4.1 The Act has put in place a number of protections for those involved in the mediation process, including mediators, the parties to the mediation and referring agencies. These protections have been enacted with the general aim of ensuring that people can take part in the mediation process without fear of any legal or other consequences that may arise. When Neighbourhood Mediation Centres were introduced in Victoria in 1987 it was suggested that experience in New South Wales and New Zealand showed that:
mediation will be less likely to succeed if parties fear that what they say in a mediation session may be used against them in later proceedings or if mediators are free to disclose statements a party may make to a third party.1
Experience in New South Wales and New Zealand was also said to have shown that:
mediators may feel and, in fact, may be compromised if they believe that their activities as mediators may expose them to civil or criminal prosecution.2
The provisions outlined below aim to overcome some of these concerns.
EXONERATION FROM LIABILITY
Mediators and other officers and staff of CJCs
4.2 The Act exonerates a number of people from liability arising from its execution, so long as they acted in good faith. These people include members of the Council, mediators and the Director and Staff of a CJC.3
4.3 Similar provisions with respect to exoneration were added to the statutes of various courts in 1994 and apply in relation to mediators and neutral evaluators where the courts have referred matters for mediation or neutral evaluation under their respective statutes.4
4.4 Queensland has enacted a provision that is, in all essential respects, the same as that in New South Wales.5 Victoria has also enacted a broadly similar provision.6 The Australian Capital Territory Act, however, gives a mediator, acting in good faith, “the same protection and immunity as a judge of the Supreme Court”.7 In some Commonwealth statutes mediators are granted more extensive immunity,8 having “the same protection and immunity as a Judge has in performing the functions of a Judge” but without the “good faith” requirement.9
4.5 One question is whether similar protections ought to be extended to the “officers, employees or other staff, of any Department of the Government or of any local or public authority or other organisation” who may be engaged by the Council for the purposes of the Act.10 It is possible that the exoneration already applies to them since the current protection extends to “a person acting under the direction of or with the authority of, the Council”.11
4.6 The appropriateness of the immunity for mediators is the subject of some debate. Arguments in favour of a general immunity include:12
- it allows mediators to act impartially without fear of legal action from either side;
- it ensures finality in mediation in so far as it prevents litigation arising from the process of mediation.
However, the interests of participants also need to be taken into account. While it has been noted that the parties are essentially responsible for any outcomes and that mediators should, therefore, not be liable for any mediated agreement or its consequences, it has been suggested that some provision should be made to guard against bad practice:
should there be liability for gross misconduct by a mediator during the mediation process, for procedural aspects of the mediation, or for a breach of ethical obligations, for example failure to deal effectively with power relationships between parties, or even for sexual harassment?13
4.7 NADRAC has proposed that the protections offered by immunity provisions be reduced in favour of increased consumer protection. It has suggested that the immunity provisions should only be available to providers with an appropriate code of practice in place. Such a code of practice would include a mechanism for consumer redress.14 The question of consumer input and redress has been dealt with in chapter 3.15
Members of the Police Service
4.8 The Act also exonerates members of the police service from any liability arising in respect of the referral of a matter to mediation rather than proceeding with charge or prosecution.16
4.9 The provision was inserted at the request of the police authorities who were concerned about laws making it an offence for police officers not to charge persons in certain circumstances.17 Presumably the concern was in relation to the common law misdemeanours of misprision of felony and compounding a felony (that is, preventing the prosecution of a crime) which have since been replaced by statutory offences of concealing serious indictable offences.18 It has also been said that police were concerned about being charged with false imprisonment if they arrested someone and took him or her to a CJC instead of to a justice as was required by law.19 The provision is therefore aimed at encouraging “officers to refer all appropriate cases to mediation rather than using criminal proceedings where they are not appropriate”, for example cases of minor assault where a criminal sanction is “unlikely to resolve a continuing dispute”.20 Queensland has also enacted a similar provision.21
Domestic violence offences
4.10 Exoneration of police officers from liability does not extend to domestic violence offences within the meaning of the Crimes Act 1900 (NSW).22 This reflects the policy of the government at the time the Act was passed that all domestic violence offences ought to be brought before the courts.23 Queensland has also enacted a similar provision.24
CONFIDENTIALITY
4.11 It has been said that mediation is essentially a private process and that “confidentiality lies at the heart of the mediation process and is one of its defining characteristics”.25 On a more practical level, the personal nature of many disputes brought to CJCs requires the existence of some guarantees of confidentiality for the parties. Such guarantees of confidentiality help to build the community’s trust in CJCs.26
4.12 Confidentiality may be provided for in a number of ways, including by way of a confidentiality clause to an agreement to mediate, by codes of conduct for mediators and by legislation.27 The US Model Standards of Conduct for Mediators suggest that a mediator “shall not disclose any matter that a party expects to be confidential unless given permission by all parties or unless required by law or other public policy”.28 These principles appear to be adequately provided for by the CJC Act.
