrator may make an interim award. Any award handed down under the Acts should seek to deal conclusively with an issue or issues at arbitration. Interim awards usually deal with matters that may be dealt with before finalisation of the award – for example, an interim award may determine liability, after which the final award will determine quantum. Logically, issues cannot be decided out of order. In the example just given, an interim award could not decide quantum on a claim where liability had not been decided. Therefore, interim awards will generally decide threshold substantive law issues, whereas the final award will decide issues flowing from the threshold substantive law issues. The effect of an interim award is that it stands as an award on the specified issues unless appealed under the provisions of the Acts, which will be discussed in more detail below. Section 27 Section 27 of the Acts had a controversial genesis. Prior to 1990, the sections allowed an arbitrator to act as a mediator or conciliator midway through arbitration without regard to the rules of natural justice. As previously discussed, the mediation process does not necessarily follow the rules of natural justice, particularly when it comes to separate sessions where the mediator speaks to a party separately without the other party being present. The term ‘natural justice’ means the right for a party to be given a fair hearing and to have the opportunity to present their case and to answer allegations put by the other party. It also encompasses the right to have a decision made by an unbiased and neutral third party arbitrator and to have that decision based on probative evidence presented to all of the parties and the arbitrator. Prima facie, the process of separate sessions in mediation breaches the rules of natural justice – a fundamental hallmark of arbitration. Since the passing of the Commercial Arbitration (Amendment) Act 1990 (NSW) and its uniform equivalents, s 27 now provides:

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(1) Parties to an arbitration agreement: (a) may seek settlement of a dispute between themselves by mediation, conciliation or similar means; or (b) may authorise an arbitrator or umpire to act as a mediator, conciliator or other non-arbitral intermediary between them (whether or not involving a conference to be conducted by the arbitrator or umpire); whether before or after proceeding to arbitration, and whether or not continuing with the arbitration. (2) Where: (a) an arbitrator or umpire acts as a mediator, conciliator or intermediary (with or without a conference) under subsection (1); and (b) that action fails to produce a settlement of the dispute acceptable to the parties to the dispute; then no objection shall be taken to the conduct by the arbitrator or umpire of the subsequent arbitration proceedings solely on the ground that the arbitrator or umpire had previously taken that action in relation to the dispute. (3) Unless the parties otherwise agree in writing, an arbitrator or umpire is bound by the rules of natural justice when seeking a settlement under subsection (1). (4) Nothing in subsection (3) affects the application of the rules of natural justice to an arbitrator or umpire in other circumstances.

Prior to the 1990 amendments, sub-s (4) did not appear in the Acts. Therefore, arbitrators who invoked s 27 could commence mediation or conciliation proceedings midway through, or at the commencement of, arbitration and the application of the rules of natural justice did not have to apply to such proceedings. The inclusion of sub-s (4) has not really overcome the problem outlined above, because if a mediator is statutorily obliged to observe the rules of natural justice, then the role of the mediator is substantially changed in respect of complying with a rigid interpretation of the rules of mediation, such as conducting separate sessions. Therefore, it is generally acknowledged that if an arbitrator wishes to invoke s 27, he or she should appoint a different person to carry out the mediation or conciliation so that the mediation process, at least, can be conducted faithfully and without breaching

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the rules of natural justice prohibited under sub-s (3). Also, it is generally agreed that if an arbitrator does invoke s 27 and conducts mediation or conciliation proceedings then the arbitrator should disqualify him or herself from acting further in the arbitration unless the parties otherwise agree in writing. This is to avoid the potential problem of allowing a disgruntled party to appeal the arbitrator’s award based on a denial of natural justice. In an article entitled ‘Continuum or chasm? Can west meet east?’ by JD Fine (1989) 6 JIA 27, the author states, at 35: Section 27 of the Uniform Act must come to be understood as being symptomatic, a well-intentioned but fundamentally flawed misconception of the proper place of ADR mechanism in the practice of law. Given the fundamental assumptions of Western law in general and of common law systems in particular, ADR cannot successfully be grafted onto any existing adversarial and adjudicative dispute resolution mechanism – albeit either litigation or arbitration.

This quote is a damning indictment on the legislators who sought to graft mediation and conciliation onto the arbitral process by the inclusion of s 27. The problems with s 27, as outlined above, lend support to this indictment. Perhaps the two processes should remain separate. If the parties feel that mediation may assist the parties to resolve the dispute, then perhaps the arbitration should be stayed until the parties have so mediated. Or, perhaps arbitration agreements should express that the parties will undertake mediation as a condition precedent to arbitration unless the parties otherwise agree. Whatever the solution, s 27, in its current form, places arbitrators in a difficult position should the parties authorise the arbitrator to take on the role of mediator or conciliator. However, perhaps the above is purely academic, as there have been no cases litigated involving s 27. Whilst there have been many cases litigated regarding a party’s claim to a denial of natural justice, no matters have been before a court on the specific issue of an arbitrator acting as a mediator and a subsequent arbitral award being declared void for a denial of natural justice. This seems to indicate that arbitrators act responsibly in the execution of their duties and avoid the potential of an appeal against their own award by ensuring that there can be no claim of a denial of natural justice, should s 27 be invoked.

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Commercial Arbitration Acts — Part IV Section 28 Section 28 of the Acts provides that, unless a contrary intention is expressed in the arbitration agreement, an award made by an arbitrator shall, subject to this Act, be final and binding on the parties to the agreement. In this respect, the final award by an arbitrator is the equivalent of a court judgment. Like court judgments, a final award extinguishes the original cause of action and, in this respect, can be said to invoke the legal concept of res judicata pro veritatem accipitur, meaning, a thing that is adjudicated is received as the truth. In other words, when a competent tribunal has adjudicated a dispute between parties, the dispute cannot be raised again between the parties. However, an award will not extinguish the original cause of action where a party has fraudulently concealed evidence that would ordinarily be considered by the arbitrator prior to handing down an award. Also, where the parties expressly agree that res judicata will not operate between them at arbitration, then the award will not extinguish the original cause of action. Similarly, after an arbitrator hands down an award, parties may avail themselves of the defence of issue estoppel in subsequent civil proceedings. In other words, in subsequent proceedings where a statement of claim raises slightly different issues to the first arbitrated statement of claim, and, should an issue of fact or law be alleged or denied which has been arbitrated, then a party is prevented from alleging or denying that issue of fact or law. Issue estoppel may only be raised where the issue, if successfully argued, would allow the tribunal of fact to hand down a judgment that conflicted with the award. The difference between res judicata and issue estoppel was discussed in Boles v Esanda Finance Corp Ltd (1989). In that case, the parties entered into three lease agreements for chattels, which contained a term requiring the appellants to pay to the respondent the entire rent upon the entering of the leases, unless the appellants paid the rent by instalments, as set out in a schedule to the agreement, in which case the respondent would not enforce the obligation of the appellants to pay the entire rent. The appellants paid the first instalment but then defaulted on the subsequent instalment. The respondent commenced proceedings seeking to recover only the missed instalment as opposed to the entire amount of rent payable under the lease agreements. The question for the court was whether the respondent could sue for the instalment, given the construction of

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the agreement. At first instance, the court found that the agreement did not allow the respondent to claim the instalment. On appeal, the NSW Court of Appeal found that the lease agreements contained no specific obligation for the appellants to pay by instalment – that was ultimately a matter left to the appellants’ discretion. The respondent commenced second proceedings claiming the entire amount of the rent. The appellants sought an order that the proceedings be permanently stayed on the grounds of res judicata and in the alternative that the cause of action had merged in the original judgment. At first instance the judge entered judgment for the respondent in the amount of $375,839.48 plus costs. The appellants appealed. In the New South Wales Court of Appeal, the court gave judgment to the respondents on the basis that, firstly, the facts did not disclose a defence of res judicata, and secondly, that issue estoppel would not have succeeded as a defence, even if it had been pleaded by the appellants, because the issues in the two proceedings were different. As to the application of res judicata, the court, at 669, quoting Henderson v Henderson (1843) at 319, noted the rule that: … the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.

In other words, parties have the opportunity to bring forward the whole of their case and, where an action has been brought and judgment has been entered in that action, there can be no other proceedings brought on the same cause of action. This is quite different from issue estoppel, which applies when an issue should and could have been raised in initial litigation after which it would be unreasonable to allow new proceedings to be initiated on the issue. In other words, the former deals with preventing litigation of the same cause of action, whilst the latter deals with keeping an issue out of a cause of action. The court, at 670, applied the well known case of the Port of Melbourne Authority v Anshun Pty Ltd (1981) at 602–03, when it stated: … there will be no estoppel … unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a

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defence if, having regard to the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.

On the facts before the court, the court found that recovering an instalment was a different issue to the recovery of the full amount of the rent under the lease agreements and, therefore, that res judicata did not apply but issue estoppel potentially could. However, in applying the test of issue estoppel, being that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment, the court found that this could not happen in the present set of facts because the issues were different. That is, a judgment rejecting a claim for the payment of instalment rent under the agreements cannot conflict with a judgment recording the success or failure in a claim for the payment of the entire amount of rent payable under the lease agreements. In this respect, the court was of the view that it would be acceptable for the respondent to have raised the claim for instalment rent in the first set of proceedings, and entirely appropriate for the respondents to claim the entire rent in a second set of proceedings. An arbitrator is required to decide all matters between the parties raised at the arbitration. In this respect, where an arbitrator fails to decide an issue that was presented to the arbitral tribunal, then the award will be found to be defective and the arbitrator is required to continue to act until all the issues between the parties raised at the arbitration have been decided. The only exception to this is where the same matters are before a court, in which case the arbitrator is not necessarily bound to decide all the issues between the parties. In such cases, arbitrators may make application to the court hearing the substantive law issues, as to whether the arbitration should continue. In relation to deciding the issues between the parties, the arbitrator’s award must be legal and capable of being performed by the parties and not be a mere proposal. In other words, an award cannot be illegal or be a breach of the law. For example, an award that imposed an unreasonable restraint of trade would offend public policy and be a breach of the law. Similarly, an award that required a party to do something impossible could not be upheld. An award that required a party, for example, to take delivery of goods that did not exist, would be an award incapable of being performed and therefore unlikely to be upheld by a court.

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Section 29 Section 29(1) of the Acts set out the form awards must take and provides that, unless otherwise agreed in writing by the parties to the arbitration agreement, the arbitrator shall: (a) make the award in writing; (b) sign the award; and (c) include in the award a statement of the reasons for making the award.

Sub-section (2) provides that where an arbitrator or umpire makes an award otherwise than in writing, the arbitrator shall, upon request by a party within seven days of the making of the award, give to the party a statement in writing signed by the arbitrator of the date, the terms of the award and the reasons for making the award. The requirement of writing and the requirement of execution are not controversial provisions, however, the requirement of providing reasons for making awards requires some explanation. The reason for the Acts ensuring that reasons are given for awards lies in two other sections of the Acts. First, s 38(2), to be discussed below, allows parties to appeal an award on a point of law. Secondly, s 42, also to be discussed below, allows the court to set aside an award on the grounds of the arbitrator’s misconduct. Clearly, for both these provisions to operate, the reason for the award must be clear so as to provide the basis of an appeal or the court setting aside an award. Also, for parties to be satisfied that the arbitrator has conducted the arbitration within the rules of natural justice, they need to be able to understand the reasoning of the arbitrator. All of the above is consistent with the way judges hand down judgments in litigation. Judges generally set out the facts of the case, the applicable law, then discuss the law in light of the evidence presented to support the facts that go to prove the cause of action. Finally, judges hand down their orders. Like judges, arbitrators are required to give a reasonable analysis of the legal principles involved in the case, where those legal principles come into play, in order to resolve the dispute between the parties. Jacobs, at para 28.80, quoting Sir Harry Gibbs delivering the John Keays Memorial Lecture, published in (1988) The Arbitrator 95, stated: … the arbitrator is required to explain in the reasons which form part of the award why he or she reached the decision on which the award embodies. To do that it is necessary to state the relevant facts and to explain why each issue of fact was resolved in the way in which the

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arbitrator resolved it. It is further necessary to state what conclusion the arbitrator reached on each question of law or of mixed law and fact and how that conclusion was reached. All of these things may be stated in the arbitrator’s own words, and in the form and order that seems to the writer most convenient. No special knowledge or skill of a legal kind is necessary to prepare the reasons, although it no doubt will help if the architect has a sense of relevance, a logical mind and a gift of clear expression as well as expertise in the subject matter of the dispute. However, it should be kept in mind that there is nothing technical about the process and that once an arbitrator has reached a rational conclusion the expression of the reasons that led him or her to that result should present no great difficulty.

Where an arbitrator’s reasons are considered by a court to be inadequate, a court may not consider such inadequate reasons under s 44 of the Acts as misconduct or that the arbitrator has misconducted the proceedings, and entertain an application for leave to appeal on a point of law under s 38. Instead, according to general law, a court invoking s 43 may remit any matter referred to arbitration by an arbitration agreement together with any directions it thinks proper to the arbitrator for reconsideration (although Jacobs’ opposition to this, given the wording of s 43, should be noted at para 28.170). Section 30 Section 30 of the Acts allows the arbitrator to correct a clerical mistake and provides that where an award made under an arbitration agreement contains: (a) a clerical mistake; (b) an error arising from an accidental slip or omission; (c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the award; or (d) a defect of form,

the arbitrator may correct the award, or the court, on the application of a party to the agreement, may make an order correcting the award. The section is exhaustive as to the trigger mechanisms the court has, before it can lawfully correct an award. However, it must be noted that s 30 does not give the court the power to rewrite the award or to give additional reasons for the award. It is generally accepted that where an error has occurred in relation to the drafting of the award under any of

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the indicia in s 30, the parties should seek the correction from the arbitral tribunal first before invoking the powers of the court. The application of s 30(c) was discussed in Woodbud Pty Ltd v Warea Pty Ltd & Others (1995), the facts of which were discussed above under s 22. In relation to the court’s view of the application of s 30, Young J stated, at 353–54: I have not discovered any case where s 30(c) has been construed by a court. Accordingly, I must approach it from first principles. For the section to apply there must be a material mistake in the description of a person referred to in the award. Thus one has to find a person referred to in the award. The person referred to in the award was ‘Sherwood Detailed Cabinet makers’. Was there a material error in description of that person? I think the answer to that question is in the negative. That person could have been properly described as a matter of law as X Pty Ltd trading as ‘Sherwood Detailed Cabinet Makers’, but the maker of the award never drew his attention to this matter at all. The parties were content and the arbitrator was content to merely refer to the person by the business name. If one had to work out who was trading as the business name, then there could have been considerable debate. This debate never took place before the award was handed down. It does not seem to me that the words ‘correct a material mistake’ mean that one is to enter into the field of a disputed question of fact.

So, because the issue of who was the correct owner of the trading name ‘Sherwood Detailed Cabinet Makers’ could have been answered in various ways depending on submissions and evidence received by the parties, the court could not classify the error as a correction of a material mistake, rather it was really a question of a disputed fact that was, therefore, outside s 30(c). Section 33 An award made under an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect, and, where leave is so given, judgment may be entered in terms of the award. The importance of this section lies in the remedies available to an innocent party against a defaulting party. The courts have found that because the award is akin to a judgment of the court, innocent parties may seek damages and equitable remedies, such as injunctions and specific performance.

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Section 34 Section 34 of the Acts relates to the costs of arbitration and provides: (1) Unless a contrary intention is expressed in the arbitration agreement, the costs of the arbitration (including the fees and expenses of the arbitrator or umpire) shall be in the discretion of the arbitrator or umpire, who may: (a) direct to and by whom and in what manner the whole or any part of those costs shall be paid; (b) tax or settle the amount of costs to be so paid or any part of those costs; and (c) award costs to be taxed or settled as between party and party or as between solicitor and client. (2) Any costs of the arbitration (other than the fees or expenses of the arbitrator or umpire) that are directed to be paid by an award shall, except so far as taxed or settled by the arbitrator or umpire, be taxable in the court. (3) A provision in an arbitration agreement (being an arbitration agreement that provides for the reference of future disputes to arbitration) is void if: (a) it is to the effect that a particular party, or the parties, to the agreement shall in any event pay their own costs of the arbitration or any part of those costs; or (b) it is to the effect that a particular party to the agreement shall in any event pay the costs of any other party or any part of those costs, except in so far as it relates to a right of indemnity or a right of subrogation. (4) If no provision is made by an award with respect to the costs of the arbitration, a party to the arbitration agreement may, within 14 days of the publication of the award, apply to the arbitrator or umpire for directions as to the payment of those costs, and thereupon the arbitrator or umpire shall, after hearing any party who wishes to be heard, amend the award by adding to it such directions as the arbitrator or umpire may think proper with respect to the payment of the cost of the arbitration. (5) Where a sum of money has been paid into the court in accordance with the rules of court in satisfaction of a claim to which an arbitration agreement applies, the arbitrator or umpire shall, in

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exercising the discretion as to costs conferred on the arbitrator or umpire by subsection (1), take into account both the fact that money was paid into the court and the amount of that payment. (6) Where, in accordance with rules of court, an offer of compromise has been made in relation to a claim to which an arbitration agreement applies, the arbitrator or umpire shall, in exercising the discretion as to costs conferred on the arbitrator or umpire by subsection (1), take into account both the fact that the offer was made and the terms of the offer. (7) An arbitrator or umpire shall, in exercising the discretion as to costs conferred on the arbitrator or umpire by subsection (1), take into account any refusal or failure by a party to the arbitration agreement to comply with the provisions of section 37.

In arbitration, like litigation, costs generally follow the event, that is to say, costs are generally awarded to the party in whose favour the award has been arbitrated. The reason that costs follow the event is simply because the party who forced another party to seek recourse to arbitration in order to enforce her or his rights should compensate that other party. Like a court, the arbitrator is free to depart from the general rule that costs follow the event. One reason that an arbitrator may depart from the general rule is where a party has deliberately frustrated the process of arbitration. In such a case, the arbitrator would be justified in sanctioning the offending party under s 37 of the Acts, which provides that the parties to an arbitration agreement shall at all times do all things which the arbitrator requires to enable a just award to be made, and no party shall wilfully do or cause to be done any act to delay or prevent an award being made. In Leighton Contractors Ltd v Western Australian Government Railways Commission (1966), the respondent contracted with the appellant for the appellant to construct 17 and three-quarter miles of railway track between Kalgoorlie and Kwinana in Western Australia. The appellant alleged that certain difficulties arose on the construction of the track incurring unforeseen expenditure outside the contracted amounts payable, and consequently claimed extra payments. The claims were referred to an engineer who authorised certain extra payments but rejected other claims in whole or part. The appellant was not satisfied with the findings of the engineer and, under the contract, invoked arbitration. The appellant claimed $516,066 under ten heads of claim. The arbitrator awarded the sum of $152,200 and directed that the parties, in equal shares, pay the costs of the award and that each party should pay its own costs of, and incidental to, the arbitration. The

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arbitrator gave no reasons for his award. The appellant moved the court to set aside as much of the award as related to costs. The appellant’s grounds for the application were that the arbitrator failed to exercise his discretion under the Arbitration Act 1895 (WA), in that there was no evidence or ground upon which the award was based and that the failure to exercise his discretion amounted to misconduct. Also, that the award as to costs constituted an error of law on the face of the award and that the arbitrator made a mistake as to the principle upon which he made the award. The High Court dismissed the appeal, finding that the award, upon its face, did not suggest misconduct by the arbitrator or that the arbitrator had not properly exercised his discretion when handing down his award. In delivering the judgment of the court, Barwick CJ agreed with the appellant’s submission that the discretion to award or not to award costs in arbitration must be exercised judicially and in accordance with settled principle, being that a successful litigant should be awarded costs. However, his Honour opined that in cases such as this, where there were a number of claims – some of which succeeded wholly or partially and some of which failed, then it could not be said that the claimant was entitled to his costs. The court pointed out that the arbitrator’s discretion to award costs is not a rule of law, rather it is purely discretionary. Also, that the face of the award did not disclose that there was no reason for the arbitrator to depart from awarding costs to the appellant. On the contrary, whilst there may not have been a valid reason for the awarding of costs on the face of the award, the award certainly did not suggest that there could not have been a reason for the arbitrator awarding costs in the way he did. Therefore, there was no error of law on the face of the award.

Commercial Arbitration Acts — Part V Section 38 Section 38 of the Acts deals with the important issue of the right of a party to appeal an award, and provides: (1) Without prejudice to the right of appeal conferred by subsection (2), the Court shall not have jurisdiction to set aside or remit an award on the ground of error of fact or law on the face of the award. (2) Subject to subsection (4), an appeal shall lie to the Supreme Court on any question of law arising out of an award.

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(3) On the determination of an appeal under subsection (2) the Supreme Court may by order: (a) confirm, vary or set aside the award; or (b) remit the award, together with the Supreme Court’s opinion on the question of law which was the subject of the appeal, to the arbitrator or umpire for reconsideration or, where a new arbitrator or umpire has been appointed, to that arbitrator or umpire for consideration, and where the award is remitted under para (b) the arbitrator or umpire shall, unless the order otherwise directs, make the award within 3 months after the date of the order. (4) An appeal under subsection (2) may be brought by any of the parties to an arbitration agreement: (a) with the consent of all the other parties to the arbitration agreement; or (b) subject to section 40, with the leave of the Supreme Court. (5) The Supreme Court shall not grant leave under subsection (4)(b) unless it considers that: (a) having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the arbitration agreement; and (b) there is: (i) a manifest error of law on the face of the award; or (ii) strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law. (6) The Supreme Court may make any leave which it grants under subsection (4)(b) subject to the applicant complying with any conditions it considers appropriate. (7) Where the award of an arbitrator or umpire is varied on an appeal under subsection (2), the award as varied shall have effect (except for the purposes of this section) as if it were the award of the arbitrator or umpire.

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Sub-section (1) makes it clear that an award can never be set aside on the ground of an error of fact or law on the face of the award. This means that should the award disclose an error on its face, that is, an error in the actual award or a document expressly incorporated into the award, it may not be appealed. This sub-section is read without prejudice to sub-s (2) that allows an appeal on a question of law arising out of the award. So effectively, sub-s (1) only applies to an error of fact on the face of the award. The relevance of the requirement of an error on the face of the award is that if an error has occurred in the reasoning that is not on the face of the award, then it may be the subject of appeal. It should be noted that the arbitrator’s reasons are generally regarded as being part of the award, even if separately documented. Generally, an error of law constitutes an erroneous legal proposition that has formed the basis of the award. For it to be on the face of the award, the error must be apparent as opposed to being merely an arguable legal proposition dependent on the tribunal of fact finding the error other than within the award. Sub-section (2) applies to those errors that are not manifest on the face of the award. In other words, it applies to errors that are not apparent from the award, but that arise out of the award evidenced by material not forming part of the award. The words most likely to give rise to the need for interpretation in sub-s (2) are the words ‘on any question of law’. Generally these words have been held to mean that the arbitrator has misinterpreted or misapplied a principle of law, or the arbitrator has applied an inappropriate principle of law to an issue of fact. It has been found that a failure to deal with a submission by a party that should have been given serious consideration by the arbitral tribunal is classified as being an error of law. Likewise, where an arbitrator fails to give sufficient reasons, this will be classed as an error of law. Section 42 Section 42 gives the court the power to set aside an award for misconduct, and provides: (1) Where: (a) there has been misconduct on the part of an arbitrator or umpire or an arbitrator or umpire has misconducted the proceedings; or (b) the arbitration or award has been improperly procured;

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the Court may, on the application of a party to the arbitration agreement, set the award aside either wholly or in part. (2) Where the arbitrator or umpire has misconducted the proceedings by making an award partly in respect of a matter not referred to arbitration pursuant to the arbitration agreement, the Court may set aside that part of the award if it can do so without materially affecting the remaining part of the award. (3) Where an application is made under this section to set aside an award, the Court may order that any money made payable by the award shall be paid into court or otherwise secured pending the determination of the application.

The definition of misconduct has given rise to the most litigation under this section, notwithstanding that s 4 of the Acts defines misconduct as including ‘corruption, fraud, partiality, bias and a breach of the rules of natural justice’. This definition is not exhaustive, merely directive and other forms of behaviour may invoke an allegation of misconduct. Whilst the description of the arbitrator’s own behaviour is reasonably clear from the common law, the Acts provide no definition of how an arbitrator could misconduct the proceedings. Given the primacy of the arbitration agreement, one possible way that an arbitrator could misconduct the proceedings is if the arbitrator stepped outside of the procedures set down in the arbitration agreement. For example, if the parties to the arbitration agreement agreed to invoke the rules of evidence under s 19(3), and the arbitrator did not apply the rules of evidence when deciding whether to admit certain evidence, then the arbitrator has probably misconducted the arbitration proceedings. In Re Tiki International Ltd (1994), Perpetual Trustee Company Limited leased property to the applicants, Tiki Properties Pty Ltd in 1983, who in turn assigned the lease in 1989 to Balfour Centre Pty Ltd. A dispute over contributions to land tax arose, which was arbitrated to the dissatisfaction of the lessees. The lease specified a lessee contribution to land tax based on the identification of the demised premises as set out in two plans contained in the schedule to the lease. The plans marked the demised premises in red ink but were open to various interpretations about what land was included within the definition of demised premises. Prior to handing down his award, the arbitrator consulted a solicitor to assist in his understanding of what constituted the demised premises. The parties were not consulted about this and the first time they became aware of the solicitor’s

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involvement was when the solicitor’s costs were listed on the bill to each of the parties. Upon handing down his award, the arbitrator chose an interpretation that conflicted with the applicant’s. One of the submissions supporting the applicant’s application to have the arbitrator’s award set aside was based on s 42(1)(a), in that the arbitrator misconducted the proceedings when the arbitrator sought independent legal advice and did not allow the parties to be heard on the advice received. By the arbitrator’s own admission, the legal advice, amongst other things, helped him formulate his decision. In the Supreme Court of Queensland, Byrne J began by stating the law that if the arbitration agreement allowed the arbitrator to obtain legal advice then there can be no basis for complaint by the parties. However, his Honour opined at 677, ‘where an arbitrator secretly obtains legal advice, and the potentially influential communications are withheld from parties, justice may not appear to have been done. Suspicions may be harboured as, for example, that the arbitrator has not exercised independent judgment’. His Honour suggested that the rules of procedural fairness dictate that the arbitrator should only obtain legal advice with the consent of the parties, and that the advice should usually be disclosed. Byrne J raised the issue of the legal advice being wrong and the fact that disclosure to the parties would help remedy such incorrect advice being relied upon. Nonetheless, his Honour, quoting the Privy Council, at 679, in Rolland v Cassidy (1888) approved of the view that ‘the omission to communicate the advice to the parties before the award was made was … an error of judgment’. In this case, the legal advice was said to have assisted the arbitrator in determining what the demised premises consisted of, but that the arbitrator’s reasons disclosed the fact that he considered all the options put before him from counsel. The reasons showed that the arbitrator did not defer to the viewpoint expressed in the legal advice and, therefore, that the arbitrator had not delegated his duty to hand down an award based on his own findings. Consequently, it could not be said that actual prejudice had occurred resulting in the misconduct of the arbitration. However, from a procedural viewpoint, it could be said that secret communications with an influential third party, such as a lawyer tendering legal advice on a highly contentious element of the arbitration, would produce something short of a fair hearing. This led the court to determine that there had been a procedural irregularity that had possibly lead to a miscarriage of justice, given the parties’ lack of an opportunity to question the legal advice, and that the matter should be reheard. Curiously, despite the secret legal advice, both

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parties were content that the arbitrator could be relied upon to reconsider the case fairly and agreed with the court that the matter should be reheard with the proper disclosure of the legal advice. Therefore, the award was not set aside under s 42(1)(a), rather the matter was remitted to the arbitrator for rehearing. Section 42(1)(b) of the Acts was discussed in Cockatoo Dockyard Pty Ltd v Commonwealth of Australia (No 3) (1994). In this case, there were two areas of dispute between the parties. First, a claim by the plaintiff against the defendant arising out of contracts between the parties for the refurbishment of naval vessels, including certain numbers of Collins class submarines, at the plaintiff’s dockyard on Cockatoo Island in Sydney Harbour. Secondly, a claim by the defendant against the plaintiff which arose out of the state of Cockatoo Island at the cessation of leasehold occupation by the plaintiff. The defendant entered into an agreement and lease with the plaintiff, whereby the plaintiff did work for the defendant in the refurbishment of naval vessels. The lease, for the whole of Cockatoo Island, was by deed dated 14 January 1972 and was for a period of 21 years commencing 1 January 1972. An argument broke out when the defendant, sometime in 1989, decided to have two submarines refitted at Garden Island. The matter went to arbitration and the arbitrator handed down an interim award, in favour of the plaintiff, for the sum of $565,649.43, on the issue of work done in connection with the leasing of the site prior to the plaintiff vacating it. The defendant made application to the New South Wales Supreme Court to have the interim award set aside on the grounds that it was improperly procured, as provided for in s 42(1)(b) of the Commercial Arbitration Act 1984 (NSW). The defendant’s submission was on the basis that, prior to arbitration, the defendant had requested from the plaintiff its most recent audited financial statements, and such financial information had not been forthcoming. The defendant had received other financial information but alleged that the most recent financial statements would disclose the plaintiff’s inability to pay the defendant, should its claims be successful, as well as the fact that such claims would exceed the value of the plaintiff’s tangible assets. Further, that if an interim award were made in favour in the plaintiff – the money paid would be used by the plaintiff’s parent company and therefore be unavailable for payment back to the defendant should the defendant’s claims be successful. The defendant argued that in these circumstances, the arbitrator improperly procured the interim award. Rolfe J thoroughly examined the evidence put before the arbitrator

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and found for the plaintiff on the basis that the arbitrator had taken into account the defendant’s submissions on the solvency of the plaintiff and had given them full weight. It was his Honour’s view that the additional set of financial statements would have made no difference to the force of the defendant’s submissions and in this respect Rolfe J stated, at 701–02: In my opinion this case does not establish the award was improperly procured. There is no evidence, and Mr Bennett [counsel for the defendant] did not suggest there was, of any willful concealment, deceit or fraud in the failure to produce the documents. He did submit there was no explanation from any officer of Codock [the plaintiff] as to why instructions were given to its solicitors that no such documents existed, but this falls far short of the type of conduct which, in my opinion, must be established to show there was improper procurement of an award. In addition, as I have said on several occasions, the substance of the material was before the arbitrator and it was necessary for him, to deal with the submissions, to have regard to it.

Section 44 Section 44 of the Acts provides that, where the court is satisfied that there has been misconduct by the arbitrator, or where the arbitrator has misconducted the arbitration, then the court may, on application of a party to the arbitration agreement, remove the arbitrator. As stated immediately above, misconduct is defined in s 4 of the Acts and is defined by the common law in the same way as defined in s 42 of the Acts. In Stannard v Sperway Constructions Pty Ltd (1990), the vendor plaintiffs contracted, in May 1986, with the builder defendants to construct certain renovations on an existing house. The cost of those renovations was to be $190,000, but the plaintiffs received an account from the defendants for $260,000 instead. The building contract included an arbitration agreement whereby the President of the Master Builders Association or his or her nominee would arbitrate any disputes. Just prior to the arbitration’s commencement on 10 August 1998, the plaintiffs’ solicitors sent to the defendants’ solicitors an offer to compromise for $40,000 including interests and costs. The arbitration commenced hearing but was delayed for various reasons. On 9 February 1989, the plaintiffs’ solicitors accidentally sent a copy of the offer to compromise to the arbitrator. When the arbitration hearing resumed on 17 July 1989, the arbitrator mentioned that a matter for

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consideration in the final written submissions would be the offer to compromise. Up until this point in the arbitration, the parties were unaware that the arbitrator knew of the existence of the offer to compromise. The mention of the offer came as a surprise to both parties. On 21 July 1989, the plaintiffs invited the arbitrator to withdraw form the proceedings because of the disclosure of the offer to compromise. The arbitrator refused and the plaintiffs sought a court order under s 44 of the Commercial Arbitration Act 1984 (VIC) to remove the arbitrator. In the Supreme Court of Victoria, Brooking J judged that the plaintiffs’ motion to remove the arbitrator should fail. One of his Honour’s reasons was that if the arbitrator was removed, with only an estimated three hearing days to go in the arbitration, it would mean that time and expense had been wasted by both the parties. His Honour noted that if the matter had been raised by the parties in February rather than July, then the court may well have been justified in removing the arbitrator, but given the fact that the arbitration had nearly completed its hearings, it would be an unnecessary delay and a waste of money to start again. Brooking J found that there was no misconduct under s 44(1)(a) because the definition of misconduct under s 4 of the Act included corruption, fraud, partiality, bias and a breach of the rules of natural justice. Brooking J was also influenced by the arbitrator’s admission that he was not influenced by the offer of compromise and that it did not influence his deliberations and his belief that he could come to an impartial decision, unaffected by the disclosure of the offer to compromise. His Honour was of the view that the arbitrator was guilty of none of the indicia of misconduct and opined at 680: I think it was well open to the arbitrator to exercise his discretion by deciding to continue with the arbitration. Indeed, I believe that, had I been in his position, I would have reached the same decision. Be that as it may, I am clearly of the view that the arbitrator had discretion, that he exercised it and that no ground has been shown for assailing the exercise of discretion. The allegation that the arbitrator was guilty of misconduct or misconducting the proceedings by refusing to disqualify himself, fails.

His Honour was unmoved by the suggestion to apply paras (b) and (c) of s 44, in that there was no evidence to suggest that the arbitrator had been unduly influenced during proceedings or that the arbitrator himself was incompetent or unsuitable to deal with the dispute. Brooking J was of the view that the alleged breach of s 44(a) was akin

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to a judge hearing a matter in court with the knowledge that a payment into court had been ordered. In such circumstances the judge has a discretion to continue hearing the case and when making that decision should consider how long the trial has run and the cost of discontinuing the hearing. Section 46 Section 46 of the Acts deals with ensuring that the arbitration is not unduly delayed, by providing: (1) Unless a contrary intention is expressed in the arbitration agreement, it is an implied term of the agreement that in the event of a dispute arising to which the agreement applies it is the duty of each party to the agreement to exercise due diligence in the taking of steps that are necessary to have the dispute referred to arbitration and dealt with in arbitration proceedings. (2) Where there has been undue delay by a party, the Court may, on the application of any other party to the dispute or an arbitrator or umpire, make orders: (a) terminating the arbitration proceedings; (b) removing the dispute into Court; and (c) dealing with any incidental matters. (3) The Court shall not make an order under subsection (2) unless it is satisfied that the delay: (a) has been inordinate and inexcusable; and (b) will give rise to a substantial risk of it not being possible to have a fair trial of the issues in the arbitration proceedings or is such as is likely to cause or to have caused serious prejudice to the other parties to the arbitration proceedings.

Sub-section (1) simply implies a term into the arbitration agreement, which ensures that parties will not cause undue delay of the dispute being referred to arbitration. The Acts do not set out what is a reasonable time for disputes to be referred or when arbitrators must hand down awards. In fact the Acts do not address delays by arbitrators in handing down awards. However, parties may specify in their arbitration agreement time limits for both, which will bind the parties should a dispute arise.

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Sub-section (2) was discussed in Multiplex Constructions Pty Limited v Suscindy Management Pty Limited (2000) where the defendant subcontractor had contracted with the plaintiff builder in September 1987 to supply certain labour to fix steel reinforcement material on a commercial building project in New South Wales. The plaintiff terminated the sub-contract on 6 June 1991, alleging a repudiation of the sub-contract by the defendant. Between 24 June 1991 and 20 January 1993, the parties served the requisite notices under the subcontract, and arbitration was triggered to resolve the disputes between the parties. On 23 September 1993 the first preliminary conference set out a timetable of events that would result in the arbitration hearing commencing on 20 June 1994, running for five weeks until 22 July 1994. Between 22 October 1993 and 9 March 1994, the plaintiff sought certain particulars and on the latter date the defendant changed its solicitors. Given the lateness of the defendant’s defence and defence to the counter-claim, the parties agreed on 13 April 1994 to vacate the arbitration hearing dates. The following day, the arbitrator directed that the hearing dates be vacated, and a further date of 4 July 1994 was set for a further preliminary conference. On 6 July 1994, the further preliminary conference took place and a new timetable was set showing the date of 28 October 1994 as the date on which a new set of hearing dates would be agreed. Between 18 August 1994 and 3 October 1996, the plaintiff sought further particulars from the defendant. On 20 December 1996 the parties and their lawyers met and it was agreed that each party’s quantum experts should meet. The meeting finally took place on 11 May 1997. On 25 September 1997, the arbitrator wrote to both parties requesting advice as to the status of the proceedings. On 1 October 1997 the defendants wrote to the arbitrator stating it was reconstructing and recalculating its claim and that the matter would be ready for hearing in six weeks. On 7 October 1997, the plaintiff changed its solicitors. Thus ensued a substantial delay with nothing seeming to occur at all during 1998 and 1999 until 16 July 1999 when the defendant wrote to the arbitrator requesting dates to hear the reference. On 15 September 1999 the plaintiff wrote to the defendant advising that it consider the arbitration as having been abandoned by consensus. The defendant denied the suggestion that the arbitration had been abandoned in a letter to the plaintiff of 17 September 1999. Further correspondence took place between that date and 7 March 2000, until finally on 8 May 2000, the plaintiff filed a notice of motion seeking a court order restraining the defendant from taking any further steps in the arbitration.

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When assessing applications for interlocutory relief, the court must consider, first, the existence and strength of the prima facie case being pursued by the plaintiff and, secondly, to consider the balance of convenience between granting and not granting the interlocutory orders sought. On the first issue, the plaintiff’s summons relied on two grounds: first, that the parties had abandoned the arbitration and secondly, reliance on the provisions of s 46 of the Commercial Arbitration Act 1984 (NSW). Clearly both grounds relate to each other and the court appeared to go into great detail analysing the first ground as a way to answer the second ground as to whether there had been an inordinate or inexcusable delay. Einstein J canvassed the English authorities on contracts of abandonment and distilled the ‘three prong test’, at para 76, as being: (a) A clear inference to be drawn from the inactivity of one party was that the party (in this case, the defendant) did not wish to or intend to proceed with the arbitration and offered to abandon it. (b) A clear inference to be drawn from the lack of activity by the other party’s (in this case, the plaintiff’s) understanding of the position. (c) That this inference represented, or at least did not conflict with, the second party’s (in this case, the plaintiff’s) understanding of the position.

