Authority For
Rules
The Council of The Institute of Arbitrators
Australia having resolved in September 1995 that where any two or
more parties have agreed between them that a dispute arising or
having arisen between them shall be submitted to Mediation in
accordance with The Institute of Arbitrators Australia Rules for
the Mediation of Commercial Disputes, the following Rules numbered
1-14 shall apply;
1. Agreement To
Negotiate
By submitting the dispute to Mediation, the
parties have agreed to participate in the Mediation process and are
committed to negotiate in good faith for a resolution of the
dispute.
2. Selection Of
Mediator
Where the parties have not agreed upon the
Mediator or some other process of appointment of the Mediator and
either party calls for an appointment, the Mediator shall be the
person appointed by the President for the time being of The
Institute of Arbitrators Australia or a State or Territory Chapter
Chairman appointed by the President to make the
appointment.
3. Role Of The
Mediator
(a) The Mediator's role is to assist the
parties to negotiate between themselves, a mutually acceptable
resolution of the dispute.
(b) Specifically, the Mediator's functions
include:
(i) to assist the parties to clarify the
issues in dispute;
(ii) where it is appropriate, to suggest
particular dispute resolution techniques appropriate to individual
issues (for example non-binding appraisal, mini-trial);
(iii) to act as the facilitator of direct
negotiations between the parties.
4. Preliminary
Conference
(a) The parties may be required by the
Mediator to participate in a preliminary conference with the
Mediator to be conducted as soon as possible after the reference of
the dispute to Mediation;
(b) The purpose of the preliminary conference
is for the parties, with the assistance of the Mediator,
to:
(i) discuss and agree upon the issues in
dispute, or to formulate a process by which those issues are to be
clarified and agreed;
(ii) plan and agree upon how a negotiated
resolution of the dispute is to proceed (including where
appropriate the content of and timing for the necessary position
statements or other documents);
(iii) confirm that paragraph 9 has been
complied with (for persons involved with the Mediation at that
time);
(iv) provide for such other planning and
administrative arrangements as are necessary and appropriate to
enable the Mediation to proceed 	(including the Mediator's
terms of appointment).
5. Mediator May Confer Privately With
Parties
(a) The parties agree that throughout the
Mediation process, the Mediator may at his or her own unfettered
discretion, communicate and discuss the dispute privately with any
of the parties or their representatives or advisers;
(b) The Mediator must preserve absolute
secrecy of the content of any such communications and must not
expressly or impliedly convey any knowledge or impression of the
content of private communications to any other party unless
specifically authorised to do so.
6. Authority
Each Party to the Mediation must declare
whether it is represented at any negotiating session by a person
with full authority to settle the dispute and if the parties do not
have full authority, the limits of authority must be
disclosed.
7. Assistance
Each party may be assisted or represented in
the conduct of the mediated negotiations by advisers (including
lawyers).
8.
Confidentiality
The Mediator, the parties and all advisers
and representatives of the parties must keep all matters relating
to or arising out of the Mediation confidential except:
(a) where disclosure is compelled by
law;
(b) to the extent necessary to give effect to
a mediation agreement or to enforce an agreement reached to settle
or resolve the whole or any part of the dispute;
(c) where disclosure of the fact of the
occurrence of the Mediation (but not of any of the matters
discussed or communicated in the Mediation process) is necessary or
desirable for the purpose of making submissions to a tribunal in
subsequent proceedings relating to the dispute.
9. Mediator And Parties'
Representatives/Advisers To Sign Confidentiality
Undertakings
The Mediator and the advisers and
representatives of the parties must, before participating in the
Mediation process, agree in writing (for example by letter) to
abide by the terms of these Rules.
10. Extension Of Limitation
Period
If, during the Mediation, a limitation period
for bringing any proceedings in relation to the dispute or any part
of the dispute expires, the parties agree that the limitation
period will be extended by the number of calendar days from and
including the date of the reference of the dispute to Mediation to
the date of the termination of the Mediation in accordance with
these Rules. Each relevant party agrees that it will only plead or
argue in its defense to any such proceedings that the limitation
period expired on the extended date provided for in this
paragraph.
11. Termination
(a) Any party may terminate the Mediation by
written notice to each of the other parties and to the
Mediator;
(b) The Mediator may terminate the Mediation
by written notice to the parties if he or she forms the opinion
that further negotiations are no longer worthwhile.
12. Mediator's
Opinion
If the Mediation is terminated the Mediator
may, if the parties consent, express his or her opinion as to what
would be a just and equitable resolution of the dispute or any part
of it, having regard to all the circumstances involved.
13. Subsequent
Proceedings
The Mediator will not, without the consent of
all parties, accept appointment as an arbitrator nor act as an
advocate nor provide advice to either party, in any arbitral or
judicial proceeding relating to the dispute. Neither party will
subpoena the Mediator to give evidence or to deliver up files in
any subsequent proceedings.
14. Exclusion Of Liability And
Indemnity
Except in the case of fraud, the Mediator
will not be liable to a party upon any cause of action whatsoever
for any act or omission by him in the performance or purported
performance of his obligations under these Rules.
The parties jointly and severally hereby
indemnify and shall keep indemnified, the Mediator against all
claims, actions, suits, proceedings, disputes, differences,
demands, costs, expenses and damages of any kind (except in the
case of fraud by the Mediator) arising out of or in any way
referable to any act or omission by the Mediator in the performance
or purported performance of his role as Mediator.