Date:

12/17/2003

PRACTICE NOTE No 125



MEDIATION



This Practice Note concerns proceedings referred to mediation under Part 7B of the Supreme Court Act 1970. This Practice Note replaces Practice Note No 102 and Practice Note No 118 and will apply from 1 January 2004.

Referrals generally

1. Part 7B of the Supreme Court Act 1970 permits the Court at any stage of the proceedings, by order, to refer parties to mediation where, in the opinion of the Court, mediation appears appropriate. The Court’s power does not depend on the consent of the parties, or of any of the parties.

2. It is not the intention of the Court that mediation will be ordered in all proceedings.

3. The parties themselves may, at any time, agree to mediation, nominate a mediator and request the Court to make the appropriate orders.

4. The Court may consider ordering mediation on the motion of a party, or on referral by a registrar, or on the Court’s own motion. Where mediation is ordered, the parties will usually agree on the person to be the mediator. If they do not:
(a) the Court may select the mediator to be appointed or may appoint the mediator pursuant to the Joint Protocol set out in this Practice Note;
(b) the Court may refer the proceedings to a registrar certified by the Chief Justice as a mediator to meet with the parties to discuss mediation and report back to the Court with a recommendation as to whether the proceedings are suitable for mediation; or
(c) the Court may decide against ordering mediation.
5. The Joint Protocol describes the expected course but its terms are not mandatory.

6. The Court requires the parties to inform the Court of the outcomes of mediations ordered by the Court. Where a mediator is appointed under the Joint Protocol, the Court also requires the parties to provide the Joint Protocol Evaluation Information referred to in the Joint Protocol, which should be sent in writing to the Principal Registrar.

Referral to a registrar

7. Where the Court refers proceedings to a registrar the registrar will notify the parties of the time and place for an information session. It is anticipated that the information session will take no more than 15 to 30 minutes. Parties as well as their representatives must attend the session.

8. At the conclusion of the information session, if the parties agree to mediation, the registrar will make the necessary orders. If the mediator is to be a registrar, directions may be given for the filing and serving of position statements and any documents, reports, valuations etc that will assist the parties and the mediator. A direction will generally require all parties to the mediation to exchange relevant material not less than seven days before the mediation.

9. Where the parties do not agree to mediation or to a mediator, the registrar will report to the Court the outcome of the information session with his or her recommendation.

Proceedings case-managed by registrars

10. A registrar may, at his or her discretion, refer proceedings that in the opinion of the registrar are suitable for mediation, to the Court notwithstanding that the parties, or any one of them, do not consent to mediation.

Mediators

11. A person may be appointed by the Court as a mediator if the person:

(a) consents to being appointed; and
(b) agrees to comply with the provisions of Part 7B of the Supreme Court Act and the provisions of this Practice Note.

12. The Chief Justice may certify registrars of the Court as qualified mediators.

13. Section 110R of the Supreme Court Act describes the exoneration from liability that exists for mediators appointed under the provisions of this Practice Note.

Form of order for referral to mediation

14. Where proceedings are referred to mediation under section 110K of the Supreme Court Act, the Court’s order should provide one of the following:

(a) if the parties agree on a mediator or if the Court appoints a specific mediator (for example, where specific expertise is considered desirable), an order should be made that the proceedings be referred to that mediator; or
(b) if the Court appoints a registrar as the mediator, the order should be that the proceedings be referred to that registrar for mediation; or
(c) otherwise, the order should be that if the parties cannot agree on a mediator within a specified time (say 14 days) after the referral under section 110K of the Supreme Court Act 1970, the Joint Protocol described in this Practice Note then will apply and the mediator will be the person appointed under the Joint Protocol.


JOINT PROTOCOL

P1. Obligation of the plaintiff(s)

P1.1. Where the Court’s order requires a mediator to be appointed pursuant to the Joint Protocol, the plaintiff sends to the Principal Registrar a copy of the pleadings, or a copy of the summons if there are no pleadings, and informs the Principal Registrar of the Joint Protocol Referral Information. The plaintiff gives the Principal Registrar this information by letter within seven days of the Court’s order and at the same time gives each other party a copy.
P1.2. The Joint Protocol Referral Information is:
P1.2.1. the Court’s order referring the proceedings to mediation;
P1.2.2. the nature of the proceedings; and
P1.2.3. the identity of the parties.

