The NSW Law Reform Commission report on dispute resolution comments
Dispute resolution processes (traditionally referred to as “alternative dispute resolution” or “ADR” processes) can provide many benefits for disputing parties. They can reduce the costs and delays associated with litigation and facilitate flexible outcomes. In the context of litigation, dispute resolution can keep disputes private and avoid exposing them in public hearings. It can ensure cases are managed effectively, for example, by narrowing the issues in dispute. Dispute resolution can also assist parties to preserve, repair or improve their relationships.
There has been a considerable growth in the use and availability of dispute resolution processes in the past couple of decades. This is reflected in the NSW statute book which now includes around 50 statutes that make provision for, or acknowledge the availability of, some form of dispute resolution.
On 1 March 2013, the Attorney General asked us to review statutory provisions for dispute resolution. ... Our consultation process involved two consultation papers, a survey of NSW government agencies that administer dispute resolution provisions, and some face to face consultation.
The two consultation papers were:
- Consultation Paper 16 – Dispute Resolution: Frameworks in New South Wales (“CP 16”) (released in April 2014), and
- Consultation Paper 18 – Dispute Resolution: Model Provisions (“CP 18”) (released in December 2016) - noted here
In the first half of 2014, we also surveyed all NSW government agencies that had a role in administering the dispute resolution provisions. We wanted to understand how broadly the provisions are used and what issues the agencies encountered. We received 91 responses.
CP 16 gave an overview of the statutory provisions for dispute resolution in NSW. It asked what provisions are appropriate in the variety of contexts the existing provisions cover. We received 14 submissions. These are listed in Appendix C.
Mediation emerged as the focal point of stakeholder discussion in response to CP 16. We heard that mediation and quasi-mediation processes in NSW statutes vary in detail and coverage and are often inconsistent. Stakeholders suggested that this patchwork might contribute to uncertainty among users. In particular, it is sometimes unclear exactly what types of dispute resolution are available and what safeguards apply in particular statutory contexts. Further, there are currently no provisions that protect parties during commercial/consensual mediation outside a judicial or particular statutory context.
Despite this, we were not persuaded there would be significant benefit in attempting to consolidate these existing provisions into one or a small number of models. Rather, we considered it might be beneficial to develop model provisions that would apply to mediations taking place outside any statutory or judicial context, except where parties agreed not to apply them. We also considered these model provisions could also be applied in some existing statutory contexts.
In CP 18, we suggested model mediation provisions on a limited range of topics:
- confidentiality of mediation communications and their admissibility in evidence
- termination of mediation, and
- enforcement of the outcome of the mediation.
Submissions to CP 16 had identified these areas as appropriate subjects for uniform provisions to improve consistency and clarity.
However, the majority of submissions to CP 16 did not support:
- provisions governing the representation of parties to a mediation
Introduction
- 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.
In CP 18, we suggested the model provisions could be applied in the statutes listed in Appendix A to this Report. We did not think they were appropriate for application to those statutes listed in Appendix B to this Report. Accordingly, we proposed in CP 18 that the statutes listed in Appendix B be excluded from the scheme. This includes statutes that apply to judicially-ordered or supervised mediations, and statutes that already cover the same or similar matters as the model provisions. We thought these excluded statutes could be amended in due course (to the extent appropriate) to bring them into line with the model provisions.
We initially intended that the model provisions would apply to the related processes known as neutral evaluation and conciliation. Submissions to CP 18 (listed in Appendix D) generally did not support such extension, as we discuss below. ...
The Commission's conclusion is
After further consideration, we have decided not to recommend the adoption of the model provisions suggested in CP 18 or any other changes to the law.
This conclusion is informed by a number of interrelated considerations. While we have considered some potential uniform provisions, we do not believe that statutory intervention is warranted, for a number of reasons:
1. Mediation is context-specific, and what is appropriate in one context does not necessarily suit another.
2. It is a fundamental precept of voluntary (as opposed to court-ordered) mediation that the parties are in control of the process, and can decide on the terms and arrangements for mediation – including the mediator’s rights and immunities.
3. Any generic provision would require a common approach to what is mediation and who is an eligible mediator. Having regard to the diverse contexts for mediation, we have not reached any degree of consensus among stakeholders on these matters.
4. The existing law of without prejudice privilege provides a sufficient default provision for the confidentiality and admissibility of mediation communications, where the mediation agreement does not otherwise provide.
5. There is no particular reason for affording an agreement that results from mediation any greater status than one that results from any other process of negotiation.
6. On balance, suspending limitation periods pending mediation would create more problems and controversies than leaving limitation periods to run, and would tend to promote delay.
7. No sufficient harm has been identified as arising from the current diverse arrangements to warrant the imposition of a uniform statutory regime.
We have therefore concluded that there would be no sufficient benefit gained from adopting the model provisions we proposed in CP 18. The best course is to leave the existing statutory provisions unchanged and allow them to develop as the need arises.
Cases of potential and actual confusion among users of dispute resolution services may be resolved by providing better information about processes and encouraging better communication between parties and dispute resolution service providers. Such approaches do not need to be the subject of recommendations for law reform.
