Alternative Dispute Resolution Act 2001 (TAS)

Alternative Dispute Resolution Act 2001

An Act to provide for the mediation of disputes as an alternative to litigation

[Royal Assent 19 September 2001]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Alternative Dispute Resolution Act 2001 . 2CommencementThis Act commences on the day on which this Act receives the Royal Assent. 3Interpretation (1)  In this Act, unless the contrary intention appears – court means – (a) the Supreme Court or the lower courts within the meaning of the Magistrates Court Act 1987 ; or (b) a tribunal prescribed by the regulations; evaluator means a person to whom a court refers a matter for neutral evaluation under this Act; mediation has a meaning given by subsection (2) ; mediation session means a meeting arranged for the mediation of a matter under this Act; mediator means a person to whom a court refers a matter for mediation under this Act; neutral evaluation has a meaning given by subsection (3) ; neutral evaluation session means a meeting arranged for the neutral evaluation of a matter under this Act; registrar means, in the case of the Supreme Court, the Registrar of that Court or, in the case of the Magistrates Court, a district registrar of that Court; regulations means regulations made and in force under this Act. (2)  In this Act, mediation, which includes conciliation, means a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute. (3)  In this Act, neutral evaluation means a process of evaluation of a dispute in which the evaluator seeks to identify and reduce the issues of fact and law that are in dispute. (4)  The evaluator’s role includes assessing the relative strengths and weaknesses of each party’s case and offering an opinion as to the likely outcome of the proceedings, including any likely findings of liability or the award of compensation. 4Application of ActNothing in this Act is taken to prevent the parties to proceedings from agreeing to and arranging for mediation or neutral evaluation of any matter otherwise than in accordance with this Act. 5Referral by court (1) A court may, by order, refer a matter arising in proceedings before it (other than criminal proceedings) for mediation or neutral evaluation if the court considers the circumstances appropriate and whether or not the parties to the proceedings consent to the referral. (2) The mediator or evaluator may, but need not be, a person whose name is on a list compiled under this Act. (3) The parties to the proceedings may agree as to who is to be the mediator or evaluator for the matter but, in default of agreement, the mediator or evaluator is to be the registrar or his or her nominee. 6Withdrawal from mediation and neutral evaluationA party to a mediation session or neutral evaluation session may withdraw from the session at any time. 7Costs of mediation and neutral evaluation (1) The remuneration of a mediator or evaluator is to be borne by the parties to the proceedings in such proportions as they may agree among themselves or, failing agreement, in equal shares or as otherwise directed by the court. (2) Unless otherwise agreed by the parties or as directed by the court, the costs of a party of and incidental to the mediation or neutral evaluation are to be that party’s costs in the cause. 8Agreements and arrangements arising from mediation sessions (1) A court may make orders to give effect to any agreement or arrangement arising out of a mediation session. (2) This Act does not affect the enforceability of any other agreement or arrangement that may be made, whether or not arising out of a mediation session, in respect of the matters the subject of a mediation session. 9Mediators and evaluators (1)  The Chief Justice and the Chief Magistrate may compile a list or lists of persons considered to be suitable to be mediators for the purposes of this Act. (2)  The Chief Justice and the Chief Magistrate may compile a list or lists of persons considered to be suitable to be evaluators for the purposes of this Act. (3)  Different lists may be compiled for different types of matters or to take account of any other factors. (4)  A person may be included in a list under this section only if – (a) the person consents to being included in the list; and (b) the person agrees to comply with this Act. (5)  The Chief Justice and the Chief Magistrate may amend or revoke any list compiled under this section for any reason that he or she considers appropriate. (6)  The Chief Justice and the Chief Magistrate must review at least annually any list compiled under this section. 10Privilege (1)  In this section, "mediation session" or "neutral evaluation session" includes any steps taken in the course of making arrangements for the session or in the course of the follow-up of the session. (2)  Subject to subsection (3) , the same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to – (a) a mediation session or neutral evaluation session; or (b) a document or other material sent to, or produced to, a mediator or evaluator, or sent to, or produced at, a court or a registry of a court, for the purpose of enabling a mediation session or neutral evaluation session to be arranged. (3)  The privilege conferred by subsection (2) only extends to a document or other material produced – (a) at a mediation session or neutral evaluation session; or (b) as provided by subsection (2)(b) ; or (c) for the disclosure of information as provided by section 11 . (4) Evidence of anything said or of any admission made in a mediation session or neutral evaluation session is not admissible in any proceedings before any court, tribunal or body. (5) A document prepared for the purposes of, in the course of or as a result of a mediation session or neutral evaluation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body. (6)  Subsections (4) and (5) do not apply with respect to any evidence or document – (a) if the persons in attendance at, or identified during, the mediation session or neutral evaluation session and, in the case of a document, all persons identified in the document consent to the admission of the evidence or document; or (b) in proceedings instituted with respect to any act or omission in connection with which a disclosure has been made under section 11 ; or (c) in proceedings instituted in respect of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or (d) in any circumstances where all parties involved in the relevant mediation session or neutral evaluation session agree to the waiver of the privilege; or (e) if the document was prepared to give effect to a decision taken or an undertaking given in a mediation session or neutral evaluation session. 11SecrecyA mediator or evaluator may disclose information obtained in connection with a mediation session or neutral evaluation session only in any one or more of the following circumstances: (a) with the consent of the person from whom the information was obtained; (b) in connection with the administration or execution of this Act or any other Act under which a mediation session or neutral evaluation session is conducted; (c) if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property; (d) if the disclosure is reasonably required for the purpose of referring any party or parties to a mediation session or neutral evaluation session to any person, agency, organisation or other body and the disclosure is made with the consent of those parties for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner; (e) in accordance with a requirement imposed by or under a law of Tasmania (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth; (f) for the purpose of statistical analysis or evaluating the operation and performance of mediation and neutral evaluation processes. 12Exoneration from liability for mediators and evaluatorsNo matter or thing done or omitted to be done by a mediator or evaluator subjects the mediator or evaluator to any action, liability, claim or demand if the matter or thing was done in good faith for the purposes of a mediation session or neutral evaluation session under this Act. 13Rules of courtFor the purposes of this Act, rules of court may be made under the Supreme Court Civil Procedure Act 1932 or the Magistrates Court (Civil Division) Act 1992 . 14RegulationsThe Governor may make regulations for the purposes of this Act. 15Administration of ActUntil provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  – (a) the administration of this Act is assigned to the Minister for Justice and Industrial Relations; and (b) the department responsible to the Minister for Justice and Industrial Relations in relation to the administration of this Act is the Department of Justice and Industrial Relations.

[Second reading presentation speech made in:

House of Assembly on 21 AUGUST 2001

Legislative Council on 29 AUGUST 2001]