His Honour cited the critical question for the court, at para 78, as being ‘on the plaintiff’s prima facie case is whether informally but effectively, the parties have so acted in relation to each other as to abandon or abrogate the contract?’. Einstein J was particularly focused on the two year period between May 1997 and July 1999 where there was little or no apparent activity towards the arbitration hearing. His Honour was of the view that, whilst there was a long period of seemingly little or no activity, that was the nature of that particular matter. Nonetheless, a lot had been achieved in that time, including the serving of the statement of claim, the defence, the cross-claim, the defence to the cross-claim, the reply to the defence and the exchange of numerous witness statements. Because of the slow pace, his Honour opined that something more than the passage of time would be needed to prove abandonment. Einstein J judged that this matter failed the three elements of the test for abandonment and that the balance of convenience was clearly in favour of proceeding to arbitration given the time and expense the parties had been through in order to get close to the stage of having the matter heard at arbitration. So the court

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dismissed the plaintiff’s application, refused to exercise its discretion under s 46(2)(a) to terminate the arbitral proceedings and allowed the parties to proceed to arbitration. Sub-section (3)(a) allows the court to make an order under sub-s (2) if the delay has been inordinate or inexcusable. The meaning of inordinate in this context is where there has been an irregular or excessive delay. However, it is generally agreed that what constitutes an inordinate delay depends on the facts of each case. For example, in large and complex disputes, delays in discovering material may mean a long lead-time before parties are ready to commence arbitration, whereas in small scale disputes, parties should probably be ready to arbitrate relatively quickly. Where rules of court apply to proceedings, delays within the parameters of the rules would not be classed as being inordinate, however, periods in addition to those time restraints could be classed as being inordinate. The term inexcusable means a delay that is caused by anything outside of the standard procedural difficulties. In this respect, inordinate relates to the time it takes to arrange arbitration, and inexcusable relates to the behaviour of the parties in arranging arbitration. Like para (a), para (b) is to be applied on the facts of each case. However, the notion of a party not receiving a fair trial because of inordinate and inexcusable delay was discussed in Clements v Simto Pty Ltd (2001). In this case the respondent, Simto Pty Ltd, was contracted to construct two sea walls at Cape Lambert. The respondent sub-contracted with Carob Industries Pty Ltd (‘Carob’) to cart away earth in connection with the construction of the sea walls. A dispute broke out and Carob gave notice of a dispute on 14 May 1992. Carob claimed that it had carted substantial amounts of earth and had been short paid by the respondent. The respondent claimed that Carob failed to carry the amount of earth they were contracted to carry. Sometime during the dispute Carob went into liquidation, and its liquidator sold its cause of action to the appellant. On 3 July 1992 an arbitrator was appointed. On 19 November 1993, Carob referred the proceedings to the Supreme Court Of Western Australia to determine whether there was a valid arbitration clause in the sub-contract. This question was answered in the negative on 17 April 1996; that decision was appealed on 8 May 1996 and the appeal was allowed on 22 May 1997. On 26 May 1997, the respondent filed a notice of motion to stay the arbitration on the grounds that the arbitration was being maintained under a champertous arrangement and an abuse of process. On 11 December 1997 the court found that the arbitration was maintained under a champertous arrangement

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between Carob and the appellant and that this arrangement had been in place between 1993 and 11 December 1997. The respondents then brought three applications, the first of which sought to have the arbitration terminated under s 46 of the Commercial Arbitration Act 1985 (WA). A single judge of the Supreme Court of Western Australia found that there had been undue and prejudicial delay and that the arbitration proceedings should be terminated. The appellant appealed. Templeman J delivered the judgment of the court with which Steytler and Wheeler JJ agreed. His Honour commenced his judgment by reciting the facts of the case with close attention to the dates of each action by the parties. Templeman J then quoted extensive sections of the judge at first instance’s judgment. In particular the elements of s 46 that consisted of: (i) the length of the delay; (ii) the explanation for the delay; (iii) the hardship to the plaintiff if the action is dismissed and the cause of action if statute-barred; (iv) the prejudice to the defendant if the action is allowed to proceed, notwithstanding the delay; and (v) the conduct of the defendant in the proceedings.

His Honour noted the judge at first instance’s view of the delays, where his Honour observed that the appellant had moved very slowly since the appointment of the arbitrator on 3 July 1992. In fact, the judge at first instance was critical of the slowness of proceedings and in particular the two year delay between December 1997 and December 1999 where literally nothing happened. Templeman J, in finding that there was an inordinate and inexcusable delay under s 46, commented on the appellant’s knowledge of the law, when his Honour stated, at para 18: The liquidator is a man of considerable experience. The appellant is, or was, a barrister. There is no valid reason for professional men in their respective positions either to act in a dilatory manner, as the appellant did, or to tolerate delays by legal advisors. Nor is it acceptable, when faced with an obstructive opposing party, for such professionals to wring their hands and complain that life is being made difficult. They should well be aware that courts and arbitrators have wide powers to compel recalcitrant parties to comply with strict timetables and to ensure that matters are litigated or arbitrated with whatever degree of expedition may be required.

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In short, his Honour found that the appellant and the liquidator were responsible for delays that could fairly be described as being inordinate and inexcusable within the meaning of s 46. However, the court noted that even where there has been an inordinate and inexcusable delay, the court cannot terminate an arbitration unless the delay will give rise to a substantial risk of it not being possible to have a fair trial of the issues or to have caused serious prejudice to the other parties to the arbitration. In this respect, Templeman J agreed with the judge at first instance that the delay had caused the memory loss of key witnesses and the impossibility of a useful site survey given the structural changes to the site over time. The appellant argued that these matters were irrelevant as the issues in arbitration were of a contractual nature. His Honour agreed with the appellant but was of the view that it would still be necessary to determine how much earth had been carted by Carob. Given the issue of the witnesses loss of memory and the lack of survey evidence from the site, his Honour found that there would be a risk of not being able to have a fair trial and that the respondent would be prejudiced if such proceedings were to continue nine years after the dispute arose. An interesting juxtaposition to the above case is Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (No 3) (1995), where the court found that a delay triggering an application to terminate arbitration was warranted. In this case the plaintiff builder contracted on 28 February 1991 with the vendor defendant to manage and coordinate the construction of a resort project on Christmas Island. On 2 March 1992, the plaintiff terminated the contract on the ground that the defendant had failed to make progress claims that were past due. On 26 March 1992, the dispute was referred to arbitration principally on the issue of damages. The plaintiff applied for summary judgment and the defendant applied for an order staying the proceedings until the Master of the Court had made a decision on the issue of damages. Between March 1993 and July 1993 the Master heard evidence and argument as to damages and on 16 May 1994, the Master assessed damages in favour of the plaintiff for $3,489,639.78. The defendant lodged an appeal. The defendant brought an application to have the damages claims prosecuted by arbitration and the plaintiff sought to enjoin the defendant from taking further steps in the arbitration on the grounds, amongst other things, of want of prosecution under s 46(2) of the Commercial Arbitration Act 1985 (WA). The basis of the plaintiff’s argument was that the defendant had delayed arbitration intentionally and contumeliously under s 46(3) (‘contumeliously’ has now been

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replaced with ‘inexcusable’ in the uniform Acts). In the Supreme Court of Western Australia, Ipp J found against the plaintiff on the application to enjoin the defendant from taking further steps in the arbitration. His Honour’s reasoning was that the defendant had rightly delayed the arbitration proceedings pending the findings of the Master on the issue of damages and the appeal that flowed from the Master’s findings. Ipp J stated at 296: ‘In the circumstances, it seems to me that it could not be said that it was unreasonable for the defendant to take the approach that nothing should be done in the arbitration while the assessment of damages and the subsequent appeal were pending.’

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5 Statutory Schemes and Industry Codes — Commonwealth and New South Wales

Introduction State, Territory and Federal legislatures have enacted quite extensive legislation that provides for dispute resolution schemes of varying complexity. Private industry has followed suit and adopted a raft of codes of conduct, some of which have been made mandatory under existing legislation, whilst others remain self-regulated codes within industry itself. The following discussion will seek to examine the various statutory schemes operating in each State and Territory within the Commonwealth of Australia, as well as some of the industry codes of conduct invoked should disputes arise within industry. It is beyond the scope of this text to detail every aspect of each scheme or code, rather this and the following chapter seek to give an outline of the essential attributes of each of the schemes and codes and the more important statutory requirements of each scheme. These chapters do not seek to discuss legislation promoting and regulating arbitration, as this has been dealt with in the previous chapter.

Commonwealth Administrative Appeals Tribunal (AAT) The Administrative Appeals Tribunal Act 1975 (Cth) establishes the AAT to review administrative decisions made by the Commonwealth Government, its ministers, officials and authorities. It may also review decisions made by some non-government bodies. The AAT decides whether a correct decision has been made or whether a preferable decision should be substituted in accordance with the applicable law. In this respect, the AAT will affirm, vary or set aside the original decision. The AAT’s jurisdiction covers 375 separate pieces of legislation covering, amongst other things, taxation, social security, veterans’ affairs, Commonwealth employees’ compensation and 151


superannuation, criminal deportation, civil aviation, customs, freedom of information and bankruptcy. Section 34A(1) of the Act empowers the AAT to refer proceedings or parts of proceedings before it to mediation with the parties consent. Sub-section (2) states that a mediator must be a member or officer of the AAT directed by the President to mediate in a particular case, however, sub-s (8) states that a mediator may only be a member of the tribunal for the purposes of making orders under sub-ss (5) and (6) or dismissing an application. Sub-sections (4)–(6) provide that if agreement is reached in mediation and the parties to the dispute have reduced the agreement to writing and lodged it with the AAT and the AAT is satisfied that the agreement is within its powers, then it may make its decision in accordance with the agreement. Sub-section (7) provides that except at the hearing of a proceeding before the AAT where the parties otherwise agree, evidence of anything said or act done at mediation is not admissible in any court or in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence. Aged care complaints resolution scheme The Aged Care Act 1997 (Cth) seeks to provide, amongst other things, funding for aged care and the regulation of the type and quality of aged care. Under s 963(2) of the Act the Minister may establish a committee to, amongst other things, resolve complaints relating to the provision of aged care services and the committee may make determinations to resolve those complaints. The principle instrument governing the committee is the Committee Principles 1997, gazetted on 29 September 1997. Division 4 of the Committee Principles provides for the negotiation of complaints. In particular s 10.53 provides that the aged care provider and the complainant must endeavour to resolve the dispute by negotiation conducted by the Secretary to the Department of Health and Family Services. Should negotiation be unsuccessful, s 10.54 of the Committee Principles provides that the complaint must be referred to mediation. The Secretary shall nominate a mediator and under s 10.57, the mediator must endeavour to resolve the dispute by bringing the parties together to discuss, and negotiate about, the complaint, and to help the parties to reach an agreement. Participation in the mediation is voluntary and the mediator is not subject to direction by anyone in carrying out his or her duties.

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Section 10.58 of the Committee Principles prescribes that a party is not entitled to be represented by a person engaged to provide legal representation. However, the aged care provider may be represented by one of the key personnel, or another employee, of the provider. The mediator may permit a party to the complaint to be represented by an agent if the mediator considers that the agent has sufficient knowledge of the issues raised by the complaint to represent the party effectively. Section 10.59 provides that evidence of anything said, done or produced during mediation may not be given in a court except with the agreement of the parties to the complaint. Also, the mediator or a party must not disclose or communicate to anyone else information about anything said, done or produced during mediation. The main exception to the confidentiality rules are that the mediator must tell the secretary in writing about anything that, in the mediator’s opinion, involves a serious issue affecting the safety, health or wellbeing of a care recipient, or relates to the commission of a serious offence. According to s 10.61, the mediator must report to the secretary in writing about the outcome of mediation as soon as practicable after mediation ends. Such a report may recommend that the committee resolve the complaint by determination. Prior to the Committee Principles 1997 being invoked, complaints may be referred to the Aged Care Complaints Resolution Scheme. The Scheme is a free and independent service run by the Federal Department of Health and Aged Care with the aim of resolving complaints about aged care. Since it was set up in October 1997, the Scheme has been successful in resolving more than 90% of complaints to the satisfaction of both care recipients and their aged care providers. Each complaint is handled by a Complaints Resolution Officer who consults with the complainant about what course of action he or she wishes to take when negotiating with the aged care provider. Complainants can choose whether they wish to be involved in negotiations with the aged care provider or not. If there are difficulties in reaching a solution, the complaint is referred to a Complaints Resolution Committee. These Committees comprise members with specific expertise in aged care and dispute resolution and are appointed by the Secretary of the Department of Health and Aged Care. The Committees hand down determinations that are legally binding on the service provider and set out a course of action to address the issues raised in the complaint.

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Agriculture and veterinary chemicals The Agriculture and Veterinary Chemicals Code Act 1994 (Cth) (‘the Act’) is a statute that, amongst other things, seeks to make provision for the evaluation, registration and control of agricultural and veterinary chemical products, and for related matters, for the purposes of the Agricultural and Veterinary Chemicals Act 1994 (Cth). One of the related matters the Act seeks to ensure is the correct labelling of agricultural and veterinary chemicals. In this respect the Agricultural and Veterinary Chemicals Code (‘the Code’), which appears as the schedule to the Act, allows a person to be compensated by any other person wishing to use information, about a chemical product, supplied to the NRA for registration of another chemical product under the Act. Section 57(4) of the Code states that the parties concerned are invited to negotiate the terms of compensation and that a mediator may be appointed to assist in this process should the parties be unable to agree on compensation. Further, should mediation be unsuccessful, then the section provides for the appointment of an arbitrator to resolve any such disagreement. Section 63 of the Code sets out conditions whereby the mediation must cease, one of which is if 14 days have elapsed since the appointment of a mediator. Under reg 29 of the Agricultural and Veterinary Chemicals Code Regulations 1995 (Cth), where mediation has not resolved the dispute as to compensation, as soon as practicable after being notified of the arbitrator’s appointment, the mediator must give a written report to the arbitrator setting out the proposals and counter proposals (if any) made by the applicants during mediation and summarising the issues raised during mediation. Section 64 deals with the appointment of an arbitrator and s 65 directs the arbitrator to determine the terms of compensation according to a proposal for compensation made by one party during the course of negotiations in the absence of any proposal by the other party to the dispute. If both parties make a proposal for compensation, then the arbitrator must determine the terms for compensation based on the proposal that the arbitrator deems to be the most appropriate. Section 69 gives the arbitrator some indicia of what constitutes a reasonable proposal, namely, that the proposal provides for an amount to be paid to the primary applicant (the applicant who provided the information in the first place) and that the amount represents a fair proportion of the costs incurred by the primary applicant in obtaining registration of the chemical in the first place. An arbitrator’s determination on compensation may be enforced as a final judgment by the court exercising original jurisdiction. 154

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Australian Bankers Association The Australian Bankers’ Association Code of Banking Practice (‘the Code’) came into force on 3 November 1993, and states in its preamble that the Code seeks to foster good relations between Banks and their Customers and to promote good banking practice by formalising standards of disclosure and conduct which Banks that adopt the Code agree to observe when dealing with their Customers. The objectives of the Code are, amongst other things, to require Banks to have procedures for the resolution of disputes between Banks and Customers. The Code is monitored by the banks reporting to the Reserve Bank of Australia each year on the operation of the Code, and information on the number of disputes referred to in ss 20.3 and 20.4 of the Code, according to their categories and how each of these categories of disputes has been handled. Part C of the Code sets out the dispute resolution mechanisms and under s 20.1 provides that each bank shall have an internal process for handling a dispute between the bank and a customer, and that this process will be readily accessible by customers without charge. A dispute is classified as arising when a bank’s response to a complaint by a customer about a banking service is not accepted by that customer. Section 20.3 provides that, where a request for resolution of the dispute is made in writing, or the customer requests a response from the bank in writing, the bank shall promptly inform the customer in writing of the outcome. Further, if the dispute is not resolved in a manner acceptable to the customer, then the customer can take further action under s 20.4. This section provides that a bank shall have available for its customers free of charge an external and impartial process, not being arbitration, having jurisdiction similar to that which applies to the existing Australian Banking Industry Ombudsman Scheme. Under s 20.5 of the Code, the external and impartial process shall apply the law, and the Code and also may take into account what is fair to both customer and the bank. The system implemented by the Australian Banking Industry Ombudsmen involves giving the bank the opportunity to resolve complaints at first instance. However, if the customer is dissatisfied with the bank’s resolution of the complaint, the customer can ask the Ombudsmen to investigate the complaint. A case officer from the Ombudsmen’s office conducts the investigation and hands down a finding stating how the dispute should be resolved, and giving their reasoning. If the customer believes the finding to be incorrect, the customer can write to the Ombudsmen, stating why he or she thinks the finding is incorrect, and the Ombudsmen will make a formal

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recommendation to resolve the complaint. If the customer rejects the recommendation, then the Ombudsmen can no longer help the customer. However, if the bank rejects the recommendation, then the Ombudsmen may issue an award that binds the bank. The Ombudsmen may use conciliation conferences that are attended by the parties and the discretion to hold such conferences rests with the Ombudsmen. Australian Industrial Relations Commission The Workplace Relations Act 1996 (Cth) sets out two dispute resolution mechanisms to be used by parties bringing disputes before the Australian Industrial Relations Commission (‘the Commission’). In particular, s 100(1) provides that, where an industrial dispute comes before the Commission, the relevant Presidential Member shall, unless satisfied that it would not assist the prevention or settlement of the alleged industrial dispute, refer it for conciliation by himself or herself or by another member of the Commission. Interestingly, under subs (2), if the Presidential Member does not refer the dispute for conciliation, then he or she must publish reasons for not doing so and the Commission must deal with the dispute by arbitration. Section 104 provides for circumstances where arbitration is the ultimate form of dispute resolution, and states that when a conciliation proceeding before a member of the Commission in relation to an industrial dispute is completed but the dispute has not been fully settled, the Commission shall proceed to deal with the dispute by arbitration. In relation to confidentiality between the two processes of conciliation and arbitration, sub-s (4) provides that a member shall not disclose anything said or done in conciliation in relation to matters in dispute that remain unsettled. Further, sub-s (5) states that in an arbitration proceeding, unless all the parties agree, evidence shall not be given, or statements made, that would disclose anything said or done in conciliation, whether before a member of the Commission or at a conference arranged by a member of the Commission, in relation to matters in dispute that remain unsettled. To ensure that there is no breach of the rules of natural justice, s 105 states that where a member of the Commission has exercised conciliation powers, the member shall not exercise, or take part in the exercise of, arbitration powers in relation to the dispute if a party to the arbitration proceeding objects. Finally, s 520(1) states that if an employment agreement does not contain provisions that set out procedures to be followed to prevent or

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settle disputes, then the agreement is taken to include the provision mentioned in sub-s (2). Sub-section (2) provides that any dispute arising under an employment agreement must be dealt with in the following manner: (a) the matter must first be discussed by the aggrieved employee with his or her immediate supervisor; (b) if not settled, the employee may request a representative to be present and the matter must be discussed with the immediate supervisor and his or her superior or another representative of the employer appointed for the purpose of this procedure; (c) if the matter is not resolved, it must be submitted to the Commission or an agreed mediator for the purposes of conciliation or mediation; (d) the parties may agree to submit the dispute to arbitration and, if so agreed, the decision must be accepted by the parties subject to any appeal available; (e) until the matter is determined, work must continue at the direction of the employer. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure; (f) the parties must cooperate to ensure that these procedures are carried out expeditiously.

In relation to employment agreements under Victorian law, sub-s (3) provides that if an employment agreement does contain provisions of the kind mentioned in sub-s (1) and those provisions refer to conciliation or mediation by the Employee Relations Commission of Victoria, the reference is taken for the purposes of this Act to be a reference to conciliation by the Commission. The Workplace Relations Regulations 1996 (Cth) were amended in 1997 to add Schedule 9 to the Regulations, which provide a prescribed model dispute resolution procedure. There are several steps to the procedure that may be summarised in the following manner: (a) The employee and his or her supervisor will attempt to resolve any dispute by meeting together. Should this meeting not produce a resolution, then the employee will meet with more senior levels of management in an attempt to resolve the dispute. (b) Either party has the right to appoint another person to act on their behalf.

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(c) Either party may refer the matter to mediation if the dispute cannot be resolved at the workplace. (d) The parties will participate in mediation in good faith. (e) Either party has the right to appoint another person to act on their behalf at the mediation. (f) Whilst the matter is being resolved, the parties agree to continue to work according to the contract of employment, unless the employee has a reasonable concern for his or her safety. The parties must cooperate and ensure that the dispute resolution procedures are carried out as quickly as possible. (g) Either party can agree not to commence an action to enforce his or her rights under available workplace legislation, unless the party initiating the action has attempted to resolve the dispute at workplace level and either a period of seven days has expired from the date when the party initiating the action gave notice that mediation was not requested, or mediation was requested by either party and the mediation has been completed.

Building societies The Building Society Code of Practice (‘the Code’) bears a striking resemblance to the Australian Bankers’ Association and the Credit Union Codes of Practice. The preamble to the Code states that it seeks to foster good relations between building societies and their customers, and to promote good practice by formalising standards of disclosure and conduct, which building societies agree to observe when dealing with their customers. The Code’s objectives are, amongst other things, to require building societies to have procedures for the resolution of disputes between them and their customers. Part C of the Code deals with the resolution of disputes and s 20.1 provides that a building society must have an internal process for handling a dispute between itself and its customers, and that this process will be readily accessible by customers without charge upon them by a building society. Further, a dispute is defined in s 20.1 as a situation where a building society’s response to a complaint by a customer about a service provided to that customer is not accepted by that customer. Section 20.2 states that a building society must have available in branches: general descriptive information on the procedures for handling disputes; the time it will take to deal with the dispute; and the fact that the dispute will be dealt with by an officer of

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a building society with appropriate powers to resolve the dispute. Customers wishing to invoke the dispute resolution procedures must inform the building society in writing, after which a building society must promptly inform the customer in writing of the outcome. If the dispute is not resolved in a manner acceptable to the customer then, under s 20.4, a building society must have available for its customers free of charge an external and impartial process, not being arbitration, for the resolution of a dispute. Copyright Section 195AZA of the Copyright Act 1968 (Cth) sets out the remedies available to a person who has had his or her moral rights infringed by a breach of copyright. In particular, the section provides the court with the power to grant certain relief for an infringement of an author’s moral rights in respect of original work protected by the Act. In exercising its discretion as to injunctive relief, the court must consider whether the parties have made any attempt to negotiate a settlement of the action, and whether it should adjourn the hearing or further hearing of the action for the purpose of giving the parties an appropriate opportunity to negotiate a settlement, whether through a process of mediation or otherwise. Corporations Section 241 of the Corporations Act 2001 (Cth), states that the court may make any orders, and give any directions, that it considers appropriate in relation to proceedings brought or intervened in with leave, in relation to an application for leave, including, amongst other things, directions about the conduct of the proceedings, including the requirement of mediation. Credit unions The first thing to note about the Credit Union Code of Practice (‘the Code’) is how similar it is to the Building Society Code of Practice. Notwithstanding this, the preamble to the Code states that it seeks to foster good relations between credit unions and their members and to promote fair treatment of members by formalising standards of disclosure and conduct, which credit unions adopting the Code agree to observe, when dealing with their members. Further, the Code’s objectives state, amongst other things, that it is intended to require

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credit unions to have procedures in place for the resolution of disputes with their members. Part C of the Code deals with the resolution of disputes between credit unions and their members. Section 20.1 of Part C provides that a credit union will have an internal process for handling a dispute with its members and this process will be readily accessible by members without charge upon them by the credit union. Section 20.2 states that the procedures for handling disputes, including the appointment of a credit union officer to handle disputes once a member has made a complaint, will be displayed at all member branches. Section 20.3 provides that a credit union will inform a member of the outcome of the dispute once it has been addressed by a credit union and that if a member is dissatisfied with the outcome, the member will be informed of the reasons for the outcome. Section 20.4 states that where a dispute is not resolved, in a manner acceptable to a member by the internal process and which concerns an alleged contravention of this Code or the Electronic Funds Transfer Code of Conduct (to be discussed below), a credit union will make available to its members free of charge an external and impartial process, not being arbitration. Section 20.5 states that the external and impartial process will apply the law and this Code and also may take into account what is fair in all the circumstances to both a member and the credit union. The Credit Union Dispute Resolution Centre (CUDRC) was established in November 1996 to assist credit unions and their members resolve complaints in an equitable manner. The CUDRC is funded by participating credit unions as part of their ongoing commitment to member services. The main function of the CUDRC is to respond to complaints and inquiries concerning the Code and the Electronic Funds Transfer Code of Conduct and is governed by an independent Council comprised of two consumer representatives, two credit union representatives and an independent chairperson. The Council oversees the day to day operation of the CUDRC and provides guidance to the CUDRC Dispute Manager on policy issues. The CUDRC cannot look into a complaint if it concerns a credit union product or service provided prior to 1 November 1996 or if the amount of the claim exceeds $100,000. The CUDRC also cannot look into a complaint if it concerns the exercise of commercial judgement by the credit union or credit union policy on matters such as loans, interest rates or branch closures. In relation to the procedures adopted by the CUDRC, if a complaint has been made to a credit union and the member is not satisfied with the response of the credit union, or three months has

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passed since the complaint was brought to the credit union’s attention, then the member can make a formal complaint to the CUDRC. The CUDRC will then investigate the complaint and facilitate a negotiated settlement between the parties. If a negotiated settlement is not reached between the parties, the CUDRC will make a decision according to its Terms of Reference. The member is under no obligation to accept a decision made by the CUDRC. However, if the member accepts a decision issued by the CUDRC, that decision will become binding on the credit union. All costs associated with the conduct and resolution of disputes are covered by the CUDRC and the relevant credit union. The member will be reimbursed for reasonable travel and accommodation costs associated with the conduct and resolution of the dispute. In short, the member may not be charged for any costs associated with the resolution of the dispute, even if the dispute is dismissed. A member may withdraw from the dispute resolution process at any time. If a member rejects a determination by the CUDRC, then the member retains a right to pursue the dispute in a different jurisdiction, for example: a court of competent jurisdiction; the Department of Fair Trading in the respective State or Territory; the Australian Competition and Consumer Commission; or the Australian Securities and Investment Commission. If a credit union rejects a recommendation it may request independent arbitration. If a member agrees, the CUDRC will refer the dispute to independent arbitration. The CUDRC will then have no further responsibility with respect to the dispute. If the parties accept a determination, its contents may be used in any subsequent proceedings to enforce its terms and conditions. Unless otherwise agreed by the CUDRC, the parties may only represent themselves or be represented by an employee representative who is not legally qualified in any activities relevant to the conduct of the resolution process. If the CUDRC does agree to legal representation, the parties must pay their own costs for such representation. Electronic funds transfer The Electronic Funds Transfer Code of Practice (‘the Code’) governs the relationship between the users and providers of Electronic Funds Transfer (‘EFT’) Systems in Australia. This means that it applies to banks, building societies and credit unions and any other organisation offering EFT systems. More precisely, s 1.1 of the Code states that it

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applies to transactions intended to be initiated by an individual through an electronic terminal by the combined use of an EFT card and a personal identification number. Clause 11.1 states that the issuers of cards for use in EFT transactions are to establish appropriate procedures for the investigation and resolution of any complaint by a cardholder concerning matters covered by the Code. Such procedures are to contain at least the features set out in the remainder of the clause, which provides for a method of investigation to be conducted by the card issuer within 45 days of the receipt of a complaint, and will advise the cardholder in writing of the outcome of such investigation. The time period required for the conduct of an investigation may vary depending on the complexity of the complaint, in which case the card issuer must comply with monthly reporting requirements. If the card issuer has not completed the investigation within the specified time period and is party to an industry dispute resolution scheme, then the card issuer must advise the cardholder that he or she may avail themselves of the industry dispute resolution scheme. So, whilst the Code appears not to have any of its own dispute resolution procedures, it provides a trigger mechanism to invoke other industry dispute resolution mechanisms, such as the Australian Bankers’ Association or the Credit Unions industry codes for the resolution of disputes. Family Court of Australia Between the Family Law Act 1975 (Cth), the Family Law Regulations 1984 (Cth) and the Family Law Rules 1984 (Cth), there exist detailed provisions that operate to provide a thorough network of dispute resolution, consisting of conciliation, mediation and arbitration. Because of the number of rules pertaining to these sanctioned methods of dispute resolution under the Act, Regulations and Rules, this section will deal only with a summary of some of the many sections and clauses that provide for what must be considered a complete menu of primary dispute resolution under Family Law legislation in Australia. • Family Law Act 1975 – s 14 – Use of primary dispute resolution. Section 14 sets out the objects of Part III of the Act, being, amongst other things, to encourage people to use primary dispute resolution mechanisms, such as mediation, arbitration or other means of conciliation or reconciliation to resolve matters in which a court order might otherwise be made under this Act, provided

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the mechanisms are appropriate in the circumstances and proper procedures are followed. • Family Law Act 1975 – s 13B – Approval of mediation organisations. Section 13B provides that a voluntary organisation may apply to the Minister for approval as a mediation organisation and the Minister may, in writing, approve the organisation as a mediation organisation if, and only if, the Minister is satisfied that the organisation is willing and able to engage in family and child mediation and the whole, or a substantial part, of the organisation’s activities consist, or will consist, of family and child mediation. If the Minister decides to refuse to approve the organisation, the Minister must give written notice of that decision to the organisation. • Family Law Act 1975 – s 19B – Invoking mediation. There are several ways a dispute under the Act can find its way to mediation. Under ss 19A, 19AA and 19AAA, a request may be made through the Family Court, the Federal Magistrates’ Court or through a family or child mediator, respectively. However, under s 19B(1), the Family Court may, with the consent of the parties to any proceedings before it under this Act, make an order referring any or all of the matters in dispute in the proceedings for mediation by a court mediator. Under sub-s (2), where a court makes an order under sub-s (1), it may, if necessary, adjourn the proceedings, and may make such additional orders as it thinks appropriate to facilitate the effective conduct of the mediation. Sub-section (3) ensures that where a court makes an order under sub-s (1), the appropriate officer of the court must make arrangements for a court mediator to mediate the relevant disputed matter in accordance with the standard Rules of Court. • Family Law Act 1975 – s 19BA – Court may advise parties to seek mediation. Given the fact that the court can only order mediation with the parties’ consent under s 19B, s 19BA allows the court, if it considers it may help the parties to a dispute before it to resolve that dispute, to advise the parties to seek the help of a family and child mediator. If the court does so advise the parties, it may, if it considers it desirable to do so, adjourn any proceedings before it to enable attendance at mediation.

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• Family Law Act 1975 – s 19J – Advice to parties on mediation. Section 19J(1) provides that the appropriate officer of the Family Court must, as far as practicable, on request by a party to a marriage or to proceedings under this Act, advise the party about the mediation or arbitration facilities available in the court and how those facilities are made available and the mediation services provided by approved mediation organisations. Sub-section (2) states that the standard Rules of Court must provide for persons who propose to institute proceedings under this Act, and their spouses, and other interested persons, to be given a document setting out particulars of any mediation and arbitration facilities available in the Family Court and elsewhere. • Family Law Act 1975 – s 19M – Mediator and arbitrator immunity. A family and child mediator or arbitrator has, in performing the functions of such a mediator or arbitrator under the Act, the same protection and immunity as a judge of the Family Court has in performing the functions of such a judge. • Family Law Regulations 1984 – reg 59 – Person may be approved as court mediator. Regulation 59(1) states that a person may be approved, in writing, as a court mediator by the Chief Justice of the Family Court of Australia – for the purposes of the Family Court of Western Australia – by the Chief Judge of that court. Sub-regulation (2) provides that the Chief Justice or Chief Judge may approve a person only if the Chief Justice or Chief Judge, as the case requires, considers that the person is suitable by reason of the person’s training and experience. • Family Law Regulations 1984 – reg 60 – Mediator training. Regulation 60 sets out rather stringent training requirements for court-appointed mediators, and provides that a person may provide family and child mediation as a community mediator or private mediator, only if the person: (a) has been awarded an appropriate degree, diploma or other qualification by a university, college of advanced education or other tertiary institution of an equivalent standard; and (b) has completed at least five days’ training in mediation, including at least one training course of a duration of at least three days; and 164

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(c) has engaged in at least 10 hours of supervised mediation in the 12 months immediately following completion of that training. Subregulation (2) defines an appropriate qualification as being one that represents: a course of study that is, or is the equivalent of, at least three years of full time study in law or in a social science (for example, psychology or social work); or that includes the equivalent of two full time years study in a social science; or a course of study that is, or is the equivalent of, at least one year of full time study in mediation or dispute resolution. In an effort not to exclude those mediators who had provided valuable service to the court prior to these amendments to the Act, sub-reg (3) allows a person to provide family and child mediation if the person, amongst other things, has provided mediation of that kind for a total of at least 150 hours since 11 June 1991, of which at least 50 hours has been provided since 11 June 1994, and the person enrols in a course of study of a kind described in sub-reg (2) before the end of 31 August 2001. • Family Law Regulations 1984 – reg 61 – Continuing mediator training. Regulation 61 ensures that court-appointed mediators maintain a high level of expertise by providing that a person who is eligible under reg 60 to provide family and child mediation must undertake at least 12 hours’ education or training in family and child mediation each calendar year and must not provide mediation services if a period longer than a year has elapsed since last undertaking training. • Family Law Regulations 1984 – reg 62 – Intake procedures. Regulation 62(1) provides what is colloquially known as an ‘intake procedure’, by stating that before providing mediation, the mediator to whom a dispute is referred must conduct an assessment of the parties to the dispute to determine whether mediation is appropriate. Sub-regulation (2) provides that in determining whether mediation is appropriate, the mediator must consider whether the ability of any party to negotiate freely in the dispute is affected by any of the following matters: (a) a history of family among the parties; (b) the likely safety of the parties;

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(c) the equality of bargaining power among the parties (for example, whether a party is economically or linguistically disadvantaged in comparison with another party); (d) the risk that a child may suffer abuse; (e) the emotional, psychological and physical health of the parties; or (f) any other matter the mediator considers relevant to the proposed mediation. Sub-regulation (3) states that if, after considering the matters set out in sub-reg (2), the mediator decides that mediation is appropriate, then the mediator may provide mediation. Conversely, under sub-reg (4), if, after considering the matters set out in sub-reg (2), the mediator decides that mediation is inappropriate, the mediator must not provide mediation. • Family Law Regulations 1984 – reg 64 – Party suitability. Regulation 64 provides for further assessment of the parties’ suitability for mediation by providing that the mediator must ensure that, as far as possible, mediation is suited to the needs of the parties involved (for example, by ensuring the suitability of the venue, the layout of the room and the times at which mediation is held), and must ensure that mediation is provided only in accordance with this Division and any record of the mediation is stored securely to prevent unauthorised access to it. Further, the mediator must terminate mediation if requested to do so by a party, or if they are no longer satisfied that mediation is appropriate, and must not provide legal advice (except advice about procedural matters) to any of the parties. • Family Law Regulations 1984 – reg 65 – Conflict of interest. Regulation 65 acknowledges the potential for a conflict of interest and provides that if, in relation to a person who is a party to a dispute that is the subject of mediation, or any other party to that dispute, a mediator has acted previously in a professional capacity (otherwise than as a family and child mediator, a family and child counsellor or an arbitrator) or has had a previous commercial dealing or is a personal acquaintance, then the mediator may provide family and child mediation services to the person only if each party to the mediation agrees and the previous dealing or

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acquaintance does not relate to any issue in dispute and is not of a kind that could reasonably be expected to influence the mediator in the provision of mediation. • Family Law Regulations 1984 – reg 63 – Conduct of mediation. Regulation 63 gives a good insight into how the Family Court views the conduct of mediation. It requires that at least one day before mediation is commenced, each party to the mediation must be given a written statement that sets out the following information: (a) that the process of mediation is one by which the parties involved, together with the assistance of the mediator: (i) isolate issues in the dispute; and (ii) develop and consider options to resolve those issues; and (iii) if appropriate – attempt to agree to one or more of those options; and (iv) if a child is affected – attempt to agree to options that are in the best interests of the child; (b) if the dispute involves a child: (i) that each parent has parental responsibility for the child, within the meaning of s 61B of the Act; and (ii) that the best interests of the child are the paramount consideration in any decision that affects him or her; and (iii) the requirements under Division 4 of Part VII of the Act to register a parenting plan in respect of the child; (c) that the mediator’s role is to facilitate discussion between the parties in relation to the dispute, and is not: (i) to advise them what to do in relation to each other; or (ii) to provide them with legal advice; (d) that mediation may not be appropriate for all disputes, particularly if a dispute involves violence that renders one party unable to negotiate freely because of another’s threats; (e) that mediation is not compulsory in order to commence proceedings in the Family Court;

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(f) that a party has the right to obtain legal advice at any stage in the mediation process; (g) that a party has the right to terminate the mediation at any time; (h) that, under s 19M of the Act, the mediator is immune from civil liability for anything said or done by the mediator in the performance of his or her functions as mediator; (j) that, under s 19N of the Act, evidence of anything said, or an admission made, at mediation is not admissible: (i) in any court (whether exercising federal jurisdiction or not); or (ii) in any proceedings before a person authorised by a law of the Commonwealth or a State or Territory, or by the consent of the parties, to hear evidence; (k) the mediator’s confidentiality and disclosure obligations; (l) the qualifications of the mediator to be a family and child mediator; (m)the fees (including any hourly rate) charged by the mediator in respect of the mediation. In order to affirm that the parties to the mediation have been served with the above information, sub-reg (2) provides that before commencing mediation, each party must certify on a copy of the statement that he or she has received the statement. • Family Law Rules 1984 – Ord 25A r 6 – Dispute not to be mediated. Rule 6 provides that if the person authorised to conduct the interview decides that the dispute is not one that may be mediated, the person must immediately advise the Principal Director of Mediation of his or her decision and as soon as practicable advise the parties in writing of his or her decision and the other primary dispute resolution methods available. The Principal Director of Mediation may of his or her own motion review a decision and must do so upon a request of one of the parties.

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• Family Law Rules 1984 – Ord 25A r 11 – Legal representation. Rule 11 provides that one or more legal representatives may accompany a party who attends a mediation conference. • Family Law Rules 1984 – Ord 25A r 12 – Seeking legal advice. Rule 12 states that at the commencement or conclusion of mediation, and if the mediator considers it appropriate at any other time during mediation, and before any agreement becomes legally binding; the mediator must advise the parties that they should seek legal advice as to their rights, duties and obligations in respect of the dispute and the mediation. • Family Law Rules 1984 – Ord 25A r 13 – Non-attendance at mediation. Rule 13 provides that if a party does not attend a mediation conference, the mediator, after considering any reasons for nonattendance given by or on behalf of the non-attending party, must either appoint a date and time for a further conference or terminate the mediation and as soon as practicable notify the parties in writing of the other primary dispute resolution methods available. • Family Law Rules 1984 – Ord 25A r 14 – Termination of mediation. Rule 14 states that if the court mediator considers that a mediation should not continue, the mediator may, adjourn the mediation or refer the parties, or any one or more of them, for counselling or give directions to the parties that may assist in a later continuation of the mediation or terminate the mediation. • Family Law Rules 1984 – Ord 25A r 15 – Report to the court. Rule 15 states that if the mediator considers that the mediation is complete or one of the parties does not wish to continue the mediation or files a notice in the court that the mediation of the matter has ended the court mediator must immediately report the fact to the court’s Principal Director of Mediation. • Family Law Rules 1984 – Ord 25A r 20 – Agreement in writing. Rule 20 states that if any or all matters in dispute are resolved at mediation, the mediator, in the presence of the parties, must set out the terms of agreement in writing and deliver a copy of the terms to each of the parties.

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There is no doubt that the dispute resolution procedures set out in the Family Law Act, Regulations and Rules are the most detailed of any State, Territory or Federal statutory scheme. As such, practitioners should consult the full set of regulations and rules in order to understand the requirements of the court when contemplating the dispute resolution mechanisms under the legislation. Federal Court of Australia The starting point for non-curial dispute resolution in the Federal Court of Australia is s 53A of the Federal Court of Australia Act 1976 (Cth) which states: (1) Subject to the Rules of Court, the Court may by order refer the proceedings in the Court, or any part of them or any matter arising out of them, to a mediator or an arbitrator for mediation or arbitration, as the case may be, in accordance with the Rules of Court. (1A)Referrals under subsection (1) to a mediator may be made with or without the consent of the parties to the proceedings. However, referrals to an arbitrator may be made only with the consent of the parties. (2) The Rules of Court may make provision for the registration of awards made in an arbitration carried out under an order made under subsection (1).

