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Practice Note Number 26

Mediation: Guideline

Practice Note for Date:



    1. Purpose

    This guideline outlines the procedures that the Tribunal will follow when conducting mediations. It repeals and replaces Practice Note number 16 issued on 30 June 2004.

    2. What is mediation?

    Mediation is defined in the
    Administrative Decisions Tribunal Act 1997 (ADT Act) 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.”

    Mediation is one form of Alternative Dispute Resolution provided for by the ADT Act. The other form, neutral evaluation, is not currently in use.

    The main features of mediation under the ADT Act are that:
      it is voluntary. All parties must consent to mediate and are free to withdraw at any stage.
      the mediator is a trained to conduct mediations and is impartial. He or she does not take sides.
      It is a confidential process. With rare exceptions, anything said by a party during a mediation session cannot be used as evidence in the hearing. In general, the mediator cannot disclose information provided by the parties without their consent and the parties cannot disclose information communicated during the mediation. (For further details, see the Agreement to Mediate and Administrative Decisions Tribunal Act 1997, s 107 and 108 and the Information on Mediation sheet.)

    3. Objectives of referral to mediation

    The objective of referring a matter to mediation is to provide a quick and effective mechanism for resolving or partly resolving applications that are before the Tribunal. The Tribunal will only refer certain kinds of applications to mediation. (See below under the heading “Types of matters the Tribunal refers to mediation”)

    4. Advantages of mediation

    A successful mediation has several advantages over a contested hearing. These advantages are that:
      there is a high level of satisfaction among participants;
      parties can agree to a settlement that the Tribunal would not have the power to order. For example, parties may agree to changes in the policies or procedures of an organisation even if the Tribunal could not make such an order;
      it is quicker and cheaper than a full Tribunal hearing; and
      it is private in contrast to hearings which are usually open to the public.
    5. Types of matters the Tribunal refers to mediation

    The Tribunal refers the following kinds of matters to mediation:
      complaints under the Anti-Discrimination Act 1977 (Equal Opportunity Division);
      applications under the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998 and Health Records and Information Privacy Act 2002 (General Division); and
      applications for review of decisions under the Children and Young Persons (Care and Protection) Act 1998 (Community Services Division).
    In the Retail Leases Division, parties to a retail tenancy dispute must attempt mediation before an application is lodged with the Tribunal. The Retail Tenancy Unit of the Department of State and Regional Development conducts those mediations.

    Mediations are not normally available in the General Division or the Community Services Division except in relation to the kinds of matters listed above. Mediation is not available for any proceedings in the Legal Services Division, in other professional discipline cases or in the Revenue Division.

    Even if mediation is available, the ADT Act prevents a matter being referred to mediation unless the circumstances are appropriate. The circumstances may not be appropriate where:
      a) a party does not have the intellectual, physical or psychological capacity to meaningfully engage in the process. However, the Tribunal can appoint a person to represent someone who is totally or partially incapable of representing him or herself in mediation. That person would normally be a “best interest” representative, that is, a representative who is not bound to act on the instructions of the incapacitated person.

      b) there is a history of sexual harassment, violence or extreme animosity between the parties, including a restraining order such as an Apprehended Violence Order between two or more parties. In those cases one or more parties may feel intimidated by being in the same room as another party. In these cases a mediation may be held if the parties are separated throughout the mediation.

    6. Cost

    Although the ADT Act provides that the cost of mediation is to be shared among the parties, parties do not have to pay for a mediation conducted internally by a mediator on the Tribunal’s panel of mediators. The parties will have to pay their own legal costs if they engage a lawyer. The parties also pay for their own travel costs. The Tribunal does not reimburse parties for any lost wages while attending a mediation. The Retail Tenancy Unit charges parties for mediations.

    7. Venue

    The Tribunal can hold a mediation anywhere in New South Wales as long as there is a suitable room or rooms available. The Tribunal will choose a venue that is most convenient for all the parties.

    8. Who attends?

    The following people must attend the mediation:
      the mediator;
      each of the parties who have agreed to mediate. If the party is a corporation or a government agency, a person who has authority to settle the matter on behalf of the corporation or agency should attend.

    With the consent of the mediator, each party can bring one or more people, including a lawyer, agent or support person to assist or advise them.

