Supreme Court Rules 1987

(1) If a Judge or an Associate Judge is of the opinion that a proceeding is capable of settlement or ought to be settled, the Judge or Associate Judge may direct that the matter be set down for mediation for the purpose of exploring the possibility of settlement.

(2) The mediator may be a Judge or an Associate Judge or a person from the list kept under subrule (9), and may be appointed by:

(a) if the parties agree on a person from the list kept under subrule (9) – the parties; or

(b) a Judge or an Associate Judge.

(3) Under subrule (2), 2 mediators may be appointed to mediate jointly.

(4) The Judge or Associate Judge must give the parties notice of the mediation and rule 48.05 applies (with the necessary changes) accordingly.

(5) The Judge or Associate Judge:

(a) may direct that the parties attend the mediation in person; and

(b) if a party is a corporation – may order that the mediation be attended by an agent of the corporation who is familiar with the substance of the issues in the proceeding and has unqualified authority either to settle the proceeding or to make recommendations to the corporation that are likely to result in the settlement of the proceeding.

(6) A direction under subrule (5):

(i) orally either in person or by the party's solicitor;

(ii) in writing sent by pre-paid post to the party's address for service; or

(iii) where the party appears by a solicitor – in accordance with rule 6.06(1)(d); and

(b) may be given either by the Judge or Associate Judge or an officer of the Court authorised by the Judge or Associate Judge.

(7) The attendance of a party in person at a mediation (whether in response to a direction under subrule (5) or otherwise) does not prevent the party being represented at the mediation by counsel or the party's solicitor or both.

(8) Except to prove that a settlement was reached between the parties and the terms of the settlement, evidence of things said or admissions made at a mediation is not admissible in either the proceeding or a court without the consent of those parties.

(9) The Associate Judges must keep a list of persons who, in the opinion of a Judge or an Associate Judge, are suitably qualified and willing to act as mediators.

(10) The list kept under subrule (9) is to include details of the following:

(a) the qualifications and experience of each mediator listed;

(b) the kinds of matters each mediator listed is willing to mediate.

(11) The costs and expenses of a mediator:

(a) may be fixed by a Judge or an Associate Judge; and

(b) are to be met equally by all parties to the mediation.

(12) A Judge or an Associate Judge may make the orders necessary to secure or enforce payment of a mediator's costs and expenses under this rule.

(13) If a party (the party at fault):

(a) fails to attend a mediation after having been notified of the mediation under subrule (4); or

(b) having attended a mediation:

(i) refuses to participate in the mediation; or

(ii) applies (other than with the consent of the other parties) to adjourn or further adjourn the mediation and the adjournment is granted by the mediator,

the party at fault must pay the costs of the mediator and the other parties thrown away as a result, which costs may (despite rule 63.04(3)) be taxed immediately by the Taxing Master.

(14) Subject to subrules (8) and (16) but despite any other law of the Territory, a mediator must not disclose and is not to be required to disclose information of which the mediator becomes aware in the course of or for the purposes of the mediation.

(15) A mediation may be adjourned by the mediator if the parties consider that further negotiations may lead to a settlement.

(16) Within 7 days of the conclusion of a mediation, the mediator:

(a) must file a report signed by the mediator indicating one of the following:

(i) that the proceeding has been finally resolved;

(ii) that certain issues, that are identified in the report, have not been resolved but that all other issues between the parties have been resolved;

(iii) that no issues between the parties have been resolved; and

(b) must give each party a copy of the report.