As with most Acts of Parliament power is given to the administering body, in this case the judges of the court, to make rules by which the court can manage its own business. In the case of the Federal Court, s 59(2) enables the judges to make Rules of Court for: (zf) the referral of any proceedings in the Court, or any part of such proceedings or any matters arising out of such proceedings, to a mediator or an arbitrator for mediation or arbitration, as the case may be; and (zg) the procedures to be followed by a mediator or an arbitrator in mediating or arbitrating anything referred for mediation or arbitration under this Act; and (zh) the attendance by persons at conferences conducted by mediators or arbitrators for the purposes of mediating or arbitrating anything so referred; and

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(zi) the procedure when any such mediation or arbitration ends, both where it has resulted in an agreement or award and where it has not; and …

Like the Family Court, the Federal Court Rules set out in detail how the conduct of the dispute resolution mechanisms will operate. Below is a summary of the most important rules relating to mediation and arbitration. • Federal Court Rules – Ord 72 r 1 – Mediation to proceed according to Ord 72. If the court or a judge orders proceedings, part of proceedings, or any matter arising out of proceedings, to be referred to a mediator or an arbitrator, the mediation or arbitration must proceed in accordance with this Order unless the court or a judge orders otherwise. • Federal Court Rules – Ord 72 r 3 – Judge may give directions. If a judge undertakes mediation, the judge may give any directions with respect to the conduct of mediation that the judge thinks fit. • Federal Court Rules – Ord 72 r 4 – Proceedings adjourned. Sub-rule (1) states that if the court or a judge makes an arbitration or mediation order in relation to proceedings, the proceedings stand adjourned until the mediator or arbitrator reports back to the court, unless the court or a judge considers that in all the circumstances the proceedings should not be adjourned. Sub-rule (2) provides that if the court or a judge considers it appropriate, the proceedings may be adjourned to a fixed date when the mediator or arbitrator must report to the court on progress in the mediation or arbitration. • Federal Court Rules – Ord 72 r 5 – Terminating mediation or arbitration and appointing a new mediator or arbitrator. Sub-rule (1) states that nothing in this Order prevents the court from terminating mediation or arbitration at any time or terminating the appointment of a mediator or an arbitrator or appointing a new mediator or arbitrator to replace a mediator or an arbitrator who has died, or ceased to hold office, or whose appointment has been terminated. Sub-rule (2) provides that if, when the court appoints a new arbitrator, the court considers it appropriate in all the circumstances, the court may order that:

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(a) the new arbitrator must treat any evidence given, or any record, document or anything else produced, or anything done, in the course of earlier proceedings as if it had been given, produced or done before or by the new arbitrator; or (b) any interim award made in the course of the earlier proceedings is to be taken to have been made by the new arbitrator; or (c) the new arbitrator must adopt and act on any determination of a matter made by the previous arbitrator without applying his or her own judgment to the matter. Most importantly, sub-r (3) provides that if the court appoints a new mediator, the court may order that mediation continue in any way the court directs. This is most important from a cost and time saving perspective. • Federal Court Rules – Ord 72 r 6 – Nomination of a mediator. Sub-rule (1) provides that as soon as practicable after a mediation order is made, the Registrar must nominate a person as the mediator and give the parties written notice of the name and address of the mediator, the time, date and place of mediation and of any further documents that one or more of the parties must give direct to the mediator for the purposes of the mediation. Subrule (2) provides that in fixing the time and date for mediation, the Registrar must consult the parties to ascertain their wishes and have regard to the time fixed by the court within which mediation must be commenced, or completed, or both. • Federal Court Rules – Ord 72 r 7 – Conduct of mediation. Rule 7 sets out how the mediation must be conducted. Because of mediation’s fluid nature, the instructions to mediators are quite wide in terms of their procedural parameters. Essentially, a mediation conference must be conducted in accordance with any directions given by the court or a judge, as a structured process in which the mediator assists the parties by encouraging and facilitating discussion between the parties so that they may communicate effectively with each other about the dispute and if agreement is reached and if the parties consent, the agreement can be included in a consent order under Ord 35 r 10.

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• Federal Court Rules – Ord 72 r 8 – Adjournment or termination of mediation. If the mediator considers that mediation should not continue, the mediator must, subject to any order of the court or a judge terminate it and report back to the court. • Federal Court Rules – Ord 72 r 21 – Cessation of mediation. Rule 21 deals with matters before the NNTT and provides that the court must not make an order that mediation cease unless it has requested the NNTT to provide a report on the progress of mediation and has considered the report. Further, if the NNTT fails to supply a report within one month or any other period allowed by the court, the court may proceed to consider the application. • Federal Court Rules – Ord 72 r 46 – Adjournment where agreement reached. Without limiting the powers of the court when it comes to mediation, the court may, at any time in a proceeding, on its own initiative or at the request of a party, order an adjournment to allow the parties time for negotiation. Federal Magistrates Court The Federal Magistrates Service is a new concept to the Australian judicial system. It was established by the Commonwealth Parliament in 1999 and is designed to provide a simpler, more accessible and more cost-efficient service for litigants, and to ease the workload of the Family and Federal Courts. It is envisaged that the Federal Magistracy will hear less complex matters that will require less than two days’ court hearing time. The Federal Magistrates Act 1999 (Cth) defines ‘primary dispute resolution processes’ as meaning procedures and services for the resolution of disputes otherwise than by way of the exercise of the judicial power of the Commonwealth, and includes counselling, mediation, arbitration, neutral evaluation, case appraisal and conciliation. The Magistracy is empowered under s 31 of the Act to make provision for the making of applications under the Family Law Act 1975 for mediation or arbitration. Section 34(1) of the Act relates to mediation and provides that the Federal Magistrates’ Court may, by order, refer proceedings, or any part of them or any matter

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arising out of them, to a mediator for mediation in accordance with the Rules of Court. Further, such referrals may be made with or without the consent of the parties to the proceedings. Sub-section (4) states that evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under sub-s (1) is not admissible in any court or in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence. Subsection (5) provides mediators with the same protection and immunity as a Federal Magistrate has in performing the functions of a Federal Magistrate. Section 35(1) of the Act deals with arbitration, and provides that the Federal Magistrates’ Court may, by order, refer proceedings, or any part of them or any matter arising out of them, to an arbitrator for arbitration in accordance with the Rules of Court. Sub-section (3) states that such referrals may be made only with the consent of the parties. Like s 34, s 35(5) provides that an arbitrator has the same protection and immunity as a Federal Magistrate has in performing the functions of a Federal Magistrate. Sections 36, 37 and 38 deal with the power of an arbitrator to refer questions of law to the Federal Magistrates’ Court, the review of awards on a question of law and awards respectively. Franchises By virtue of the Trade Practices (Industry Codes – Franchising) Regulations 1998 (Cth), the Franchising Code of Conduct (‘the Code’) is now mandatory under s 51AE of the Trade Practices Act 1975 (Cth). The Australian Consumer and Competition Commission (ACCC ) is charged with the responsibility of enforcing the Franchising Code of Conduct. The purpose of the Code is to regulate the conduct of participants in franchising. Regulation 25 provides that a mediation adviser is to be appointed by the Minister. Regulation 26 states that a franchise agreement entered into on or after 1 October 1998 must provide for a complaint handling procedure that complies with clauses 29 and 30. Regulation 27 states that a party to a franchise agreement who has a dispute with another party to the franchise agreement may start the procedure under clause 29. Regulation 29(1) states that a complainant must tell the respondent, usually the franchisor, in writing the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle

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the dispute. Paragraph (2) provides that once a dispute has been notified to the respondent, the parties should then try to agree about how to resolve the dispute. By virtue of para (3), if the parties cannot resolve the dispute within three weeks, either party may refer the matter to a mediator; if the parties cannot agree about who should be the mediator, either party may ask the mediation adviser to appoint a mediator. Paragraph (5) states that the mediator may decide the time and place for mediation and the parties must attend the mediation and try to resolve the dispute. Regulation 30 provides that the mediation adviser must, within 14 days of the referral under reg 29(3), appoint a mediator for the dispute. Further, after mediation under this code has started, the mediator must tell the mediation adviser, within 28 days, that mediation has started. Regulation 31 states that the above regulations do not affect the right of a party to a franchise agreement to take legal proceedings under the franchise agreement. Finally, the parties are equally liable for the costs of mediation under this Part unless they agree otherwise and they must pay for their own costs of attending mediation. Health insurance ombudsmen The National Health Act 1953 (Cth) establishes the Health Insurance Ombudsmen to deal with complaints arising from the health industry. Section 82ZSB states that the Health Insurance Ombudsman may deal with a complaint by: (a) trying at any time to effect a settlement of the complaint by mediating between the complainant and the person or body against whom the complaint was made; or (b) whether or not mediation has been tried under paragraph (a) – referring the complaint to a registered organisation and requesting the organisation: (i) to conduct an investigation in relation to the complaint; and (ii) to report to the Health Insurance Ombudsman its findings and any action it proposes to take.

Sub-section (2) allows the Health Industry Ombudsmen, subject to sub-ss (3) and (4), to investigate a complaint if the complaint is not resolved by mediation under para (1)(a) to the complainant’s satisfaction or the Health Insurance Ombudsman is not satisfied with the outcome of a request under para (1)(b).

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Migration agents registration authority The Migration Agents Regulation 1998 (Cth) implements a Code of Conduct (‘the Code’) for all migration agents in Schedule 2. Part 9 of the Code states that a migration agent must respond properly to a complaint by a client about work or services provided by the migration agent or an agent’s employee. Further, a migration agent must submit to mediation as recommended by the Migration Agents Registration Authority, the body charged for administering the Code. Section 318 of the Migration Act 1958 (Cth) provides that if the Migration Agents Registration Authority is investigating a complaint about a registered agent, the Authority may refer the complainant and the agent to a mediator to resolve the matter complained of. Native Title Tribunal The National Native Title Tribunal (NNTT) is charged with the responsibility of, amongst other things, determining native title land claims by the indigenous population of Australia. Its empowering act is the Native Title Act 1993 (Cth), which has as its main objects: (a) to provide for the recognition and protection of native title; and (b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and (c) to establish a mechanism for determining claims to native title; and (d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

The legislation empowering the NNTT to determine land claims is quite detailed and the following summary serves to highlight the significance of the dispute resolution procedures drafted into the Act. • Native Title Act 1993 – s 44B – Right of access to land. Section 44B(1), amongst other things, grants access rights to native title claim groups for traditional activities whilst still recognising the rights of lessees and other rights. Sub-section (3) states that a lessee or any person with non-native title rights or interests in relation to the traditional access area may make an agreement with a person included in the native title claim group about the manner of exercise of any of the rights conferred by sub-s (1) or the

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variation of any of those rights. Sub-section (4) provides that any persons wishing to make such an agreement may request assistance from the NNTT or a recognised State or Territory body in negotiating the agreement. • Native Title Act 1993 – s 44F – Request for mediation. Section 44F provides that if all of the persons involved in any dispute about a right conferred by sub-s 44B(1) agree, they may request the NNTT, or a recognised State or Territory body to mediate in the dispute. • Native Title Act 1993 – s 44G – Private mediation. Section 44G makes it clear that the parties to a native title claim may themselves initiate mediation by providing that nothing in the Act prevents mediation or arbitration by any person or body of any matter arising in relation to a right conferred by sub-s 44B(1). • Native Title Act 1993 – s 86A – Purpose of mediation. Section 86A states that the purpose of mediation in a proceeding that does not involve a compensation application is to assist the parties to reach agreement on some or all of the following matters: (a) whether native title exists or existed in relation to the area of land or waters covered by the application; (b) if native title exists or existed in relation to the area of land or waters covered by the application: (i) who holds or held the native title; (ii) the nature, extent and manner of exercise of the native title rights and interests in relation to the area; (iii) the nature and extent of any other interests in relation to the area; (iv) the relationship between the rights and interests in subparagraphs (ii) and (iii) (taking into account the effects of this Act); (v) to the extent that the area is not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer or conferred possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others.

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Further, sub-s (2) provides that the purpose of mediation in a proceeding that involves a compensation application is to assist the parties to reach agreement on some or all of the following matters: (a) the matters set out in paragraphs (1)(a) and (b) in relation to the area of land or waters covered by the application; (b) the amount or kind of any compensation payable; (c) the name of the person or persons entitled to any compensation or the method for determining the person or persons; (d) the method (if any) for determining the amount or kind of compensation to be given to each person; (e) the method for determining any dispute regarding the entitlement of a person to an amount of compensation.

• Native Title Act 1993 – s 86B – Referral of matters to the NNTT. Sub-section (1) states that unless an order is made under sub-s (2) that there be no mediation, the Federal Court must refer every application allowable under the Act to the NNTT for mediation, including the ascertaining of agreed facts, as soon as practicable after the end of the period specified in the notice under s 66. Subsection (2) provides that the court may, on application by a party to the proceeding, or of its own motion, make an order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding. Sub-section (3) states that the court, upon application under sub-s (2), or if it is considering making an order of its own motion, must order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding if the court considers that: (a) any mediation will be unnecessary in relation to the whole or that part, whether because of an agreement between the parties about the whole or the part of the proceeding or for any other reason; or (b) there is no likelihood of the parties being able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2) in relation to the whole or that part; or (c) the applicant in relation to the application has not provided sufficient detail (whether in the application or otherwise) about the matters mentioned in subsection 86A(1) or (2) in relation to the whole or that part.

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Sub-section (4) provides mandatory indicia for the court to consider when deciding whether to order that there be no mediation. The court is to take into account, the following factors: (a) the number of parties; (b) the number of those parties who have appointed the same agent or same representative; (c) how long it is likely to take to reach agreement on the matters set out in subsection 86A(1) or (2) in relation to the whole or the part of the proceeding; (d) the size of the area involved; (e) the nature and extent of any non-native title rights and interests in relation to the land and waters in the area; (f) any other factor that the Court considers relevant.

Finally, sub-s (5) provides that in addition to referring a proceeding to mediation under sub-s (1), the court may, at any time in a proceeding, refer the whole or a part of the proceeding to the NNTT for mediation if the court considers that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in sub-ss 86A(1) or (2). • Native Title Act 1993 – s 86C – Cessation of mediation. Under s 86C(1), the court may, of its own motion, at any time in a proceeding, order that mediation is to cease in relation to the whole or a part of the proceeding if the court considers that: (a) any further mediation will be unnecessary in relation to the whole or that part; or (b) there is no likelihood of the parties being able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2) in relation to the whole or that part.

Sub-section (2) provides that a party to a proceeding may, at any time after three months after the start of mediation, apply to the court for an order that mediation cease in relation to the whole of the proceeding or a part of the proceeding. Sub-section (3) states that if the party making the application is the applicant in relation to the application or the Commonwealth, a State or a Territory, then

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the court must make an order that mediation is to cease, unless the court is satisfied that the mediation is likely to be successful in enabling the parties to reach agreement on any of the matters set out in sub-ss 86A(1) or (2) in relation to the whole or the part of the proceeding. Sub-section (4) provides that, if the party making the application is any other person, the court may make such an order unless the court is satisfied that mediation is likely to be successful as mentioned in sub-s (3). To ensure the court makes the appropriate consideration under this section, sub-s (5) provides that the court, in deciding whether to make an order under sub-ss (1), (3) or (4), must take into account any report provided by the NNTT or by the presiding member of the NNTT. • Native Title Act 1993 – s 86D – Federal Court’s powers. Sub-section (1) provides that the court may, at any time during mediation, determine a question of fact or law that is referred to it by the NNTT (under s 136D, the presiding member of the NNTT can refer to the Federal Court a question of fact or law). Sub-section (2) states that the court may adopt any agreement on facts between the parties, reached during mediation. • Native Title Act 1993 – s 131B – Disclosure of interests. Section 131B(1) states that a person engaged as a consultant in relation to any assistance or mediation being provided by the Tribunal who has a conflict of interest in relation to the assistance or mediation must disclose the matters giving rise to that conflict to the President of the Tribunal and the persons to whom the Tribunal is providing the assistance or mediation. Conflict of interest means in relation to the assistance or mediation, if the person has any interest, pecuniary or otherwise, that could conflict with the proper performance of his or her duties as a consultant in relation to the assistance or mediation. • Native Title Act 1993 – s 136A – Mediation procedures. Sub-section (1) states that if the Federal Court refers the whole or a part of a proceeding for mediation, the Tribunal may hold such conferences of the parties or their representatives as the Tribunal considers will help in resolving the matter. Sub-section (2) provides that a conference must be presided over by a member of the Tribunal. Sub-section (3) states that the member presiding at a conference may be assisted by another member of the Tribunal or by a member of the staff of the Tribunal. Sub-section (4) provides

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that, in a proceeding before the court, unless the parties agree otherwise, evidence may not be given and statements may not be made, concerning any word spoken or act done at a conference. Sub-section (5) states that unless the parties agree otherwise, a member who presides over, or assists at, a conference in relation to a proceeding may not, in any other capacity, take any further part in the proceeding. Sub-section (6) provides that the presiding member may allow a person to participate by telephone, closedcircuit television or any other means of communication. • Native Title Act 1993 – s 136G – Report to Federal Court. Sub-section (1) provides for the presiding member, as soon as practicable after mediation is successfully concluded, to provide a written report to the Federal Court setting out the results of the mediation. Under sub-s (3), the presiding member may provide a written report to the Federal Court, setting out the progress of the mediation, if the presiding member considers that it would assist the Federal Court in progressing the mediation proceedings. Superannuation Complaints Tribunal The Superannuation (Resolution of Complaints) Act 1993 (Cth) provides a way for consumers to have complaints against the superannuation industry, dealt with in a fair and open manner. Section 27 of the Act provides that if a complaint has been made to the Tribunal, the complaint has not been withdrawn and the Tribunal is satisfied that the Tribunal can deal with the complaint under the Act, then the Tribunal must inquire into the complaint and try to settle it by conciliation. Section 28 states that for the purposes of trying to settle a complaint in accordance with s 27, the Tribunal may, if it thinks it desirable to do so after considering any documents given to the Tribunal, by notice in writing, request that the persons referred to attend a conciliation conference. Sub-section (4) states that a request may be given to any person who, in the opinion of the Tribunal, is likely to be able to provide information relevant to the settlement of the complaint or whose presence at the conference is, in the opinion of the Tribunal, likely to be conducive to settling the complaint. Section 29 allows conciliation conferences to be conducted by telephone, closed-circuit television or any other means of communication. Section 30 provides that at a review meeting in relation to the complaint, unless the parties otherwise agree, evidence

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must not be given and statements must not be made about any word spoken or act done at a conciliation conference, if the word or act related to a question to be determined by the Tribunal. Further, subs (2) provides that at an arbitration in relation to a complaint, unless the parties to the arbitration otherwise agree, evidence must not be given and statements must not be made about any word spoken or act done at a conciliation conference, if the word or act related to a question relevant to the arbitration. Section 31 states that if a conciliation conference is held and, at or after the conference, the parties agree to the terms of a settlement of the complaint that would be acceptable to the parties, and the terms of the agreement are put in writing (signed by or for the parties and lodged with the Tribunal), then the Tribunal must treat the complaint as withdrawn. The Tribunal may give details of a settlement to the Regulator that it thinks may require investigation by the Regulator. Telecommunications access The Telecommunications Legislation Amendment Act 1999 (Cth) amended the Trade Practices Act 1975 (Cth) by inserting s 152BBC. This section provides that if a telecommunications carrier or provider and a consumer propose to negotiate over terms and conditions for the provision of telecommunications services, then the parties may jointly submit a request to the ACCC in writing to arrange for a representative of the ACCC to attend, or mediate at, those negotiations. Under s 152BBA, in such circumstances, the Commission may, for the purposes of facilitating those negotiations, if requested in writing to do so by either party, give a party a written procedural direction requiring the party to do, or refrain from doing, a specified act or thing relating to the conduct of those negotiations. This section sets out examples of the type of procedural directions the Commission may give. It includes, amongst other things, a direction requiring a party (or their representative) to attend a mediation conference or a conciliation conference. Under sub-s (4), a party may not impose, as a condition to the participation in negotiations, a requirement that the other party must not disclose to the Commission any or all information, or the contents of any or all documents, provided in the course of negotiations. In such cases, that condition is taken to be an unreasonable procedural condition on the first party’s participation in those negotiations. Sub-section (5) imposes harsh sanctions for parties contravening sub-s (4).

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New South Wales Drafters of legislation in NSW have mirrored certain dispute resolution provisions in at least 16 pieces of legislation. Table 1 (p 204) is a comparative table that provides the equivalent sections in all of the above statutes. For the sake of avoiding repetition, this text will discuss the common sections in those pieces of legislation in the following discussion on the Administrative Decisions Tribunal only. Whilst there may be some minor differences between some of the sections, they all essentially seek to provide the same procedural elements for the various statutory schemes of dispute resolution. Because of the enactment of the Courts Legislation (Mediation and Neutral Evaluation) Amendment Act 1994, the inclusion of dispute resolution mechanisms into NSW legislation specifies the use of mediation and neutral evaluation. In the remainder of this chapter, a reference to mediation should be read to include a reference to neutral evaluation. Administrative Decisions Tribunal The Administrative Decisions Tribunal commenced operations on 6 October 1998, and was established to provide a cost-effective and efficient way for the people of NSW to obtain reviews of administrative decisions and to have certain general complaints, such as discrimination and professional misconduct, resolved. The Tribunal is governed by the Administrative Decisions Tribunal Act 1997 (NSW) and s 99(1) states that the purpose of part four the Act (ss 99–111), is to enable the Tribunal to refer matters to mediation or neutral evaluation, if the parties to the proceedings concerned have agreed to that course of action. Sub-section (2) states that Part IV of the Act does not prevent the parties seeking private or other court-administered mediation or neutral evaluation. Section 101 defines ‘mediation’ as 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, whilst ‘neutral evaluation’ is defined as meaning 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. Section 102 deals

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with how matters may be referred to the Tribunal and states that the Tribunal may, by order, refer a matter for mediation if: the Tribunal considers the circumstances appropriate; the parties to the proceedings consent to the referral; and the parties to the proceedings agree as to who is to be the mediator for the matter. Unlike most statutory schemes, sub-s (2) provides that the mediator may, but need not be, a person whose name is on a list compiled under this Part. Section 103 states that attendance at and participation in mediation sessions are voluntary, and that a party to mediation may withdraw from it at any time. The costs of mediation are dealt with under s 104 and state that, including those payable to the mediator, costs are to be borne by the parties to the proceedings in such proportions as they may agree among themselves or, failing agreement, as may be ordered by the Tribunal. Section 105 states that the Tribunal may make orders to give effect to any agreement or arrangement arising out of mediation. However, the tribunal will not make such an order unless it is satisfied that the agreement or arrangement is in the best interests of the person whose interests are considered by the Tribunal to be paramount. Section 106 deals with mediators approved by the Tribunal and states that the President of the Tribunal may compile a list of persons considered by the President to be suitable to be mediators for the purposes of this Part. Under sub-s (4), a person may be included in a list under this section only if they consent to being included in the list and agree to comply with the provisions of the Act and of any regulations or rules of the Tribunal. Furthermore, sub-s (5) gives the President discretion to amend or revoke any list compiled under this section for any reason that he or she considers appropriate. Section 107 addresses the issue of privilege and states that ‘mediation’ includes any steps taken in the course of making arrangements for mediation or in the course of the follow-up of a session. Mediators, under the Act, have the same privilege with respect to defamation as exists with respect to judicial proceedings. However, the privilege only extends to a publication made at mediation. More generally, sub-s (4) provides that evidence of anything said or of any admission made at mediation is not admissible in any proceedings before any court, tribunal or body. In relation to documents, sub-s (5) states that a document prepared for the purposes of, in the course of, or as a result of, mediation, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.

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Section 108 deals with confidentiality and states that a mediator may disclose information obtained in connection with the administration or execution of the Act only in 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, to any person, agency, organisation or other body, and the disclosure is made with the consent of the parties to the mediation for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner; or (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.

Section 109 addresses the immunity of mediators and states that no matter or thing done or omitted by a mediator subjects the mediator to any action, liability, claim or demand if the matter or thing was done in good faith for the purposes of a mediation under the Act, and when the subject matter of mediation was referred for mediation, the mediator’s name was included in a list compiled under the Act. Children The Children and Young Persons (Care and Protection) Act 1998 (NSW) has as its objects to ensure that children receive such care and protection as is necessary for their safety, welfare and wellbeing, taking into account the rights, powers and duties of their parents or other persons responsible for them. Also, all institutions, services and facilities responsible for the care and protection of children provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity. Section 22 states that if a person seeks assistance from the Director-General under the Act, whether or

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not a child is suspected of being in need of care and protection, the Director-General must, amongst other things, make a referral or take whatever action they deem necessary to safeguard or promote the safety, welfare and wellbeing of the child, including referring families to mediation. It is important to note s 16A that provides should there be any allegation of child abuse, mediation firms that provide mediation services to children must be notified of such an allegation so that appropriate steps may be taken. Section 117 deals with matters that have come to the attention of the court and provides that the Children’s Court may adjourn an application for an order approving an alternative parenting plan in order that further assessment, counselling or mediation may be carried out. Community justice centres The dispute resolution sections in the Community Justice Centres Act 1983 (NSW) are, for the most part, the same as those drafted in the Administrative Decisions Tribunal Act 1997 (NSW), discussed above. See Table 1, p 204, for the comparative sections dealing with dispute resolution. However, there are some sections worthy of mention outside the standard sections that have their comparisons listed in Table 1. Section 22 deals with the fact that mediation may be commenced whether or not the dispute is justiciable before any court, tribunal or body and whether or not the dispute is the subject of any legal proceedings. Section 25 provides that a party to mediation is not entitled to be represented by an agent, unless it is apparent that an agent should be permitted to facilitate mediation, and the agent proposed to be appointed has sufficient knowledge of the matter in dispute to enable the agent to represent the party effectively. Finally, where representation is permitted, the Director of the CJC may grant approval of such representation on such conditions as the Director thinks fit and the parties will be bound by those conditions. The Director must consider any relative disadvantage created by such representation on the other party to mediation.

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Community Land Management Act 1989 The dispute resolution sections in the Community Land Management Act 1989 (NSW) are also substantially similar to those drafted in the Administrative Decisions Tribunal Act 1997 (NSW), discussed above. However, there are some regulations in the Community Land Management Regulation 2000 (NSW), which are worthy of mention in addition to the standard sections listed in Table 1. Regulation 13 states that the Commissioner may give directions for regulating and prescribing the practice and procedure to be followed in connection with mediation. Also, it provides that mediation must be attended by each party or by a legal representative, or other representative, having authority to settle the matter. Regulation 14 states that a mediator may terminate mediation by giving notice of the termination to the Commissioner and all other parties. Compensation Court of NSW The dispute resolution sections in the Compensation Court Act 1984 (NSW) are also very similar to those drafted in the Administrative Decisions Tribunal Act 1997 (NSW). Again, there are some rules in the Compensation Court Rules 1990 (NSW) worthy of mention in addition to the standard sections in the Act that have their comparisons listed in Table 1. Section 12A r 2 provides that the court may refer a matter for mediation if a request for such referral is filed, by any person, to the proceedings with the consent of all other persons endorsed thereon, or at any stage when the matter is before the court all persons consent to such referral. As to the selection of a mediator, s 12A r 3 states that the parties may agree as to who is to be the mediator or that the mediator be any one of the persons on any list compiled by the Chief Judge pursuant to the Act. Once a mediator has been appointed, s 12A r 4 states that a person to whom a matter is referred for mediation shall, within 14 days of being notified of the referral, appoint in writing a time for mediation and may give directions relating to preparations for and the conduct of mediation. Section 12A r 7 sets out mediation procedures and provides that, unless the mediator directs otherwise, mediation shall be attended by each party or, where a party is a company, by an officer of the company who has authority to settle the proceedings. All parties shall be accompanied by their counsel or solicitor. Section 12A r 8 states that the mediator shall, within 7 days of the conclusion of

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mediation, advise the court of the fact that mediation has been concluded, but not give the details thereof. Cooperatives The law in NSW that regulates cooperatives is the Cooperatives Act 1992 (NSW). Section 105E lists the general powers of the court and states that it may make any orders, and give any directions, that it thinks just in relation to proceedings brought or intervened in with leave, or in relation to an application for leave. This includes, amongst other things, directions about the conduct of the proceedings, as well as those matters requiring mediation. Crimes (Administration of Sentences) Act 1999 The Crimes (Administration of Sentences) Act 1999 deals with, amongst other things, complaints against the administering governmental department’s decision making. In particular, s 213 provides that some of the Inspector-General’s principal functions are to investigate and attempt to resolve complaints made by any person relating to matters within the department’s administration, and to encourage mediation and informal resolution of those complaints. District Court The dispute resolution sections in the District Court Act 1973 (NSW) are substantially the same as those drafted in the Administrative Decisions Tribunal Act 1997 (NSW), discussed above. See Table 1 for the comparative sections dealing with dispute resolution. Electricity Supply (General) Regulation 2001 The Electricity Supply (General) Regulation 2001 (NSW) deals with, amongst other things, the accreditation of persons to supply certain services to the electricity industry in NSW. Section 92 begins by stating that ‘alternative dispute resolution procedures’ include negotiation, conciliation and mediation, but do not include arbitration. Sections 93 and 94 provide for appeals against decisions not to accredit persons wishing to provide certain services to the electricity industry. Under s 96, an appellant who is dissatisfied with a determination of an appeal by an accrediting agency may request alternative dispute resolution

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procedures. Section 97 sets out the nature of an accrediting agency’s dispute resolution procedure that must: operate independently of the accrediting agency; be kept separate from the affairs of the accrediting agency; be convenient for, and accessible to, the appellant; operate without cost to the appellant; allow the appellant to choose whether to be bound by any finding or determination of the facilitator; and allow the facilitator to choose not to deal with the appeal, if the facilitator forms the view that the appellant has been vexatious in pursuing the appeal and the appeal is an abuse of process. If the parties agree to use the dispute resolution procedure, then the actual procedure is to be agreed upon by the parties, the facilitator is to be chosen jointly by the parties, participation is to be voluntary and the alternative dispute resolution procedure may be terminated at any time by either party or by the facilitator. Also, the parties are to bear their own costs of participating in the alternative dispute resolution procedure and the costs of the facilitator are to be borne by the appellant and the accrediting agency in equal proportions. Fair Trading Tribunal The dispute resolution sections in the Fair Trading Tribunal Act 1998 (NSW) are substantially the same as those drafted in the Administrative Decisions Tribunal Act 1997 (NSW). However, in addition to the comparative sections in Table 1, there is a regulation in the Fair Trading Tribunal Regulations 1999 (NSW), which is worthy of mention. Regulation 30 deals with the costs of private as opposed to Tribunal-appointed mediators, and states that parties to proceedings who, for the purposes of a mediation under the Act, elect to employ their own mediator rather than rely on one arranged by the Tribunal, are to bear the costs of mediation. Further, in such cases, the parties are to bear the costs in such proportions as they may agree among themselves or, failing agreement, in such manner as may be ordered by the Tribunal. Farm debt mediation The NSW Parliament introduced a radical scheme, by Australian legislative standards, to ensure that farmers are given the opportunity to mediate regarding farm debts, before a creditor can take possession of property or take other enforcement action under a farm mortgage. This scheme is embodied in the Farm Debt Mediation Act 1994 (NSW)

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that is largely administered by the NSW Rural Assistance Authority (RAA). The following discussion highlights the key elements of the legislation: • Farm Debt Mediation Act 1994 (NSW) – s 5 – Application of the Act. The Act applies only in respect of creditors under a farm debt and does not apply to farmers whose property is subject to control under certain bankruptcy legislation or under external administration under current corporations legislation. • Farm Debt Mediation Act 1994 (NSW) – ss 6 and 8 – Enforcement in contravention of the Act is void. Section 6 provides that any enforcement action taken by a creditor otherwise than in compliance with the Act is void. Section 8 states that a creditor to whom money under a farm mortgage is owed by a farmer must not take enforcement action against the farmer until at least 21 days have elapsed after the creditor has given a notice to a farmer under this section. A notice to a farmer is to be in writing in a form approved by the RAA and informing the farmer of the creditor’s intention to take enforcement action in respect of the farm mortgage and of the availability of mediation in respect of farm debts. Importantly, this section does not apply if a certificate is in force under s 11 in respect of the farm mortgage concerned. • Farm Debt Mediation Act 1994 (NSW) – s 9 – Farmer may request mediation. Section 9 allows a farmer to whom notice has been given under s 8, to notify the creditor in writing that the they are requesting mediation concerning the farm debt involved, within 21 days of the notice being given. • Farm Debt Mediation Act 1994 (NSW) – s 10 – Enforcement action postponed to allow for mediation. Section 10 restrains a creditor from taking action against a farmer to recover a debt owed, once a farmer has given a creditor a notification requesting mediation, unless a certificate is in force under s 11 in respect of the farm mortgage. • Farm Debt Mediation Act 1994 (NSW) – s 11 – Certificate that Act does not apply to the farm debt.

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Section 11 is the most pivotal section in the Act, as it provides that the RAA must, on the application of a creditor under a farm mortgage, issue a certificate that the Act does not apply to the farm mortgage if: the RAA is satisfied that a mediation, in respect of the farm debt concerned, has taken place; the farmer has declined to mediate in respect of the farm debt; or three months have elapsed after a notice was given by the creditor, who has, throughout that period, attempted to mediate in good faith, whether or not satisfactory mediation has taken place. The creditor may extend the three month period to the farmer in writing. Interestingly, the Act does not define good faith, however, sub-s (1B) states that a failure by a creditor to agree to reduce or forgive any debt does not, of itself, demonstrate a lack of good faith on the part of a creditor in attempting to mediate. Sub-section (2) provides that a farmer is presumed to have declined to mediate if any of the following circumstances are established: (a) the farmer has failed to take part in mediation in good faith or has unreasonably delayed entering into or proceeding with mediation; (b) the farmer has indicated in writing to the RAA or to the creditor that the farmer does not wish to enter into or proceed with mediation in respect of the debt concerned; (c) the farmer has failed to respond in writing, within 28 days, to an invitation that: (i) is made in writing by the creditor and is identified as an invitation under this paragraph; and (ii) invites the farmer to attend a mediation session; and (iii) indicates that a failure of the farmer to respond in writing to the invitation might be taken to be an indication that the farmer declines to mediate in respect of the farm debt.

Sub-section (3) states that regulations may make provision for, or with respect to, what constitutes satisfactory mediation. As yet, there have been no regulations passed by the parliament that define a satisfactory mediation. Sub-section (5) provides that a certificate under this section remains in force until the date specified by the RAA in the certificate. The date specified is to be calculated on the basis that the period for which the certificate is to be in force is:

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(a) if satisfactory mediation in respect of the farm debt concerned has taken place, the period commencing on the date of its issue and ending on the third anniversary of the last date of mediation; or (b) if the farmer has failed to take part in mediation in good faith, the period commencing on the date of its issue and ending on the third anniversary of the last date of mediation; or (c) if the farmer has indicated in writing that the farmer does not wish to enter into or proceed with mediation, the period commencing on the date of its issue and ending on the third anniversary of the date the indication was given to the Authority or creditor; or (d) if the farmer has failed to respond in writing, within 28 days, to an invitation referred to in subsection (2) (c), the period commencing on the date of its issue and ending on the third anniversary of the date that is 28 days after the invitation was given to the farmer; or (e) if a notice was given by the creditor under s 8, the period commencing on the date of its issue and ending on the date that is 3 years and 3 months after the date the notice was given; or (f) in any other case in which a certificate is issued, the period of 3 years commencing on the date the certificate was issued.

• Farm Debt Mediation Act 1994 (NSW) – s 11A – Cooling off period. Section 11 provides for a cooling off period ending at 5 pm on the 14th day after the agreement was entered into, or at such later time on that or another day, as may be agreed by the farmer and the creditor. • Farm Debt Mediation Act 1994 (NSW) – s 12 – Mediation arrangements. Section 12 states that the RAA is to institute arrangements for the accreditation of suitably qualified and experienced persons as mediators for the purposes of this Act and is to consult with the Australian Bankers’ Association and the NSW Farmers’ Association on those arrangements. Further, the RAA is to make arrangements for the referral of parties to mediation and is not liable for any of the costs of or associated with mediation. • Farm Debt Mediation Act 1994 (NSW) – s 13 – Functions of mediators. Section 13 states that the function of a mediator is to mediate impartially or attempt to mediate impartially between the farmer 192

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and creditor for the purpose of arriving at an agreement for the present arrangements and future conduct of financial relations among them. Further, the section states that it is not the function of a mediator to advise a farmer or creditor about the law or to encourage or assist a farmer or creditor in reserving or establishing legal rights or to act as an adjudicator or arbitrator. • Farm Debt Mediation Act 1994 (NSW) – s 14 – Conduct of mediation. Section 14 gives the RAA the authority for commencing and conducting a mediation session and requires that mediation should be conducted with as little formality and technicality, and with as much expedition, as possible. Further, it is stated that the rules of evidence do not apply to mediation and that it is not open to the public. • Farm Debt Mediation Act 1994 (NSW) – s 15 – Confidentiality. Section 15 provides that evidence of anything said or admitted during mediation and any document prepared for the purposes of, in the course of or pursuant to, mediation is not admissible in any proceedings in a court or before a person or body authorised to hear and receive evidence. • Farm Debt Mediation Act 1994 (NSW) – s 16 – Exceptions to confidentiality. Section 16 provides the exceptions to confidentiality by allowing disclosure of information and documents with the consent of the person from whom the information was obtained, or in connection with the administration or execution of the Act, or as is reasonably required for the purpose of referring any party or parties to mediation to any person, agency, organisation or other body, and with the consent of the parties to mediation, for the purpose of aiding in the resolution of an issue between those parties or 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, or with other lawful excuse. • Farm Debt Mediation Act 1994 (NSW) – s 17 – Legal representation. Section 17 states that a party to mediation is not entitled to be represented by an agent unless it appears to the mediator that an agent should be permitted to facilitate the mediation. It is also

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important that the proposed agent has sufficient knowledge of the issue concerned to enable the agent to represent the party effectively, and that the mediator approves. Under sub-s (3), the mediator may approve of a party being represented by an agent, under conditions set by the mediator. Sub-section (4) provides that a farmer who is a party to mediation is entitled to have present at any mediation session an advisor, who may or may not be legally or otherwise professionally qualified, and the farmer is entitled to call upon that advisor for advice and counsel during the session. • Farm Debt Mediation Act 1994 (NSW) – s 18 – Immunity of mediator. Section 18 provides that a matter or thing done or omitted to be done by a mediator or any person acting under the direction of a mediator does not, if the matter or thing was done or omitted to be done in good faith for the purposes of executing the Act, subject the mediator or a person so acting personally to any action, liability, claim or demand. Incorporated associations Schedule 1 of the Associations Incorporation Regulation 1994 (NSW) provides model rules to be used by associations wishing to incorporate under the Associations Incorporation Act 1984 (NSW). Section 10 of these rules deals with the resolution of disputes, and provides that disputes between members of an association, and between members and the association, are to be referred to a community justice centre for mediation in accordance with the Community Justice Centres Act 1983. Further, at least seven days before a mediation session is to commence, the parties are to exchange statements of the issues that are in dispute between them and supply copies to the mediator. Hawkesbury-Nepean Catchment Management Trust Sections 6 and 7 of the Hawkesbury-Nepean Catchment Trust Regulation 1993 (NSW) give the Trust planning and strategic powers to manage the Hawkesbury-Nepean catchment area. Under s 7, the Trust has, amongst other powers, the power to engage in such educational, marketing, conflict mediation and other activities as are described in the strategic plan.

