The Alternative Dispute Resolution Rules 2022 were certified by the Chief Justice on 29 July 2022 and came into force on 1 September 2022. They are among the most consequential changes to National Court practice in recent years.
The statutory foundation
Section 184 of the Constitution — the general rules of court power.
Section 7E of the National Court Act (Chapter 38) — the judges may make rules of the Court to further elaborate and provide for the conduct of mediation, maintaining of appropriate standards and guidelines for mediation, qualification and training of mediators by appropriately qualified mediators and remuneration or fee for mediators.
Part IIA of the Act (sections 7A to 7E) is the parent scheme; the Rules fill it out.
Section 7B(2) — at any stage of a proceeding, the Court may, whether with or without the consent of the parties, order that the proceeding or a part of it be referred to mediation.
Section 7B(5) — unless the Court otherwise orders, an order for mediation shall not operate as a stay of the proceedings nor shall it be a cause for delaying in getting the case ready for trial.
Section 7C(3) — a mediator acting bona fide shall have the same immunity from prosecution as a judge of the Court.
Section 7D(4) — if the mediation does not result in a settlement, the proceeding shall continue to trial before a judge other than the judge who mediated the dispute.
The long title
(a) establish a system of accreditation, standards and code of conduct for mediators and providers of other forms of ADR for a proper conduct of mediation and other forms of ADR;
(b) promote integrity and respect for a system of Court-annexed ADR; and
(c) give effect to the Constitutional imperative to resolve disputes peacefully through consensus.
The National Goals and Directive Principles in the Constitution speak to Papua New Guinean ways of solving disputes, and the Rules expressly recognise a customary form of mediation — a form of mediation based on a customary process which may involve the provision of some wise counsel by the mediator based on experience, knowledge and exposure to the subject matter in dispute.
Order 2 Rule 3(6) carries that through: where the matter involves groups of people as in representative actions or customary land-owning groups, the mediation order may provide for the mediation to take place at a venue where the majority of those groups of people are located and can attend.
Seven Orders and five Schedules
| Order | Subject |
|---|---|
| Order 1 | Preliminary — commencement, repeal of the 2010 Rules, and the definitions |
| Order 2 | Mediation in proceedings — dispensation, ordering mediation, appointment, fees, process, duties, bad faith, confidentiality, enforcement, admissibility |
| Order 3 | Accreditation mechanism and process — five Divisions, including the ADR Committee and the Mediator Accrediting Council |
| Order 4 | Code of Professional Conduct for ADR Practitioners — four Divisions |
| Order 5 | Discipline of mediators — the Complaints Officer, the Complaints Authority and the Appeals Board |
| Order 6 | Referrals |
| Order 7 | Review of the ADR Rules |
| Schedules 1–5 | Accreditation requirements; Forms; ADR Service fees; practising certificate fees; complaints filing fee |
The forms recognised
Forms of alternative dispute resolution which includes mediation, arbitration, conciliation, expert case appraisal, early neutral evaluation, settlement conferencing, any combination of them and such other forms of dispute resolution that are different from the formal court process — and it includes any process undertaken to avoid or otherwise minimise prolonged disputes in the future.
A blended process is a form of ADR that combines two or more forms of ADR employed to help resolve a dispute or conflict.
Order 2 Rule 1 is explicit: This Order applies to mediation only.
So although the Rules define and regulate the whole range of ADR — and provide for accreditation and discipline of ADR Practitioners, meaning a person who practises any form of ADR other than mediation under these Rules — the court-annexed machinery in Order 2 is about mediation.
Why they matter in practice
- Mediation became the default. Under Order 2 Rule 2(1), after commencement of the Rules no further step may be taken in any proceedings after the filing of the defence, the expiry of the time for filing it, or the first appearance in Court — unless leave to dispense with mediation is granted. See court-ordered mediation.
- Mediators must be accredited. A mediator is defined as a neutral third party who is accredited as such and holds a current practising certificate under these Rules.
- There are real consequences for bad faith. Order 2 Rule 11 allows the Court to dismiss the proceeding, strike out a defence and enter judgment, or order indemnity costs. See failing to attend.
- Mediated agreements are enforceable. Order 2 Rule 13 gives an agreement reached in mediation the same force and effect as an ordinary contract, and provides a route to have it endorsed by the Court. See successful mediation.
Order 1 Rule 2: These Rules supersede the ADR Rules 2010 which are hereby repealed but all actions and steps taken under those Rules remain unaffected as if done under these Rules.
The saving matters for matters that were already in mediation on 1 September 2022 — steps taken under the old Rules stand.
Sources
- Alternative Dispute Resolution Rules 2022 — long title; O 1 rr 1–3; O 2 rr 1–3, 11, 13
- National Court Act (Chapter 38) — Part IIA, ss 7A–7E
- Constitution — s 184
PacLII carries the ADR Rules 2022 as a PDF at the page linked above; the text is not reproduced there in HTML. Commencement was fixed at 1 September 2022 by notice in National Gazette No G621 of 8 August 2022.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.