4.13 The Act provides that mediators must swear an oath or make an affirmation of secrecy in relation to disclosures related to a mediation session.29 However, there are some necessary exceptions to this. For example, a mediator or other officer may disclose information “where there are reasonable grounds to believe that disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property” or where the disclosure is “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”.30 This would appear to anticipate the availability of other statutes that encourage disclosure, for example, s 316 of the Crimes Act 1900 (NSW) which places penalties on people who fail to disclose the commission of serious indictable offences by others.31 Disclosure is also permitted with the consent of the party from whom the information was obtained.
4.14 Similar confidentiality provisions (without the requirement of an oath) have now been introduced for other mediation schemes in various New South Wales courts.32 Queensland has enacted the New South Wales provisions verbatim (including the oath requirement).33 Victoria has enacted similar provisions (but without the requirement of an oath).34 The Australian Capital Territory Act also contains a comparable provision (again without the requirement of an oath).35 However, it also goes further than the New South Wales Act in that it not only allows disclosure when injury or property damage are threatened but also when it is necessary to report the commission or threat of such offences to the appropriate authorities.36
4.15 The Commission’s provisional view is that the additional oath provisions in the CJC Act appear to be unnecessary to the enforcement of secrecy relating to mediation proceedings and as such, should be removed.
ISSUE 29
Should the requirement that CJC mediators swear an oath be removed from the confidentiality provisions of the CJC Act?
4.16 The New Jersey Court Rules make similar provision with respect to confidentiality but add:
No mediator may participate in any subsequent hearing or trial of the mediated matter or appear as witness or counsel for any person in the same or any related matter.37
Such a protection could have the effect of allowing the parties to be completely open in their dealings with mediators, particularly in any pre-mediation sessions conducted by the mediator where each party is allowed to put their position to the mediator in a private session.
4.17 No problem was identified with the CJC confidentiality provisions when they were introduced into other New South Wales legislation in 1994.38 The Law Society at the time proposed that disclosure should be permitted with the consent of all parties – not just the party who supplied the information being disclosed. The proposal was rejected for the following reason:
To require ... that all parties must agree to the disclosure would provide a third party who may have no substantive interest in the information with a right to confidentiality that he would not have in the ordinary course of events. That could have the effect of undermining the process of mediation.39
The confidentiality provisions may ultimately be a reason why CJCs cannot work too closely with other government agencies, such as the Anti-Discrimination Board, so far as referral of matters goes.40
4.18 One additional issue is whether any specific acknowledgement should be made of the need to protect children from harm. Some of this will no doubt be covered by the permission to disclose where it is “necessary to prevent or minimise the danger of injury to any person”. However, the special vulnerability of children may necessitate the inclusion of mandatory reporting requirements such as those contained in the Children and Young Persons (Care and Protection) Act 1998 (NSW). If certain people who have professional dealings with children have, in the course of their work, reasonable grounds to suspect that a child is at risk of harm, the Act requires that they report these suspicions to the Director General of the Department of Community Services as soon as practicable.41 Such matters might especially come to the attention of mediators during the mediation of disputes between family members.
4.19 In family law matters the protection of children is specifically covered so that a mediator is required42 to swear or affirm that they will not disclose any communication to them in their capacity as a family and child mediator unless they believe it is reasonably necessary in order:
(a) to protect a child; or
(b) to prevent or lessen a serious and imminent threat to:
(c) to report the commission, or prevent the likely commission, of an offence involving:
ISSUE 30
(a) What exceptions, if any, should apply to the confidentiality provisions under the CJC Act?
(b) Should any list of exceptions specifically include the protection of children?
(c) When confidentiality is waived by consent, whose consent should be required?
Review by the Ombudsman
4.20 A further outcome of the confidentiality requirements is that the New South Wales Ombudsman may not investigate “conduct of a mediator at a mediation session under the Community Justice Centres Act 1983”.44
4.21 Similar protections are in place in Queensland where the Ombudsman may not investigate administrative actions taken by “a mediator at a mediation session under the Dispute Resolution Centres Act 1990”.45
4.22 An argument against oversight of the mediation process by the Ombudsman is that it might lead to mediators acting in a more legalistic manner.46
ISSUE 31
Should the Ombudsman be able to investigate the conduct of CJC mediators during mediations?