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Health care complaints The objects of the Health Care Complaints Act 1993 (NSW) are, amongst other things, to promote the rights of patients (called ‘customers’ under the Act) in the New South Wales health system by providing clear and easily accessible mechanisms for the resolution of complaints. Section 47 of the Act provides that within 14 days of the referral of a complaint by the Health Care Complaints Commission to the Health Conciliation Registry, the Registry must give written notice to the parties that a complaint has been referred for conciliation, along with the details and objects of conciliation and the confidential provisions and effects arising out of conciliation. Interestingly, the Registry will also advise the customer the reasons why conciliation is considered to be appropriate. Section 48 states that participation in conciliation is voluntary and s 49 provides that the function of a conciliator is to conciliate the complaint: (a) by bringing the parties to the complaint together for the purpose of promoting the discussion, negotiation and settlement of the complaint, and (b) by undertaking any activity for the purpose of promoting that discussion, negotiation and settlement, and (c) if possible, by assisting the parties to the complaint to reach agreement.

A very important note to s 49 states that a conciliator has no power to impose a decision on the parties, to make a determination or to award compensation. Section 50 states that at conciliation, a party to the complaint is not entitled to be legally represented, but may be represented by an agent appointed in accordance with the section, and then only generally in cases of hardship. Section 51 deals with confidentiality, and states that evidence of anything said or of any admission made during conciliation, is not admissible in any proceedings before a court, tribunal or body. Similarly, a document prepared for the purposes of, or in the course of, conciliation is not admissible in any proceedings before a court, tribunal or body. Section 52 states that the conciliation process is concluded if either party terminates conciliation at any time or if the parties to the complaint reach agreement concerning the complaint. Further, the complainant must notify the Health Conciliation Registry without delay if the parties reach agreement otherwise than during conciliation. Conciliation is also terminated by

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the conciliator if they consider the parties unlikely to reach agreement, or if a significant issue of public health or safety has been raised. Section 53 states that at the conclusion of conciliation, the conciliator must prepare a report to the Health Conciliation Registry concerning the conciliation. The report may state whether the conciliation process was terminated after reaching agreement or without reaching agreement, and whether or not a recommendation is made that the Commission investigate the complaint. The Registry must give a copy of the report to the parties to the complaint. Land and Environment Court The dispute resolution sections in the Land and Environment Court Act 1979 (NSW) are substantially the same as those drafted in the Administrative Decisions Tribunal Act 1997 (NSW) (see Table 1). However, there are some rules in the Land and Environment Court Rules 1996 (NSW) worthy of mention in addition to the standard sections. Section 18 r 3 states that parties may apply to the court for referral to mediation of a matter arising in proceedings, at any time after commencement of those proceedings. Rule 4 provides that if the parties consent to referral to mediation, the proceedings will stand adjourned for the mediation to take place, unless the court considers that proceedings should not be adjourned in those circumstances. Further, at least seven days before mediation is to commence, the parties are to exchange statements of the issues that are in dispute between them and supply copies to the court and to the mediator. Rule 5 states that, once appointed, a mediator must, within seven days of being notified of the referral, appoint in writing a time for the mediation. The mediator may appoint a preliminary meeting of the parties and may also give directions relating to preparations for, and conduct of, mediation. Rule 6 provides that mediation must be attended by each party or by a representative having authority to settle the matter, and that other persons may attend a mediation session with the leave of the mediator. Rule 7 deals with the conclusion of mediation and states that the mediator must, within seven days of the conclusion of mediation, advise the court of that fact, but not the details thereof. Any party may advise the court of any agreement or arrangement reached at, or arising out of, mediation. Rule 8 deals with termination and states that a mediator may terminate mediation. Also, a party may terminate mediation at any time by giving notice of the termination to the court, the mediator and to each other party. If mediation is terminated, the proceedings are restored to the court.

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Legal Aid Commission The dispute resolution sections in the Legal Aid Commission Act 1979 (NSW) are substantially the same as those drafted in the Administrative Decisions Tribunal Act 1997 (NSW), discussed above. See Table 1 for the comparative sections dealing with dispute resolution. Native title In 1996, the National Parks and Wildlife Act 1974 (NSW) was amended by the National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (NSW), which provided, in s 71F, that negotiations are to be conducted to determine whether one or more Local Aboriginal Land Councils or the New South Wales Aboriginal Land Council wishes to have certain land vested, subject to native title, in the Aboriginal Land Council or Councils, in return for a lease of the lands from the Aboriginal Land Council or Councils to the Minister. Also, if negotiations result in an affirmative response, the negotiations are to continue, with a view to settling the provisions of the proposed lease between the Aboriginal Land Council or Councils concerned and the Minister. Section 71I provides that the role of an Aboriginal negotiating panel is to participate in negotiations with the Minister and one or more Aboriginal Land Councils, to provide the Minister with advice as to the cultural significance to Aboriginals of any lands that are the subject of the negotiations, and to recommend a name for any lands to be reserved or dedicated pursuant to the Act as a result of the negotiations. Section 71K provides that any disagreement between an Aboriginal negotiating panel and an Aboriginal Land Council or Councils, concerning negotiations that cannot be resolved otherwise, is to be referred to a mediator selected by, and acceptable to, the Aboriginal negotiating panel and the Aboriginal Land Council or Councils for resolution. In this respect, the Minister may decline to proceed with the negotiations until the disagreement has been resolved. As to costs, sub-s (3) states that the Aboriginal negotiating panel and the Aboriginal Land Council or Councils concerned are to be jointly responsible for payment of the costs of mediation. Other procedural elements of mediation are covered by the power to make regulations under sub-s (4). There have been no such regulations enacted. Section 71BJ deals with arbitration of disputes.

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Professional standards As the name suggests, the Professional Standards Act 1994 (NSW), amongst other things, allows for the improvement of occupational standards of professionals and others, as well as protecting consumers of the services provided by professionals and others. It also constitutes the Professional Standards Council, which supervises the improvement of occupational standards and protection of consumers. Section 43 of the Act provides that the Council is to advise the responsible Minister on the development of self-regulation of occupational associations, including the giving of advice and assistance concerning, amongst other things, codes of ethics, codes of practice, quality management, risk management, resolution of complaints by clients and voluntary mediation services. Real Property Act 1900 Under s 135 of the Real Property Act 1900 (NSW), the NSW RegistrarGeneral may settle any claim for payment of compensation from the Torrens Assurance Fund by using proceedings in the nature of mediation or neutral evaluation. Further, in settling such a claim, the Registrar-General may pay such an amount, which may include costs and interest, as the they think reasonable. This amount may include any costs incurred by the claimant before the settlement. Residential parks The dispute resolution sections in the Residential Parks Act 1998 (NSW) are substantially the same as those drafted in the Administrative Decisions Tribunal Act 1997 (NSW), discussed above. See Table 1 for the comparative sections dealing with dispute resolution. Residential Tenancies Tribunal The dispute resolution sections in the Residential Tenancies Tribunal Act 1998 (NSW) are substantially the same as those drafted in the Administrative Decisions Tribunal Act 1997 (NSW), discussed above. See Table 1 for the comparative sections dealing with dispute resolution.

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AND INDUSTRY

CODES – CTH & NSW

Retail Leases Tribunal When disputes arise within the jurisdiction of the Retail Leases Act 1994 (NSW), under s 65 of the Act, the Registrar of the Retail Leases Tribunal may make arrangements to facilitate the resolution by mediation, or by some other appropriate form of alternative dispute resolution, of retail tenancy disputes (whether or not a dispute has been formally referred to the Registrar under this Act). Under subs (3), in making arrangements for mediation, the Registrar is to have regard to the need for mediation to be conducted by persons who are experienced in the field of retail shop leases. Section 66 provides that the parties to a retail shop lease may refer a retail tenancy dispute under the Act to the Registrar for mediation. Interestingly, the Registrar is entitled to charge an application fee for the referral, however the Tribunal encourages parties to approach the Registrar for preliminary assistance as described in s 67 of the Act at no cost to the parties. Section 66(2) states that the costs of mediation are to be paid by the parties to mediation in such proportions as they may agree among themselves or, failing agreement, in equal shares. Sub-section (3) gives a mediator under the Act the same protection and immunities as a judge of the Supreme Court. The aforementioned s 67 states that mediation is not limited to formal mediation procedures and extends to encompass preliminary assistance in dispute resolution, such as the giving of advice designed to ensure that the parties are fully aware of their rights and obligations, and that there is full and open communication between the parties concerning the dispute. The Tribunal encourages parties, before mediation, to read their lease and speak to each other about their concerns in an effort to resolve the dispute. Section 68 provides that a retail tenancy dispute under the Act may not be the subject of proceedings before any court unless, and until, the Registrar has certified in writing that mediation has failed to resolve the dispute, or if the court is otherwise satisfied that mediation is unlikely to resolve it. In this respect, the Registrar must certify that mediation has failed to resolve the dispute, if they are satisfied that any one or more of the parties has refused to take part in, or has withdrawn from, mediation. Section 69 deals with the inadmissibility of statements, and provides that any statement or admission made in the course of mediation is not admissible at a hearing of a claim under the Act or in any other legal proceeding. Section 74(1) of the Act prevents the Tribunal from making an order in respect of a retail tenancy claim or an unconscionable

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conduct claim, unless it has brought, or used its best endeavours to bring, the parties to the claim to a settlement acceptable to all of them. In an effort to enforce sub-s (1), sub-s (2) gives the Tribunal the power to adjourn the hearing of a claim to enable the dispute to be referred to the Registrar for mediation. If settlement is reached in mediation, the Tribunal must make an order that gives effect to the settlement to the extent permitted by the Act. In other words, the Tribunal cannot order a settlement outside the jurisdiction of the Act. Rural lands Section 234 of the Rural Lands Protection Act 1998 (NSW), provides that the State Council may resolve any dispute to which this section applies, by mediation, arbitration or any other procedure the State Council considers appropriate. This section applies to: disputes between two or more land boards arising under the Act; a dispute between two or more directors of a board arising under this Act; a dispute between a board and one or more of its directors or members of staff arising under the Act; or a dispute between a board and a person, in relation to a determination of the board in relation to a complaint. Strata management The dispute resolution sections in the Strata Schemes Management Act 1997 (NSW) are substantially the same as those drafted in the Administrative Decisions Tribunal Act 1997 (NSW). See Table 1 for the comparative sections dealing with dispute resolution. However, there is one regulation worthy of mention in addition to the sections of the Act in Table 1. Regulation 21 of the Strata Schemes Management Regulation 1997 provides that the Commissioner may give directions for regulating and prescribing the practice and procedure to be followed in mediation, including the preparation and service of documents. Also, attendance at mediation is made compulsory for each party or by a legal representative, or other representative, having authority to settle the matter. Finally, reg 22 states that a mediator or either party may terminate mediation at any time, by giving notice of the termination to the Commissioner, the mediator and each other party.

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CODES – CTH & NSW

Supreme Court The dispute resolution sections in the Supreme Court Act 1970 (NSW) are substantially the same as those drafted in the Administrative Decisions Tribunal Act 1997 (NSW), discussed above. See Table 1 for the comparative sections dealing with dispute resolution. However, there is one further section of the Act and some rules in the Supreme Court Rules 1970 (NSW) which are worthy of mention in addition to the standard sections. First, s 110L of the Act provides that it is the duty of each party to the proceedings to participate, in good faith, in mediation or neutral evaluation. Secondly, Ord 72C r 2 of the Rules states that on the first occasion that proceedings are before the court for directions, each party shall state: whether they consent to the referral of a matter arising in the proceedings for mediation; whether the parties agree as to who is to be the mediator; whether the parties agree as to the proportions in which the costs of mediation shall be borne; and the terms of their agreement. Of course, under s 110K of the Act, the court does not need the consent of the parties to refer matters to mediation. Order 72C r 3 states that a person to whom a matter is referred for mediation shall, within seven days of being notified of the referral, appoint a time for mediation, may appoint a preliminary meeting of the parties and may give directions relating to preparations for, and conduct of, mediation. Order 72C r 4 provides that the parties and the mediator shall conduct the referral with the object, so far as practicable, of completing it within 28 days. Order 72C r 6 states that unless the mediator otherwise directs, mediation shall be attended by each party, or where a party is a company, by an officer of the company having authority to settle the proceedings; a party may be accompanied by that party’s counsel or solicitor. Finally, Ord 72C r 7 states that the mediator shall, within seven days of the conclusion of mediation, advise the court of the fact that mediation has been concluded, but not divulge the details thereof. For more information on the procedural aspects of the dispute resolution procedures adopted by the court, the following practice notes should be consulted: 87 and 88 (Differential Case Management – dated 8 December 1995); 100 (Commercial List – dated 19 October 2001); 102 (Compiling lists of mediators – dated 31 August 1998; and 118 (Referrals – dated 8 February 2001).

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Water Act The Water Act 1912 (NSW), amongst other things, provides for the approval of certain works called ‘controlled works’. Section 170B states that, if the Ministerial Corporation is satisfied that a person who has made an objection to the grant of an approval has provided sufficient information to demonstrate reasonable concerns, then the Ministerial Corporation must, by notice in writing, request that the applicant for approval and the person who made the objection attend mediation for the purpose of resolving the objection. Sub-section (2) provides that mediation is to be conducted by a person appointed by the Ministerial Corporation and in accordance with their procedures. As a sanction against approval, sub-s (3) provides that the Ministerial Corporation may refuse to determine an application for approval if the applicant for approval fails to take part in mediation as required by them. Likewise, sub-s (4) states that the Ministerial Corporation may reject an objection if the person who made the objection fails to take part in mediation as required by them. By way of definition, sub-s (5) states that a person has failed to take part in mediation if, in the opinion of the Ministerial Corporation, they have unreasonably failed to attend, or unreasonably delayed attending, mediation, or have not taken part in mediation in good faith. Sub-section (6) provides that any statement or admission made in the course of a mediation session is not admissible in any legal proceedings. Finally, sub-s (7) gives the Ministerial Corporation the discretion to determine the granting of an approval based on the outcome of mediation. Workplace injury Section 76 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) defines a dispute as being in connection with a claim for compensation between the person who makes the claim and the person on whom the claim is made (or the insurer on whom the claim has been served). Section 78 states that any party to a dispute may refer the dispute to the Principal Conciliator for conciliation. Sub-section (2) provides that the NSW Compensation Court may, at any stage of proceedings, refer a matter in dispute between the parties to the Principal Conciliator for conciliation. Subsection (3) states that the Principal Conciliator is responsible for making arrangements as to the conciliator, who is to conciliate in connection with a particular dispute or class of disputes. Section 79 sets out how conciliations are to be conducted, and states that a

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CODES – CTH & NSW

conciliator is to make all reasonable efforts to conciliate in connection with a dispute referred to him or her, and to bring the parties to agreement, having proper regard to relevant entitlements and liabilities under the Act. Sub-section (2) allows the conciliator to be proactive by allowing the them to do any one or more of the following things in connection with the dispute or any part of the dispute: (a) make such recommendations to the parties to the dispute as he or she considers appropriate; (b) in the case of a dispute to which Division 4 applies give directions under that Division; (c) decline to make any recommendation or give any direction.

Section 80 allows a conciliator to give a direction in writing to a party to a dispute, requiring that party to produce specified documents or information relevant to the dispute. Further, a conciliator must not give such a direction unless they are satisfied that the worker will be represented by a legal practitioner at conciliation. Section 82 gives the Principal Conciliator the power to issue a summons requiring the attendance of a party to a dispute at conciliation, if the Principal Conciliator is satisfied that the party has failed, without reasonable excuse, to comply with a request to attend conciliation. Again, the Principal Conciliator must not issue such a summons unless satisfied that a legal practitioner at conciliation will represent the worker. Section 86 deals with agreements arising from conciliation and states that, if conciliation gives rise to an agreement between the parties, the conciliator may assist the parties in drafting written terms of agreement. Further, under certain conditions the agreement can be registered with the governing authority. Finally, s 89 provides that anything thing done, or omitted to be done, by a conciliator in the exercise of the their functions does not, if done or omitted in good faith, subject the conciliator personally to any action, liability, claim or demand. Finally, a conciliator is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which he or she was involved in the course of the exercise of his or her functions as a conciliator.

203

204

Legend ADTA CJCA CCA DDTA LECA LPA RPA SCA

4 – 23 – – 11 28 29 27 –

65 66 – – 68 – 69 70 70A –

– 3 38B 38D 38E 38F 38G 38H 38I 38J 38K 38L

38A 38C

32G 32I

163 32H 164A 32J 164B 32K 164C 32L 164D 32M 164E 32N 164F 32O 164G 32P 164H 32Q 164J 32R

162 164

Administrative Decisions Tribunal Act 1997 Community Justice Centres Act 1983 Compensation Court Act 1984 Dust Diseases Tribunal Act 1989 Land and Environment Court Act 1979 Legal Profession Act 1987 Residential Parks Act 1998 Supreme Court Act 1970

20 26B 26C 26D – 26E 26F 26G 26H 29

101 102 103 104 105 106 107 108 109 111

– 4

ATA CLMA DCA FTTA LACA LCCC RTA SSMA

52 54 – 55 56 – 57 58 – –

49 51 60B 60C – – – – 60D 60F 60G –

60A 60B 145A 144 145 – – 146 – 147 – –

124 – 21J 21L 21M 21N 21O 21P 21Q 21R 21S 21T

21I 21K – 91 – – – – 92 93 94 –

– – 52 54 – 55 56 – 57 58 – –

110I – 110K 128 – – 110M – 110N 131 110O – 110P 132 110Q 133 110R 134 110S –

110H – 110J 127

Agricultural Tenancies Act 1990 Community Land Management Act 1989 District Court Act 1973 Fair Trading Tribunal Act 1998 Legal Aid Commission Act 1979 Local Court (Civil Claims) Act 1970 Residential Tribunal Act 1998 Strata Schemes Management Act 1996

61B 61D 61E 61F 61G 61H 61I 61J 61K 61L

61A 61C

49 51

– 20

Purpose Definitions Meaning of ‘mediation’ Referrals Voluntariness Costs Agreement/s Mediators Privilege Secrecy Immunity Regulations

99 100

RTA SCA SSMA 1998 1970 1996

Subject matter ADTA ATA CJCA CLMA CCA DCA DDTA FTTA LECA LACA LPA LCCC RPA of section 1997 1990 1983 1989 1984 1973 1989 1998 1979 1979 1987 1970 1998

Table 1: Comparative sections of NSW legislation dealing with the provision of non-curial dispute resolution.


6 Statutory Schemes — Other States and Territories

Australian Capital Territory Domestic relationships Section 6 of the Domestic Relationships Act 1994 (ACT) provides that where a party to a domestic relationship requests, the Registrar of a court shall advise the person about any mediation or arbitration facilities available, in the court or elsewhere, in relation to matters arising under the Act, and how those facilities are made available. Section 7 is the conciliation provision and states that where proceedings have been commenced, it is the duty of the court and each legal practitioner representing parties in proceedings to allow the parties to settle the matters in dispute and encourage the parties to seek the assistance of the mediation and arbitration facilities available at, or through, the court. Section 8 gives the court power to refer all or any of the matters in dispute in proceedings before it to a mediator or an arbitrator. Section 9 deals with admissions made during mediation and provides that such admissions are inadmissible in proceedings in a court or before a tribunal. Legal practitioners The Legal Practitioners Act 1970 (ACT) is significant only because under s 191ZC it recognises, for the purpose of allowing locally registered foreign legal practitioners to practise, that legal practice consists of, amongst other things, the provision of legal services. These services include appearances in relation to arbitration proceedings in the Territory of a kind prescribed by the regulations and legal services in relation to conciliation, mediation and other forms of consensual dispute resolution in the Territory.

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Mediation The Mediation Act 1997 (ACT) was one of the first pieces of legislation dealing exclusively with the provision of mediation services to the community. Its simplicity is another of its endearing qualities and, in this respect, it is worthwhile recounting many of its provisions: • Mediation Act 1997 – s 3 – Interpretation. Section 3 defines a ‘mediation session’ as a meeting between persons who are in dispute and a registered mediator, for the purpose of resolving the dispute by mediation, and includes any activity undertaken for the purpose of arranging such a meeting, whether successful or not, or following up any matter or issue raised in such a meeting. A ‘registered mediator’ means a person who is registered under s 5, while the registration is current. An ‘approved agency’ means a body or an organisation declared by the regulations to be an approved agency for the purposes of the Act, although there are no regulations in force covering the Act. • Mediation Act 1997 – s 5 – Registration of mediators. Section 5(1) deals with the registration of mediators under the Act and provides that, subject to sub-s (6), a person may apply in writing to an approved agency for registration under this section. Sub-section (2) states that an approved agency shall approve an application and register the applicant providing, amongst other things, that it is satisfied that the applicant has achieved the standards of competency prescribed for the purposes of s 4 of the Act. Section 4 of the Act states, in part, that this standard of competency is specified in an instrument issued from time to time by the ACT Attorney-General under its Codes of Practices and Standards but, in its current form, it comprises the specification of the knowledge and skill, and the application of that knowledge and skill to the standard of performance required in employment. The concept of competency includes all aspects of performance, such as: performance at an acceptable level of skill; organising tasks; responding and reacting appropriately when things go wrong; fulfilling a role; and the transfer of skills and knowledge to new situations. The rest of the section deals with rights of review, where application for registration has been refused.

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• Mediation Act 1997 – ss 6 and 7 – Duration and renewal of registration. Sections 6 and 7 provide for the renewal of registration every three years, providing mediators have undertaken such further education in matters relating to mediation as is approved by the agency. • Mediation Act 1997 – s 9 – Admissibility of evidence. Section 9 states that evidence of a communication in mediation, such as a document prepared for, in the course of, or pursuant to a decision taken in mediation, is not admissible in any proceedings except in accordance with s 131 of the Evidence Act 1995 (Cth). • Mediation Act 1997 – s 10 – Confidentiality. Section 10 provides that a person who is, or has been, a mediator under the Act shall not disclose any information obtained in mediation, unless disclosure is required by a law of the Territory or the Commonwealth, the disclosure is made with the consent of the parties, or the disclosure is made with the consent of the person who gave the information. A final exception to s 10 arises where a person believes on reasonable grounds that a person’s life, health or property is under serious and imminent threat and the disclosure is necessary in order to avert, or mitigate the consequences of, its realisation, or if the disclosure is necessary in order to report to the appropriate authority the omission of an offence, or prevent the likely commission of an offence. • Mediation Act 1997 – ss 11 and 12 – Immunity. Section 11 sets out the immunity to which a mediator is privileged, and states that the same privilege with respect to defamation, as exists in relation to judicial proceedings, exists in relation to mediation or in relation to a document produced at mediation, or a document given to a mediator for the purpose of arranging or conducting mediation. Section 12 provides that a mediator has, in the performance of his or her functions in good faith as mediator, the same protection and immunity as a judge of the Supreme Court.

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Residential tenancies As its title suggests, the Residential Tenancies Act 1997 (ACT) provides for, amongst other things, procedures for the resolution of disputes between lessors and lessees of residential leases. The starting point is s 72, which allows the Registrar of the Residential Tenancy Tribunal to provide such assistance, in relation to an inquiry about a tenancy agreement, as he or she thinks appropriate, including referring a person to services provided by the public or private sector for the resolution of a tenancy disputes, and assisting a person to make an application for the resolution of a dispute. Section 73 allows a party to a residential tenancy to make application for the resolution of a dispute under the tenancy agreement. Section 75 states that upon receiving an application in accordance with s 73, the Registrar will, with the parties’ consent and if the Registrar considers that the dispute is suitable for mediation, refer the dispute to a mediator. Section 76 provides that, should mediation fail, the Registrar shall refer the application to the Residential Tenancies Tribunal, or refer the parties to a preliminary conference, if appropriate, to resolve the dispute or to narrow the issues in dispute, or help to prepare the parties for a Tribunal hearing. Section 129 deals with the admissibility of evidence and provides that evidence of any words spoken during mediation or at preliminary conference shall only be admitted in civil proceedings under this Act if the evidence relates to the making of an order by a referee. Regulation 7 of the Residential Tenancies Regulations states that a mediator to whom a tenancy dispute is referred under the Act shall commence mediation of the dispute as soon as practicable after the referral by the Registrar, and keep a record of the mediation that contains certain information, such as whether the parties to the dispute participated in mediation; whether the parties reached agreement; and, if the parties reached agreement and with their written consent, the terms of the agreement. Finally, at the conclusion of mediation, the mediator shall provide a copy of the record to the Registrar. Tenancy tribunal The Tenancy Tribunal Act 1994 (ACT) establishes the ACT Tenancy Tribunal, which deals with disputes arising under retail and commercial leases. Section 6 lists many different types of trigger mechanisms that arise under normal retail and commercial leases,

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AND

TERRITORIES

which bring disputes under the jurisdiction of the Act. One of the trigger mechanisms is a dispute caused by an alleged breach of a mediated agreement. Section 13(6) of the Act states that if the Registrar of the Tribunal is satisfied that there is a dispute, he or she shall, unless the Act requires the dispute to be referred to the Tribunal, refer the dispute to a mediator. Sub-section (7) provides that if the Registrar refers a dispute to a mediator, he or she shall give written notice of the referral to the mediator, specifying the time within which the mediator is to provide the Registrar with a mediation report. Section 17 allows the Minister, by instrument, to approve persons to be mediators for the purposes of the Act. Section 18 states that the Registrar shall maintain a list of approved mediators. The procedures for mediation commence with s 19, which states that a mediator to whom a dispute is referred shall, as soon as practicable, give written notice to the parties to mediation, and inviting them to confer with him or her with a view to making arrangements regarding a time and place for a conference. Section 20 deals with admissibility of evidence and states that evidence of proceedings at a mediation conference under s 19 is inadmissible in any other proceedings except in accordance with s 47 or 59. Section 47 provides that evidence of any words spoken or act done by the Registrar during mediation, or at a hearing of the dispute, shall only be admitted if it relates to the making of a mediated agreement, and if a party to the agreement alleges in good faith that the agreement was induced or affected by fraud or duress, other than fraud of the party or duress applied by the party. Section 59 holds that the same is true of an appeal. Section 21 states that a mediation report shall be in writing and shall specify: whether mediation occurred and, if it did not, why it did not; whether mediation resolved the dispute; and the terms of any mediated agreement. Finally, s 22 states that where the Registrar receives a mediation report stating that a dispute remains unresolved, he or she shall refer the dispute to the Tribunal. Victims of crime The notes to the Victims of Crime Regulations 1999 (ACT) recite a contract between the Government of the ACT (represented by the Department of Justice and Community Safety) and the ACT Health and Community Care Service (represented by the ACT Community Care & Victims Service Scheme). The contract is dated 21 December 1999 and notes the Victims of Crime Act 1994 (ACT), which provides

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for the establishment of a victims’ services scheme. Under the terms of the contract, the ACT Government purchased from the ACT Health & Community Care Service, services that would enable the provision of the victims’ services scheme on the terms and conditions set out in the contract. Should a dispute arise under the contract, clause 7 comes into play and provides that as soon as one party has given notice of a dispute under the contract, the parties will endeavour to resolve the dispute promptly by negotiation. If the dispute is not resolved within 28 days of the notice being received by the recipient, or such further time as may be agreed by the parties, then the parties agree to undertake mediation. The mediator will be an independent mediator agreed by the parties or, failing agreement, will be nominated by the Chief Executive for the time being of the Law Society of the Australian Capital Territory.

Northern Territory Children Section 86 of the Adoption of Children Act 1994 (NT) provides that where a dispute arises between the relinquishing parent or parents and the adoptive parent or parents, concerning the access to the child or the giving and receiving of information, one or more of those parents may request the Minister to provide counselling or mediation for the purposes of resolving the dispute. Further, on receipt of such a request, the Minister shall take steps to comply with the request. Cullen Bay Marina Act The Cullen Bay Marina Act (NT) is an Act relating to the sub-division and management of certain land at Cullen Bay, to the obligations and liabilities of certain persons in relation to the development of that land, and for other purposes. Section 12A(2) of the Act states that a court may, amongst other things, in respect of an application made by a lot owner or other persons interested in the development, attempt to settle the proceedings between the parties by the processes of mediation and arbitration.

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TERRITORIES

Local Court Act 1989 Section 16 of the Local Court Act 1989 (NT) deals with pre-hearing conferences and states that the court may, whether of its own motion or on the application of a party, order a proceeding or part of it to be referred to, amongst other things, a mediation or arbitration conference, which shall be conducted in accordance with the Rules by the person presiding. Rule 32.04 of the Local Court Rules (NT) states that, at a conciliation conference, the court may, amongst other things, conciliate between the parties and make recommendations for the resolution of the issues, to facilitate agreement between the parties or refer the parties to mediation. Rule 32.06 sets out the procedure to be followed at mediation and states that, where the court refers the parties to mediation, the Registrar of the court must fix a date, time and place for it and give all parties notice of it. Also, mediation conferences are to be held before a Judicial Registrar, a Registrar or a mediator appointed by the Chief Magistrate or a Judicial Registrar from the list of mediators appointed under r 32.08(2). Further, each party must attend mediation in person or by sending an authorised representative, if not a natural person who has the authority to settle the dispute. With the leave of the court, a party attending a mediation conference may be accompanied by a legal practitioner or some other person. Finally, the mediator may adjourn a mediation conference if the parties consider that further negotiations may lead to a settlement. Rule 32.08 provides that the court may keep a list of persons who are, in the Chief Magistrate’s opinion, suitably qualified to act as mediators under the Act and who are willing to do so. The costs and expenses of a mediator may be fixed by the Chief Magistrate and, subject to r 32.09, are to be shared equally by all parties to the mediation. Finally, the court may make an order necessary to secure or enforce payment of a mediator’s costs and expenses. Rule 32.09 deals with costs on adjournment of mediation and provides that, if a party applies to adjourn a mediation conference without the consent of the other parties, and the conference is adjourned, the party must pay the mediator’s costs and the other party’s or parties’ costs as a result of the adjournment. Rule 32.10 states that if a party fails to attend conciliation or mediation after receiving notice to attend, or fails to prepare adequately for it, then the court may, amongst other things, in the case of a failure by the plaintiff, strike out the claim or, in the case of a failure by a defendant, make an order against the party permitting the party claiming the relief to proceed as if a notice of defence had not

211


been filed. The court may also make orders relating to costs that it considers appropriate, including an order that a legal practitioner pay all or part of the costs payable. Rule 32.11 deals with confidentiality of proceedings and states that, unless the parties consent, evidence of things said or admissions made in the course of, and for the purpose of, mediation, are not admissible in the proceeding or in a court, except to prove that a settlement was reached and the terms of that settlement. Further, subject to any law in force in the Territory, a mediator must not disclose, or be required to disclose, any information of which the mediator becomes aware in the course of, and for the purpose of, mediation. As the name suggests, the Small Claims Rules (NT) deal with civil claims under a certain quantum, in the local court. Rule 18.04 states that at a pre-hearing conference, the court must clarify the issues in dispute, and may conciliate or mediate between the parties or arbitrate the dispute under the rules. At a pre-hearing conference the court may, amongst other things, refer the parties to mediation. Rule 18.08 provides that, unless the parties consent, evidence of things said or admissions made by a party in the course of conciliation or mediation during a pre-hearing conference are not admissible in the proceeding or in a court, except to prove that a settlement was reached and the terms of that settlement. Lands Acquisition Act Section 37 of the Lands Acquisition Act (NT) provides that where a person has lodged an objection over an application to acquire land, the Minister and the person objecting to the acquisition may agree to refer the matter to mediation. If one or more of the parties cannot agree on the mediator, either party may apply to the Tribunal for the appointment of a mediator under s 36 of the Lands and Mining Tribunal Act. Legal Practitioners Act Like its NSW counterpart, s 135N of the Legal Practitioners Act (NT) lists conciliation, mediation and other forms of consensual dispute resolution as ‘legal services’, when defining the work of locally registered, foreign legal practitioners.

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TERRITORIES

Mining Act Section 140G of the Mining Act (NT) provides that an applicant for a prescribed mining act must consult with any registered native title claimants, or registered native title bodies corporate, who lodge a native title objection about ways to minimise the impact of the prescribed mining act on registered native title rights and interests in relation to the affected land. Further, if the prescribed mining act is a certain type of act under the Act, either the applicant, the claimant or the body corporate may, after inquiring in writing as to the other party’s attitude towards mediation, refer the matter of impact minimisation to mediation at any time. Finally, if the parties cannot agree on a mediator, then either party may apply to the Tribunal for the appointment of a mediator under s 36 of the Lands and Mining Tribunal Act (NT). On receipt of such an application, the Registrar of the Tribunal must choose from the panel, created by the chair of the Tribunal, a person to mediate in the matter. Petroleum Act Section 57H of the Petroleum Act (NT) states that an applicant for a prescribed petroleum act must consult with any registered native title claimants or registered native title bodies corporate, who lodge a native title objection about, amongst other things, ways of minimising the impact of the prescribed petroleum act. If the prescribed petroleum act is a certain type of act under the Act, then either the applicant or the claimant or body corporate may, after inquiring as to the other party’s attitude towards mediation, refer the matter of impact minimisation to mediation. If the matter is referred to mediation, the parties may agree on the appointment of a mediator, and if they cannot do so either party may apply to the Tribunal for the appointment of a mediator under the Lands and Mining Tribunal Act. Supreme Court Rule 48.13 of the Supreme Court Rules (NT) states that, if the court is of the opinion that a proceeding is capable of settlement or ought to be settled, the court may direct that the matter be settled by mediation. The mediator is to be appointed from the list established under the Rules. Importantly, the court may direct that the parties attend mediation in person, although the attendance of a party in person at mediation does not prevent the party being represented by counsel, by

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the party’s solicitor, or by both. Except to prove that a settlement was reached between the parties and the terms of that settlement, evidence of things said or admissions made at mediation is not admissible in either the proceeding or a court without the consent of those parties. The court must keep a list of persons who, in the opinion of the court, are suitably qualified and willing to act as mediators. The costs and expenses of a mediator may be fixed by the court and are to be met equally by all parties to the mediation. If a party fails to attend mediation or refuses to participate in mediation, they must pay the costs of the mediator and the other parties. Under the Act, a mediator must not disclose, and is not to be required to disclose, information of which they become aware in the course of, or for the purposes of, mediation. Further, mediation may be adjourned by the mediator if the parties consider that further negotiations may lead to a settlement. Finally, within seven days of the conclusion of mediation, the mediator must file a report, signed by him or herself, indicating that the proceeding has finally been resolved; that certain issues, identified in the report, have been resolved; or that no issues between the parties have been resolved. Rule 48.14 provides that the costs of, and incidental to, attending a directions hearing, settlement conference or mediation are to be costs in the proceeding, unless the court orders otherwise. Unit Titles Act Section 106 of the Unit Titles Act (NT) provides for the resolution of disputes between members of unit title property, by the use of mediation or arbitration. Work Health Act The Work Health Act (NT) seeks to promote, amongst other things, occupational health and safety; to prevent workplace injuries and diseases; to protect the health and safety of the public in relation to work activities; and to provide financial compensation to workers incapacitated from workplace injuries or diseases, and to the dependants of workers who die as the result of such injuries or diseases. Section 69 of the Act states that the amount of compensation payable shall not be cancelled or reduced unless the worker to whom it is payable has been given, amongst other things, a statement to the effect that if the worker wishes to dispute the decision, the worker may apply to the governing Authority to have the dispute referred to

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mediation. If mediation is unsuccessful in resolving the dispute, the worker may appeal to the court against the decision to cancel or reduce compensation. Section 103C provides that the responsible Minister may appoint a person to be a mediator, and that the function of a mediator is to promote the resolution of disputes between claimants, employers and employers’ insurers. Further, a mediator has power: (a) to conduct discussions with each party; (b) where it appears to the mediator likely to assist in the resolution of a dispute – to convene a conference and require the parties or any of them to attend; (c) to require a party to provide specified written information to the mediator or another party, being information on which the first mentioned party relies (including a medical report or any other report); (d) to require that information to be provided within a specified time; and (e) to do any other things that are necessary or convenient to be done for the purpose of resolving the dispute.

Sub-section (4) states that in the performance of his or her function and in the exercise of his or her powers, a mediator must: (a) act promptly; (b) be impartial; and (c) except to the extent necessary for the proper performance of that function or exercise of those powers, maintain confidentiality.

Section 103D of the Act prescribes the conduct of mediation, being that within seven days of receiving the application, the Authority must refer the dispute to a mediator and within 14 days of receiving a referral, a mediator must attempt to resolve the dispute, advise the claimant and the employer’s insurer of the outcome of the mediation and – if the mediator has been unable to resolve the dispute – advise the parties of further proceedings that may be commenced, and the time within which to commence them. Unusually, s 103E allows the mediator to make recommendations to the parties in relation to the resolution of the dispute. Section 103F states that a party is not ordinarily entitled to legal representation in mediation, but may be if the mediator is satisfied that it is physically impracticable for the party

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to participate in the mediation in person, or if it would otherwise facilitate the conduct of mediation. Where the mediator agrees to a party having legal representation, the mediator must notify the other parties of that agreement. A party who is not legally represented is entitled to be accompanied by another person who is not a lawyer and to consult with that person during the conference, but is not entitled to be represented at the conference by that person. Under s 103G, the parties must bear their own costs of mediation. Section 103H makes it an offence not to comply with the requirement to attend mediation. Penalties for a breach are: in the case of a body corporate, $10,000; and in the case of a natural person, $2,000. Section 103J states that a claimant may not commence proceedings unless there has been an attempt to resolve the dispute by mediation and that attempt has been unsuccessful. At the conclusion of mediation, the mediator must issue to each of the parties a certificate in the approved form stating that mediation has taken place, listing the written information provided to the mediator by the parties during mediation, setting out the recommendations, if any, and stating what the outcome of mediation was. Finally, s 103K states that anything said, written or done in the course of mediation is not admissible in any other proceedings under this Act. The Work Health Regulations (NT) set out the procedures for mediation and state, in s 14A, that a mediator must keep a record of the mediation of a dispute, which includes a description of the nature of the dispute, the parties and the outcome of mediation. In a sign of the times, s 23.05 provides the sanction of a costs order against a party not providing the mediator with relevant information.

Queensland Building services disputes Section 123(1) of the Queensland Building Tribunal Act 2000 (QLD) states that, if the Building Tribunal considers a building dispute suitable for mediation, the Tribunal may appoint a mediator or mediators to try to achieve a negotiated settlement of the proceeding. Sub-section (2) provides that if all the parties request the Tribunal to appoint a particular mediator, the tribunal may appoint that mediator. Sub-section (6) states that the mediator may be a member of the Tribunal or another person. However, sub-s (7) provides that the Tribunal may appoint a person as mediator only if the Tribunal considers the person to have suitable qualifications and experience.