P2. Role of the Principal Registrar

P2.1. The Principal Registrar keeps a list of proceedings in which the plaintiff(s) has informed him or her of the Joint Protocol Referral Information.
P2.2. The Principal Registrar sends the Joint Protocol Referral Information and accompanying documents to one of the nominating entities listed at paragraph P3.2, with a request for nomination of a person as the mediator in the proceedings. The Principal Registrar sends the information on the day of receiving it or the following day.

P3. Nominating entities

P3.1. The Court’s Alternative Dispute Resolution Steering Committee keeps a list of professional associations that accredit mediators and provide mediation services suitable for Supreme Court proceedings.
P3.2. The initial nominating entities are:
P3.2.1. the NSW Bar Association;
P3.2.2. the Law Society of New South Wales;
P3.2.3. the Institute of Arbitrators and Mediators Australia;
P3.2.4. the Australian Commercial Disputes Centre;
P3.2.5. LEADR;
P3.2.6. the Australian Branch of the Chartered Institute of Arbitrators.

P4. Fees for mediation

P4.1. The Court may request that the President or Chief Executive Officer of any of the nominating entities consider providing mediation on a reduced or no fee basis.

P5. Role of the nominating entity

P5.1. Each of the nominating entities establishes a panel of suitable persons to whom Court ordered mediations may be referred. Each nominating entity regularly reviews its panels.
P5.2. Within seven days of receiving the Joint Protocol Referral Information the President, the Chief Executive Officer or a delegate nominates in writing a person who:
P5.2.1. is a suitably qualified and experienced person, and
P5.2.2. consents to the nomination as the mediator in the proceedings,
to the Principal Registrar and provides the telephone number, facsimile number and email address of the mediator.
P5.3. The person nominated is a person named on the panel of a nominating entity, but not necessarily on the panel of the nominating entity to which the Principal Registrar sent the Joint Protocol Referral Information.
P5.4. Where the Court has requested mediation on a reduced or no fee basis the nominating entity endeavours to nominate a mediator who will provide mediation services on this basis.
P5.5. A co-mediator can also be nominated if the President, Chief Executive Officer or delegate considers that this is warranted.

P6. Effective date of appointment of mediator

P6.1. On receipt of a nomination under paragraph P5.2 (and under paragraph P5.4, if applicable), the Principal Registrar promptly, by letter, facsimile or email, informs the parties to the proceedings of the name, telephone number, facsimile number and email address of the mediator (and any co-mediator).
P6.2. When the Principal Registrar has dispatched the notifications referred to in paragraph P6.1, the person nominated by the President or the Chief Executive Officer of the nominating entity as the mediator (and any co-mediator so nominated) is deemed to have been appointed the mediator (and the co-mediator, if applicable) in the proceedings under s. 110K of the Supreme Court Act 1970.

P7. Request for review of appointment of mediator

P7.1. A party to the proceedings may request the judicial officer who made the order referring the proceedings to mediation to review the appointment of the mediator (and the co-mediator, if applicable). Such a request should:
P7.1.1. be in writing;
P7.1.2. be received by the Principal Registrar within 10 days of dispatch of notifications under paragraph P6.1;
P7.1.3. state with specificity the objections that the party has to the mediator that has been appointed; and
P7.1.4. be served by the party making the request on the other parties to the proceedings.

P8. Evaluation of referral of proceedings to mediation and entry of any consent orders

P8.1. Within 14 days after the conclusion of the mediation, the plaintiff in writing informs the Principal Registrar of the following (“Joint Protocol Evaluation Information”):

P8.1.1. the name and file number of the proceedings;
P8.1.2. the name of the mediator;
P8.1.3. the date(s) of the mediation;
P8.1.4. the number of hours occupied by the mediation;
P8.1.5. whether the parties were represented at the mediation by solicitors;
P8.1.6. whether the parties were represented at the mediation by counsel;
P8.1.7. whether the parties agreed to settle, or partly settle, the proceedings or whether no resolution of any issues was achieved;
P8.1.8. to the extent that any terms of settlement are not confidential to the parties, the terms of settlement; and
P8.1.9. if the parties agreed to the Court making orders, a signed consent order in a form suitable for entry by the Registry.
P8.2. On receipt of the Joint Protocol Evaluation Information, the Principal Registrar will forward a copy of that information to the relevant nominating entity.





17 December 2003 Chief Justice


This Practice Note is available on the Supreme Court’s website: www.lawlink.nsw.gov.au/sc