PRIVILEGES
4.23 The Act provides that mediation, and any related activities before and after a mediation, are the subject of certain privileges or immunities.
Defamation
4.24 The same privilege with respect to defamation that exists with respect to judicial proceedings also applies to mediations.47 This means that participants in a mediation conducted by a CJC enjoy the protections of absolute privilege.48
4.25 Similar provisions in relation to defamation were added to the statutes of various courts in 1994 and apply in relation to mediations and neutral evaluations where the matters have been referred by the courts under their respective statutes.49 The Australian Capital Territory has a comparable provision.50
Admissibility of evidence
4.26 Documents prepared in relation to a mediation session and evidence of anything said or any admission made in a mediation session are “not admissible in any proceedings before any court, tribunal or body”.51 Evidence is, however, admissible, “where the persons in attendance at, or named during, the mediation session and, in the case of a document, all persons named in the document, consent to admission of the evidence or document”,52 and also where there are proceedings arising from a situation where a mediator has disclosed information to “prevent or minimise the danger of injury to any person or damage to any property”.53 These protections are important from a public policy perspective in that they promote and safeguard the processes of mediation undertaken by the CJCs54 and promote a sense of trust and credibility among the Centres’ clients.55
4.27 Similar provisions in relation to admissibility of evidence were added to the statutes of various New South Wales courts in 1994 and apply where the courts have referred matters to mediations and neutral evaluations under their respective statutes.56 The Farm Debt Mediation Act 1994 (NSW) also provides that evidence of what was said in a mediation session or in documents prepared for the mediation of a dispute that comes under its jurisdiction is not admissible.57
4.28 The Victorian provisions cover similar ground to the New South Wales provisions except that only the consent of the persons present at the mediation is required to waive the privilege.58 Some Commonwealth statutes make no provision for the admissibility of evidence with the consent of any parties.59 The Australian Capital Territory statute contains comparable provisions60 but also incorporates the provisions of the Evidence Act 1995 (Cth) with respect to settlement negotiations.61 A question therefore arises concerning the interaction of the provisions relating to the admissibility of evidence under the CJC Act and those contained in the Evidence Act 1995 (NSW).
4.29 Compared with the provisions in Victoria and the Australian Capital Territory, the CJC Act makes it more difficult to get evidence admitted where all the parties to the mediation consent as it requires the consent of all persons named in a document to be obtained before the evidence can be admitted.62 The New South Wales Act also makes no provision for implied consent.63
4.30 However, use of a document in a mediation session should not quarantine it from production in legal proceedings. This would appear to be the case at common law. In 1992, Justice Rolfe drew a distinction between seeking to prove directly or indirectly what was said at a mediation, which was inadmissible, and seeking to prove:
by admissible evidence, a fact to which reference was made at mediation, not by reference to the statement but to the factual material which sourced the statement. A finding to the contrary would mean that irrespective of relevance to issues the statement at mediation made the factual material upon which it was based immune from subsequent consideration by the Court.64
In 1994 Justice Rogers also observed:
as a matter of principle it would be entirely too easy to sterilise otherwise admissible, objective, evidence simply by saying something about it in the course of the Mediation, even if the subject be irrelevant to the mediation discussion. That of course is not to be contemplated.65
4.31 An example of a provision clarifying the position may be found in the Ohio Revised Code:
This section does not prevent or inhibit the disclosure, discovery, or admission into evidence of a statement, document, or other matter that is a mediation communication but that, prior to its use in a mediation proceeding, was subject to discovery or admission under law or a rule of evidence or was subject to disclosure as a public record pursuant to section 149.43 of the Revised Code.66
4.32 The possibility has also been raised that evidence of mediation proceedings may be admissible in cases where the mediator or one of the parties has engaged in fraud, where there has been a “substantial failure” by the mediator to discharge his or her functions, or where there is an allegation of “very serious misconduct” or that there was effectively no mediation at all.67
Concealing a serious indictable offence
4.33 Finally, the Act provides that officers of CJCs are “not liable to be proceeded against for concealing a serious indictable offence without reasonable cause in respect of any information obtained in connection with the administration or execution of [the] Act”.68 There does not appear to be any equivalent provision in other New South Wales statutes.
ISSUE 33
Should officers of CJCs have immunity if they conceal a serious indictable offence without reasonable cause in respect of any information obtained in connection with the administration or execution of the CJC Act?