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The notes to sub-s (7) suggest that a suitably qualified mediator will have successfully completed a recognised training course in mediation and have experience in a business or profession relevant to the subject of the mediation. Sub-section (8) provides that a mediator appointed under the Act has the protection and immunity of a member of the Tribunal. Section 124 deals with procedural issues and states that the tribunal may, in appropriate cases, allow a mediator to conduct a mediation by means of telephone conferencing, video conferencing or another form of communication that allows reasonably contemporaneous and continuous communication between persons taking part in the mediation. Section 125 deals with inadmissibility of evidence and states that anything said or done during the mediation process is inadmissible in any other proceeding of the tribunal. In the event that mediation does not settle the dispute, sub-s (2) states that the mediator must obtain from each party the issues they consider to be the issues in dispute and the orders they seek from the Tribunal, which the mediator must report to the Tribunal. However, the Tribunal is not limited to hearing just those issues. Sub-section (4) provides that if a building dispute, or some of the issues in the dispute, are settled, the mediator must report the terms of the settlement to the tribunal, after which the Tribunal may make orders on the same or different terms. Interestingly, under sub-s (6), if requested by the parties, the Tribunal must ensure that the terms of the settlement remain confidential, and must not be included in a register or other record available for inspection under the Act. In order to ensure that the rules of natural justice are complied with, s 126 provides that a member of the Tribunal cannot hear a matter if they were also the mediator. Under s 127, if the Registrar has set a proceeding down for mediation, followed on the same day by an expedited hearing, the Registrar must set a time limit of not more than two and a half hours for the mediation. As to representation, s 64 states that unless the mediator considers it appropriate in the interests of justice to allow a party to be represented by a lawyer, a party must represent himself or herself at mediation. Chicken meat The Chicken Meat Industry Committee Act 1976 (QLD) establishes the Chicken Meat Industry Committee, whose functions, under s 16, include mediating in disputes between processors and growers (including disputes as to the assessment of amounts payable under agreements) and to negotiate prices between processors and growers.

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Community title Under the Body Corporate and Community Management Act 1997 (QLD), certain disputes arising under the provisions of the Act may be adjudicated upon and certain interested persons can seek an order of adjudication. Under s 203(1) the Commissioner for Body Corporate and Community Management may make a recommendation that the application be the subject of specialist mediation. However, the Commissioner must make such a recommendation if the parties ask for it to be made and it is open to the Commissioner to make the recommendation according to the Act. Section 204 states that upon the making of a recommendation, the Commissioner must refer the application for mediation using the dispute resolution centre’s mediation program, to be discussed below. In this respect, the Commissioner must comply to the greatest practicable extent with the procedures applying under the Dispute Resolution Centres Act 1990 (QLD) for commencing mediation. Section 206 provides that the dispute resolution centre must refer the application back to the Commissioner if a party withdraws from mediation or if no agreement is reached at mediation. Section 208 provides that it is open to the Commissioner to recommend that an application be the subject of mediation only if the parties agree on a person who is to be the mediator, the Commissioner considers that the person has the qualifications, experience or standing appropriate, and the parties and the mediator agree on the amount to be paid for mediation, how the amount is to be paid and by whom. Section 210 sets out some procedural rules and provides that the mediation must be conducted with as little formality and technicality, and with as much expedition, as possible. Also, the rules of evidence do not apply to mediation under the Act and the application may not be adjudicated or arbitrated upon at mediation. Further, mediation is to be conducted in the absence of the public and evidence of anything said or done in mediation is inadmissible in a proceeding. Finally, mediation may be terminated at any time by the mediator. Section 211 states that attendance at, and participation in, mediation is voluntary and a party may withdraw from mediation at any time. Interestingly, an agreement reached at mediation is not enforceable in any court, tribunal or body. Section 212 provides for representation by an agent, but only if the mediator approves. The mediator may approve of such representation, on the mediator’s terms, if the mediator is satisfied that an agent would facilitate mediation and the agent has sufficient knowledge of the application to enable the agent to represent the party effectively. 218


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Dispute resolution centres The Dispute Resolution Centres Act 1990 (QLD) shares some sections that are common to other pieces of Queensland legislation that also seek to establish statutory dispute resolution schemes. The common sections are noted in Table 2, below (pp 230–31). A fuller discussion of those sections will be undertaken below when discussing the district court scheme. Some of the sections not appearing in the table will be the focus of discussion in this part of the chapter. The purpose of the Act is to provide for the establishment and operation of dispute resolution centres to provide mediation services in connection with certain disputes. Under s 28, the director of each dispute resolution centre is responsible for the provision of mediation services and for the operation and management of the centre. Section 29 states that mediation is to be conducted with as little formality and technicality, and with as much expedition, as possible and, in this respect, the rules of evidence do not apply. Sub-section (5) states that mediation is to be conducted in the absence of the public, unless the mediator permits otherwise. Section 30 of the Act gives the Director of each dispute centre the power to decide whether specified classes of disputes are to be the subject of mediation. Similarly, s 32 provides that the director of each centre may decline to consent to the acceptance of any dispute for mediation. Also, that the director or the mediator may terminate mediation at any point. Section 33 provides for representation by an agent, but only if the mediator approves. The mediator may approve of such representation, on their own terms, if they are satisfied that an agent would facilitate mediation and that the agent has sufficient knowledge of the application to enable them to represent the party effectively. District court The provisions for dispute resolution under the District Court Act 1967 (QLD) are extensive. The part of the Act that deals with dispute resolution is mirrored in other Queensland statutes, which are compared in Table 2 at the conclusion of this part of this chapter. The following is a summary of the key sections establishing the statutory scheme: • District Court Act 1967 – s 89 – Objects of Part 7. The objects of Part 7 of the Act are to provide an opportunity for litigants to participate in dispute resolution in order to achieve

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satisfactory resolutions of disputes, to introduce dispute resolution into the court system, to improve access to justice for litigants, to reduce cost and delay, and to provide a legislative framework allowing dispute resolution to be conducted as quickly, and with as little formality and technicality, as possible. Further, to safeguard dispute resolution processes by ensuring they remain confidential and by extending the same protection to participants as they would have if the dispute were before the district court. • District Court Act 1967 – ss 90 and 91 – Definitions. Dispute resolution is defined in s 90 to mean a process of mediation by which parties are helped to achieve an early, inexpensive settlement or resolution of their dispute that includes: (a) pre-mediation and post-mediation sessions; and (b) a case appraisal session; and (c) joint sessions; and (d) private sessions; and (e) any other step prescribed under the rules.

Further, s 91 defines mediation as a process by which the parties use a mediator to help them resolve their dispute by negotiated agreement without adjudication. • District Court Act 1967 – ss 93 and 95 – Mediators and registers. Section 93 simply states that the Chief Judge may approve, or refuse to approve, a person as a mediator. Section 95 provides that the Registrar of the Supreme Court must keep a register of information about dispute resolution processes that must contain the name and address of each mediator and any other information prescribed under the rules. • District Court Act 1967 – s 96 – Agreement of parties. Section 96 provides that the parties to a dispute may agree to refer their dispute to a dispute resolution process and, if the parties agree to the referral, they must file a consent order in the form prescribed under the rules with the Registrar. • District Court Act 1967 – s 97 – Court order for dispute resolution. Section 97 states that the district court may require the parties to come before it, to enable the court to decide whether the parties’ 220


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dispute should be referred to dispute resolution. The court may, by order, refer the dispute for mediation. When deciding if a dispute should be referred to mediation, the court may consider whether the costs of litigating the dispute are likely to be disproportionate to the benefit gained. Sub-section (4) states that, if the court decides to refer the dispute to a mediator under the Dispute Resolution Centres Act 1990 (QLD), it is sufficient for the order to appoint the director of a specified dispute resolution centre as mediator. • District Court Act 1967 – s 98 – Attendance. Section 98 states that if a dispute is referred to dispute resolution under the Act, the parties must attend and must not impede the mediator in conducting and finishing the mediation within the time allowed under the referring order. Should a party impede the process, the court may impose sanctions against the party, including, for example, ordering that any claim for relief by the defaulting party is stayed until further order, and by taking the party’s action into account when awarding costs in the proceeding or in another related proceeding between the parties. • District Court Act 1967 – s 100 – Subpoenas. Section 100 provides that a person may be subpoenaed to appear at a case appraisal only by order of the court, but a person may not be subpoenaed to appear at mediation. However, a person subpoenaed to appear at a case appraisal must not be compelled to answer a question, or produce a document, that they could not be compelled to answer or produce before the court. • District Court Act 1967 – s 101 – Costs. Section 101 deals with costs and provides that if, at any time, the court believes that a party is unable to pay their percentage of the costs of dispute resolution, the court may make an order appropriate in the circumstances. The order may provide that the reference to dispute resolution be cancelled, or that the referring order be revoked and another one made. • District Court Act 1967 – s 102 – Mediated agreement. Section 102 simply provides that if, at mediation, the parties agree on a resolution of their dispute or part of it, the agreement must be written down and signed by, or for, each party and by the mediator, and that such an agreement has the same effect as any other compromise of a claim.

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• District Court Act 1967 – s 103 – Mediator’s certificate. Section 103 provides that as soon as practicable after mediation has finished, the mediator must file a certificate about mediation with the Registrar of the referring court. • District Court Act 1967 – s 105 – Mediation agreement orders. Section 105 states that a party may apply to the court for an order giving effect to an agreement reached after mediation and the court may make any order it considers appropriate in the circumstances. • District Court Act 1967 – s 107 – Secrecy. Section 107 sets out the secrecy provisions of the Act and states that a mediator must not, without reasonable excuse, disclose information coming to the mediator’s knowledge during the dispute resolution process. However, it is permissible to disclose information if it is made with the agreement of all the parties or for statistical purposes without revealing, or being likely to reveal, the identity of a person about whom the information relates; for an inquiry or proceeding about an offence happening during the process; for a proceeding based on fraud alleged to be connected with, or to have happened during, the process; or under a requirement imposed under an Act. • District Court Act 1967 – s 108 – Immunity. Section 108 deals with the immunity of the mediator and states that, in performing the functions of a mediator, the mediator has the same protection and immunity as a judge. Further, a party, a witness or a document appearing, attending or produced at a dispute resolution process has the same protection and immunity the person would have if the dispute were being heard before the court. • District Court Act 1967 – s 109 – Agreement to disclose. Section 109 states that evidence of anything done or said, or an admission made, at a dispute resolution process is admissible at the trial of the dispute or in other civil proceedings before the court or elsewhere only if all parties to the dispute agree. • District Court Act 1967 – s 110 – Revocation of mediator approval. Section 110 states that the Chief Judge may revoke the approval of a mediator providing that the person receives a statement of reasons for the revocation. 222


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In addition to the comparative sections of the Acts listed in Table 2, the table also lists the comparative sections of the District Court Rules 1968 (QLD) and the Magistrates’ Court Rules 1960 (QLD), which set out the procedures for the establishment of the respective statutory dispute resolution schemes. The following is a summary of the key sections in those rules. In particular, s 391 provides that, if a dispute is referred to mediation, the dispute and all claims made in the dispute are stayed until the report of the mediator certifying the finish of the mediation is filed with the referring court, or if the district court orders otherwise. Section 392 states that a party impedes mediation if they fail to attend, fail to participate or fail to pay an amount they are required to pay under a referring order within the time stated in the order. Under s 394, a mediator must start mediation as soon as possible after the mediator’s appointment and try to finish mediation within 28 days of the appointment. Section 395 provides that the parties must act reasonably and genuinely in mediation and help the mediator to start and finish mediation within the time estimated or fixed in the referring order. The mediator has wide powers under s 396 to gather any information he or she chooses about the dispute, in any way he or she decides. Further, the mediator may decide whether a party may be represented at mediation and, if so, by whom. Section 398 states that the mediator may seek legal or other advice about the dispute from independent third parties, providing they disclose the substance of the advice to the parties. Under s 400, the mediator may abandon mediation if he or she considers further efforts will not lead to the resolution of the dispute or an issue in the dispute. However, before abandoning mediation, the mediator must inform the parties of their intention, and give them an opportunity to reconsider their positions. Under s 402, if mediation is unsuccessful, the dispute may go to hearing in the ordinary way without any inference being drawn against any party because of the failure to settle at mediation. Electricity consumers Section 119 of the Electricity Act 1994 (QLD) provides that, where a dispute arises between a supplier of electricity and a customer or occupier of land, the customer or occupier of land may ask the regulator to settle the dispute by mediation. Further, if, at mediation, the parties agree on a resolution of their dispute or part of it, the agreement must be written down and signed by, or for, each party and by the regulator; this agreement has the same effect as any other compromise.

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Environment — resource management Section 87 of the Environmental Protection Act 1994 (QLD) provides that the administering authority may invite the person or public authority that has submitted a draft environmental management program and all or any interested parties for the program to a conference to help it decide whether or not to approve the program. In such cases, the administering authority must endeavour to appoint an independent person to mediate the conference. Freedom of information Section 80 of the Freedom of Information Act 1992 (QLD) simply states that the Information Commission may, at any time during a review, try to effect a settlement between the participants. Further, the Commissioner may suspend a review at any time to allow the participants in the review to negotiate a settlement. Conversely, whilst the section doesn’t specifically refer to mediation, the title of the section reads ‘Mediation’. Industrial Relations Act Sections 231 and 242 of the Industrial Relations Act 1999 (QLD) and the Workplace Relations Act 1997 (QLD) respectively, provide that an Industrial Relations Commissioner may act as mediator in an industrial cause, whether or not it is within the jurisdiction of the Commission, on the request of the parties directly involved in the cause, or if it appears that mediation is in the public interest. The Industrial Relations (Tribunals) Rules 2000 (QLD) set out the procedures for mediation and s 151 states that the steps the Commission may take as mediator in an industrial cause include conferring with the parties, to the extent necessary to help the parties resolve the dispute; to ensure all avenues of resolution have been explored before proceeding to arbitration; to facilitate the conduct of any necessary arbitration proceedings by exploring ways of effectively conducting hearings; or to help the parties resolve any other outstanding issues. Sub-section (2) provides that the Commission may resolve other outstanding issues only if they consider the mediation to be desirable and in the public interest. Further, that all parties consent to mediation and agree on the specific issues to be dealt with in the process and agree to accept any resolution achieved by the process, including consenting to any formal orders.

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Justices Act 1886 Section 53A(1) of the Justices Act 1886 (QLD) (as amended) provides that, if a summons to appear has been issued, the clerk of the court who issued the summons may order the complainant to submit the matter to mediation under the Dispute Resolution Centres Act 1990 (QLD). The clerk of the court may make such an order if they consider that the matter would be better resolved by mediation than by proceeding on the summons to hearing, or if the complainant consents to the court order. Legal aid Section 24 of the Legal Aid Queensland Act 1997 (QLD) states that if a person applies to Legal Aid for legal assistance, Legal Aid may arrange for the matter to be referred to a dispute resolution process, whether or not they have decided the application, providing they think it appropriate in the circumstances. Sub-section (2) provides that if the other party to the matter agrees to the referral to an alternative dispute resolution process, Legal Aid may decide to consider the application, or continue to give the legal assistance, only if the applicant participates in the alternative dispute resolution process. Magistrates court See the above discussion on the district court where the dispute resolution sections of the District Court Act 1967 (QLD) are discussed. The dispute resolution sections in the Magistrates’ Court Act 1921 (QLD) are substantially the same in terms of their intent. Also, see Table 2 (pp 230–31) for guidance as to the comparative sections dealing with dispute resolution. In addition to the comparative sections in the above mentioned Acts, Table 2 lists the comparative sections of the Magistrates’ Court Rules 1960 (QLD) and the District Court Rules 1968 (QLD) that set out the procedures for the establishment of the statutory dispute resolution scheme. A more detailed discussion of some of those rules appears above in the section dealing with the district court.

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Mineral resources The Mineral Resources Act 1989 (QLD) contains three divisions with concomitant parts that list identical requirements as to the provision of mediation. The different divisions all deal with access to land, albeit for different reasons. Sections 436 (access agreements), 491 (exploration permits) and 547 (mineral development licences) all provide that, if at the end of the consultation period for entry to an area, an access agreement for entry to the area has not been obtained between the permit holder and a registered native title party for the area, either party may ask the mining registrar to mediate in relation to the access agreement. Further, the registered native title party or the permit holder may be represented at the conference by a lawyer and, unless the court orders otherwise, a party to the conference must pay the party’s own costs for the conference. Similarly, ss 436A (access agreements), 491A (exploration permits) and 547A (mineral development licences) provide that, if an access agreement for entry to an area is not obtained within one month of the mining registrar being asked to mediate regarding the agreement, the permit holder or the registered native title party may ask the mining registrar to refer the matter to the tribunal for a decision. Peaceful assembly and behaviour The objects of the Peaceful Assembly Act 1992 (QLD) are listed in the Act as being: to recognise the right of peaceful assembly; to ensure, so far as it is appropriate to do so, that persons may exercise the right to participate in public assemblies; and to ensure that the exercise of the right to participate in public assemblies is subject only to such restrictions as are necessary and reasonable in a democratic society in the interests of public safety, public order or the protection of the rights and freedoms of other persons. Section 13 of the Act provides that the relevant authority is not entitled to apply for an order preventing a public assembly unless the relevant authority has formed the opinion that, amongst other things, mediation has been engaged in and the process has ended. Sub-section (2) provides that mediation is taken to have ended if, amongst other things, the organiser of the assembly failed to attend or participate in mediation, withdrew from mediation, or if it was terminated under the Dispute Resolution Centres Act 1990 (QLD). In legislation relating to peaceful behaviour, s 4 of the Peace and Good Behaviour Act 1982 (QLD) requires that, upon a complaint being made before a justice of the peace that a person has threatened:

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(a) to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or (b) to procure any other person to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or (c) to destroy or damage any property of the complainant; or (d) to procure any other person to destroy or damage any property of the complainant; the justice, if he or she considers that the matter would be better resolved by mediation than by proceedings before a magistrates’ court may, with the complainant’s consent, order the complainant to submit the matter to mediation under the Dispute Resolution Centres Act 1990 (QLD).

Powers of attorney Section 64 of the Powers of Attorney Act 1998 (QLD) states that, if there is more than one person eligible to be the statutory health attorney under the Act to exercise power for a matter, the eligible people disagree about which of them should be the statutory health attorney or how the power should be exercised, and the disagreement cannot be resolved by mediation, then the adult guardian may exercise the power. Further, s 95 states that if the attorneys disagree about how the power for a health matter should be exercised and the disagreement cannot be resolved by mediation, then the adult guardian may exercise the power. Queensland Law Society complaints Section 51 of the Queensland Law Society Act 1952 (QLD) states that if the Council of the Law Society considers that the matter of a complaint is capable of resolution by mediation, it may suggest to the complainant and the person complained about that they enter into a process of mediation to resolve the complaint. If the parties agree to enter into mediation, the Council may facilitate mediation to the extent it considers appropriate. In relation to solicitors’ costs, s 18G of the Queensland Law Society (Solicitors Complaints Tribunal) Rule 1997 (QLD) states that, before starting to assess an account, a costs assessor must encourage the parties to attempt to resolve the dispute about the

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account by mediation. If the parties do not agree to attempt to resolve the dispute by mediation, the costs assessor may proceed with the assessment. Residential tenancies tribunal Section 232B of the Residential Tenancies Act 1994 (QLD) provides that the Residential Tenancies Authority may refuse to provide a conciliation service to parties in dispute about an agreement if the authority considers the dispute is unsuitable for conciliation. Section 233 states that the lessor or tenant may make a request to the authority asking it to try to resolve the issue in dispute. Chapter 5, being ss 231–47 of the Act, provides extensive provisions for the conciliation of disputes including the commencement, conduct and finalisation of conciliation under the Act. Retail leases The Retail Shop Leases Act 1994 (QLD) provides an identical set of provisions, as discussed above under the Residential Tenancies Tribunal. Part 8, being ss 54–94, sets out the same set of procedures for the commencement, conduct and finalisation of conciliation. Sugar industry Section 38 of the Sugar Industry Act 1991 (QLD) establishes local sugar industry boards for the purpose of implementing various provisions of the Act. Under s 45, the functions of the local boards are, amongst other things, to provide a convenient local forum for mediation or settling of disputes and issues within the Queensland sugar industry. Section 47 states that the chairperson of a local sugar industry board may act as mediator in any matter relating to the discharge of the board’s functions, providing that all parties to the matter accept mediation, and that the chairperson is satisfied that mediation is desirable. As to costs, the local board may fix a reasonable fee for payment by parties to mediation. Section 52G of the Act states that, if a dispute arises about a provision to be included in an award, the negotiating team, appointed under s 52B of the Act, must refer the dispute to mediation. Sub-section (2) provides that the mediator is to be appointed by the relevant negotiating team or, if the team cannot

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decide on a mediator, by the Queensland Sugar Corporation. Subsection (3) states that if, after mediation, the dispute is not resolved, the negotiating team must refer the dispute to arbitration. Supreme Court See the above discussion on the district court where the dispute resolution sections of the District Court Act 1967 (QLD) are discussed. The dispute resolution sections in the Supreme Court of Queensland Act 1991 (QLD) are substantially the same in terms of their intent. See Table 2 for guidance as to the comparative sections dealing with dispute resolution. Victims of crime Section 17 of the Criminal Offences Victims Act 1995 (QLD) states that a victim of crime should have access to information about available welfare, health, counselling, medical and legal help responsive to their needs. Also, a victim should have access to information about victimoffender conferencing services. An example provided at the foot of s 17(2) states that the responsible government department’s division of alternative dispute resolution conducts a victims of crime mediation and support system. which includes victim-offender conferencing services. Victims should have access to information about this service.

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230 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110

District Court Act 1967

Objects of Part Defining the ADR Process Defining mediation Defining case appraisal Approval of mediators Approval of case appraisers ADR Register Parties may agree to ADR process Court may order ADR process Parties must attend ADR process Procedure at case appraisal Subpoenas Party unable to share costs Mediated agreement Mediator’s certificate Case appraiser’s certificate Mediation agreement orders Case appraisal orders Secrecy Immunity Agreement to disclose Revocation of approval of mediator

Subject matter of section

– – 2 – 19 – – 31 28 – – – – – – – – – 36 and 37 35 and 36 – –

Dispute Resolution Centres Act 1990

21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42

Magistrates’ Court Act 1921

– 5 – – 95 – 116 64 65 – – – – 61 – – – – 113 114 115 100

Retail Shop Leases Act 1994

94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115

Supreme Court of Queensland Act 1991

Table 2: Comparative sections of Queensland legislation dealing with the provision of non-curial dispute resolution.


Definitions Approval as mediator Approval as case appraiser ADR Register Information to Registrar Form of consent order to mediate Notice of proposed reference Stay of proceedings to mediate Impeding mediation Referral to mediator Start and finish of mediation Parties must assist the mediator Mediator’s role Liberty to apply Mediator may seek advice Record of mediation resolution Abandonment of mediation Mediator to file a certificate Unsuccessful mediations Replacement of mediator Payment of ADR costs Party may pay another party’s costs Registrar to facilitate costs payment Mediator may recover further costs Extend period for payment of costs

Subject matter of section

384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 416 417 418 419 420

District Court Rules 1968

335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 367 368 369 370 371

Magistrates’ Court Rules 1960

STATUTORY SCHEMES – OTHER STATES AND

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South Australia Administrative Appeals Tribunal The Administrative Appeals Tribunal Act 1989 (SA), amongst other things, establishes a Tribunal to hear appeals against the decisions of government. Section 33A states that where an application is made to the Tribunal for a review of a decision, the President of the Tribunal may, if he or she thinks it is desirable to do so and the parties consent, direct that the matter be referred to mediation. Sub-section (3) states that at the hearing of a matter before the Tribunal, unless the parties otherwise agree, evidence shall not be given, and statements shall not be made, concerning any words spoken or act done at mediation. To avoid a breach of the rules of natural justice, sub-s (4) provides that a person who mediates may not be a member of the Tribunal as constituted for the purpose of the hearing the matter. Section 34A allows a person to participate in mediation by telephone, closed-circuit television or other means of communication. Section 43 is a general power of the Tribunal to strike out an application for review of a government decision. More particularly, sub-s (2) provides that if a party fails to appear in person or to appear by a representative at mediation held in relation to the application, or at the hearing of the matter, the Tribunal may dismiss the application without proceeding to review the decision or in any other case, direct that the person who failed to appear shall cease to be a party to the matter. Community housing The South Australian Cooperative and Community Housing Act 1991 (SA) makes provision for the registration, incorporation and regulation of housing cooperatives and for other purposes. Section 84 provides that relief may be applied for by a party which believes that a decision of a housing cooperative is unreasonable, oppressive or unjust, or who is the subject of any action of a prescribed kind taken by the cooperative against a member. Sub-section (3) provides that the relevant appeal authority under the Act may only hear and determine an appeal if it is satisfied that the appellant has previously made a genuine attempt to have the dispute resolved through a prescribed mediation or conciliation process and that the mediation or conciliation process has failed to resolve the dispute or has failed to resolve the dispute within a reasonable period of time.

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Cooperatives Section 99 of the Cooperatives Act 1997 (SA) provides that the Supreme Court may make any orders, and give any directions, that it thinks just in relation to proceedings, including, amongst other things, directions about the conduct of the proceedings, including requiring mediation. District court Section 32 of the District Court Act 1991 (SA) deals with the court’s power to order mediation and provides that the court may, with or without the consent of the parties, appoint a mediator and refer a matter for mediation. Sub-section (2) states that a mediator appointed under this section has the privileges and immunities of a judge, and such powers of the court as the court may delegate. In terms of confidentiality, sub-s (2a) provides that a mediator appointed under this section must not, except as required or authorised to do so by law, disclose to another person any information obtained in the course or for the purposes of mediation. Sub-section (2c) overcomes the problem experienced by mediators in relation to the rules of natural justice by providing that a judge cannot sit as a judge and a mediator in the same matter. Penultimately, sub-s (3) states that evidence of anything said or done in an attempt to settle a matter before the court by mediation is not subsequently admissible in the proceedings or in related proceedings. Finally, sub-s (5) provides that, where a case is settled by mediation, the terms of the settlement may be embodied in a judgment of the court. Electricity consumers Section 55B of the Electricity Act 1996 (SA) states that a vegetation clearance scheme dispute exists if an electricity entity and a council fail to agree on a proposal for a vegetation clearance scheme under this Division or a proposal for modification of such a scheme. Section 55F states that the Technical Regulator must conduct proceedings for the determination of a dispute with a view to ensuring a fair and reasonable exchange of the parties’ views, the proper investigation and consideration of all matters relevant to the fair determination of the dispute, and the speedy resolution of the dispute. In this respect, the Technical Regulator is not bound by technicalities, legal forms or rules of evidence and may obtain information on matters relevant to

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the dispute in any way they think fit. Under s 55J, the Technical Regulator may terminate proceedings for a determination if, amongst other things, the party seeking determination of the dispute has refused or failed to negotiate reasonably and constructively with the other party. Section 55L provides that the Technical Regulator’s costs in determining a vegetation clearance scheme dispute are to be borne by the parties in equal proportions and they will include the costs of mediation. Once a vegetation clearance scheme has been agreed upon, s 55N provides that a party to such a scheme may ask the Technical Regulator to assist in the resolution of a dispute that has arisen under the scheme. Sub-section (3) provides that if the Technical Regulator proceeds under this section, the Regulator may appoint a mediator to facilitate resolution of the dispute by conciliation. Environment — resources and development Section 28B of the Environment, Resources and Development Court Act 1993 (SA) provides that, if it appears to the court that there would be a reasonable likelihood of settling matters in dispute between the parties by doing so, the court or member may, with the consent of the parties, appoint a mediator to endeavour to achieve a negotiated settlement of the matters. Sub-section (2) allows the court itself to endeavour to achieve a negotiated settlement of the matters. Subsection (3) states that, except with the consent of the parties, any processes of mediation under the Act will be conducted in private. Interestingly, sub-s (4) provides that any settlement to which counsel for, or any other representative of, a party agrees in processes under this section is binding on the party. Sub-section (5) states that the court may record any settlement reached and make an order necessary to give effect to a settlement. On the issue of confidentiality, sub-s (6) provides that evidence of anything said or done in mediation is inadmissible in proceedings before the court except by consent of all parties to the proceedings. In relation to the types of settlements the court can endorse, sub-s (7) provides that the court must not accept a settlement that appears to be inconsistent with a relevant Act, but may adjourn the proceedings to enable the parties to explore the possibility of varying the settlement to comply with a relevant Act, and may decline to accept a settlement on the basis that it may materially prejudice any person who was not a participant in mediation leading to the settlement, but who has a direct or material interest in the matter. When dealing with the rules of natural justice, sub-s (8)

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awkwardly notes that where the court appoints a mediator, or itself endeavours to achieve a settlement, the court is not disqualified from continuing to sit for the purpose of hearing and determining the proceedings. Sub-section (9) states that a mediator appointed under the Act has the same privileges and immunities as a member of the court. Gas suppliers The Gas Act 1997 (SA) has, amongst its objects, the promotion of the establishment and maintenance of a safe and efficient system of gas distribution and supply, the establishment and enforcement of proper standards of safety, reliability and quality in the gas supply industry, and the protection of the interests of consumers of gas. Section 41 of the Act provides that, should a dispute arise as to the activities of a gas entity, a party to the dispute may ask the Technical Regulator to mediate in the dispute. Sub-section (2) states that the Technical Regulator has discretion whether to mediate or to decline to mediate in a dispute and may impose conditions that must be satisfied if mediation is to proceed. Under sub-s (3), if the Technical Regulator proceeds with mediation, the Regulator may give directions to the parties to assist in the resolution of the matters in issue and the Regulator must make a reasonable attempt to get the parties to agree to a negotiated settlement of the dispute. Sub-section (4) provides that, if a dispute is resolved, the parties and the Technical Regulator must sign an agreement setting out the terms of the settlement; this agreement is binding on the parties to the dispute. Industrial relations Division 3 of the Industrial and Employee Relations Act 1994 deals with the Industrial Commission of South Australia’s power to mediate disputes. In particular, s 197 states that the Commission may mediate between the parties to an industrial dispute for the purpose of resolving or preventing the dispute. Section 201 provides that the Commission may, if it appears desirable, call a compulsory conference of the parties involved in an industrial dispute. In this respect, the Commission may summon the parties to the dispute, and any other person who may be able to assist in resolving the dispute, to appear at the compulsory conference. Under sub-s (4), a person who fails to attend a compulsory conference as required by a summons or who,

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having attended, fails to participate in the conference as required by the person presiding at the conference, commits a contempt of the Commission. Section 203 states that a party may be represented at a voluntary or compulsory conference by a lawyer with the leave of the person presiding at the conference, unless the lawyer is an employee of a party to the proceedings or a union lawyer, in which case there is an automatic right of appearance. The costs incurred by a party for legal representation will not be included in any order for costs. Magistrates court Section 27 of the Magistrates’ Court Act 1991 (SA) provides that the court (with or without the consent of the parties) and any other judicial officer or a Registrar (with the consent of the parties) may appoint a mediator and refer an action or any issues arising in an action for mediation. The remainder of s 27 mirrors those elements of s 32 of the District Court Act 1991 (SA), discussed above. Native title — land acquisition Section 28A of the Land Acquisition Act 1969 (SA) provides that before the Authority (that being a person authorised to acquire land) enters native title land, it must give written notice of the intended entry and the nature of the work to be carried out, to all who hold or may hold native title in that land. If the Authority intends to remove minerals from the land, or substantially interfere with it or its use or enjoyment, the Authority must negotiate in good faith with the native title parties in an attempt to reach agreement on the conditions on which the Authority may enter and use the land. However, negotiation is not required if, at the end of two months from when notice is given, there are no native title parties. Further, if any of the negotiating parties requests the environment, resource and development court to do so, the court must mediate among the parties to assist in obtaining their agreement. Native title — mining licences The Mining Act 1971 (SA) was amended by the Statutes Amendment (Native Title) Act 1998 (SA), and now includes s 63L, which provides that a person who seeks a native title mining agreement may negotiate

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the agreement with the native title parties. The explanatory note to the section states that the native title parties are the persons who are registered under the law of the State or the Commonwealth as holders of, or claimants to, native title in the land. A person who negotiates with the registered representative of those persons will be taken to have negotiated with the native title parties. Negotiations with other persons are not precluded but any agreement reached must be signed by the registered representative on behalf of the native title parties. Section 63P sets out the procedure for negotiations and states that the proponent and native title parties must negotiate in good faith and explore the possibility of reaching an agreement. Further, if any of the negotiating parties requests the environmental, resource and development court to do so, the court must mediate among the parties to assist in obtaining their agreement. Division 4 of the Act raises the following issues, listed below with their concomitant sections: • Section 63K – Types of agreement authorising mining operations on native title land • Section 63L

– Negotiation of agreements

• Section 63M – Notification of parties affected • Section 63N – What happens when there are no registered native title parties with whom to negotiate • Section 63O – Expedited procedure where impact of operations is minimal • Section 63P

– Negotiation procedure

• Section 63Q – Agreement • Section 63R

– Effect of registered agreement

• Section 63S

– Application for determination

• Section 63T

– Criteria for making determination

• Section 63U – Limitation on powers of court • Section 63V – Effect of determination • Section 63W – Ministerial power to overrule determinations • Section 63X

– No re-opening of issues

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Native title — opal mining Section 58 of the Opal Mining Act 1995 (SA) states that a person wishing to mine for opals and any native title parties must negotiate in good faith and accordingly explore the possibility of reaching an agreement. if any of the negotiating parties requests the environmental, resources and development court to do so, the court must mediate among the parties to assist in obtaining their agreement. The procedures for negotiating mirror those found in the Mining Act 1971 (SA), as listed above, only the section numbers to be found in the Act range from ss 53–66. Petroleum Act The Petroleum Act 2000 (SA) seeks, amongst other things, to regulate exploration for, and the recovery and commercial utilisation of, petroleum and certain other resources. Section 62 states that an occupier of the land, other than the lessee under a pastoral lease, may, by giving notice of objection to the licensee, object to the licensee’s proposed entry. When notice of disputed entry is given, the Minister may attempt to mediate between the parties in order to arrive at mutually satisfactory terms under which the licensee may enter the land and, if required, carry out regulated activities on it. If the Minister decides against attempting to reach a settlement of the dispute by mediation or an attempt is made but the dispute is not resolved within two months (a time limit set under reg 55 of the Petroleum Regulations 2000 (SA)), then either the licensee or the owner may apply to the warden’s court for a resolution of the dispute. Rail safety The Rail Safety Act 1996 (SA) provides, amongst other things, for the accreditation of owners and operators of railways. The accreditation is based on several criteria, including the maintenance of certain safety standards. Section 17 provides that an accredited person may, on application to the Administrating Authority, request a variation of its accreditation, and the Administrating Authority may or may not grant the variation, as it thinks fit. However, if the Administrating Authority considers that the accreditation should be varied, it may vary the accreditation only by informing the accredited person of its decision in writing stating, amongst other things, the variation, the reasons for the variation and the procedures for conciliation, mediation and appeal

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under the Act. Section 20 states that a person whose application for accreditation has been refused; who considers that his or her application for accreditation has not been decided within a reasonable period; or who is an accredited person and is aggrieved with respect to conditions imposed with respect to the accreditation or a variation, may, within one month of the relevant decision, apply for the matter to be dealt with by mediation in accordance with the scheme set out in the regulations, or may appeal to the district court. Further, a person who is dissatisfied with the outcome of such mediation may, within one month of the conclusion of the proceedings, appeal to the district court. Regulation 6 of the Rail Safety Regulations 1998 (SA) sets out the dispute resolution procedures to operate under the Act and states that, on receipt of an application to mediate, after consultation with the applicant and the Administrating Authority, the responsible Minister must appoint a suitable person to act as mediator. For the purposes of mediation proceedings, the parties must attend mediation at a time and place determined by the mediator, who must hear the parties and seek to make relevant determinations and recommendations about what should be an acceptable outcome in the matter. Further, the mediator may adjourn any proceedings from time to time, may at any time interview the parties separately or together, and may at any time bring the proceedings to an end if they consider that the proceedings will not result in a resolution of the matter between the parties. Evidence of anything said or done in an attempt to resolve a matter by mediation must not be disclosed in subsequent proceedings. As to costs, unless otherwise determined by the Minister, costs and expenses associated with the appointment and work of a mediator under the Act will be shared equally between the parties. Residential tenancies The Residential Tenancies Act 1995 (SA) defines mediation as including preliminary assistance in dispute resolution such as the giving of advice to ensure that the parties to the dispute are fully aware of their rights and obligations and that there is full and open communication between the parties about the dispute. Section 34 provides that if, before or during a hearing, it appears to the Tribunal either from the nature of the case or from the attitude of the parties that there is a reasonable possibility of settling the matters in dispute between the parties, the Tribunal may appoint, with the consent of the parties, a mediator to achieve a negotiated settlement or may

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personally endeavour to bring about a settlement of the proceedings. A mediator appointed under the Act has the privileges and immunities of a member of the Tribunal. As to confidentiality, sub-s (3) provides that nothing said or done in the course of an attempt to settle proceedings under this section may subsequently be given in evidence in proceedings before the Tribunal, except by consent of all parties to the proceedings. Sub-section (4) states that a member of the Tribunal who attempts to settle proceedings under this section is not disqualified from hearing or continuing to hear further proceedings in the matter. Finally, sub-s (5) states that if proceedings are settled, the Tribunal may embody the terms of the settlement in an order. Section 106 states that the Commissioner for Consumer Affairs is responsible for making arrangements to facilitate the resolution of tenancy disputes. Section 107 provides that a party to a tenancy dispute may apply to the Commissioner for mediation of the dispute. Section 113 allows for legal representation if all parties to the proceedings agree to the representation and: the Tribunal is satisfied that it will not unfairly disadvantage a party who does not have a lawyer; or the Tribunal is satisfied that the party is unable to present the party’s case properly without assistance; or another party to the dispute is a lawyer, or is represented by a lawyer. Retail and commercial leases The Retail and Commercial Leases Act 1995 (SA) defines mediation in the same way as the Residential Tenancies Act 1995 (SA). Division 3 of the Act deals with the renewal of shopping centre leases and subdivision 2 prescribes a set of rules for the renegotiation of said leases. Sub-division 3 sets out certain remedies for non–compliance with the procedures. In particular, s 20H states that if a lessor fails, in any respect, to comply with the rules prescribed in Sub-division 2 and they have, in the circumstances of the case, been prejudiced by the failure, they may lodge a notice of dispute with the Commissioner for Consumer Affairs setting out their grounds for complaint and applying for mediation of the dispute, or they may apply to the magistrates’ court for orders resolving it. By virtue of s 65, if a dispute between parties is the subject of proceedings before a court, the court may refer the dispute to the Commissioner for mediation under this Division and the court may stay the proceedings while an attempt is made to settle the dispute by mediation. Section 66 states that evidence of admissions or statements made in the course of mediation is not admissible in evidence before a court.

