Aspectos metodológicos y fuente de los datos

statutory immunity Arguments opposing statutory immunity

There are similarities between ADR practitioners and judges in terms of resolving disputes between parties in conflict with each other.

ADR practitioners and judges perform different roles and functions. Judges’

decisions are usually public and open to appeal, whereas ADR generally occurs in private.

Statutory immunity would preserve the independence of ADR practitioners.

It is important for ADR practitioners to be subject to appropriate scrutiny and quality control.

Statutory immunity would maintain the integrity of ADR processes by protecting the confidentiality of ADR processes and ensuring finality of outcomes.

Immunity would prevent the making of legitimate claims against ADR practitioners. ADR practitioners who behave inappropriately should be held accountable for their actions. This is a particularly acute consideration because ADR processes occur in private.

Statutory immunity may encourage participants to fully engage with the process without fear that the end result will be challenged at a later date on the basis of the ADR practitioner’s conduct.

Absence of immunity does not appear to have had any adverse impact on users of ADR services.

Statutory immunity will support and encourage greater use of ADR.

There is no clear evidence of the availability of statutory immunity being a deterrent for those taking up the profession.

In any event, the purpose of statutory immunity is not to create a commercial incentive to undertake an activity by transferring risk from a service provider to a service receiver.

Indemnity insurance would force up the cost of ADR. This would not be in the public interest.

Other forms of liability protection, such as contractual immunity and professional indemnity insurance, are available and effective.

Options from

Appendix 5.3 Arguments supporting

statutory immunity Arguments opposing statutory immunity

ADR processes sit on a continuum of case

management strategies – ADR can be characterised as a first step in the courts’ case management processes.

ADR processes in this context are only loosely connected to courts’ case management, and more analogous to private ADR processes: there is no reporting back to courts beyond the final outcome and courts have no supervisory role.

ADR practitioners conducting such processes require greater levels of liability protection because participants are often attending against their will.

Practitioners have a choice about accepting clients and, in any event, can effectively limit their liability through contractual arrangements with clients and the purchase of indemnity insurance.

There is a lack of robust evidence to suggest that participants in court-ordered ADR exhibit a higher frequency or severity of behavioural problems.

Statutory

These ADR processes are closely integrated with the exercise of judicial power and court processes. Immunity therefore should be conferred because of the analogy to immunity enjoyed by judicial officers.

Participants in ADR processes can end the process at any time, even if it is being conducted by a court officer.

ADR services provided by staff retained by courts or tribunals differ from private ADR in several practical ways: court staff do not have a choice about whether to accept the clients, do not receive a fee from the clients and cannot limit liability through contract or individually purchase indemnity insurance.

There is a lack of robust evidence to suggest that participants in court-ordered ADR exhibit a higher frequency or severity of behavioural problems.

Court and tribunal staff who act in good faith are likely to be indemnified by the Commonwealth in respect of any liability.

Options from

Appendix 5.3 Arguments supporting

statutory immunity Arguments opposing statutory immunity

Court staff must comply with rules set out in codes of conduct and legislation, and may be subject to disciplinary action. Therefore, litigation against these ADR providers is not necessary to provide either accountability or quality control.

Public servants are often required to perform roles in fraught circumstances, without profit or insurance.

It is difficult to foresee the consequences that will flow from a change in the law that removes immunity from court or tribunal retained staff conducting ADR. The Government needs to be able to provide ADR services to those who could otherwise not afford it. The issue is therefore a matter of resource allocation that can have broader policy implications beyond ADR.

Appendix 5.5 – Examples of immunity clauses

Exclusion of Liability and Indemnity

1. The Mediator will not be liable to a Party for any act or omission by the Mediator in the performance or purported performance of the Mediator’s obligations under this agreement unless the act or omission is fraudulent.

2. Each party indemnifies the Mediator against all claims by that Party or anyone claiming under or through that Party, arising out of or in any way referable to any act or omission by the Mediator in the performance or purported performance of the Mediator’s obligations under this agreement, unless the act or omission is fraudulent.

3. No statements or comments, whether written or oral, made or used by the Parties or their representatives or the Mediator within the mediation shall be relied upon to found or maintain any action for defamation, libel, slander or any related complaint, and this document may be pleaded as a bar to any such action.

Sample Mediation Agreement, LEADR

Indemnity and Exclusion of Liability

1. The Mediator will not be liable to any Party or to any person participating in or present at the mediation for any views or opinions expressed by the Mediator nor for any act or omission in the performance of the Mediator’s duties and obligations under this agreement, unless the act or omission is fraudulent.

2. The Parties, together and separately, indemnify the Mediator against any claim for any act or omission in the performance of the Mediator’s duties under this agreement, unless the act or omission is fraudulent.

3. The Parties agree that the Mediator shall at least have the same protection and immunity from suit as the Mediator would have under Section 27A(1) of the Supreme Court Act 1986 as if he or she had been appointed by an order of the Supreme Court under that Section.

Victorian Bar Association model agreement

Mediation Agreement

1. The making or using of any statement or comment, whether written or oral, by the parties or their representatives or the Mediator within the mediation shall not be relied upon to found or maintain, or be used in any way in, any action for defamation, libel, slander or any related complaint. This clause can be pleaded in bar to any such action.

2. The parties jointly and severally release, discharge and indemnify the Mediator in respect of all liability of any kind whatsoever (whether involving negligence or not) which may be alleged to arise in connection with or to result from or to relate in any way to this mediation.

Sir Laurence Street, Mediation, A Practical Outline (2003) 10