NON-ENFORCEABILITY OF OUTCOMES
4.34 The Act provides that any agreement reached at a mediation session “is not enforceable in any court, tribunal or body”.69 This provision was included because court enforcement of such resolutions would not be “consonant with the basic concept” that resorting to a CJC is a “real alternative to the court system”.70 However, there is nothing to prevent the parties, if they wish, from concluding an enforceable legal agreement at a later date.71 Such outcomes are common in other areas, for example, agreements incorporated into consent orders in family law cases.
4.35 Concerns have been raised in the literature about the non-enforceability of mediated agreements. Some commentators consider that making agreements enforceable would make CJCs more effective.72 However, there are a number of problems with such a proposal. For example, the question arises as to how such agreements are to be enforced. There is also the issue that if the parties are able to enter into a formal settlement with an enforceable outcome, they must be able to refer to legal advisors, otherwise some agreements might be unconscionable.73
4.36 Queensland adopted the New South Wales provision verbatim in 1990. However, in 1997, the following proviso was added to the non-enforceability of any agreement reached at a mediation session:
unless the parties agree in writing that the agreement is to be enforceable.74
This may have been necessitated by the move towards court-referred mediations which were formalised in the Queensland Act in 1997.75 In many of these cases the parties will already have legal practitioners to advise them.
ISSUE 34
Should it be possible to enforce agreements entered into at the end of a CJC mediation?
Footnotes
1. Victoria, Parliamentary Debates (Hansard) Legislative Assembly, 29 April 1987 at 1536.
2. Victoria, Parliamentary Debates (Hansard) Legislative Assembly, 29 April 1987 at 1536.
3. Community Justice Centres Act 1983 (NSW) s 27(1).
4. See, for example, Compensation Court Act 1984 (NSW) s 38K; District Court Act 1973 (NSW) s 164H; Land and Environment Court Act 1979 (NSW) s 61K; Local Courts (Civil Claims) Act 1970 (NSW) s 21S; Supreme Court Act 1970 (NSW) s 110R.
5. Dispute Resolution Centres Act 1990 (Qld) s 35(1).
6. Evidence Act 1958 (Vic) s 21N.
7. Mediation Act 1997 (ACT) s 12.
8. See H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 189.
9. Federal Court of Australia Act 1976 (Cth) s 53C. See also Family Law Act 1975 (Cth) s 19M.
10. Under Community Justice Centres Act 1983 (NSW) s 8. See NSW Parliamentary Debates (Hansard) Legislative Council, 26 November 1980 at 3587.
11. Community Justice Centres Act 1983 (NSW) s 27(1)(b).
12. Astor and Chinkin at 190-191. See also R Carroll, “Mediator immunity in Australia” (2001) 23 Sydney Law Review 185 at 205-219.
13. Astor and Chinkin at 191.
14. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at para 4.28, 4.36.
15. See para 3.56-3.58.
16. Community Justice Centres Act 1983 (NSW) s 27(2).
17. NSW Parliamentary Debates (Hansard) Legislative Assembly, 26 November 1980 at 3700.
18. Crimes Act 1900 (NSW) s 316. See NSW Law Reform Commission, Review of section 316 of the Crimes Act 1900 (NSW) (Report 93, 1999) at para 2.2.
19. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 26 November 1980 at 3701.
20. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 19 October 1983 at 1882.
21. Dispute Resolution Centres Act 1990 (Qld) s 35(2).
22. Crimes Act 1900 (NSW) s 4.
23. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 19 October 1983 at 1882.
24. Dispute Resolution Centres Act 1990 (Qld) s 35(3).
25. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 178.
26. NSW Parliamentary Debates (Hansard) 19 November 1980 at 3149.
27. Astor and Chinkin at 178.
28. US Model standards of conduct for mediators item V.
29. Community Justice Centres Act 1983 (NSW) s 29(1).
30. Community Justice Centres Act 1983 (NSW) s 29(2)(c), s 29(2)(f).
31. NSW, Parliamentary Debates (Hansard) Legislative Council, 10 May 1994 at 2144.
32. By the Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW). See, for example, Compensation Court Act 1984 (NSW) s 38J; District Court Act 1973 (NSW) s 164G; Land and Environment Court Act 1979 (NSW) s 61J; Local Courts (Civil Claims) Act 1970 (NSW) s 21R; Supreme Court Act 1970 (NSW) s 110Q. See also Legal Aid Commission Act 1979 (NSW) s 60F.
33. Dispute Resolution Centres Act 1990 (Qld) s 37. This section even includes reference to the disclosure of information for evaluation purposes even though that provision is no longer contained in the Queensland Act: Dispute Resolution Centres Act 1990 (Qld) s 34 was repealed by Courts Reform Amendment Act 1997 (Qld) s 35.