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Supreme Court The Supreme Court Act 1935 (SA) was amended by the Statutes Amendment (Mediation, Arbitration and Referral) Act 1996 (SA) to include s 65(1), which states that the court constituted of a Judge (with or without the consent of the parties) and a Master or the Registrar (with the consent of the parties) may appoint a mediator and refer a civil proceeding, or any issues arising in a civil proceeding, for mediation. Sub-section (2) provides that a mediator appointed under this section has the privileges and immunities of a judge. Sub-section (3) states that a mediator appointed under this section must not, except as required or authorised to do so by law, disclose to another person any information obtained in the course or for the purposes of mediation. In addressing issues of natural justice, sub-s (5) provides that a judge or master who attempts to settle a proceeding, or to resolve any issues arising from it, is not disqualified from taking further part in the proceeding but will be disqualified if he or she is appointed as a mediator in relation to it. Sub-section (6) deals with confidentiality, by providing that evidence of anything said or done in an attempt to settle a proceeding by mediation is not subsequently admissible in related proceedings. Finally, under sub-s (7), if a case is settled by mediation, the terms of the settlement may be embodied in a judgment.

Tasmania Electricity supply Section 45 of the Electricity Supply Industry Act 1995 (TAS) states that, if a dispute arises between electricity entities or between an electricity entity and another person about the exercise of powers under the Act, any party to the dispute may ask the Regulator to mediate in it. The Regulator has a discretion whether or not to mediate in a dispute and may impose conditions that must be satisfied if the mediation is to proceed. Sub-section (3) states that if the Regulator proceeds with the mediation, the Regulator may give directions to the parties to assist in the resolution of the matters in issue and the Regulator must attempt to get the parties to agree to a negotiated settlement of the dispute. Under sub-s (4), if a dispute is resolved, the parties and the Regulator must sign an agreement setting out the terms of the settlement and such an agreement is binding on the parties to the dispute. Section 98

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of the Act states that the Regulator may refer an application for administrative review to a mediator and, if a mediator achieves an agreed settlement of the matter to which the application relates, the Regulator must decide the application in accordance with the agreed settlement. Environment — land use The Land Use Planning and Approvals Act 1993 (TAS) makes provision for land use planning and approvals. Section 57A provides that a person who made an application to a planning authority for a permit may request mediation to be conducted in relation to the application. If the planning authority receives notification for mediation or the planning authority itself wishes mediation to be conducted in relation to an application for a permit, it must notify, in writing, any other party and seek the agreement of that party for mediation to be conducted in relation to the application. If the parties agree that mediation should be conducted in relation to an application for a permit, then the parties must agree on the mediator and on any other terms or conditions in relation to the conduct of mediation. Environment — resource management and planning tribunal Section 16A of the Resource Management and Planning Appeal Tribunal Act 1993 (TAS) states that before hearing an appeal, the Appeal Tribunal must consider whether the appeal could be settled expeditiously by the use of mediation and may, on its own motion or on the motion of a party to the appeal, direct the parties to mediation using the services of a mediator approved by the Appeal Tribunal. In this respect, the Appeal Tribunal may stay the proceedings on an appeal until any mediation directed by it has been completed. Magistrates court Section 8 of the Magistrates’ Court (Small Claims Division) Act 1989 (TAS) defines the primary function of a Magistrate sitting in the small claims division as being to attempt to bring the parties to a dispute, which involves a small claim, to a settlement acceptable to all the parties. Where it appears to a magistrate to be impossible in a

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particular dispute involving a small claim to achieve a settlement acceptable to all the parties to the dispute, then the function of the magistrate is, after hearing and determining the issue in dispute, to make an order with respect to that issue or, if he or she thinks the case so requires, an order dismissing the small claim. Section 22 of the Act provides that a party to a proceeding shall present his own case and is not entitled to be represented by an agent, unless it appears to the Magistrate that the party is a body corporate and that the agent representing it is an officer or employee of the body corporate, or if a party should be allowed to be so represented as a matter of necessity and the magistrate so approves. Sub-section (3) prevents the appearance in a proceeding of an agent who is a legal practitioner or who practises as a professional advocate, unless all the parties to the proceeding consent to the appearance of such an agent, or if the magistrate is satisfied that any of those parties, other than the party which applies for the approval, will not be unfairly disadvantaged by such an appearance. Section 24 sets out the procedures to be followed in the small claims division, and states that the magistrate is not bound by the rules of evidence but may inform him or herself on any matter as he or she thinks fit, and that proceedings shall be conducted with as little formality and technicality, and with as much expedition as possible. Supreme Court Part 20 of the Supreme Court Rules 2000 (TAS) deals with the court’s powers to order mediation and the conduct thereof. Section 518 provides that, at any stage in a proceeding and with or without the consent of any party, a judge may order that the proceeding, or any part of it, be referred for mediation. If a matter is referred to mediation, the mediator is to be the Principal Registrar or a suitable person appointed by the Principal Registrar. The section does not operate as a stay of proceedings. Section 519 deals with the conduct of mediation and provides that the function of a mediator is to assist the parties to reach a mutually agreed resolution of their differences or, if that is not possible, to resolve as many differences as possible. The judges may approve guidelines for the conduct of mediation and, unless otherwise ordered or the parties agree, mediation is to be conducted in accordance with those guidelines. Notwithstanding this rule, the mediator may determine the conduct of mediation. Finally, the section ensures that unless otherwise ordered or agreed by the parties, each

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party is to attend mediation with authority to settle. Section 520 deals with confidentiality and states that a mediator may, and if so ordered must, report to the court when mediation is finished. However, other than reporting to the court, the mediator must not make any report for, or communicate with, the court, unless the parties agree otherwise. In relation to confidentiality, sub-s (3) provides that anything said or done, any communication or any document created in the course of, or for the purpose of, a mediation, is confidential and is not to be disclosed in evidence or otherwise, except on the issue of whether the parties have made a binding agreement settling all or any part of their differences. By virtue of s 521, should mediation not settle the dispute, the plaintiff or applicant is to notify the court in writing, stating that mediation has taken place as directed, and setting out any issues left to be determined by the court or a judge. Section 522 deals with the costs of mediation and provides that the remuneration of a mediator, who is not an officer of the court, is to be agreed by the mediator and the parties or, if not so agreed, as determined by a judge. Unless otherwise ordered or agreed by the parties, they will pay for the mediator’s fees in equal proportions. Interestingly, sub-s (3) provides that a person who is not an officer of the court is not to be appointed mediator without the consent of the parties. Finally, s 523 states that a judge may order a party to recover costs of, and incidental to, mediation from another party if those costs have been unnecessarily incurred by the conduct of that other party.

Victoria Associations incorporation regulations Schedule 5 of the Associations Incorporation Regulations 1998 (VIC) sets out the prescribed model rules for Associations. Rule 8 describes the grievance procedures to apply between members and between a member and the Association. When a dispute arises, the parties must meet and discuss the dispute and, if possible, resolve the dispute within 14 days of the dispute coming to the attention of all of the parties. If the parties are unable to resolve the dispute, or if a party fails to attend that meeting, then the parties must, within 10 days, hold a meeting in the presence of a mediator. The mediator must be a person chosen by agreement between the parties. In the absence of agreement, the mediator must be: in the case of a dispute between a member and

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another member, a person appointed by the committee of the Association; or in the case of a dispute between a member and the Association, a person who is a mediator appointed or employed by the Dispute Settlement Centre of Victoria. A member of the Association can be a mediator but cannot be a member who is a party to the dispute. The parties to the dispute must, in good faith, attempt to settle the dispute by mediation. The mediator must give the parties to the mediation process every opportunity to be heard, allow due consideration by all parties of any written statement submitted by any party, and ensure that natural justice is accorded to the parties to the dispute throughout the mediation process. The mediator must not determine the dispute. If mediation does not result in the dispute being resolved, the parties may seek to resolve the dispute in accordance with the Act or otherwise at law. Building contracts tribunal Section 53 of the Domestic Building Contracts Act 1995 (VIC) deals with the settlement of disputes and provides that the Victorian Civil and Administrative Tribunal may make any order it considers fair to resolve a domestic building dispute. The Tribunal may order, amongst other things, that the dispute be referred to a mediator appointed by the Tribunal. Section 132 of the Act states that contracting out of the Act is prohibited. However, the parties to a domestic building contract may include terms in the contract which impose greater or more onerous obligations on a builder than are imposed by this Act. Civil and administrative tribunal The purpose of the Victorian Civil and Administrative Tribunal Act 1998 (VIC) is to establish a Victorian Civil and Administrative Tribunal. Section 78 provides that if the Tribunal believes a party to a proceeding to be conducting the proceeding in a way that unnecessarily disadvantages another party, by conduct such as failing to attend mediation or the hearing of the proceeding then, if the party causing the disadvantage is the applicant, the Tribunal may order that the proceeding be dismissed or struck out. If the party causing the disadvantage is not the applicant, the Tribunal may determine the proceeding in favour of the applicant and make any appropriate orders including costs, or order that the party causing the disadvantage be struck out of the proceeding. Section 88 states that the

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Tribunal may refer a proceeding or any part of it for mediation by a person nominated by the Tribunal. Further, such a referral may be made with or without the consent of the parties. A party must pay the prescribed fee for mediation, whether or not they consented to a referral for mediation. If a member of the Tribunal is a mediator in a proceeding, he or she cannot hear the matter if it proceeds to hearing in the Tribunal. Subject to the Act, the procedure for mediation is at the discretion of the mediator. Section 89 states that the Tribunal or mediator may require personal attendance at mediation, although a party may authorise a representative to attend who has authority to settle the dispute on behalf of the party. Section 90 provides that if the parties agree to settle, the mediator must notify the principal registrar of the fact. However, if mediation is unsuccessful, under s 91, the mediator must notify the principal registrar of the fact. By virtue of s 92, evidence of anything said or done in the course of mediation is not admissible in any hearing before the Tribunal unless all parties agree to the giving of the evidence. Finally, s 93 states that if the parties agree to settle at any time, the Tribunal may make any orders necessary to give effect to the settlement. Cooperatives Section 104 of the Cooperatives Act 1996 (VIC) refers to the general powers of the Supreme Court of Victoria in relation to cooperatives, and provides that the court may make any orders and give any directions that it thinks just, including directions about the conduct of the proceedings, including requiring mediation. County court The County Court Act 1958 (VIC) provides in ss 46 and 47 for arbitration, either by agreement between the parties or by referral from a judge. Section 47A states that the court may, with or without the consent of the parties, refer the whole or any part of a civil proceeding to mediation. Section 47B provides that where the court refers a dispute to mediation, unless all the parties who attend mediation otherwise agree in writing, no evidence shall be admitted at the hearing of the dispute of anything said or done by any person at mediation. Section 50.07 of the County Court Rules of Procedure in Civil Proceedings 1999 (VIC) provides that an order for mediation may

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be made at any stage of a proceeding and that such an order shall not operate as a stay of proceedings. Where an order has been made, the mediator shall endeavour to assist the parties to reach a settlement of the proceeding or settlement of that part of the proceeding referred to him or her. The mediator shall not make any report to the court unless the court so orders. No evidence shall be admitted of anything said or done by any person at the mediation unless the parties agree otherwise. Section 50.08 refers to the court ordering arbitration and, in such cases, said arbitration shall be conducted under the provisions of the Commercial Arbitration Act 1984 (VIC). Evidence Section 21J of the Evidence Act 1958 (VIC) deals specifically with family mediation. It states that evidence of anything said, of any admission or agreement made at, or of any document prepared for the purpose of a conference with a family mediator, is not admissible in any court or legal proceeding. Section 21L deals with other mediations and mirrors s 21J. Section 21M states that a person who is or has been a mediator shall not communicate to any other person or publish any information or document acquired by the person, unless: with the consent of the person from whom the information or document was obtained; or if it is made for the purposes of evaluating the operation and activities of neighbourhood mediation centres and does not disclose the identity of any person without his or her consent; or if it is made by a person who reasonably considers that it is necessary to disclose the information or document for the purpose of preventing or minimising injury or damage to any person or property. Section 21N states that a matter or thing done by a mediator in good faith does not subject the person to any action, liability, claim or demand. Legal Practice Act One of the objectives of the Legal Practice Act 1996 (VIC) is to improve the regulation of legal practice in Victoria. Whilst the term ‘legal services’ is not defined in the Act, like its NSW counterpart, s 63U of the Act states that a registered foreign practitioner may only provide legal services in relation to conciliation, mediation and other forms of consensual dispute resolution in Victoria of a kind prescribed by the regulations.

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Magistrates court Section 108 of the Magistrates’ Court Act 1989 (VIC) provides that, with the consent of the parties, the court may refer the whole or any part of a civil proceeding to mediation. Unless all the parties who attend the mediation otherwise agree in writing, no evidence shall be admitted at the hearing of the dispute of anything said or done by any person at mediation. Section 108A states that a mediator under the Act has, in the performance of his or her duties in connection with mediation, the same protection and immunity as a judge of the Supreme Court. Public sector management regulations Regulation 31 of the Public Sector Management Regulations 1993 (VIC) provides that the Public Service Commissioner may appoint one or more persons to, amongst other things, investigate complaints about departmental grievance review processes and endeavour to conciliate these complaints. A staff member may lodge a complaint with the Public Service Commissioner for grievance mediation where he or she considers that a departmental grievance review process failed to comply with these Regulations. Supreme Court Section 24A of the Supreme Court Act 1986 (VIC) provides that where the court refers a proceeding or any part of a proceeding to mediation, unless all the parties who attend the mediation otherwise agree in writing, no evidence shall be admitted at the hearing of the proceeding of anything said or done by any person at the mediation. The trigger mechanism for the court to refer matters to mediation is contained in the Supreme Court (General Civil Procedure) Rules 1996 (VIC), which mirror, in both number and content, the referral and procedural rules for mediation and arbitration contained in the County Court Rules of Procedure in Civil Proceedings 1999 (VIC), discussed above. Retail tenancies tribunal The Retail Tenancies Reform Act 1998 (VIC) has, as its object, to provide for a dispute resolution process with respect to disputes between a landlord and a tenant arising under a retail premises lease.

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Section 36 of the Act states that a landlord or a tenant may apply to the tribunal if a dispute under the Act has arisen. Section 39 covers transitional arrangements but promotes the use of conciliation between disputing parties.

Western Australia Adoption The purpose of the Adoption Act 1994 (WA) is to make provision for the adoption of persons, and for the parties to adoptions and their relatives to have access to information about the parties. Section 46 provides for the drafting of an adoption plan, which is a negotiated document between the birth parents, the adoptive parents and the Director-General of Community Services. The plan contains a variety of information including contact arrangements between the parties and, under s 47, the Director-General is to provide assistance and mediation services to persons in the process of negotiating an adoption plan. Section 72 provides that an adoption order cannot be made unless the court approves the adoption plan and, where such a plan has been approved by the court, in the case of a breach or potential breach of any provision of the plan, the court may order the parties to participate in mediation. Section 79 states that the DirectorGeneral is to establish and maintain services to provide mediation in matters arising between persons who are parties to an adoption, an adoption plan or negotiations of parties to an adoption, as to those parties’ wishes in relation to contact between them. Further, the Director-General is to ensure that the services as to information and mediation are available on the request of parties to adoptions or their relatives. Given the sensitive nature of the objectives of the Act, ss 105 and 106 deal with the licensing of mediators. They provide that only the Director-General is to act on behalf of another person for the purpose of contacting a party to an adoption, or in negotiations as to contact between any parties to an adoption, except in accordance with a licence under the Act to do so. Section 127 states that a person must not directly or indirectly make a record of, make use of, disclose or communicate to another person, information relating to mediation between the parties to an adoption or proposed adoption.

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Agricultural practices board Section 4 of the Agricultural Practices (Disputes) Act 1995 (WA) states the objectives of the Act as being, amongst other things, to ensure that any normal farm practice which is alleged to create a nuisance, or otherwise to be detrimental to the interests of persons nearby, shall not be impeded by avoidable litigation, or the threat of such litigation, arising out of an allegation of that kind, and to establish the Agricultural Practices Board for the reference of disputes arising from farm practice. Further, to provide that where a dispute arising out of an allegation of that kind is referred to the Board it shall be inquired into and resolved by mediation, where appropriate and practicable. The Act applies to disputes in which the issue is a complaint relating to odour, noise, dust, smoke, fumes, fugitive light or spray drift, emanating from farm practice. Section 10 provides that no liability attaches to any member of the Board for any act or omission that occurred in good faith and in the performance or discharge of the functions of the board under this Act. Section 4 of Sched 1 to the Act provides that the board shall refer any dispute for mediation if any of the parties so requests, and may do so even if not so requested. The board is to make arrangements as to who is to be the mediator to deal with a particular dispute referred for mediation, but the mediator is not required to be a member of the board. The primary function of the mediator is to attempt to bring the parties to a dispute to a settlement acceptable to them. In this respect, the mediator may request a party to the dispute to attend a meeting with the mediator, answer questions put by the mediator, produce documents to the mediator or attend any mediation proceedings at which the mediator and any other party to the dispute are to be present. During mediation a person may either appear personally or be assisted or represented in the proceedings, with leave of the mediator, by any other person, providing that person is not a legal practitioner. A mediator may, in accordance with natural justice but without regard to the rules of evidence, conduct the proceedings at such times and places as are convenient to the parties and shall act according to equity, good conscience and the substantial merits of the case. Further, the mediator may seek information in such manner as seems reasonable and may give directions as to the conduct of the proceedings. The mediator is not required to keep a record of the conduct of the proceedings, except in so far as may be necessary for the preparation of a report upon those proceedings, which he or she shall submit to the board.

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Animal diseases Section 53 of the Exotic Diseases of Animals Act 1993 (WA) simply provides that the amount of compensation payable in respect to the market value of a domestic animal or other property destroyed may be determined by agreement between the claimant and an inspector approved by the Director-General. Where no agreement is reached, the amount of compensation payable may be determined by a competent and impartial person jointly nominated for the purpose by the Director-General and the claimant. Nothing in the Act prevents the making or operation of an agreement between the Crown and a person claiming compensation for the submission of any dispute to arbitration or mediation, where a mutually acceptable agreement to do so has been made within 45 days of the lodging of a claim. Home building contracts regulations Schedules 2 and 3 of the Home Building Contracts Regulations 1992 (WA) set out the Housing Industry Association’s lump sum building contract and lump sum building contract for minor works, respectively. Both contracts have identical dispute resolution clauses which provide that, in any dispute between the owner and the builder at any time relating to this contract then, subject to the rights of either party to apply to the registrar or the disputes committee or any other relevant statutory authority, either party shall give to the other notice of such dispute, disagreement or difference. At the expiration of five working days and in the absence of any settlement, it shall be referred to a single mediator appointed by mutual consent. In the event that a mediator is not appointed within five working days, or mediation is not successful, the president of the Housing Industry Association shall appoint a single arbitrator provided that such arbitrator shall be a graded arbitrator approved by the Institute of Arbitrators Western Australian Chapter. The conduct of the arbitrator shall be in accordance with and subject to the provisions of the Commercial Arbitration Act 1985 (WA) and the decision of the single arbitrator appointed shall be final. Professional standards Section 12 of the Professional Standards Act 1997 (WA) states that the functions of the Professional Standards Council are, amongst other things, to encourage and assist in the development of self-regulation of

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occupational associations, including the giving of advice and assistance concerning voluntary mediation services. Public sector management Section 97 of the Public Sector Management Act 1994 (WA) provides that the functions of the Commissioner for Public Sector Standards are, amongst other things, to make recommendations to the relevant minister on the making, amendment or repeal of regulations prescribing procedures for conciliation, arbitration, mediation or otherwise; for employees and other persons to obtain relief in respect of the breaching of public sector standards; and to appoint persons for the purpose of implementing those functions. Retail tenancies Section 19 of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) states that a question arising under a retail shop lease may be referred to the Commercial Registrar of the Commercial Tribunal by a party to the lease. Although there is no specific direction to mediate under the Act, curiously s 21 is entitled ‘Mediation Agreements’ and provides that, where a question has been referred to the registrar and a solution has been found, particulars of the solution shall be reduced to writing and signed by or on behalf of the parties, and a copy shall be filed in the records of the registrar. Presumably the solution has been found through mediation initiated by the registrar. Supreme Court There are no provisions for dispute resolution in the Supreme Court Act 1935 (WA) other than s 167, which states that the rules of court may be made under the Act for, amongst other things, the mediation of any of the differences between any parties to any cause or matter. However, Ord 29 r 2 of the Rules of the Supreme Court 1971 (WA) states that, in any proceedings, the court may at any time make such orders or give such directions to lead to their efficient and timely disposal as it may consider just and expedient and may, amongst other things, direct at any time that the parties confer on a ‘without prejudice’ basis for the purpose of resolving or narrowing the points of difference between them, or direct that a registrar appointed by the Chief Justice to be the mediation registrar or person approved by the

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Chief Justice to be a mediator, conduct mediation. A direction that parties attend a mediation conference does not operate as a stay of proceedings, unless otherwise ordered by the court. Rule 3 requires parties to take such steps as may be necessary to ensure that the mediation occurs as soon as possible and to attend in person or send a representative familiar with the substance of the litigation and with authority to compromise it, and the solicitor or counsel, if any, representing each party. Each party is to pay their own costs, unless it is ordered otherwise or the parties agree. However, a party may apply for those costs if they have been unnecessarily incurred due to the conduct of the other party. The parties shall pay the costs of any mediator who is not a mediation registrar in equal shares, unless it is ordered otherwise or the parties agree. Further, within two weeks of the conclusion of mediation, the plaintiff shall lodge with the court a report, signed by or on behalf of each party, recording the substance of any resolution or narrowing of the points of difference between the parties resulting from the conference.

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7 Enforceability of Dispute Resolution Clauses

Introduction Dispute resolution clauses are found in most contracts, whether they are commercial or non-commercial in nature. If parties have not drafted a dispute resolution clause into their contract, they may contract to participate in a dispute resolution process after execution of the primary contract and generally once a dispute has arisen. In other words, a second contract comes into existence in order to deal with a dispute that has arisen under the primary contract. The different types of clauses are many and varied and often specify one or more types of dispute resolution process should a dispute arise. Appendix 5 (below, p 257) is the NSW Law Society’s suggested dispute resolution clause for contracts. Most State and Territory law societies or institutes suggest an array of standard clauses for use by legal practitioners in contracts they are drafting, and they all tend to share a set of common characteristics. This chapter will explore those common characteristics that can be expressed by three central rules: (i) Clauses should be drafted in Scott v Avery form. (ii) Clauses should be drafted with the requisite certainty. (iii) Clauses should avoid making references to good faith negotiation. Unfortunately, there has been no decision of any State or Territory Supreme Court or the Federal or High Court of Australia that has definitively pronounced on the enforceability of dispute resolution clauses. However, there have been a number of decisions that have discussed, with varying degrees of detail, each of the above three elements and have found that, in principle, providing the above three rules are observed in the drafting process, there is no reason why dispute resolution clauses should not be enforced at law. However, outside the three rules, there has been some scepticism as to how a court would go about enforcing a dispute resolution

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clause, in relation to the issue of which remedy would be available, should there be a breach of such a clause. Courts will generally not enforce a dispute resolution clause by way of an equitable order for specific performance, as supervising such an order would be difficult, if not impossible, for the court (see Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992)). Also, common law damages would be difficult to assess, and therefore would not be considered by a court to be a suitable remedy. This is because the outcome of any dispute resolution process is uncertain as to its success in promoting a resolution, and the substance of that resolution in terms of quantum or settlement terms (see Courtney and Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd and Another (1975)). Because of the very nature of dispute resolution, any agreement to participate in such a process can at best be described as being merely an agreement to agree, and is not recognised as being enforceable under Australian law (see Australis Media Holdings Pty Ltd and Others v Telstra Corporation Ltd and Others (1998)). These reasons justifying the lack of enforceability of dispute resolution clauses have been consistent with English authority (see Courtney and Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd and Another (1975) and Walford and Others v Miles and Another (1992)). However, Kirby P (as he then was) stated in Coal Cliff Collieries Pty Ltd and Another v Sijehama Pty Ltd and Another (1991): I do not share the opinion of the English Court of Appeal [in Courtney] that no promise to negotiate in good faith would ever be enforced by a court. I reject the notion that such a contract is unknown to the law, whatever its term. I agree … that provided there was good consideration for the promise, in some circumstance a promise to negotiate in good faith will be enforceable, depending upon its precise terms … I agree … that so long as a promise is clear and part of an undoubted agreement between the parties, the courts will not adopt a general principle that relief for the breach of such promise must be withheld.

Whilst Kirby P’s comments are obiter, it would seem that the door has been left open for a court to be able to recognise dispute resolution clauses at law, and therefore, to be able to enforce them. For the moment, generally speaking, the courts have been in agreement that the enforceability of dispute resolution clauses may only extend to the court ordering a stay of proceedings, thereby allowing the parties to participate in the dispute resolution process as contractually agreed (see Aiton Australia Pty Ltd v Transfield Pty Ltd (1999)). The court’s

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power to do this is derived from its inherent jurisdiction to prevent an abuse of process (see, for example, Supreme Court Rules 1970 (NSW), Part 13, r 5). The courts have viewed a party seeking to breach its agreement to, for example, mediate any dispute arising out of a contract and instead proceed directly to litigation, as an abuse of the court process. So a court may effectively achieve enforcement of a dispute resolution clause by ordering a stay of proceedings. However, a court will not order a stay of proceedings where the clause does not comply with the three aforementioned rules of construction. In this respect the proper drafting of dispute resolution clauses is vitally important. Of course, the above comments do not apply to arbitration, as s 53 of the uniform Acts allows a party to an arbitration agreement to apply to the court for a stay of proceedings, and the courts may grant such a stay under certain conditions set out in the sections. Given the extent of statutory dispute resolution schemes as described in the previous two chapters, it is curious that such schemes do not have provisions which mirror those in the uniform arbitration Acts, allowing a court to order a stay of proceedings. Clauses should be drafted in Scott v Avery form In Scott v Avery (1856), the plaintiff and the defendant were shareholders in an insurance company who underwrote an insurance policy on a ship called The Alexander. The policy had a clause which provided that a committee, appointed by the insurer, should determine any sum paid to a policyholder. Further, should the policyholder dispute the amount determined by the committee, then the policyholder was prevented from litigating the dispute until such time as the dispute had been arbitrated. There was a claim against the policy and before the committee had finished ascertaining and settling the claim, the plaintiff ship owner, Alexander Scott, questioned the extent of the loss and repairs carried out on the ship, then refused to have the dispute arbitrated. The issue for the court was simply whether parties could agree by contract to accept a decision of an arbitrator before giving the parties the right to have the dispute resolved by a court. The majority of the court found for the defendant on the basis that, under the contract, until the arbitrator had made an award, no cause of action had arisen. Therefore, the plaintiff’s claim could not be upheld. On the issue of whether contracting parties could oust the jurisdiction of the courts, the court spoke with one voice. The

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court opined that parties may agree that no right to litigate a dispute shall arise until a third person, in this case an arbitrator, has attempted to resolve the dispute. In other words, parties may not contract to oust the jurisdiction of the courts, but may make a dispute resolution process a condition precedent to litigation. Coleridge J stated at 1133–34: The courts will not enforce or sanction an agreement which deprives the subject of that recourse to their jurisdiction, which has been considered a right inalienable even by the concurrent will of the parties. But nothing prevents parties from ascertaining and constituting as they please the cause of action which is to become the subject-matter of decision by the courts. Covenanting parties may agree that in case of an alleged breach the damages to be recovered shall be a sum fixed, or a sum to be ascertained by A. B., or by arbitrators to be chosen in such or such a manner; and until this be done, or the non-feasance be satisfactorily accounted for, that no action shall be maintainable for the breach.

So contracting parties may agree to submit disputes to arbitration prior to allowing one or more parties to have a court finally adjudicate on the dispute, but parties may not substitute arbitration for the decision of a court. As Coleridge J pointed out, it is a person’s inalienable right to have a court of law decide a dispute between persons and a contract cannot take that right away. Scott v Avery (1856) applied to an agreement to arbitrate being a condition precedent to litigation, but it has been held that the same rule applies to agreements to conciliate or mediate, by virtue of the dictum of Giles J in Hooper Bailie, when his Honour stated, at 211B: If there were on foot in this Court proceedings equivalent to the arbitration, those proceedings could be adjourned if the parties had agreed that they would not continue until the conciliation had concluded. In my view it would be open to the Court to adjourn proceedings … in aid of [an] agreement to conciliate … The Court can do so in aid of mediation ordered under the legislation which I have mentioned, the power to do so must accompany the power to order mediation, and the same power must exist where the conciliation or mediation is consensual and the agreement to conciliate or for mediation is enforceable in the manner I have described.

As a result of the above cases, a dispute resolution clause in a contract should be drafted in Scott v Avery form as is the NSW Law Society’s suggested clause that appears as Appendix 5 to this text.

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Clauses should be drafted with the requisite certainty Where a term or terms are so vague or uncertain as to their meaning, the court may declare that those terms do not give rise to a binding promise or agreement. In other words, the language used by the contracting parties makes it difficult for the parties to ascertain a precise meaning so as to understand their rights and obligations under the contract, thereby making the term of the contract void for uncertainty. But where a contract or a term of a contract evinces more than one possible meaning, the term will still be capable of meaning, and will therefore not be void for uncertainty. Providing the court can determine a meaning for such a term, it will be valid and enforceable. When determining the meaning of a contractual term, the court looks at the language used and will tend to interpret it broadly as opposed to narrowly. In this way, the construction of contractual terms discloses an intention to be bound or not to be bound. In other words, if parties allow terms to be drafted in an uncertain way, this may disclose an intention to not be contractually bound to the agreement struck. Because of the nature of dispute resolution, the terms requiring parties to participate in such a process are prone to uncertainty. An examination of three of the leading cases on uncertainty regarding dispute resolution clauses will illustrate this concept. In Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995), the plaintiff was a corporate trustee. The trust entered a joint venture to develop a residential subdivision at Lake Munmorah on the central coast of New South Wales. In September 1993, the plaintiff executed two contracts with the defendant. The first was a construction management contract, which required the defendant to provide construction and design management services for the project. The second was a building contract whereby the defendant built and sold houses on the subdivision and, after deducting the cost of the land and the building costs, split the profit with the plaintiff. Problems developed on the site and the defendant ceased its involvement in the project around the middle of 1994. The plaintiff treated the defendant’s cessation as a repudiation of the contracts and terminated them. The plaintiff then sought a declaration from the Supreme Court of New South Wales that its termination was valid and effective and claimed damages as a result of the defendant’s repudiation. The defendant filed a defence stating it was not bound to proceed with the contracts and was therefore entitled to discontinue its involvement in the project. Further, the defendant stated that even if it had invalidly repudiated the contracts, the plaintiff had suffered no loss because

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continued performance of the contracts would have resulted in no profit for either of the parties. By way of an interlocutory application, the defendant sought to invoke the mediation clauses in the contract, moving the court to stay any further proceedings leading to the hearing of the matter until after mediation. The plaintiff refused to participate in mediation and opposed the defendant’s motion for a stay of proceedings. The dispute resolution clauses in both contracts were similar. The construction management contract reciting the parties’ agreement to mediate before litigating, stated: 19 (a) In case any dispute or difference shall arise between the Principal and the Construction Manager either during the progress of the Works or after the determination, abandonment or breach of the Contract as to the construction of the Contract or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith, then either party shall give to the other notice in writing of the dispute or difference and at the expiration of seven days, unless it shall have been otherwise settled, the parties agree to first endeavour to settle the dispute or difference by mediation administered by the Australian Commercial Disputes Centre (ACDC). (b) In the event that the dispute has not been settled within 28 days (or such other period as agreed to in writing between the parties hereto) after the appointment of the mediator the dispute shall be submitted to arbitration administered by and in accordance with the Arbitration Rules of the ACDC. (c) The arbitrator shall be a person agreed between the parties. ACDC will assist the parties by providing a list of suggested arbitrators. Failing agreement, the arbitrator shall be a person appointed by ACDC. The arbitrator shall not be the same person as the mediator. (d) The arbitration shall be held in Sydney or in such other place as the parties may agree in accordance with and subject to the laws of the State of New South Wales. (e) The decision of the arbitrator shall be final and binding upon the parties.

The defendant’s interlocutory application for the court to stay proceedings was based only on the dispute resolution clauses, as they related to mediation and not arbitration. During the hearing of the application, evidence was adduced as to a letter dated 16 February

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1995, from the defendant’s solicitors to the plaintiff’s solicitors giving notice of a dispute between the parties and requesting mediation, administered by the ACDC, under the relevant dispute resolution clauses in both contracts. Since 1993, the ACDC had published guidelines for its various dispute resolution processes. The defendant submitted and the plaintiff conceded that the ACDC’s guidelines for mediation were incorporated into the contracts because of the reference made to ACDC in the dispute resolution clauses. Paragraph 6 of the ACDC’s mediation guidelines states: Prior to the mediation, the parties shall sign a mediation appointment agreement which sets out the terms of the mediation. The terms of the appointment agreement are consistent with these guidelines. The appointment agreement is also signed by the mediator.

Clause 11 of the mediation appointment agreement stated: ‘Each party confirms that it enters into this mediation with a commitment to attempt in good faith to negotiate towards achieving settlement of the dispute.’ In the NSW Supreme Court, Giles J had to decide the motion for a stay of proceedings in light of the fact that: the plaintiff and the defendant had agreed upon the dispute resolution clauses in the contracts; the plaintiff had conceded that the ACDC’s guidelines were incorporated into the contracts; the guidelines made reference to the parties committing themselves to attempt in good faith to negotiate towards achieving a settlement; and the dispute resolution clauses had survived the contracts coming to an end. In summary, there were three documents of relevance to the case. First, the actual contracts between the parties that contained the dispute resolution clauses. Secondly, the ACDC mediation guidelines that made reference to the parties executing a mediation appointment agreement. Finally, the ACDC mediation appointment agreement that made reference to the mediation being conducted according to the guidelines. Neither the guidelines nor the appointment agreement were annexed to the contract and as the presiding judge, Giles J, pointed out at 714, the documents were inconsistent with each other in many ways. The contract itself made no reference to the guidelines. However, as previously stated, Elizabeth Bay Developments Pty Ltd conceded that the guidelines were incorporated into the contract. Interestingly, his Honour stated at 714 that because of this concession, it was ‘unnecessary to express any view upon whether a mediation clause having no greater content than an agreement to settle the dispute by mediation administered by a named person or body would require of

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the parties participation in a process of mediation of sufficient certainty for legal recognition of their agreement’. However, despite not addressing the issue of the certainty of the dispute resolution clause in the contract, his Honour went on to consider whether the guidelines and the appointment agreement ensured a sufficiently certain process for the conduct of a mediation. Ultimately, it was the aforementioned inconsistency between the documents that compelled Giles J to conclude that the agreement of the parties failed for lack of certainty in the process that the parties should follow in their mediation. His Honour examined para 6 of the ACDC mediation guidelines and noted that it did not identify the form of the agreement or its terms, other than to state that the appointment agreement was consistent with the guidelines. In other words, the parties had agreed on the execution of a mediation appointment agreement without agreeing to its terms. In finding that such an agreement was uncertain, his Honour stated, at 715: … by the incorporation of the guidelines the parties had agreed (inter alia) to sign mediation agreements the terms of which were not settled beyond the necessity that they be consistent with the guidelines. The agreements to mediate were open-ended, indeed unworkable because the process to which the parties had committed themselves would come to an early stop when, prior to the mediation, it was asked what parties had to sign and the question could not be answered.

Even if an agreement to execute a further agreement, on terms yet to be disclosed other than the fact that such terms were to be consistent with terms set out in a guidelines document was a valid practice under the law of contract, his Honour, after examining both documents, found there was a lack of consistency between the guidelines and the appointment agreement. In particular, his Honour pointed to the fact that the guidelines required attendance by the individual to the dispute or an authorised company representative, whereas the appointment agreement made reference to attendance by a nondescript representative. Also, at 714: … the statements of issues required differed, the mediation agreement did not call for the signing of ‘confidentiality forms’, and the events of termination of the mediation differed. More generally, there were differences in scope and terminology, and the relationship between the guidelines and the form of mediation agreement was far from clear.

So on the issue of uncertainty, Elizabeth Bay was decided on the basis that the parties could not agree to enter into an agreement, sometime

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in the future, when the terms of the agreement that defined the process of mediation were yet to be agreed. In other words, the uncertainty arose as a result of the lack of process with which to conduct mediation. In Aiton Australia Pty Ltd v Transfield Pty Ltd (1999), the parties to the proceedings entered three contracts between May and June of 1997, for the construction of the Osborne Co-Generation Project, an independent power production project based in Adelaide, South Australia. Proceedings commenced on the basis that the plaintiff, Aiton Australia Pty Ltd, claimed that the defendant, Transfield Pty Ltd, had made certain representations during the tender negotiations that were misleading and deceptive. As a result of the defendant’s conduct, the plaintiff claimed to have been unable to execute the construction works in the manner, sequence, duration and price, agreed between the parties. The plaintiff relied on the relevant sections of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW), and claimed damages allegedly incurred by the reliance on the defendant’s representations. The defendant moved the court, on a notice of motion, seeking a stay of proceedings on the basis that the contracts contained express procedures for dispute resolution prior to either party commencing litigation. All three contracts contained identical dispute resolution clauses numbered as clause 28 in each agreement. The pertinent elements of clause 28 are worthy of recital, and stated: 28 Dispute Resolution 28.1

General The Purchaser [Transfield] and Supplier [Aiton] shall make diligent and good faith efforts to resolve all Disputes in accordance with the provisions of this section 28.1 [General] before either party commences mediation, legal action or the expert Resolution Process, as the case may be. If the representatives of the parties are unable to resolve a Dispute within 15 days after Notice from one Party to the other of the existence of the dispute (the ‘Dispute Notice’) and after exchange of the pertinent information, either party may, by a second Notice to the other Party, submit the Dispute to the Designated Officers of Supplier and Purchaser. A meeting date and place shall be established by mutual Contract of the Designated Officers. However, if they are unable to agree, the meeting shall take place at the site on the 10th business day after the date of the second Notice. The Designated Officers shall

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meet in person and each shall afford sufficient time for such meeting (or daily consecutive meetings) as will provide a good faith, thorough exploration and attempt to resolve the issues. If the Dispute remains unresolved five Business Days following such last meeting, the Designated Officers shall meet at least once again within five Business Days thereafter in a further good faith attempt to resolve the Dispute. For any Dispute which is unresolved at the conclusion of such meeting, each Party shall submit within 10 days thereafter a written statement of its position to the other party and the Dispute shall be immediately submitted to mediation pursuant to Section 28.2 [Mediation]. 28.2

Mediation If the Dispute is not resolved pursuant to the process established in Section 28.1 [General], either Purchaser or Supplier shall submit the same for mediation and the parties shall expressly agree upon the following process and subject to Section 28.5 [Limitation Periods] agree that Mediation shall be compulsory before either Party may commence legal action or initiate the Expert Resolution process, as the case may be: (a) The Party initiating shall provide Notice of that request to the other Party, including a summary of the Dispute, a written statement of its position and a list of four mediators acceptable to it. (b) Within five business days following receipt of the above Notice, the recipient Party shall provide the other Party with a written statement of its position on the Dispute, any objections and amendments that it may have to the other Party’s above mentioned summary of the Dispute and a list of four mediators acceptable to it if it does not accept an individual from the other Party’s list. (c) If the Parties are unable to agree on a mediator within five business days following delivery of the material mentioned in Subsection (b) above, then either party may apply on a expedited basis to have the mediator appointed by the President for the time being of the New South Wales Bar Association (or paramount officer of any successor organisation). The mediator shall have suitable qualifications and standing to mediate the Dispute.

