Order 2 Rule 9 of the ADR Rules 2022 sets the timetable, and Rule 10 sets what is expected of the people in the room.
Rule 9
(1) Within five business days of receiving notification of appointment, a mediator must either decline the appointment, or accept the appointment and notify the parties in writing.
(2) Unless the Court otherwise directs, the parties and the mediator must conduct the mediation with the object, so far as practicable, of completing the mediation within two calendar months from the date of the appointment of the mediator.
(7) The mediator shall file with the Court a certificate in Form 3A, 3B, 3C or 3D within three business days of the completion of the mediation or before the matter returns to Court.
Rule 9(3): the mediation shall commence with the first contact between the mediator and any one of the parties and shall include all communications between the mediator and any of the participants.
That is wider than the conference itself. Everything from the mediator’s first telephone call is part of the mediation — which matters for confidentiality and admissibility.
Rule 9(5): where it is clear the process will not conclude by the due date, the mediator and the parties shall provide progress reports in Form 2 to the Court and the ADR Service prior to the expiry of the date fixed for the return of the mediation orders.
Rule 10(4) to (8)
(4) Unless the Court or the mediator otherwise directs, a mediation session shall be attended by each party or if a party is a corporation then by an officer of the corporation having full authority to settle the proceeding.
(5) If the conduct of the proceeding is controlled by an insurer, an officer of the insurer having full authority to settle the proceeding shall attend each mediation session.
(6) A person required to attend must attend in person unless granted leave by the Court or the mediator to attend by telephone, video link, or other form of telecommunication, in consultation with the other parties.
(8) A party may be accompanied by that party’s lawyer or legal representative and such other persons as the mediator and the other parties may approve.
The requirement is full authority to settle. A representative who has to seek instructions on any figure above a set limit does not have it, and the mediator may treat the attendance as non-compliance under Rule 11.
For the State, that means an officer with actual settlement authority — a point that requires arrangement in advance. See suing the State.
Rule 10(1) to (3)
(1) Each party shall take such steps as may be necessary to ensure that the mediation conference occurs as soon as possible and shall refrain from taking or failing to take any step that would delay the mediation process.
(2) Each party must participate in good faith in the mediation and not impede the mediator in conducting and completing the process within time.
(3) As the purpose of mediation is to resolve disputes, the parties shall focus on finding a solution to their dispute and shall refrain from engaging in legal debates or arguments.
A mediation is not a hearing. A lawyer who arrives to argue the case is not complying with Rule 10(3), and the conduct is visible to the mediator, who may issue a bad faith certificate in Form 3D.
Rule 10(9) and (10)
- Act in good faith regarding the conduct of the mediation and not do anything to impede, inhibit, or delay its commencement and completion.
- Prepare adequately and be aware of all relevant legislative provisions and case law relating to the issue in dispute, as well as the law on mediation.
- Provide competent legal advice to the client before, during and or after the mediation.
- Discharge their obligations under the Professional Conduct Rules and the Lawyers Act, especially as regards settlement of matters.
- Engage in a meaningful way with all other participants to settle the matter fully.
- Use their best endeavours to collaborate with the other parties and their lawyers to produce a settlement agreement facilitated by the mediator.
A lawyer who represents a party and does not attend and meaningfully participate in a mediation process is precluded from providing any advice that operates against a mediated agreement or proposed mediated agreement.
A lawyer who stays away and then advises the client to reject what was negotiated is, on the face of the rule, disabled from doing so.
The mediator’s obligations at the end
(6) Where the parties reach a mediated agreement, the mediator shall, with the assistance of the parties’ lawyers if any, ensure that the agreement is reduced into writing and signed and dated by the parties.
(8) Where the proceeding is fully or partially resolved, the Form 3A or 3B certificate shall be accompanied by copies of (a) the signed mediated agreement — unless the parties mutually agree in writing that the terms of settlement should remain confidential — and (b) a draft order by consent for endorsement or consideration by the Court.
Rule 9(4): a mediator may at any stage issue such directions to the parties as may be necessary for the effective conduct and prompt conclusion of the mediation, including directions for referral to the Court of any issue or question of law which in the opinion of the mediator requires judicial determination before any further step can be taken.
Order 2 Rule 4(3) and (4) confirm the referral power and require that the issue be stated with the relevant facts settled and agreed to by the parties with the assistance of the mediator.
On outcomes, see if it settles and if it does not.
Sources
- Alternative Dispute Resolution Rules 2022 — O 2 rr 4, 9–11; Sch 2 Forms 2, 3A–3D
- National Court Act (Chapter 38) — ss 7C, 7D
The ADR Rules 2022 are on PacLII as a PDF only. The Professional Conduct Rules 1989 and the Lawyers Act 1986 are not available on PacLII.
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.