Consultation Paper on Alternative Dispute Resolution - Law Reform ...

costs of the action, or such part of the costs of the action as the court
directs, incurred after the giving of the direction under section 15 (1).
11.74 A similar approach is evident in the Education for Persons with
Special Educational Needs Act 2004. Section 24(4)(c) of the 2004 Act states
that a mediator must prepare and furnish to each of the parties a report in
relation to the mediation. Any subsequent court hearing proceedings may, in
making any decision as to the costs of those proceedings, have regard to the
fact that that a person did not participate in good faith in a mediation, and, for
the purpose of determining whether that person did not so participate in good
faith, the court may have regard to the mediator‘s report.
11.75 The Commission considers that the content of mediators‘ reports to
the Court should be narrowly restricted. Confidentiality during a mediation
session is essential to protect the integrity of the process. For the mediation to
be effective, a mediator must have the trust of all participants, both in joint
sessions and in private caucuses. Requiring mediators to report on the conduct
of the parties to the court imperils the confidentiality of the mediation process.
11.76 Some jurisdictions have placed an obligation on a mediator to make
a neutral summary of the outcome of the mediation and make it available to the
court if requested. For example, in California a mediator has to complete a
Statement of Agreement or Non-Agreement. This identifies the mediator, the
date or dates on which the mediation occurred, the total number of hours spent
in the mediation and whether it ended in settlement. If the mediation did not
take place, the mediator can either tick a box stating that a party who was
ordered to appear at the mediation did not appear, or a box marked ―other
reason‖, without disclosing any confidential information.
11.77 The Commission considers that this is an appropriate type of
mediator report and that this would also allow the Court to have sufficient
information on which to determine whether, in objective terms the parties
entered into the mediation in good faith.
11.78 The Commission provisionally recommends that the content of a
mediator‘s or conciliator‘s report to the court should be restricted to a neutral
summary of the outcome of the mediation or conciliation.
E Recovery of Mediation Costs
11.79 The Commission notes that the costs of preparing and participating in
a mediation may be substantial for parties, especially if they have separate legal
costs incurred stemming from the mediation such as paying for legal
representative at the mediation. The standard agreement to which parties agree
before they mediate usually provides that the mediator‘s fee will be split equally
or otherwise, that each party will bear its own costs. Sir Anthony Clarke, Master
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