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(d) The place of any mediation proceeding shall be in Sydney, New South Wales. (e) The mediator may conduct the proceedings in any manner he [sic] considers appropriate, taking into account the circumstances of the Dispute, any desires expressed by the Parties, and the desire for speedy resolution of the Dispute. The mediator may communicate with the Parties orally or in writing and may meet with the Parties together or individually. The Party initially referring the Dispute to mediation is entitled to make the first opening statement to the mediator. (f) The mediator shall not act as a representative or witness of either Party or otherwise participate in any Expert Resolution or judicial proceedings related to a Dispute that was the subject of mediation. (g) Statements made by either Party or the mediator in the course of the mediation process shall not be disclosed to any third party and shall not be introduced by either party in the Expert Resolution process or judicial proceedings, whether or not those proceedings relate to the Dispute that was the subject of the mediation. (h) The parties agree to use all reasonable endeavours in good faith to expeditiously resolve the Dispute by mediation.

Various claims were made by the plaintiff against the defendant between 1997 and 1999, involving extensions of time and costs in relation to allegedly poor drawings provided by the defendant to the plaintiff and the installation of various components of the construction. On 30 March 1999, the plaintiff made a consolidated claim against the defendant totaling $11,897,529 under several different heads of claim. It is unnecessary to recount those heads of claim, but it is necessary to recount the chain of events between the parties given the application before the Court. The plaintiff issued notices of dispute for the various heads of claim on the defendant on 29 November 1997, 20 March 1998, 23 September 1998 and 16 October 1998. Variations claimed on one head of claim were not notified by the plaintiff in a Notice of Dispute as required by clause 28.1. When the plaintiff inquired about the progress of the claims, the defendant’s response was that they were looking into the claims or that they required further information. On one occasion the defendant promised

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the plaintiff a report in respect of the claims, which never arrived. Several meetings took place between the parties and some heads of claim were settled, although, up until the date of judgment, had not been paid. The plaintiff’s letter of 30 March 1999, whilst setting out its consolidated claim, also invited the defendant to contact them within 15 days to arrange a program of resolution of the claim. Further, the plaintiff stated that if the defendant received no response in that time, it would assume that the parties were in dispute as to the consolidated claim. The parties argued about the supply of certain information pertinent to the claim and by May of 1999, the plaintiff formed the view that the defendant had failed to act in a bona fide manner in relation to the resolution of the disputes. Prior to the plaintiff filing a summons on 21 May 1999, the plaintiff sent a proposal for mediation by facsimile to the defendant. By facsimile on the same day, the defendant responded to the plaintiff stating that the proposal was, at best, a truncated and inadequate version of the dispute resolution process recommended in the contract. At the hearing of the application, the court heard evidence from the defendant that the procedures set out in clause 28 of the contracts had not been initiated or complied with in relation to the issues raised in the proceedings. It is for these reasons that the defendant sought an order staying the proceedings, so that clause 28 could be properly complied with as a condition precedent to arbitration or litigation. His Honour found that clause 28 was uncertain as to the mechanism for apportionment of the mediator’s costs. Citing Mason J in Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1981), applying BP Refinery (Westenport) Pty Ltd v Hastings Shire Council (1977), regarding the conditions necessary to imply a term into a contract, his Honour was not prepared to imply agreement on the uncertain issue of the apportionment of the mediator’s costs. Finally his Honour referred to the Australian Law Reform Commission paper entitled Review of the Adversarial System of Litigation (Issues paper 25, June 1998, Chapter 6, paragraph 6.20) and concluded, at 252: It follows that the subject mediation clause is unenforceable. To my mind, the mediation clause is not severable from the negotiation clause. The two are intended to walk together as a staged procedure, constituting the dispute resolution process as agreed between the parties. As such, the agreement to negotiate must also be unenforceable.

Given the above cases, the question becomes: do parties have to actually set out detailed procedures of an ADR process in the contract

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in order to evidence their requisite intention to be contractually bound to such a process? This question was answered in the negative in the Supreme Court of Victoria’s decision in Computershare Limited v Perpetual Registrars Limited & Others (No 2) (2000), where the plaintiff, Computershare Limited, together with Australasian Security Services Pty Ltd, entered an agreement with accountants Coopers & Lybrand in May 1991 whereby they would provide registry bureau services to Coopers & Lybrand’s ‘Share Registry Service’. It was a term of the agreement that the plaintiff would provide the reporting mechanism using a service called ‘FAST Services’. Around October 1994, the plaintiff and Australasian Security Services agreed to replace the FAST Services with a system called ‘CHESS’. In about August 1998, the first defendant, Perpetual Registrars Limited, acquired the Share Registry Service from Coopers & Lybrand. Consequently the plaintiff, together with the first and second defendants, negotiated a new business relationship whereby the plaintiff would supply the same services as previously supplied to Coopers & Lybrand and that any charges previously levied by the plaintiff were to be included in the new agreement. However, when the new agreement was finally signed by the parties it excluded any reference to the plaintiff being paid for charges previously levied to Coopers & Lybrand. As a result of this, the plaintiff claimed that the new agreement was signed under a mutual mistake of fact and sought rectification of the document. The sum of money claimed by the plaintiff from the first defendant amounted to approximately $1 million and the plaintiff sought to enforce a guarantee for the money given by the second defendant. The new agreement contained a dispute resolution clause that provided: 24.1

A party must not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this agreement (‘Dispute’) unless it has complied with this clause.

24.2

A party claiming that a Dispute has arisen must notify the other party within 30 days of becoming aware of the matter the subject of the Dispute.

24.3

Within seven days after a notice is given under clause 24.2 each party must nominate in writing a representative authorised to settle the Dispute on its behalf. Each representative will use their best efforts to arrive at an amicable solution as soon as possible.

24.4

If the respective representatives of each party are unable to resolve the Dispute within 10 days (or such other period as

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agreed between the parties and in the absence of agreement, 10 days) after the notice is given, they must refer the dispute to the Chief Executive Officer of each party for resolution. 24.5

If the Chief Executive Officers cannot resolve the Dispute within 10 days after referral under clause 24.4, the parties must endeavour in good faith during the following 10 days: (a) to resolve the Dispute; or (b) to agree on: (i) a process to resolve all or at least part of the Dispute without arbitration or court proceedings (eg, mediation, conciliation, executive appraisal or independent expert determination), (ii) the selection and payment of any third party to be engaged by the parties and the involvement of any dispute resolution organisation, (iii) any procedural rules, (iv) the timetable, including any exchange of relevant information and documents, and (v) the place where meetings will be held.

24.6

The role of any third party will be to assist in negotiating a resolution of the Dispute. A third party may not make a decision that is binding on a party unless that party’s representative has so agreed in writing.

24.7

Any information or documents disclosed by a representative under this clause: (a) must be kept confidential; and (b) may not be used except to attempt to settle the Dispute.

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24.8

Each party must bear its own costs of resolving a Dispute under this clause and, unless the parties agree otherwise in accordance with clause 24.5(b)(ii), the parties must bear equally the costs of any third party engaged.

24.9

After the second 10 day period referred to in clause 24.5 (or longer period between the parties), a party that has complied with clauses 24.2–24.5 may terminate the dispute resolution process by giving notice to the other party.

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24.10 If a party does not comply with any provision of clauses 24.1–24.5 the other party will not be bound by clauses 24.1 –24.5.

The defendants applied for a stay of proceedings so that clause 24 of the contract could be performed prior to litigation proceeding. In answering the defendants’ application for a stay of proceedings, the plaintiff submitted that clause 24.5 was unenforceable because it lacked the requisite certainty in that the clause did not describe a framework for the dispute resolution process. In judging this submission, her Honour Warren J canvassed the usual cases, such as Hooper Bailie and Kirby P’s judgment in Coal Cliff Collieries, where his Honour Kirby stated that uncertainty in the drafting of a contractual term may be overcome where a third party is given power to resolve the uncertainty or where an ascertainable external standard can be applied. In applying the findings of the New South Wales Supreme Court, her Honour found that agreements to negotiate were capable of being enforced. Interestingly, her Honour opined that most dispute resolution processes, other than arbitration that is governed by statute, are flexible as to their procedural elements, because of the many permutations and combinations that may be used to arrive at a resolution: Logically, parties cannot stipulate principles upon which mediation processes must produce an outcome. Of its very nature, the parties must negotiate and hold discussions to find their own solution. In essence, the parties are required to establish a protocol or framework within which matters between them are to be negotiated. In essence that is what mediation and conciliation are about [at para 14].

On the above analysis, her Honour found that clause 24 was enforceable between the parties. Warren J further explained her decision by referring, at para 15, to the decision in Cott UK Limited v FE Barber Limited (1997), where the English High Court: ... considered that where a clause provided for an alternative form of dispute resolution … a court should not exercise its inherent jurisdiction to stay an action where there is an absence of rules to govern arbitration or alternative dispute resolution between the parties.

However, her Honour distinguished Cott on the basis that, in the facts before the court, clause 24 set out an adequate framework to conduct the dispute resolution process. Also, the parties had agreed to establish a framework under clause 24.5 should the dispute not be resolved through earlier attempts under clauses 24.2–24.4. As to the precise

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nature of the framework to be established under clause 24.5, Warren J stated, at para 15: Furthermore, where parties have made a special agreement requiring them to address a path to a potential solution there is every reason for a court to say such parties should be required to endeavour in good faith to achieve it. In these circumstances the court does not need to see a set of rules laid out in advance by which the agreement, if any, between the parties may in fact be achieved.

Warren J granted the application for a limited stay of proceedings so that clause 24 could be performed within the time limits specified by the dispute resolution clause. Whilst it did not state specifically, it would seem that the judgment in Computershare relied on the objective test of intention to determine whether the dispute resolution clause contained the requisite certainty to be enforced. That is, the dispute resolution clause displayed a clear intention that the parties agreed to participate in a yet to be prescribed dispute resolution process. From the above cases, it seems that NSW courts adopt a narrower definition of uncertainty than, for example, Victorian courts, which recognise that dispute resolution is a self-determining, flexible process. In this respect, the Victorian courts appear to acknowledge that the very nature of dispute resolution, which gives the parties the freedom to determine their own processes in order to resolve disputes between themselves, cannot be expressed with any great degree of certainty in a contract. At the date of publication of this text, there have been no decisions of the High Court of Australia to provide guidance on how broadly one should read the legal concept of uncertainty as it pertains to dispute resolution clauses. Finally, on the issue of uncertainty, courts have resisted striking down contracts for uncertainty when there is extrinsic evidence that allows them to import certainty into the contract. Therefore, where there are procedures setting out the prescribed dispute resolution process, which may be embodied in a separate document, the procedures may be either included in the relevant term of the contract or referred to as an extrinsic document, whose terms and conditions are deemed to be incorporated into the contract (see Fitzgerald and Another v Masters (1956) and Trustees Executors and Agency Company Limited and Another v Peters (1959)). Again, how precise the imported document has to be in expressing the steps of the dispute resolution process is a matter of conjecture, given the differing views of the courts set out in this chapter. Also, the court employing a standard of reasonableness may render agreements or terms of agreements that

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are uncertain as to their construction to be certain. Clearly, this standard of reasonableness allows the court to define the agreement or term more precisely and, in any case, with the requisite certainty that will allow the court to enforce the agreement or promise between the parties. There have been a number of landmark decisions that have established the above propositions, as well as some commentary on how the courts should apply the standard of reasonableness (see May and Butcher Limited v R (1934) and Hillas and Co Limited v Arcos Limited (1932)). For the standard of reasonableness to save a clause in a contract from being void for uncertainty, a court would have to render the clause certain by reference to an objective standard of what is reasonable in the circumstances. In the cases discussed in this chapter, the courts have been reticent to do this, given the flexible nature of dispute resolution processes. Once again, we await a decision of the High Court of Australia to provide the drafters of contracts with guidance. Clause should avoid making reference to good faith Prior to 28 March 1995, most dispute resolution clauses included a requirement that the contracting parties endeavour to negotiate in good faith. However, after the decision of the NSW Supreme Court in Elizabeth Bay, it became dubious practice to include such a reference in a dispute resolution clause in a contract. In Elizabeth Bay, the presiding judge, Giles J, had some difficulty ascertaining the meaning of clause 11 of the ACDC mediation appointment agreement, extracted above. In particular, his Honour stated, at 716: On one view it was merely declaratory, a statement of the parties’ states of mind. It is difficult to regard the parties as having undertaken in 1993 to declare at a future time that they had (at the future time) a commitment to good faith negotiations: first, other than being a laudable emotion the declaration itself would not advance the process of mediation, and secondly by the future time one or other of the parties may well not have had that commitment. It is more likely that, as one of a number of paragraphs expressing rights and obligations in a formal legal agreement, clause 11 was intended to impose an obligation to negotiate in good faith. The obscurity in clause 11 is to be regretted, since it brought to the mediation agreement either a legally peripheral declaration likely to be disproved at the very time clause 11 was invoked or a purported obligation the recognition of which involved formidable legal difficulty: the cumulative uncertainty of ‘commitment’, ‘attempt’, ‘negotiate’ and ‘in good faith’ is forbidding. I do not think it matters

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which view is taken of clause 11. It is not easy to take a course requiring a party to assert a state of mind which it may well not have, and even less easy to take a course which compels a party to commit itself to the vagueness of attempting in good faith to negotiate with the other party to the dispute. The latter difficulty lies not so much in the ascertainment of the presence or absence of good faith, or even in the uncertainty of attempting, but rather in the necessary tension [emphasis added] between negotiation, in which a party is free to, and may be expected to, have regard to self-interest rather than the interests of the other party, and the maintenance of good faith: see Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (at 209); Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 at 26-27; Walford v Miles [1992] 2 AC 128 at 138 … In my opinion, to adjourn or stay the proceedings so that Elizabeth Bay would be required either to sign an unknown agreement as an important step in the process of mediation or to commit itself to attempting in good faith to negotiate towards achieving a settlement of the dispute, would require of Elizabeth Bay conduct of unacceptable uncertainty.

The decision in Elizabeth Bay defined a contractual agreement to negotiate in good faith as uncertain because it committed the parties to a course of behaviour that they may not have chosen to follow when a dispute eventually arose. His Honour hypothesised that defining the presence or absence of good faith was not an insurmountable issue, rather, what was more difficult was accounting for a party’s right to act with self-interest rather than in the interests of the other party, and how, under those circumstances, the parties could act in good faith. So, between 28 March 1995 and 1 October 1999, an agreement to negotiate or mediate in good faith may not have been enforceable. The concept of the relationship between self-interest and acting in good faith, and the historical path that led the New South Wales Supreme Court to its decision in Elizabeth Bay was discussed in Aiton, a decision of the same court handed down on 1 October 1999. In Aiton, the plaintiff submitted that the concept of good faith was too imprecise and unenforceable. It is this submission that occupied a great deal of the Court’s consideration. His Honour examined the issue in the context of whether the words ‘good faith’ have a sufficiently certain meaning to be enforceable. His Honour began, at 253, with Lord Ackner’s well known proposition in Walford v Miles (1992) at 138, that: … the concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations. Each party to the negotiations is entitled to

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pursue his (or her) own interest, so long as he [sic] avoids making misrepresentations. To advance that interest he must be entitled, if he thinks it is appropriate, to threaten to withdraw from further negotiations or to withdraw in fact, in the hope that the opposite party may seek to reopen negotiations by offering him improved terms.

Einstein J noted that a similar position to that of Lord Ackner was adopted by Giles J in Elizabeth Bay. In Walford, Lord Ackner went on to discuss the difficulty a court has in determining how a court can police such an agreement, whereas Einstein J suggested that Giles J, in Elizabeth Bay, was more concerned with how the parties could act in good faith when they have a right to act with self-interest rather than the interests of the other party. In relation to the view expressed by Giles J in Elizabeth Bay, Einstein J stated, at 254: With great respect, I disagree – such tension [emphasis added] ought not be the linchpin in an argument that a good faith requirement in negotiation is too vague and uncertain to be meaningfully enforced. It is clear that a tension may exist between negotiation from a position of self-interest and the maintenance of good faith in attempting to settle disputes. However, maintenance of good faith in a negotiating process is not inconsistent with having regard to self-interest: see D Cremean, ‘Agreements to negotiate in good faith’ (1996) 3 Commercial Dispute Resolution Journal 61 at 64.

Einstein J favoured Dr Cremean’s view over that of Lord Ackner, by suggesting that good faith is not a synonym for settlement, nor does it prevent a party from withdrawing from negotiations. His Honour looked at the various cases and academic writings in this area. Of particular persuasion and interest was his Honour’s assertion, at 258, based on Alcatel Australia Ltd v Scarcella (1998): It appears to be common sense that as an obligation to act in good faith may, in principle, be legally recognised as an implied or imputed obligation, there is no reason why it should be struck down as uncertain in cases where there is an express contractual term, as in the present case.

Einstein J supported the above proposition by referring to the recognition of a contract to negotiate in good faith, espoused in Coal Cliff Collieries (1991) by Kirby P and Waddell A-JA (with Handley JA dissenting). Einstein J went on to canvass the various definitions of good faith in the academic community and the popular view that good faith can be identified not by what it constitutes, rather, by identifying when it is absent. His Honour referred to the Western Australian decision of Capolingua v Phylum Pty Ltd (As Trustee for the Gennoe Family Trust and

273


Others) (1991), where Ipp J delivered a costs sanction against a party who adopted an obstructive attitude in regard to the narrowing of issues, as evidence of bad faith. His Honour concluded, at 263: To my mind, the matter should be approached as a question of principle, it being undesirable to attempt to formulate a list of factual indicia suggesting compliance or non-compliance with the obligation to mediate in good faith [per contra: Kovach, K, ‘Good faith in mediation – requested, recommended, or required? A new ethic’ (1997) South Texas Law Review 575 at 615]. The good faith concept acquires substance from the particular events that take place and to which it is applied. As such, the standard must be fact-intensive and is best determined on a case-bycase basis using the broad discretion of the trial court.

Einstein J then went on to discuss statutory good faith and referred at length to Western Australia v Taylor (Njamal People) (1996), and Member Sumner’s detailed analysis of the concept of statutory good faith under the Native Title Act 1993 (Cth). His Honour summed up, at 268, quoting Badgery-Parker J, in State Bank of NSW v Freeman (1996): An undertaking to mediate in good faith no doubt connotes a willingness on the part of a party to consider such options for resolution of a dispute as are propounded by the mediator or the opposing party; but it does not appear to me than an inference of lack of good faith can be drawn from the adoption of a strong position at the outset and a reluctance to move very far in the direction of compromise, without more.

In other words, good faith does not mean having to forfeit one’s own position in deference to the other party. In conclusion, Einstein J stated, at 268, his own view of the contents of an obligation to negotiate or mediate in good faith, by providing the following non-exhaustive terms: (1) To undertake to subject oneself to the process of negotiation or mediation (which must be sufficiently precisely defined by the agreement to be certain and hence enforceable). (2) To undertake in subjecting oneself to that process, to have an open mind in the sense of: (a) a willingness to consider such options for the resolution of the dispute as may be propounded by the opposing party or by the mediator, as appropriate; (b) a willingness to give consideration to putting forward options for the resolution of the dispute.

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Subject only to these undertakings, the obligations of a party who contracts to negotiate or mediate in good faith, do not oblige nor require the party: (a) to act for or on behalf of or in the interests of the other party; (b) to act otherwise than by having regard to self-interest.

His Honour acknowledged that, whilst there are difficulties in being able to prove a breach of an obligation to negotiate in good faith, it did not mean that an obligation to negotiate or mediate in good faith is devoid of meaning to the point where the agreement became too uncertain to be enforced at law. Finally, Einstein J stated, at 268: In my view, the authorities and academic writings referred to above demonstrate that while the content of any good faith requirement depends on context (statutory or otherwise) and the particular factual circumstances, it is possible to delineate an essential framework for the notion of ‘good faith’ such that the requirement of good faith in clause 28 is sufficiently certain for legal recognition of the agreement.

Notwithstanding his Honour’s judgment that clause 28 lacked sufficient certainty as to process and therefore the defendant’s notice of motion be dismissed, in his Honour’s view, the references to good faith negotiation contained the requisite certainty to be enforced at law. Aiton’s case is a very important decision. First, it stands at odds to the findings of Giles J in Elizabeth Bay on the issue of the recognition of contractual good faith negotiation. There now exist two cases emanating from single judges of the Supreme Court of NSW which are diametrically opposed to each other on the issue of good faith negotiation. Secondly, his Honour’s insight into what constitutes an obligation to negotiate in good faith is a valuable contribution to the debate. What these judgments mean to the drafters of contracts who wish to include dispute resolution clauses, is that references to ‘negotiating in good faith’ should be avoided. Given that in Aiton’s case leave to appeal was refused, there is no precedent that allows drafters of contracts to state definitively that references to good faith negotiation contain the requisite certainty required by law. Therefore – given that such clauses would render an entire dispute resolution clause in a contract as being void for uncertainty, thereby causing a condition precedent to litigation to be unenforceable – it is not worth the risk to include such references.

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Appendices All of the following appendices have been reproduced with the kind permission of the authors, the Law Society of New South Wales.

Appendix 1 Revised guidelines for solicitors who act as mediators The responsibilities of practitioners when acting as mediators are set out in revised guidelines developed by The Law Society’s Dispute Resolution Committee and approved by Council on 29 July 1993. Development of the Society’s guidelines for mediators was prompted by the receipt of numerous enquires from members of the profession seeking advice before expanding their practices into the area of alternative dispute resolution. The original guidelines were approved by Council on 19 May 1988. These revised guidelines were redrafted by The Law Society’s Dispute Resolution Committee to keep pace with the changing legal environment with regard to mediation. The Council of the Law Society reaffirmed its commitment to provide a professional mediation service by requiring solicitors to have satisfactorily completed an approved mediation skills training course and to have completed at least one co-mediation with an experienced mediator. The Council has approved the revised guidelines and resolved that the activity of mediation by solicitors, subject to the revised guidelines, be declared to be appropriate to be undertaken as part of a solicitor’s practice for the purpose of professional indemnity insurance.1 Therefore, a solicitor being the holder of a full practising certificate who, as part of his or her practice as a solicitor, acts as a mediator will be entitled to indemnity pursuant to and within the terms and conditions of the Certificate of Insurance, issued to that solicitor, or his

1

A solicitor conducting a separate business as a mediator in the area of alternative dispute resolution, as distinct from providing the service as an incident to the solicitor’s private practice, would not, under the present certificate of insurance, issued pursuant to the compulsory Professional Indemnity Master Policy, be entitled to indemnity from LawCover in respect of a negligent act or omission occurring in the course of that separate business.

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or her firm, under the Master Policy of Professional Indemnity Insurance. Solicitor mediators on a restricted practising certificate are not so covered unless they are employees in a firm and are acting as mediators as part of that firm’s practice. The revised guidelines below do not purport to prescribe the legal requirements which should be observed by a person who undertakes to act as a mediator. Solicitors who intend to practise as mediators in the area of alternative dispute resolution should inform themselves of the licensing provisions of any relevant legislative requirements. 1

Introduction 1.1 These revised guidelines are intended to assist and guide solicitors acting as mediators. 1.2 These revised guidelines do not derogate from the usual obligations of solicitors.

2

Definition of Mediation 2.1 Mediation is a voluntary process in which a mediator independent of the disputants facilitates the negotiation by disputants of their own solution to their dispute by assisting them systematically to isolate the issues in dispute, to develop options for their resolution and to reach an agreement which accommodates the interests and needs of all the disputants. 2.2 The mediator does not impose a solution upon the disputants. It is not his/her function to attempt to coerce a party into agreement nor should he/she attempt to make any substantive decision for the parties. He/she may raise and help the parties explore options for settlement. It is not the mediator’s function to give legal advice to the parties. 2.3 The solicitor mediator should not attempt to direct the decision of the parties based upon the mediator’s interpretation of the law as applied to the facts of the dispute. It is a fundamental principle of mediation that competent and informed parties can reach an agreement which need not conform to legal precedents or to general community standards.

3

Qualification 3.1 No solicitor shall act as a sole mediator unless he/she has satisfactorily completed an approved course and has had appropriate mediation experience or such experience as may be approved by the Dispute Resolution Committee of the Law Society of New South Wales. 3.2 Italicised terms in 3.1 are defined in Schedule 1 to these revised guidelines.

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APPENDICES

3.3 It is the responsibility of solicitor mediators to engage in annual continuing mediation education as part of their CLE program to ensure that their mediation skills are current and effective. 4

Initial Duties of Mediators The mediator should define and describe the process of mediation and its cost to the parties before they reach an agreement to mediate. He/she should give an overview of the process and assess the appropriateness of mediation for the participants. Among the topics covered, it is recommended that the mediator should address the following: 4.1 The mediator should define the process in context so that the parties understand the differences between mediation and other means of conflict resolution available to them. It is important that the mediator stress that the process is ‘without prejudice’ and that in general unless both parties consent, communications during the course of the mediation process cannot be used as evidence in court proceedings. 4.2 The mediator should obtain sufficient information from the participants to enable them mutually to define the issues to be resolved in mediation. 4.3 The mediator in consultation with the parties, should establish the following procedures: (a) the right of each party to talk without interruption; (b) the order of presentation; (c) any other rules for the conduct of the proceedings as may be appropriate. 4.4 It should be emphasised that the mediator may assist in generating options for the participants to consider, such as alternative ways of resolving problems but that all decisions are to be made voluntarily by the participants themselves. 4.5 The duties and responsibilities that the mediator and the parties accept in the mediation process should be agreed upon. The mediator should inform the parties that either of them or the mediator has the right to suspend or terminate the process at any time. It is recommended that the mediator include in any written agreement to mediate, a provision that he/she has a discretion to terminate or suspend the process at any time. 4.6 It is strongly recommended that a written agreement to mediate be entered into by the parties and the mediator prior to

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commencement of the process. The mediator may include a provision in the agreement excluding his/her liability.2 4.7 The mediator should explain the fees for mediation and reach an agreement with the parties regarding payment. 4.8 The mediator should explain to the parties that he/she might consult with each of them in separate sessions and that information divulged during such separate sessions will be kept confidential unless he/she has that party’s specific agreement to disclose to the other party. He/she should reach an understanding with the participants as to the circumstances in which he/she may meet alone with either of them or with any third party. 4.9 The mediator should inform the parties that they have the right at any time to obtain and may need to obtain independent legal or other professional advice during the mediation process. 4.10The mediator should also raise the matters referred to in 6.5 and 6.6 below. 5

Impartiality and Neutrality 5.1 Impartiality The mediator shall maintain impartiality towards all participants at all times during the mediation process. Impartiality means freedom from favouritism or bias in word or action. The mediator shall not play an adversarial role and shall maintain a commitment to aid all participants, as opposed to a single individual, in reaching a mutually satisfactory agreement. 5.2 Neutrality If the mediator believes or any one of the participants states that the mediator’s background or personal experiences or relationships would prejudice the mediator’s performance or detract from his/her impartiality, the mediator shall withdraw from the mediation unless all parties agree to proceed after full disclosure of all relevant facts relating to the issue of neutrality. 5.3 Prior Relationship If the mediator has at any time prior to the mediation provided legal, counselling or any other services or has had any social or professional relationship with any of the participants, he/she

2

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The Law Society Agreement to Mediate provides for the exclusion of mediator liability in clause 22.

APPENDICES

shall not proceed with the mediation. If after full disclosure, all parties to the mediation agree, the mediator may proceed. 5.4 Conflicts of Interests The mediator shall disclose any circumstances to the participants which may cause or have any tendency to cause a conflict of interest. In particular a mediator who is a partner or an associate of any legal counsel retained by either of the parties should not act as mediator without the fully informed consent of all the parties. 6

Confidentiality 6.1 The mediator shall not voluntarily disclose information obtained during the mediation process without the prior consent of both parties. 6.2 The obligations of a solicitor relating to confidentiality as between solicitor and client shall apply as between the mediator and the participants. 6.3 If subpoenaed or otherwise notified or requested to testify, the mediator shall inform the remaining participants immediately. 6.4 Information received by the mediator in private session shall not be revealed to the other parties without prior permission from the party from whom the information was received. 6.5 The mediator shall, prior to entering into the mediation process, obtain all parties’ agreement not to require the mediator to give evidence or to produce documents in any subsequent legal proceedings concerning the issues to be mediated upon. 6.6 The mediator shall inform the parties that, in general, communications between them, and between them and the mediator, during the preliminary conference and the mediation, are agreed to be confidential. In general, they cannot be used as evidence in the event that the matter does not settle at the mediation and goes to a court hearing. The mediator shall also inform the parties that they should consult their legal representatives if they want a more detailed statement of the position or if they have any specific questions about it. 6.7 The mediator shall render anonymous all identifying information when materials are used for research or training purposes. 6.8 The mediator shall maintain confidentiality in the storage and disposal of records.

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7

Disclosure 7.1 The mediator should if he/she considers it would facilitate settlement, recommend disclosure of relevant information. 7.2 The mediator may encourage participants to obtain independent expert information and advice.

8

Termination of Mediation 8.1 Where full agreement has been reached, the mediator should discuss with the participants the process for formalisation and implementation of the agreement. 8.2 Where the participants have reached a partial agreement the mediator should discuss with them procedures available to resolve the remaining issues. 8.3 Where the mediator believes the agreement being reached may be impossible to uphold or may be illegal, he/she should recommend to the parties that they obtain independent legal advice. 8.4 Without Agreement (i) Each of the parties and the mediator has the right to withdraw from mediation at any time and for any reason. (ii) If the participants reach a final impasse, the mediator should not prolong unproductive discussions which will result merely in a waste of costs to the participants. (iii) If mediation has terminated without agreement, the mediator should suggest that the parties obtain additional professional services as may be appropriate.

9

Responsibilities to Other Mediators 9.1 A mediator may, if the parties desire, act where another mediator is already employed. He/she may consult with the other mediator with the parties’ consent.

10 Observers 10.1 In principle, the presence of observers is not desirable nor should be invited. 10.2If parties request the attendance of observers, their attendance should occur only with the consent of all parties and the mediator.

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APPENDICES

Schedule 1 1

‘An approved course’ is one which satisfies the following criteria: (a) No less than 50% of the course involves skills based training which should generally include at least two simulated mediations where each participant acts as mediator. (b) An evaluation component to enable the trainers to assess each participant. (It is expected that at the very least the course will identify those solicitors who would benefit from further training and assessment before acting as sole mediators. Until then those solicitors will not meet the requirements of the revised guidelines to conduct sole mediations.) (c) A course length of not less than 4 days or 28 hours. (d) For those solicitors who have already undertaken courses, approved courses include, as at the date hereof, those courses conducted by the following organisations: (i) Australian Commercial Disputes Centre (ACDC) (ii) BOND University (Qld) (iii) CDR Associates (Colorado USA) (iv) Community Justice Centres (v) Family Mediation Centre (UNIFAM) (vi) Lawyers Engaged in Alternative Dispute Resolution (LEADR)3 (vii) Marriage Guidance Council4 (viii)University of Technology, Sydney (ix) other training courses approved by the Dispute Resolution Committee from time to time.5

3 4 5

2

‘Satisfactory completion’ means that the solicitor has been formally assessed during the training course as able to act as a sole mediator.

3

‘Appropriate mediation experience’ means that the solicitor has conducted at least one co-mediation with an experienced mediator or has undertaken simulated experience as a mediator after the initial training course.

Now known as LEADR. Now known as Relationships Australia (NSW). Before undertaking mediator training, it is important for solicitors to determine whether the course (whether abovementioned or not) fulfils the criteria in para 1 of this Schedule.

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4

Factors which the Dispute Resolution Committee would take into account when exercising its discretion to approve experience other than as in 3 above include any one or more of the following: (i) experience in representing parties at a mediation; (ii) regional factors, eg. isolation; (iii) relevant legal experience; (iv) public interest factors such as urgency.

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APPENDICES

Appendix 2 Guidelines for legal representatives in a mediation1 The Law Society in several of its published guides or codes of good practice has encouraged solicitors to advise clients of the advantages of alternative dispute resolution (ADR).2 Preparing Clients for Mediation

The legal adviser’s role in preparing clients for mediation includes: • Explaining the process, including the mediator’s neutral role (see Law Society Mediation Model). • Assisting clients to identify their needs, interests and issues. • If necessary, assisting clients to prepare their opening statement. • Discussing the issues that would be considered by the court and the range of possible outcomes. • Discussing ways to achieve the client’s desired outcomes, or priorities. • Discussing the likely reaction of the other party and ways to overcome any objections. • Explaining the nature of a ‘without prejudice’ and confidential discussion. • Explaining that the mediator will not be deciding the matter and that the settlement decision must be their own. • Advising of the legal costs incurred to date and likely to be incurred if the matter does not settle. It is recommended that the above check list be explored with clients prior to the mediation, whether or not a preliminary conference is held.

1

2

Contributions to part of this document by Sir Laurence Street, Ruth Charlton and Bernadette Rogers, Director of Dispute Resolution Queensland Law Society are gratefully acknowledged. Such statements appear in the following: the Family Law Advisory Code of Practice (para 2.4); the Protocol to Handling CTP Personal Injury Claims (paras 4.1, 4.13 and 4.14); Civil Litigation, a Guide to Good Practice (paras 4.5-4.9); New South Wales Solicitors’ Manual, Service 9 (para 2255A).

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Role of Legal Advisers during Mediation

Essentially the role of the legal adviser is: 1 To assist clients during the course of the mediation. 2 To discuss with the mediator, with the other party’s legal representative and with clients such legal and evidentiary, or practical and personal matters as the mediator may raise or the clients might wish. (It is likely that once the client has heard the other party’s version, the legal adviser may need to take further instructions from his/her client and perhaps review the legal advice.) 3 To participate in a non-adversarial manner. Legal advisers are not present at mediation as advocates, or for the purpose of participating in an adversarial court room style contest with each other, still less with the opposing party. A legal adviser who does not understand and observe this is a direct impediment to the mediation process. 4 To prepare the terms of settlement or heads of agreement in accordance with the settlement reached at the end of the mediation for signature by the parties before they leave. Good Faith Participation

If the legal adviser forms the view either before or during the mediation that the other party is not willing to negotiate in good faith, the legal adviser should raise this issue with his/her client and/or the mediator. Mediation Standards

A comprehensive description of the mediator’s role is set out in the Charter on Mediation Practice and in the Revised Guidelines for Solicitors who act as Mediators. It is not the mediator’s role to give advice or opinions, make suggestions which may disadvantage a party, propose or endorse possible outcomes or support either party’s view. If the legal adviser is of the view that these standards, particularly those relating to neutrality, are not being met he/she should request a private meeting with the mediator immediately.

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Appendix 3 Law Society of NSW Charter on Mediation Practice — A Guide to the Rights and Responsibilities of Participants 1

Underlying assumptions for the Charter The majority of mediations conducted under the Law Society Mediation Program involve two-party disputes with a single mediator. It is acknowledged, however, that there are some disputes where more than one mediator, usually two, work together in cooperation. Multi-party disputes may require a variation in the mediation process which is normally applied in the Law Society Mediation Program.

2

Objectives of the Charter 2.1 To set the highest standards of practice in accordance with the principles of mediation and to formulate guidelines consistent with the Law Council of Australia Ethical Standards for Mediators. 2.2 To inform parties of the principles and practice of mediation and of the role of mediators. 2.3 To provide guidelines to the parties for their role in mediation. 2.4 To provide opportunities for mediators and parties to give feedback on their experience as participants in mediation in order to foster and maintain the highest standards of mediation practice.

3

What parties can expect of the mediator The mediator is experienced in assisting communication and negotiation The role of the mediator is to guide the communication process so that a useful discussion can take place. The mediator will do this by asking you questions to assist in identifying and clarifying the issues in dispute, to help you sort out misunderstandings and to talk about what is important to you. The mediator aims to help you talk and negotiate with each other directly. The mediator aims to be impartial The mediator is not there to establish facts or to decide which of you is right or wrong, nor to take sides. The mediator will therefore not agree or disagree with statements you make nor put pressure on you to follow a particular idea or suggestion. The mediator aims to treat all parties equally.

287


The mediator is not an adviser The mediator will not give legal advice, nor give professional or other advice. The mediator respects confidentiality What is discussed in mediation is confidential unless disclosure is required by law. This means that in nearly all cases, confidentiality will be maintained. Mediators cannot be called as witnesses in any court proceedings which may take place in the future. The mediator will not mention anything discussed by you during a private session to other parties during the mediation (unless you request the mediator to let the other parties know), or to anyone else following the mediation. Options for settlement The mediator will encourage you to consider a range of options for settlement and to evaluate them for the purpose of reaching a mutually satisfying outcome for all of you. The mediator will not express any opinion about the merits of the options but will encourage you to assess their implications. The mediator is not a decision-maker You need to decide what is best for you, as the mediator will not impose or suggest final outcomes for you. The mediator has nothing to gain in any way from the outcome of the mediation, whether agreement is reached or not. The mediator controls the mediation process but not the content of the discussions or the outcome of the dispute: The mediator will encourage you: a

To take an active part in the mediation and to speak freely and with no interruptions from others present.

b

To discuss issues which are important to you not issues which the mediator considers to be relevant or significant.

c

To treat each other with courtesy.

What happens if you are accompanied by your lawyer at mediation If your lawyer attends the mediation, the mediator will still encourage you to participate actively in the discussions and negotiations. You will, however, be given the opportunity, if you wish, to allow your lawyer to speak and negotiate on your behalf if you feel more comfortable with that arrangement. The mediator will also provide you with opportunities for breaks to allow you to

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APPENDICES

consult with your lawyer in the course of the mediation or on the telephone if your lawyer is not present. 4

What parties can expect of the mediation process The Law Society encourages mediators on its panel to follow a standard mediation process. However the parties can suggest variations provided the important principles of mediation are adhered to. The Law Society mediation process normally consists of two sessions – a preliminary conference and a mediation session. Occasionally, the two sessions are merged into one. 4.1 What parties can expect at the Preliminary Conference What mediation is and the mediator’s role The mediator will explain the features of mediation – its voluntary and confidential nature and the role of the mediator as a neutral third party facilitator, not an adviser or decisionmaker. You will be told that as mediation is voluntary, it can be terminated at any stage by either party or the mediator without the need to give reasons. The process of mediation The mediator will outline the stages of the mediation process and you will be able to ask questions about it. Preparing for the mediation session The mediator will make sure that everyone is ready for the mediation session. An Agreement to Mediate will be signed by all participating in the mediation session. A timetable will be set for all outstanding matters relevant to the mediation to be finalised prior to the mediation session including documents to be prepared and exchanged, and arrangements for the payment of fees. The mediator will ensure that all parties to the mediation have authority to negotiate and settle. 4.2 What parties can expect at the mediation session The mediator will ask you to make a brief opening statement outlining your individual concerns and the issues which have brought you to mediation whether you are accompanied by your lawyer or not. If your lawyer is with you, you may, if you wish, ask him or her to make the opening statement on your behalf. The mediator will ensure that you get equal time to make your statement and that you do so uninterrupted.

