NSW Law Reform Commission Consultation Paper on Dispute Resolution Released

Monday 9 January 2017 @ 1.43 p.m. | Legal Research

The NSW Law Reform Commission has released Consultation Paper 16 (which provides an overview of the statutory provisions for dispute resolution) and Consultation Paper 18 (which provides a set of draft model provisions related to mediation and some options for implementation), with Consultation Paper 18 open for submissions until 17 March 2017.

Terms of Reference

As stated in our previous TimeBase article, specifically, the Commission is 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 should 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.

The Commission has been instructed not to review dispute resolution under the Commercial Arbitration Act 2010 or the Industrial Relations Act 1996.

Consultation Paper 18

Consultation Paper 18 was released on 15 December 2016 and provides a set of draft model provisions related to mediation and some options for implementation including the possibility of applying them to non-statutory mediation.

The model provisions consist of 5 model provisions addressing various issues including:

  • Definitions of accredited mediator and mediation;
  • Confidentiality and admissibility of mediation communications in evidence;
  • Mediator’s immunity; and
  • Termination of mediation.

The NSW Law Reform Commission propose that the model provisions apply to mediations conducted by accredited mediators. The model provisions deal with the confidentiality and admissibility in evidence of mediation communications, grant immunity to mediators, identify when a mediation process has been terminated and provide for the enforcement of agreements. The NSW Law Reform Commission has also proposed the removal of the statutory defamation privilege.

Responses to the Consultation Paper as well as any related matters are due to the NSW Law Reform Commission by 17 March 2017.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

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