Most mediations settle. When one does not, the ADR Rules 2022 require the parties to do more than simply return to the queue.
Order 2 Rule 9(7)
The mediator shall file with the Court a certificate similar to Form 3A, Form 3B, Form 3C or Form 3D of Schedule 2 within three business days of the completion of the mediation or before the matter returns to Court.
Where the mediation has not settled the case, the certificate records that. Where a party has failed in its duties, the mediator may issue a bad faith certificate in Form 3D under Rule 11(1), a copy of which shall be furnished by the mediator to all parties.
Rule 9(5): where it is clear the process will not conclude by the due date — the two calendar months in Rule 9(2) — 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.
So a mediation that is going slowly should be reported before, not after, the deadline passes.
Order 2 Rule 3(8)
If the mediation does not fully resolve the proceeding, the parties shall, together with the assistance of the mediator —
(a) identify what meritorious legal issues of the type listed in Order 2 Rule 2(3)(b)(i) to (x), if any, are presented;
(b) if an issue of another type is presented, demonstrate how and why such an issue is beyond resolution by mediation;
(c) confirm that such issues, after reasonable enquiry having been made by the parties and the mediator, are not issues which have already been determined by any Court in Papua New Guinea, and demonstrate how they cannot be resolved by reference to other case authorities that might be on point; and
(d) agree and settle the relevant facts upon which such issues are presented, after which the mediator shall file with the Court an appropriate certificate similar to Form 2B or 2C.
Paragraph (c) requires the parties to satisfy themselves, after reasonable enquiry, that the remaining issues are genuinely novel. Where an issue has already been decided by a court in Papua New Guinea, the parties are expected to say so — and the case for a trial on that issue correspondingly weakens.
The upside is real: paragraph (d) produces agreed facts. A case that returns from mediation with the facts settled and the issues defined is a materially shorter trial. Compare deciding a question separately and agreed facts.
Section 7D(4)
If the mediation does not result in a settlement of the relevant proceeding, the proceeding shall continue to trial before a judge other than the judge who mediated the dispute.
Where a mediation conducted by a Judge does not settle, section 7D(4) applies without limiting —
(a) the Judge’s powers to make such orders and issue such directions as are necessary to have the proceeding progressed to trial expeditiously before a different Judge; and or
(b) the parties’ right to allow by their consent for the Judge to preside and make a binding decision for them on all or parts of the unresolved issues.
Paragraph (b) is a form of what the Rules define as judicial dispute resolution — a process in which a judicial officer first attempts settlement and, failing that, receives submissions on such of the facts as the parties may agree and issues a binding opinion without a full trial or hearing. It requires the parties’ consent.
Order 4 Rule 15
(1) If a continuation of the process might harm or prejudice any of the parties.
(2) If any party or their advisers are seeking to misuse the mediation process to achieve other ends, such as — delaying proceedings to prolong litigation or cause loss of the other party’s evidence; “buying” time in order to dissipate or conceal assets; attending other than in good faith; merely exhausting the usefulness of the mediation process as a matter of formality only with no real commitment; or causing prejudice to other parties.
(5) Where the parties reach an agreement that is unconscionable in the mediator’s opinion, the mediator may terminate the mediation.
Rule 15(3): before suspending or terminating, a mediator shall first give reasonable notice of his intention to do so to the parties and the reasons.
Rule 15(4): unless the parties make real and genuine effort towards proper use of the mediation process and satisfactorily address the reason given, the mediator shall effect the suspension or termination.
So a warning is an opportunity, and the response to it is what determines whether the process ends. Where the failure is a party’s, the consequences under Rule 11 can be severe.
Where the case stands
- Nothing was stayed. Section 7B(5) — 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; and Order 2 Rule 4(1)(c) says the same. A party who stopped work during the mediation has lost time it will be expected to explain.
- The evidence stays out. Rule 14 keeps what was said at the mediation inadmissible, subject to the Rule 12(3) exceptions.
- Costs may follow the conduct. Rule 11(2)(e) allows costs on an indemnity or lawyer and client basis against a party that did not participate in good faith. See indemnity costs.
- The case is listed as normal — mentions, directions and a pre-trial conference under Order 10 Rule 9A. See directions hearings and setting down for trial.
Sources
- Alternative Dispute Resolution Rules 2022 — O 1 r 3; O 2 rr 3, 4, 5, 9, 11, 12, 14; O 4 rr 15, 16; Sch 2 Forms 2, 2B, 2C, 3A–3D
- National Court Act (Chapter 38) — ss 7B, 7D
- National Court Rules 1983 — O 10 r 9A; O 22
The ADR Rules 2022 are on PacLII as a PDF only.
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.