289


The mediator will then summarise parties’ opening statements and extract issues for discussion which emerge from the opening statements You will be able to correct any errors you believe the mediator may have made when summarising back your opening statement. You will also be asked to check and agree on the list of issues for discussion. The mediator will then facilitate direct communication between you and discussion of the issues. You will be encouraged to communicate directly with the other party, asking each other questions to explore and clarify the issues extracted from your opening statements. The mediator will also facilitate your discussions so that you have the opportunity of becoming aware of each other’s point of view. The mediator may hold private and confidential sessions with each of you During any private and confidential session you may have with the mediator you can raise any matter you consider relevant to the mediation. The mediator will facilitate negotiations, settlement and agreement formulation. You will be able to discuss options and negotiate freely with the other party in order to reach a mutually satisfying resolution of your dispute. You will be given the opportunity to contribute actively to the substance and wording of the final agreement which is usually in writing. You will also be given opportunities to give instructions to your lawyer, if present, on your wishes in relation to the agreement. If your lawyer is not present, you will be able to contact him or her to seek advice. 5

What the mediator can expect of the parties Attendance at the mediation in good faith with the intention of seeking settlement The mediator expects that parties are attending mediation in good faith with the intention of seeking settlement not in order to prepare themselves for a court case. Attendance at both the preliminary and mediation sessions The mediator will expect you to attend the Preliminary Conference as well as the Mediation Session to ensure that the same information is imparted to you all at the same time.

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Preparing for the mediation session It is very helpful to the mediator if you maintain realistic goals when entering negotiations. You can prepare yourself for the negotiations by doing calculations and background work beforehand and bringing relevant documents to the mediation session. The mediator will expect you to have authority to negotiate and to settle. Setting the scene for a constructive mediation session You can make it easier for everyone if you observe the normal rules of courtesy and listen to each other in a fair and open-minded way. Even if you do not agree with what is being said, it will be helpful to you to appreciate each other’s point of view. Maintaining a positive attitude and being prepared to give and take It would be very helpful if you adopt a positive, practical and forward looking approach when negotiating about the future. A spirit of compromise is usually required to achieve agreement. An agreement which is satisfying to you all is only possible if you agree to give and take rather than insist on one particular set of demands. 6

The policy regarding observers In principle, the presence of observers is not desirable. If you require the attendance of observers, their attendance should occur only with the consent of the parties and the mediator(s).

7

The opportunity for feedback As participants in a mediation conducted as part of the Law Society Mediation Program you will have the opportunity, if you wish, to comment on your mediation experience by responding to a short questionnaire or by forwarding your comments in writing to the Dispute Resolution Committee of the Law Society of NSW. Your positive, constructive and informed feedback will help us to maintain the standard of mediation service provided by the Law Society Program at the highest possible level.

For a copy of the questionnaire or more information on any aspect of the Charter please contact Bridget Sordo, Manager, Dispute Resolution and Community Assistance Department, at the Law Society of NSW, 170 Phillip St, Sydney, 2000; or phone (02) 9926 0284; fax (02) 9233 7146; email: [email protected].

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Appendix 4 Agreement to Mediate (including a confidentiality agreement to be signed by third parties) During the preliminary conference the parties are asked to sign the Agreement to Mediate. The Agreement (reproduced in full below) sets out the procedure followed during the preliminary conference and mediation. The Agreement details the role of the mediator; the parties’ commitment to co-operate with the mediator, the agreement to maintain confidentiality with respect to information disclosed during the mediation and agreement that certain matters will be privileged, including any settlement proposal. Participants to the mediation may agree to modify the Agreement to suit their particular circumstances. The Agreement to Mediate

THIS AGREEMENT IS MADE ON . . . .(day) . . . . .(month) . . . . (year) BETWEEN THE FOLLOWING PARTIES (In this Agreement called ‘the parties’) Name of party (please print): . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Address:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Name of party (please print):. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Address:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Name of party (please print): . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Address:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Name of party (please print): . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Address:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Name of party (please print): . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Address:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AND THE MEDIATOR/S (called ‘the mediator/s’) Name of mediator (please print):. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Address:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Name of mediator (please print):. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Address:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

APPENDICES

Appointment of Mediator 1

The parties appoint the mediator to mediate in accordance with the terms of this agreement the Dispute between them. The dispute is briefly described in Schedule 1 to this Agreement (the ‘Dispute’). The mediator accepts the appointment to mediate the Dispute at a time and place agreed to by the parties and set out in Schedule 2 to this Agreement.

Role of the Mediator 2

The mediator will be neutral and impartial. The mediator will assist the parties to attempt to resolve the dispute by helping them to: •

systematically isolate the issues in dispute;

•

develop options for the resolution of these issues;

•

explore the usefulness of these options; and

•

meet their interests and needs.

3

The mediator may meet with the parties together or separately.

4

The mediator will not: •

give legal or other professional advice to any party; or

•

impose a result on any party; or

•

make decisions for any party.

5

The mediator will not accept an appointment or act for any party in relation to any proceedings concerning the Dispute.

6

Neither party will take action to cause the mediator to breach Clause 5.

Conflicts of Interest 7

The mediator must, prior to the commencement of the mediation, disclose to the parties to the best of the mediator’s knowledge any prior dealings with any of the parties as well as any interest in the Dispute.

8

If in the course of the mediation the mediator becomes aware of any circumstances that might reasonably be considered to affect the mediator’s capacity to act impartially, the mediator must immediately inform the parties of these circumstances. The parties will then decide whether the mediation will continue with that mediator or with a new mediator appointed by the parties.

Co-operation by the Parties 9

The parties must co-operate with the mediator and each other during the mediation.

293


Conduct of the Preliminary Conference 10 As part of the mediation the mediator will schedule a preliminary conference at a time and venue convenient to the parties to establish a timetable for the mediation. 11 The mediator, the parties and their representatives who are to attend the mediation session must attend the preliminary conference. Authority to Settle and Representation at the Mediation Session 12 The parties must attend the mediation with authority to settle within any range that can reasonably be anticipated. 13 At the mediation each party may have one or more other persons, including legally qualified persons, to assist and advise them. Communication Between the Mediator and the Parties 14 Any information disclosed to a mediator in private is to be treated as confidential by the mediator unless the party making the disclosure states otherwise. Confidentiality of the Mediation 15 The parties and the mediator will not disclose to anyone not involved in the mediation any information or document given to them during the mediation unless required by law to make such a disclosure. 16 The parties and the mediator agree that subject to Clauses 20 and 21, the following will be privileged and will not be disclosed in, or be the subject of a subpoena to give evidence or to produce documents, in any proceedings in respect of the Dispute: 16.1 Any settlement proposal whether made by a party or the mediator. 16.2 The willingness of a party to consider any such proposal. 16.3 Any statement made by a party or the mediator during the mediation. 16.4 Any information prepared for the mediation. Termination of the Mediation 17 A party may terminate the mediation at any time after consultation with the mediator. 18 The mediator may terminate the mediator’s involvement in the mediation if, after consultation with the parties, the mediator feels unable to assist the parties to achieve resolution of the Dispute.

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Settlement of the Dispute 19 If agreement is reached at the mediation, the terms of the agreement must be written down and signed by the parties before they leave the mediation. Enforcement of the Settlement Agreement 20 Any party may enforce the terms of the settlement agreement by judicial proceedings. 21 For the purposes of Clause 20, any party may call evidence of the settlement agreement including evidence from the mediator and any other person engaged in the mediation. Exclusion of Liability and Indemnity 22 The mediator will not be liable to a party for any act or omission in the performance of the mediator’s obligations under this agreement unless the act or omission is fraudulent. 23 The parties together and separately indemnify the mediator against any claim for any act or omission in the performance of the mediator’s obligations under this agreement unless the act or omission is fraudulent. The Cost of the Mediation 24 The parties together and separately will be liable to the mediator for the mediator’s fees described in Schedule 3. The parties will share equally all the other costs of the mediation described in Schedule 3. 25 If the mediation does not result in an agreement to resolve the dispute, the costs of the mediation will be costs in the cause, i.e. costs of the mediation (including those of the legal representatives to attend the mediation) will be treated as part of the overall costs in subsequent court proceedings which are generally payable by the losing party.

295


Appendix 5 Model Clause making ADR Mandatory and Mediation Rules The Council of the Law Society adopted a dispute resolution model clause and Mediation Rules on 26 August 1993. The model clause was revised1 in order to enhance enforceability in the light of the judgment of his Honour Justice Giles in Hooper Bailie Association Limited v Natcon Group Pty Ltd and Another (1992) 28 NSWLR 194 and in Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709. In Hooper, Giles J held that if an agreement to mediate is to be enforceable, it must provide sufficient certainty as to the conduct required of the parties who participate in the mediation. Accordingly, dispute resolution clauses must be drafted so that, in the event of a dispute, the conduct that is required of the parties can be determined with certainty.2 The Law Society’s model clause now specifies the procedure to be followed in the event of a dispute.3 Where the parties4 cannot agree on the procedure to be followed, the parties are required to mediate the dispute in accordance with the Mediation Rules. The Model Clause Dispute 1

1 2

3

4

296

If any dispute arises out of this contract (‘the Dispute’) a party to the contract must not commence any court or arbitration proceedings unless the parties to the Dispute have complied with the following paragraphs of this clause except where a party seeks urgent interlocutory relief.

This clause was approved by the Dispute Resolution Committee on 24 July 1998. The courts will not grant specific performance of the above clause by may grant a stay of proceedings commenced in breach of the clause until the dispute resolution procedure is concluded. (See also Hooper Bailie Associated Ltd v Natcon Group Pty Ltd and Another (1992) 28 NSWLR 194, Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709.) Any mediator nominated by the President of the Law Society or the President’s nominee will be a NSW solicitor mediator who is bound by the Law Society’s Revised Guidelines for Solicitors who act as Mediators. The clause will require amendment if there are more than two parties to the contract.

APPENDICES

Notice of Dispute 2

A party to this contract claiming that a Dispute has arisen out of or in relation to this contract must give written notice (‘the Notice’) to the other party to this contract specifying the nature of the Dispute.

Dispute Resolution 3

If the parties do not agree within seven (7) days of receipt of the Notice (or such further period as agreed in writing by them) as to: (i) the dispute resolution technique (eg expert determination) and procedures to be adopted; (ii) the timetable for all steps in those procedures; and (iii) the selection and compensation of the independent person required for such technique, the parties must mediate the Dispute in accordance with the Mediation Rules of the Law Society of New South Wales, and, the President of the Law Society of New South Wales or the President’s nominee will select the mediator and determine the mediator’s remuneration.

Mediation Rules Functions of the Mediator 1

The mediator will assist the parties to explore options for and, if possible, to achieve the expeditious resolution of their dispute (‘the Dispute’) by agreement between them.

2

The mediator will not make decisions for a party or impose a solution on the parties.

3

The mediator will not, unless the parties agree in writing to the contrary, obtain from any independent person advice or an opinion as to any aspect of the Dispute and then only from such person or persons and upon such terms as are agreed by the parties.

Conflicts of Interest 4

The mediator must disclose to the parties to the best of the mediator’s knowledge any prior dealings the mediator has had with either of them and any interest the mediator has in the Dispute.

5

If in the course of the mediation the mediator becomes aware of any circumstances that might reasonably be considered to affect the mediator’s capacity to act impartially the mediator will immediately inform the parties of those circumstances. The parties will then confer and if agreed continue with the mediation before the mediator.

297


Co-operation in the Mediation 6

The parties must co-operate with the mediator and each other during the mediation to achieve a mutually satisfying outcome to their dispute.

7

Each party must use its best endeavours to comply with reasonable requests made by the mediator to promote the efficient and expeditious resolution of the Dispute.

Authority and Representation 8

If a party is a natural person, the party must attend the mediation conference. If a party is not a natural person it must be represented at the mediation conference by a person with full authority to make agreements binding on it settling the Dispute.

9

Each party may also appoint one or more other persons including legally qualified persons to assist and advise the party in the mediation and to perform such roles in the mediation as the party requires.

Conduct of the Mediation 10 Subject to Rule 21, the mediation, including all preliminary steps, will be conducted in such manner as the mediator considers appropriate having due regard to the nature and circumstances of the Dispute, the agreed goal of an efficient and expeditious resolution of the Dispute and the view of each party as to the conduct of the mediation. 11 The mediation conference shall be held within fourteen (14) days of the selection of the mediator or within such other period as the parties may agree. 12 Without limiting the mediator’s powers under Rule 10 the mediator may give directions as to: 12.1 Preliminary conferences prior to the mediation conference. 12.2 The exchange of experts’ reports, the meeting of experts and the subsequent preparation of a joint experts’ report with a view to identifying areas of agreement, narrowing the area of disagreement and clarifying briefly the reasons for disagreement. 12.3 The exchange of brief written outlines of the issues involved. 12.4 Service on the mediator prior to the mediation conference of any such reports and outlines.

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Communication between the Mediator and a Party 13 The mediator may meet as frequently as the mediator deems appropriate with the parties together or with a party alone and in the latter case the mediator need not disclose the meeting to the other party. 14 The mediator may communicate with any party orally and/or in writing. 15 Subject to Rule 16, any document relied upon by a party and provided to the mediator must immediately be served by the party on the other party. 16 Information, whether oral or written, disclosed to the mediator by a party in the absence of the other party may not be disclosed by the mediator to the other party unless the disclosing party permits the mediator to do so. Confidential Information 17 A party may prove objective facts, whether or not confidential, by direct evidence in any proceedings in respect of the Dispute. Subject to that, all confidential information disclosed during the mediation, including the preliminary steps: 17.1 may not be disclosed except to a party or a representative of that party participating in the mediation or if compelled by law to do so; and 17.2 may not be used for a purpose other than the mediation. Privilege 18 Subject to Rule 25, the following will be privileged and will not be disclosed in or relied upon or be the subject of a subpoena to give evidence or to produce documents in any arbitral or judicial proceedings in respect of the Dispute: 18.1 Any settlement proposal, whether made by a party or the mediator. 18.2 The willingness of a party to consider any such proposal. 18.3 Any admission or concession or other statement or document made by a party. 18.4 Any statement or document made by the mediator. Subsequent Proceedings 19 The mediator will not accept appointment as an arbitrator in or act as an advocate in or provide advice to a party to any arbitral or judicial proceeding relating to the Dispute.

299


20 Neither party will take action to cause the mediator to breach Rule 19. Termination 21 A party may terminate the mediation immediately by giving written notice to each other party and to the mediator at any time during or after the mediation conference. 22 The mediator may immediately terminate the engagement as mediator by giving written notice to the parties of that termination, if, after consultation with the parties, the mediator forms the view that the mediator will be unable to assist the parties to achieve resolution of the Dispute. The mediation will not be terminated in that event unless a party gives notice to that effect to each other party. The parties must appoint another mediator, where the mediation is not terminated. 23 The mediation will be terminated automatically upon execution of a settlement agreement in respect of the Dispute. Settlement 24 If settlement is reached at the mediation conference, the terms of the settlement must be written down and signed by the parties and the mediator before any of the participants leave the mediation conference. Enforcement 25 In the event that part or all of the Dispute is settled either party will be at liberty: 25.1 To enforce the terms of the settlement by judicial proceedings. 25.2 In such proceedings to adduce evidence of and incidental to the settlement agreement including from the mediator and any other person engaged in the mediation. Exclusion of Liability and Indemnity 26 The mediator will not be liable to a party except in the case of fraud by the mediator for any act or omission by the mediator in the performance or purported performance of the mediator’s obligations in the mediation. 27 The parties shall jointly and severally indemnify the mediator against all claims, except in the case of fraud by the mediator, arising out of or in any way referable to any act or omission by the mediator in the performance or purported performance of the mediator’s obligations in the mediation.

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Costs 28 The parties will share equally and will be jointly and severally liable to the mediator for the mediator’s fees for the mediation. The mediator may, at any time and from time to time, require each party to deposit with the mediator such sum as the mediator considers appropriate to meet the mediator’s anticipated fees and disbursements. The mediator may decline to embark upon or continue the mediation until all such deposits are made. 29 If the mediation does not result in an agreement to resolve the Dispute, the costs of the mediation will be costs in the cause.

301

Index Aboriginal people, See also Native title family mediation 100–01 impartiality 101 neutrality 100–01 Administrative Appeals Tribunal 151–52, 232 Administrative decision-making Administrative Appeals Tribunal 151–52 Administrative Decisions Tribunal (NSW) 183–85 Civil and Administrative Tribunal (Vic) 245–46 complaints 188 Adoption (WA) 249 Advent of ADR 3–4 Aged care complaints resolution scheme 152–53 Agreements arbitration 109, 114–18 applicable law 119–23 definition of 6, 110 terms, in 117, 143 clauses in, enforcement of 255–75 confidentiality 293–96 employment 157 franchise 174–75 mediation, form for 293–96 Agricultural Practices Board (WA) 250 Agriculture and veterinary chemicals 154 Alternative dispute resolution 24 ‘alternative’, meaning of 24

Alternative Dispute Resolution Association of Queensland 12 assisted or appropriate 24 key developments 22–23 Leading Edge Alternative Dispute Resolvers 12–13 legislation 15–19 Model Clause for Mandatory 297–302 National Alternative Dispute Resolution Advisory Council 14–15 terminology 24 United States 4 Amiable compositor 120–23 Animal diseases (WA) 251 Appeals Administrative Appeals Tribunal 151–52, 232 arbitration 135–37 mediation 232 Resource Management and Planning Appeal Tribunal 242 Arbitration 5–6, 107–49 agreements 109, 114–18 applicable law 119–23 definition of 6, 110 terms, in 117, 143 agriculture and veterinary chemicals 154 amiable compositor 120–23 appeals 135–37 applicable law 119–23 arbitrators appointment of 110–13 court-appointed 112–13

303


duties of independence of legal advice, obtaining mediator, acting as misconduct

115–16 114 139–40 124–26 135, 137–43 113–15 110 142 112 112–13

powers of qualifications of removal of replacement of vacancies, filling Australian Conciliation and Arbitration Commission 5–6 Australian Industrial Court 5–6 Australian Industrial Relations Commission 6, 156–58 awards 124 appeals 135–37 binding and final 127–31 enforcement of 132 form of 130–31 interim 140–41 mistakes in 131–32, 137 reasons for 131, 135 setting aside 140–41 commercial 108–49 Commercial Arbitration Acts 110–49 Commonwealth Conciliation and Arbitration Commission 5 Commonwealth Court of Conciliation and Arbitration 5 Commonwealth Industrial Court 5 conciliation 124–26 costs 133–35 definitions 108–09 delay 143–49 inordinate and inexcusable 146–49

304

development of 5 enforcement 258 evidence 117–18 federal courts 171–73 industrial relations 5–6 Industrial Relations Court of Australia 6 inquisitorial proceedings 118 Institute of Arbitrators and Mediators Australia 7–8 interim relief 145 issue estoppel 127–29 judiciary, role of 5–6 jurisdiction 109, 120 legal advice, obtaining 139–40 legal representation 118–19 magistrates 174 meaning 3 mediation 124–26 misconduct 135, 137–43 natural justice 124–26, 130 res judicata 127–29 subpoenas 116–17 termination 148–49 time limits 143–49 UNCITRAL Model Law 113 uniform legislation 6, 107–08 Associations, incorporation of (Vic) 244–45 Australasian Dispute Resolution Journal 22 Australian Bankers’ Association 155–56 Australian Capital Territory domestic relationships 205 legal practitioners 205 mediation 206–07 residential tenancies 208 statutory schemes in 205–10 Tenancy Tribunal 208–09 victims of crime 209–10 Australian Commercial Disputes Centre 9–10

INDEX

Australian Conciliation and Arbitration Commission 5–6 Australian Consumer and Competition Commission 174–75 Australian Dispute Resolution Association 11–12 Australian Industrial Court 5–6 Australian Industrial Relations Commission 6, 156–58 Banking Australian Bankers’ Association 155–56 Australian Banking Industry Ombudsman 155–56 Code of Banking Practice 155 Electronic Funds Transfer Code of Practice 160–62 BATNA (best alternative to a negotiated agreement) 41–43, 48–9, 73–74 Body language 37–38 Building contracts home 251 Victoria 245 Western Australia 251 Building services (QLD) 216–17 Building societies code of practice 158–59 Certainty, drafting clauses with Charter on Mediation Practice (NSW) Chemicals, agricultural and veterinary Chicken meat (QLD) Children adoption New South Wales Northern Territory Western Australia

259–71 287–93 154 217 249 185–86 210 249

Civil and Administrative Tribunal (Vic) 245–46 Clerks of court (QLD) 225 Codes building societies 158–59 Code of Banking Practice 155 credit unions 159–61 Electronic Funds Transfer Code of Practice 160–62 franchising 174–75 industry 151–253 migration agents 176 Commercial leases Australian Capital Territory 208–09 mediation 240 South Australia 240 Tenancy Tribunal 208–09 Commonwealth Conciliation and Arbitration Commission 5 Commonwealth Court of Conciliation and Arbitration 5 Commonwealth Industrial Court 5 Communication skills 32–38, 44–45, 50 Community housing (SA) 232 Community Justice Centres 8–9, 98, 186 Community land management (NSW) 187 Compensation agriculture and veterinary chemicals 154 animal diseases 251 Compensation Court of NSW 187–88 enforcement 256, 263 mediation 187–88 New South Wales 198, 202–03 real property 198 workplace injuries 202–03

305


Compromise, See Settlements Conciliation arbitration 124–26 domestic relationships 205 local courts 211–12 meaning 2 New South Wales 202–03 Superannuating Complaints Tribunal 181–82 workplace injuries 202–03 Conferences 11 Confidentiality agreements 84–87 form of 293–96 common law 87 documents, production of 88 farm debt 193 guidelines 85–86 health care complaints 195–96 mediation 83–88, 207, 222, 281–82, 288, 293–96, 300 New South Wales 84–86 without prejudice privilege 87 Conflicts of interest 166, 294, 298 Contracts, enforcement of clauses in 255–75 Cooperatives New South Wales 188 South Australia 233 Victoria 246 Copyright 159 Corporations 159 Costs 296, 302 Administrative Decisions Tribunal 184 arbitration 133–35 enforcement 266

306

follow the event 134 mediation 221, 296, 302 County courts mediation 246–47 Victoria 246–47 Court annexed dispute resolution 26 Credit unions 159–61 Cullen Bay Marine (NT) 210 Damages, See Compensation Decision-making, See Administrative decision-making Definition of dispute resolution Delay Disclosure in mediation Discrimination Dispute resolution centres (QLD) District courts conciliation mediation

1–27 146–49 282 16 219

211–12 211–12, 219–23, 233 New South Wales 188 Northern Territory 211–12 Queensland 219–23 South Australia 233 Documents, production of 88 Domestic relationships (ACT) 205 Drafting certainty 259–71 enforceability of dispute resolution clauses 257–71 good faith, avoiding references to 271–75 Early neutral evaluation Education Electronic Funds Transfer Code of Practice

2 19–21 160–62

INDEX

Electricity supply New South Wales 188–89 Queensland 223 South Australia 233–34 Tasmania 241–42 Employment 157 See also Industrial relations; Occupational health agreements Victoria 157 Enforcement 255–75 arbitration 132, 258, 260–61 certainty, drafting with 259–71 clauses, dispute resolution 255–75 contracts 255–75 costs 266 damages 263 assessment of 256 drafting 257–71 farm debt 190 good faith, avoiding references to 271–75 jurisdiction of the courts, ousting the 257–58 mediation 260–62, 264–66, 271–75 reasonableness 271 remedies 256 Scott v Avery form, drafting in 257–58 specific performance 256 stay of proceedings 257, 260–61, 266, 269 time limits 270 Environment Land and Environment Court (NSW) 196 land use 242 mediation 234–35 New South Wales 196 Queensland 224

Resource Management and Planning Appeal Tribunal 242 South Australia 234–35 Tasmania 242 Estoppel 127–29 Evidence arbitration 117–18 family mediation 247 mediation 217, 247 Victoria 247 Exclusion of liability 296, 301 Expert appraisal 2 Fair Trading Tribunal (NSW) 189 Family mediation Aboriginal people 100–01 Australian Capital Territory 205 conflicts of interest 166 domestic relationships 206 evidence 247 Family Court of Australia 162–70 Victoria 247 Farm Debt Mediation (NSW) 189–94 Federal courts arbitration orders 171–73 Federal Court of Australia 170–73 judiciary 170–73 magistrates’ 17, 173–74 mediation 17, 171–74 native title 180–81 rules 171–73 statutory schemes, in 16–17 Federal Magistrates’ Court 17, 173–74 Flexibility 1, 60 Franchises 174–75 Freedom of information (QLD) 224

307


Gas suppliers (SA) Good faith

235 271–75, 286

Hawkesbury-Nepean Catchment Management Trust (NSW) Health and safety, See Occupational health Health care complaints (NSW) Health Insurance Ombudsman Housing (SA) Immunity in mediation

194

195–96 175 232

207, 217, 222 280–81, 287 101 65–66 101

Impartiality Aboriginal people mediators neutrality Incorporated associations (NSW) 194 Indemnities 296, 301 Industrial relations Australian Industrial Court 5–6 Australian Industrial Relations Commission 6, 156–58 Industrial Relations Court of Australia 6 mediation 224 Queensland 224 South Australia 235–36 Industry codes 151–253 Informal dispute resolution 97 Injunctions copyright 159 Institute of Arbitrators and Mediators Australia 7–8 Interim relief 145 Issue estoppel arbitration 127–29 res judicata 127–29

308

Judiciary arbitration Federal Court of Australia judicial officers regulation Juries Jurisdiction of the courts, ousting the Justices (QLD) Land, See also Native title acquisition compensation Cullen Bay Marina environment Land and Environment Court (NSW) management New South Wales Northern Territory rural lands South Australia Land and Environment Court (NSW) Law Societies mediation New South Wales ADR Committee Queensland, complaints in settlement weeks Leases, See Commercial leases; Residential leases; Retail leases Legal aid Legal education Legal representatives aged care complaints resolution scheme arbitration Australian Capital Territory

3 5–6 170–73 26–27 25–26 3 257–58 225

212, 236 198 210 242 196 187 187, 196, 198 212 200 236 196 10–11 10–11 10–11 227–28 10–11

197, 225 19–21

153 119 205

INDEX

legal education 19–21 mediation 285–86, 288–89 Northern Territory 212 Victoria 247 Legitimacy 43–44, 49–50 Litigation, meaning of 3 Local courts (NT) 211–12

BATNA building contracts building services Charter on Mediation Practice classical mediation model

Magistrates arbitration 174 Federal Magistrates’ Courts 17, 173–74 mediation 173–74, 236, 248 Queensland 223, 225 small claims 242–43 South Australia 236 Tasmania 242–43 Victoria 248 Mediation 59–105 See also Family mediation Administrative Appeals Tribunal 151–52, 232 Administrative Decisions Tribunal 183–85 adoption 249 aged care complaints resolution scheme 152–53 agreements 63, 71–72 form for 293–96 out of court, to keep dispute 71 relationship on foot, to keep the 71 terminate the dispute, to 71 Agricultural Practices Board 250 arbitration 124–26 associations, incorporation of 244–45 Australian Capital Territory 206–07 availability of disputants 61

clauses, enforcement of

73–74 251 216–17 287–93 59–60, 81–82 260–62, 264–66, 271–75 240

commercial leases common ground, identifying 70–79 Community Justice Centres 8–9 Compensation Court of NSW 187–88 conferences, preliminary 289–91, 295 confidentiality 83–88, 207, 222, 281–82, 288, 300 agreements 293–96 conflicts of interest 166–67, 294, 298 contracts 260–62, 264–66, 271–75 cooperation of parties 294, 299 costs 221, 296, 302 county courts 246–47 definition 278 delay 104 disclosure 282 district courts 211–12, 219–23, 233 documents, production of 88 electricity supply 241–42 empowerment 94–99 enforcement 301 environment 234–35 evidence 217

309


exclusion of liability 296, 301 facilities, provision of 64 Fair Trading Tribunal 189 farm debt 189–94 Federal courts 17, 171–74 final joint meetings 78 flexibility 60 good faith 286 hallmarks of 83–103 immunity 207, 217, 222 impartiality 65–66, 280–81, 287 inappropriate, when mediation is 103–04 indemnities 296, 301 industrial relations 224 information, availability of 61 interests, identification of 76–77 issues and interests, identifying the 69–70 joint sessions 80–81 Land and Environment Court 196 Law Societies 10–11 legal representatives 288–89 guidelines for 285–86 magistrates 173–74, 236, 248 mandatory 88–94 meaning 2 mediators appointment 172, 294 duties of 279–80 qualifications of 65, 164–65, 278–79 registration 206–07, 220 role of 294, 298 selection of 61–62 solicitors as 277–84 migration agents 176 Model Clause making mediation mandatory 297–302 motivation 61

310

native title negotiations neighbourhood neutrality

177–81, 218 59–60, 287 9 63–64, 99–102 89, 287–93 282–83 204–06 63–68

New South Wales observers occupational health opening statements options agreement, identifying early options for 72 generation 75–76, 81 participants in, rights and responsibilities of 287–83 power imbalance 104–05 precedent 105 preparation for 60–63 privilege 300 process 60 publicity 103 rail safety 238–39 residential leases 208, 239–40 retail leases 240, 252 Retail Leases Tribunal (NSW) 199–200 reticence 104 rules, mandatory 297–302 screening 60–62 separate sessions 72–77, 79–80 settlements 77, 288, 295–96, 301 authority to settle 65 failure to reach 79–80 implementation of 76 mandatory mediation and 90–91 writing up 78–79 solicitors acting as mediators, guidelines for 277–84 solution, disputants’ own 102–03 stakeholders 61 standards 286

INDEX

state power, change in 96–98, 104–05 strata management 200 subsequent proceedings 300–02 subpoenas 221 sugar industry 228–29 Supreme Court 201, 213–14, 241, 243–44, 248, 252–53 telecommunications access 182 termination 79–80, 171, 295, 301 theft of disputes 95–96 United States 91 voluntariness 88–94 water 202 Migration Agents Registration Authority 176 Mineral resources licences 236–37 native title 213, 236–38 Northern Territory 213 petroleum 213, 238 Queensland 226 South Australia 236–38 Mini-trials 2–3, 4 Misconduct of arbitrators 135, 137–43 Model Clause making ADR Mandatory and Mediation Rules 297–302 Moral rights 158 National Alternative Dispute Resolution Advisory Council 14–15 Native title Aboriginal Land Council 197 compensation 178 disclosure of interests 180 Federal courts 180–81 land acquisition 236 legislation 176–81

mediation 177–81, 218 mining 213, 236–37 Native Title Tribunal 176–81 negotiations 197 New South Wales 197 Northern Territory 213 opal mining 238 Queensland 218 South Australia 236–38 Natural justice 124–26, 130 Negotiation 29–58 active listening 36–37 alternatives 41–43, 49 BATNA 41–43, 48–9 blame 55 body language 37–38 commitment 46–47, 51 communication skills 32–38, 44–45, 50, 54–55 definition 31 dichotomy of 31–32 eye contact 38 fundamentals 31–32 interests 39, 48, 52, 54–57 legitimacy 43–44, 49–50 meaning 2 mediation 59–60, 287 mutual gains 57 native title 197 note-taking 36–37 open-ended questions 34 preparing to negotiate 47–51 principled 30 objective criteria 52–54 options 39–41, 49, 57 people from problems, separation of 46, 54–55 positional bargaining, using 57–58 positions versus interests 56–57 pressure 54

311


principled reframing

51–57 32–33, 36–37, 55 relationship 45–46, 50 role reversals 55–56 seven elements of 38–47 silence 35–36 sponging 35, 55 visual aids 41 Neighbourhood mediation 9 Neutral evaluation 184 Neutrality 280–81 New South Wales Administrative Decisions Tribunal 183–85 Charter on Mediation Practice 287–93 children 185–86 Community Justice Centres 8–9, 186 community land management 187 Compensation Court 187–88 confidentiality 84–86 cooperatives 188 discrimination 16 District Court 188 electricity supply 188–89 Fair Trading Tribunal 189 Farm Debt Mediation 189–94 Hawkesbury-Nepean Catchment Management Trust (NSW) 194 health care complaints 195–96 incorporated associations 194 Land and Environment Court 196 Law Society ADR Committee 10–11 Leading Edge Alternative Dispute Resolvers 12–13 Legal Aid Commission 197 legislation 17–18, 183, 205

312

mediation native title professional standards real property res judicata residential parks Residential Tenancies Tribunal Retail Leases Tribunal rural lands sentencing settlement weeks statutory schemes and industry codes in strata management Supreme Court water workplace injuries Northern Territory Children Cullen Bay Marina land acquisition legal practitioners local courts mining occupational health petroleum small claims statutory schemes in Supreme Court unit titles Notice of disputes Occupational health compensation conciliation mediation New South Wales Northern Territory Ombudsmen Australian Banking Industry Ombudsman Health Insurance Ombudsman Opal mining (SA)

89 197 198 198 128 198 198 199–200 200 188 10–11 183–204 200 201 202 202–03 210 210 212 212 211–12 213 214–16 213 212 210–16 213–14 214 298

202–03 202–03 204–06 202–03 214–16

155–56 175 238

INDEX

Opening statements Ousting the jurisdiction of the courts

63–68 257–58

Peaceful assembly and behaviour (QLD) 226–27 Petroleum 213, 238 Planning (TAS) 242 Powers of attorney (QLD) 227 Precedent 105 Privilege 87, 300 Professional standards 198, 251–52 Public sector management 248, 252 Publicity 103 Queensland Alternative Dispute Resolution Association 12 building services disputes 216–17 chicken meat 217 clerk of the court 225 Community Justice Centres 9 community title 218 Dispute Resolution Centres 219 District Courts 219–23 electricity consumers 223 environment and resource management 224 freedom of information 224 industrial relations 224 Law Society complaints 227–28 legal aid 225 legislation 16, 18–19, 230–31 magistrates’ courts 223, 225 mineral resources 226 peaceful assembly and behaviour 226–27 powers of attorney 227 Residential Tenancies Tribunal 228

retail leases statutory schemes in sugar industry Supreme Court victims of crime

228 216–31 228–29 229 229

Rail safety (SA) 238–39 Real property (NSW) 198 Reasons in arbitration 131 Regulation 25–27 Res judicata arbitration 127–29 issue estoppel 127–29 New South Wales 128 Residential parks (NSW) 198 Residential tenancies Australian Capital Territory 208 mediation 208, 239–40 New South Wales 198 Queensland 227 South Australia 239–40 tribunals 198, 228 Retail leases Australian Capital Territory 208–09 mediation 240, 252 Queensland 228 Retail Leases Tribunal (NSW) 199–200 South Australia 240 Tenancy Tribunal 208–09 Victoria 248–49 Western Australia 252 Rise of dispute resolution 5 Rules, Model Clause for Mandatory 297–302 Rural lands (NSW) 200 Sackville Report Sentencing Settlements authority to settle copyright drafting

14 188 65 159 78–79

313


enforcement of implementation of mediation

296 76 76–80, 288, 295–96, 301 90–94 213–14 78–79

mandatory Supreme Court writing up Small claims Northern Territory Tasmania Solicitors, guidelines for acting as mediators South Australia Administrative Appeals Tribunal community housing cooperatives district courts electricity consumers environment resources and development gas suppliers industrial relations land acquisition legislation magistrates’ courts mining licences native title opal mining petroleum rail safety residential tenancies retail and commercial leases statutory schemes in supreme court Specific performance Standards State power, changes in Statutory schemes Stay of proceedings Strata management (NSW)

314

212 242–43 277–84

232 232 233 233 233–34 234–35 235 235–36 236 16, 19 236 236–37 236–38 238 238 238–39 239–40

240 232–40 241 256 286 96–98, 104–05 16–17, 151–253 257, 260–61, 266, 269 200

Subpoenas 116–17, 221 Sugar industry (QLD) 228–29 Superannuation Complaints Tribunal 181–82 Supreme Court mediation 201, 213–14, 241, 243–44, 248, 252–53 New South Wales 201 Northern Territory 213–14 Queensland 229 settlement 213–14 South Australia 241 Tasmania 243–44 Victoria 248 Western Australia 252–53 Tasmania electricity supply environment land use magistrates’ courts Resource Management and Planning Appeal Tribunal statutory schemes in Supreme Court Telecommunications access Tenancies, See Commercial leases; Residential leases; Retail leases Tenancy Tribunal (ACT) Theft of disputes Time limits arbitration enforcement UNCITRAL Model Law Uniform legislation Unit titles (NT) United States alternative dispute resolution, in mediation, mandatory mini-trials

241–42 242 242 242–43

242 241–44 243–44 182

208–09 95–96 143–49 270 113 6, 107–08 214

4 91 4

INDEX

Veterinary chemicals 154 Victims of crime 209–10, 229 Victoria associations, incorporation of 244–45 Buildings Contracts Tribunal 245 Civil and Administrative Tribunal 245–46 cooperatives 246 Community Justice Centres 9 county courts 246–47 employment agreements 157 evidence 237 family mediation 247 legal practitioners 247 legislation 17 magistrates’ courts 248 public sector management 248

Retail Tenancies Tribunal statutory schemes in Supreme Court Water (NSW) Western Australia adoption Agricultural Practices Board animal diseases home building contracts professional standards public sector management retail tenancies statutory schemes in Supreme Court Without prejudice privilege Workplace, See Occupational health

248–49 244–49 248 202 249 250 251 251 251–52 252 252 249–53 252–53 87

315

Australian Essential Dispute Resolution (Australian Essentials)

Essential Australian Law (Australian Essentials)

Essential Australian Management Law (Australian Essentials Series)

Essential Australian Company Law

Australian Film (Pocket Essential series)

Australian Essential Real Property (Cavendish Essential)

The Australian

Australian Storys

Australian Bustard

Australian Storys

Australian Storys

Australian Storys

Australian Education Union (Australian Education Review)

The Australian

Traditional Australian Verse: The Essential Collection

Cross-border Internet Dispute Resolution

Keywords in Australian Politics

Principles of Australian Evidence

Making Australian Foreign Policy

Australian Saltmarsh Ecology

Cooking the Australian Way

One Hot Australian Night

Australian Intellectual Property Law

Australian Kin Classification

Australian Soil Classification

Legends of Australian Fantasy

Wealthy Australian, Secret Son

Australian Cinema After Mabo

Haematology of Australian Mammals

The Handbook of Dispute Resolution

Beyond Nostalgia: Reshaping Australian Education (Australian Education Review No. 44)

Australian Essential Dispute Resolution (Australian Essentials)

Essential Australian Law (Australian Essentials)

Essential Australian Management Law (Australian Essentials Series)

Essential Australian Company Law

Australian Film (Pocket Essential series)

Australian Essential Real Property (Cavendish Essential)

The Australian

Australian Storys

Australian Bustard

Australian Storys

Australian Storys

Australian Storys

Australian Education Union (Australian Education Review)

The Australian

Traditional Australian Verse: The Essential Collection

Cross-border Internet Dispute Resolution

Keywords in Australian Politics

Principles of Australian Evidence

Making Australian Foreign Policy

Australian Saltmarsh Ecology

Cooking the Australian Way

One Hot Australian Night

Australian Intellectual Property Law

Australian Kin Classification

Australian Soil Classification

Legends of Australian Fantasy

Wealthy Australian, Secret Son

Australian Cinema After Mabo

Haematology of Australian Mammals

The Handbook of Dispute Resolution

Beyond Nostalgia: Reshaping Australian Education (Australian Education Review No. 44)

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