    In some cases the applicant is aggrieved by the conduct of a person who is not a party to the proceedings or to the mediation. That situation could arise in equal opportunity matters where the person who is alleged to have sexually harassed the applicant is not a party, or has not agreed to mediate. A similar situation could arise in relation to a public sector agency in privacy complaints where the person whose conduct is the subject of the application, is not the nominated representative of the organisation or agency, attending the mediation. In either case, the applicant cannot expect a particular person to attend the mediation unless that person is a party. Where the party is a private organisation or a public sector agency, it is strongly recommended that, wherever possible, the person who does attend has the authority to resolve the matter on behalf of the respondent.

    Each party, or representative of a party, should attend the mediation in person. In rare cases where it is not physically or financially possible for a person to attend in person, arrangements can be made for that person to take part by phone. Face-to-face mediation is always better than mediation by phone but the Tribunal understands that if it is not possible for a person to attend a mediation, participation by phone is the next best option.

    9. Timing of mediation

    A mediation can be held:
      after the first meeting at the Tribunal; or
      any time before the hearing.
    Mediation after the first meeting at the Tribunal. A Tribunal Member will offer mediation to the parties at the first case conference, planning meeting or directions hearing, if the circumstances are appropriate. If the parties agree to mediate, the Tribunal Member will allocate a mediation date and the Registry will arrange for a mediator to conduct the mediation within a few weeks, at a time and place that is the most convenient for all the parties. Generally parties will not be directed to prepare witness statements or other documents before the mediation takes place. However, the Tribunal Member may make directions as to the filing and service of statements and submissions that will come into effect if the mediation is unsuccessful. A hearing date will be allocated if the mediation fails to resolve the dispute.

    Mediation before a hearing. Even if parties do not choose to mediate after the first meeting at the Tribunal, they may change their mind and request mediation at any stage before the hearing takes place. The Tribunal is not obliged to offer mediation if it is not appropriate. Parties may try to settle the case without help from a Tribunal mediator. The Tribunal cannot generally offer mediation on the day of the hearing because it is unlikely that a mediator would be available on such short notice.
    It is possible to have more than one mediation session if the matter is not resolved at the first mediation.

    10. The mediator and his/her role

    A person on the Tribunal’s list of mediators with formal training in mediation will conduct the mediation.
    The role of the mediator is to:
      be independent and impartial;
      assist discussion;
      ensure the parties remain focussed and respectful to each other; and
      help the parties to identify concerns, think about and evaluate options and negotiate an agreement.
    The mediator will not:
      offer any opinion about who is “right” or “wrong”;
      give any legal or other professional advice; or
      make decisions for any of the parties.

    The mediator may telephone the parties before the mediation to make sure that they are prepared for mediation. The mediator can only disclose information obtained in connection with a mediation in limited circumstances. For example, the mediator can disclose information with the consent of the person to whom it relates or in order to carry out their role as a mediator. The mediator will not be involved in the hearing of the matter if the mediation does not resolve the dispute.

    11. Preparing for mediation

    Before mediation, parties should make a list of:
      their concerns;
      what they think the other party’s concerns may be;
      options that may address the concerns of all the parties;
      the alternatives if mediation is not successful; and
      any questions that they may have.
    Parties should bring any factual reports such as medical reports or investigator’s reports or other documents that are relevant to their application.

    12. The mediation session

    The mediator will normally begin by outlining their role and the mediation process. Each party will then be given an opportunity to express their concerns. Following this exchange of information, the parties will be asked to suggest options which are likely to be acceptable to everyone. The mediator may wish to speak to the parties individually to help them develop options that may resolve the dispute. Generally the parties will meet again to come to a final agreement.

    13. Outcome of mediation

    If the parties agree to a settlement at the mediation, they should make a written record the agreement and sign it. A document prepared as a result of a mediation session is normally not admissible in evidence before a court or tribunal. If the agreement contains outcomes, which the Tribunal could order, then the parties may wish the Tribunal to make orders in terms of the agreement reached between the parties. The matter will be listed before the Tribunal to make those orders. If the agreement contains outcomes that the Tribunal does not have the power to order (such as changes to an organisation’s procedures) then the document remains an agreement between the parties. In that case the Tribunal will order that the application be dismissed.

    14. Helping us to improve our service

    The Tribunal is committed to continually improving its alternative dispute resolution services. Parties and their representatives may be asked to complete a survey immediately following the mediation. The mediator will give you a copy of the survey and ask you to complete it confidentially and hand it to the Registry. If your mediation is held outside Sydney, then you can either give the survey to the mediator or post it to the Tribunal later.

    Issued 24 November 2010

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