The NSW Law Reform Commission has now released its Consultation Paper 18 - Dispute Resolution: Model Provisions (15 December 2016) as part of its inquiry aimed at improving legislative provisions dealing with alternative dispute resolution.
The Terms of reference require the Commission to review the statutory provisions that provide for mediation and other forms of alternative dispute resolution with a view to updating those provisions and, where appropriate, recommending a consistent model or models for dispute resolution in statutory contexts, including court ordered mediation and alternative dispute resolution.
In undertaking this review the Commission was required to have regard to:
- the desirability of just, quick and cheap resolution of disputes through use of mediation and other forms of dispute resolution in appropriate contexts
- issues of referral powers (including timing of referrals), confidentiality, status of agreements reached, and proper protections required for the parties, mediators, and others involved in dispute resolution
- the proper role for legislation, contract and other legal frameworks in establishing frameworks for dispute resolution
- any related matters the Commission considers appropriate.
In its new consultation Paper, the Commission acknowledged that in recent years, there have been substantial international developments regarding the provisions for mediation. In particular, many jurisdictions have used the United Nations Commission on International Trade Law (“UNCITRAL”) Model Law on International Commercial Conciliation 2002 as a basis for relevant laws.
The Commission has decided that it sees "a benefit in developing model provisions that would apply to mediations taking place outside any statutory or judicial context, unless their application was excluded" (1.6). Despite the patchwork nature of the statutory provisions in NSW, the Commission was not persuaded that there would be significant benefit in attempting to rationalise these provisions into one or a small number of models.
The Commission has developed model mediation provisions on a limited range of topics:
- confidentiality and privilege
- mediators’ immunity
- termination of mediation, and
- enforcement of the outcome of the mediation.
These are the areas identified in submissions as being most in need of consistency and clarity.
The majority of submissions did not support:
- provisions governing representation during mediation
- a requirement of good faith participation, or
- provisions governing the choice of mediation practitioners.
Stakeholders thought it would be difficult to achieve uniformity in these areas in light of the wide variety of contexts in which mediation takes place.
Submissions on the proposed model provisions may be sent to the NSWLRC by email or post: GPO Box 31, Sydney NSW 2001. The closing date for submissions is Friday, 17 March 2017.