34. Evidence Act 1958 (Vic) s 21M.
35. Mediation Act 1997 (ACT) s 10.
36. Mediation Act 1997 (ACT) s 10(2)(d)(ii).
37. NJ Court Rules 1969 r 1:40-4(c).
38. NSW, Parliamentary Debates (Hansard) Legislative Council, 10 May 1994 at 2144.
39. NSW, Parliamentary Debates (Hansard) Legislative Council, 10 May 1994 at 2144.
40. See Anti-Discrimination Board, Preliminary submission at 9.
41. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 27.
42. By Family Law Act 1975 (Cth) s 19K.
43. Family Law Regulations 1984 (Cth) reg 66, reg 67.
44. Ombudsman Act 1974 (NSW) Sch 1 cl 18 and s 12.
45. Ombudsman Act 2001 (Qld) s 16(2)(f).
46. NSW, Parliamentary Debates (Hansard) Legislative Council, 22 November 1983 at 3024.
47. Community Justice Centres Act 1983 (NSW) s 28(2).
48. NSW Law Reform Commission, Defamation (Report 75, 1995) at para 11.28-11.29.
49. Supreme Court Act 1970 (NSW) s 110P(1)-(3); Local Courts (Civil Claims) Act 1970 (NSW) s 21Q(1)-(3); Land and Environment Court Act 1979 (NSW) s 61I(1)-(3); District Court Act 1973 (NSW) s 164F(1)-(3); Compensation Court Act 1984 (NSW) s 38I(1)-(3).
50. Mediation Act 1997 (ACT) s 11.
51. Community Justice Centres Act 1983 (NSW) s 28(4), s 28(5).
52. Community Justice Centres Act 1983 (NSW) s 28(6)(a).
53. Community Justice Centres Act 1983 (NSW) s 28(6)(b).
54. See AWA Ltd v Daniels (1992) 7 ACSR 463 at 469; Lukies v Ripley (No 2) (1994) 35 NSWLR 283 at 289.
55. NSW Parliamentary Debates (Hansard) Legislative Assembly, 19 November 1980 at 3149.
56. Compensation Court Act 1984 (NSW) s 38I(4)-(6); District Court Act 1973 (NSW) s 164F(4)-(6); Land and Environment Court Act 1979 (NSW) s 61I(4)-(6); Local Courts (Civil Claims) Act 1970 (NSW) s 21Q(4)-(6); Supreme Court Act 1970 (NSW) s 110P(4)-(6).
57. Farm Debt Mediation Act 1994 (NSW) s 15(1).
58. Evidence Act 1958 (Vic) s 21L. See also Supreme Court (General Civil Procedure) Rules 1996 (Vic) r 50.07(6).
59. See Family Law Act 1975 (Cth) s 19N; Federal Court of Australia Act 1976 (Cth) s 53B.
60. Mediation Act 1997 (ACT) s 9.
61. Evidence Act 1995 (Cth) s 131.
62. Community Justice Centres Act 1983 (NSW) s 28(6)(a).
63. See Evidence Act 1995 (NSW) s 131(2)(b), s 131(2)(c).
64. AWA Ltd v Daniels (NSW SC, No 50271/1991, Rolfe J, 18 March 1992, unreported) at 12.
65. AWA Ltd v Daniels (1992) 7 ACSR 463 at 468.
66. Ohio Revised Code §2317.023(D).
67. Gain v Commonwealth Bank of Australia (1997) 42 NSWLR 252 at 266; Commonwealth Development Bank of Australia Ltd v Cassegrain [2002] NSWSC 940 at para 12 and 13.
68. Community Justice Centres Act 1983 (NSW) s 28(7).
69. Community Justice Centres Act 1983 (NSW) s 23(3).
70. NSW Parliamentary Debates (Hansard) Legislative Assembly, 19 November 1980 at 3149.
71. See W Faulkes, “Runs on the mediation scoreboard” (1985) 59 Law Institute Journal 206 at 207.
72. J Schwartzkoff and J Morgan, Community Justice Centres: a report on the New South Wales pilot project, 1979-81 (Law Foundation of NSW, 1982) at 194; W Harris, “Consumer disputes and alternative dispute resolution” (1993) 4(3) Australian Dispute Resolution Journal 238 at 242.
73. See R P Meagher, Meagher, Gummow and Lehane’s equity: doctrines and remedies (4th edition, Butterworths, 2002) at 16-035.
74. Dispute Resolution Centres Act 1990 (Qld) s 31(3) as amended by Courts Reform Amendment Act 1997 (Qld) s 34.
75. Courts Reform Amendment Act 1997 (Qld) Pt 5.
