Commonwealth Numbered Regulations

1991 No. 461 FEDERAL COURT RULES (AMENDMENT) - RULE 4

  4.1   After Order 71, insert:

          "ORDER 72-MEDIATION AND ARBITRATION


"Division 1-Preliminary Mediation or arbitration procedure

"1. If, with the consent of the parties, the Court or a Judge orders
proceedings, part of proceedings, or any matter arising out of proceedings, to
be referred to a mediator or an arbitrator, the mediation or arbitration must
proceed in accordance with this Order unless the Court or a Judge orders
otherwise. Application of Order

"2. (1) Division 2 of this Order does not apply if a Judge undertakes a
mediation.

"(2) Nothing in this Order affects an order or direction made under Order 10,
rule 1. If a Judge undertakes mediation

"3. If a Judge undertakes a mediation, the Judge may give any directions with
respect to the conduct of the mediation that the Judge thinks fit. Adjournment
of proceedings

"4. (1) If the Court or a Judge makes an arbitration or mediation order in
relation to proceedings, the proceedings stand adjourned until the mediator or
arbitrator reports back to the Court unless the Court or a Judge considers
that in all the circumstances the proceedings should not be adjourned.

"(2) If the Court or a Judge considers it appropriate, the proceedings may be
adjourned to a fixed date when the mediator or arbitrator must report to the
Court on progress in the mediation or arbitration. Court may terminate
mediation or arbitration

"5. (1) Nothing in this Order prevents the Court from:

   (a)  terminating a mediation or an arbitration at any time; or

   (b)  terminating the appointment of a mediator or an arbitrator; or

   (c)  appointing a new mediator or arbitrator to replace a mediator or an
        arbitrator who has died, or ceased to hold office, or whose
        appointment has been terminated.

"(2) If, when the Court appoints a new arbitrator, the Court considers it
appropriate in all the circumstances, the Court may order that:

   (a)  the new arbitrator must treat any evidence given, or any record,
        document or anything else produced, or anything done, in the course of
        earlier proceedings as if it had been given, produced or done before
        or by the new arbitrator; or

   (b)  any interim award made in the course of the earlier proceedings is to
        be taken to have been made by the new arbitrator; or

   (c)  the new arbitrator must adopt and act on any determination of a matter
        made by the previous arbitrator without applying his or her own
        judgment to the matter.

"(3) If the Court:

   (a)  appoints a new mediator; and

   (b)  considers it appropriate; the Court may, with the consent of the
        parties, order that the mediation continue on whatever basis the
        parties have agreed.
Division 2-Mediation Nomination of mediator

"6. (1) As soon as practicable after a mediation order is made, the Registrar
must:

   (a)  nominate a person as the mediator; and

   (b)  give the parties written notice:

        (i)    of the name and address of the mediator; and

        (ii)   of the time, date and place of mediation; and

        (iii)  of any further documents that one or more of the parties must
               give direct to the mediator for the purposes of the mediation.

"(2) In fixing the time and date for the mediation, the Registrar must:

   (a)  consult the parties to ascertain their wishes; and

   (b)  have regard to the time fixed by the Court within which the mediation
        must be commenced, or completed, or both. Conduct of mediation
        conferences

"7. (1) A mediation conference must be conducted:

   (a)  in accordance with any directions given by the Court or a Judge; and

   (b)  as a structured process in which the mediator assists the parties by
        encouraging and facilitating discussion between the parties so that:

        (i)    they may communicate effectively with each other about the
               dispute; and

        (ii)   if agreement is reached and if the parties consent, the
               agreement can be included in a consent order under Order 35,
               rule 10.

"(2) If part only of proceedings before the Court is the subject of a
mediation order, the mediator may, on the conclusion of the mediation, report
back to the Court in terms agreed between the parties. Adjournment or
termination of mediation

"8. (1) If the mediator considers that a mediation should not continue, the
mediator must, subject to any order of the Court or a Judge:

   (a)  terminate the mediation; and

   (a)  report back to the Court.

"(2) A party may terminate a mediation at any time by giving notice of the
termination to the Court, the mediator and to each other party.

"(3) If a mediation is terminated under subrule (2), the proceedings, part of
proceedings, or any matters arising out of the proceedings, are adjourned back
to the Court or a Judge.
                 "Division 3-Arbitration
Appointment of arbitrator

"9. (1) If an arbitration order is made, the Court or a Judge may, with the
consent of the parties, nominate a particular person to be the arbitrator.

"(2) A nomination under subrule (1) must be accompanied by the arbitrator s
written consent to the appointment.

"(3) The parties may, at the time of appointment, or at any subsequent
directions hearing, ask the Court or a Judge to make orders by consent setting
out:

   (a)  the manner in which the arbitration is to be conducted; and

   (b)  the time by which the arbitration is to be completed; and

   (c)  the manner in which the arbitrator, and the expenses of the
        arbitration, are to be paid.

"(4) The parties may ask the Court or a Judge to indicate to the arbitrator
the manner in which the arbitrator s report on the proceedings, part of the
proceedings, or any matter arising out of the proceedings, are to be reported
back to the Court. Termination of arbitration
 "10. (1)   A party may withdraw from an arbitration at any time prior to the
completion of the arbitration by giving written notice to the Court, to the
arbitrator, and to each other party.

"(2) The Court or a Judge may make any costs order the Court or the Judge
considers appropriate in relation to the arbitration if an arbitration is
terminated under subrule (1).
                "Division 4-Miscellaneous
Sunset provision

"11. This Order ceases to have effect on 1 January 1993.".