(1) An arbitrator may
act as a mediator in proceedings relating to a dispute between the parties to
an arbitration agreement ( mediation proceedings ) if —
(a) the
arbitration agreement provides for the arbitrator to act as mediator in
mediation proceedings (whether before or after proceeding to arbitration, and
whether or not continuing with the arbitration); or
(b) each
party has consented in writing to the arbitrator so acting.
(2) An arbitrator
acting as a mediator —
(a) may
communicate with the parties collectively or separately; and
(b) must
treat information obtained by the arbitrator from a party with whom he or she
communicates separately as confidential, unless that party otherwise agrees or
unless the provisions of the arbitration agreement relating to mediation
proceedings otherwise provide.
(3) Mediation
proceedings in relation to a dispute terminate if —
(a) the
parties to the dispute agree to terminate the proceedings; or
(b) any
party to the dispute withdraws consent to the arbitrator acting as mediator in
the proceedings; or
(c) the
arbitrator terminates the proceedings.
(4) An arbitrator who
has acted as mediator in mediation proceedings that are terminated may not
conduct subsequent arbitration proceedings in relation to the dispute without
the written consent of all the parties to the arbitration given on or after
the termination of the mediation proceedings.
(5) If the parties
consent under subsection (4), no objection may be taken to the conduct of
subsequent arbitration proceedings by the arbitrator solely on the ground that
he or she has acted previously as a mediator in accordance with this section.
(6) If the parties do
not consent under subsection (4), the arbitrator’s mandate is taken to
have been terminated under section 14 and a substitute arbitrator is to be
appointed in accordance with section 15.
(7) If confidential
information is obtained from a party during mediation proceedings as referred
to in subsection (2)(b) and the mediation proceedings terminate, the
arbitrator must, before conducting subsequent arbitration proceedings in
relation to the dispute, disclose to all other parties to the arbitration
proceedings so much of the information as the arbitrator considers material to
the arbitration proceedings.
(8) In this section, a
reference to a mediator includes a reference to a conciliator or other
non-arbitral intermediary between parties.
Note for this section:
There is no equivalent
of this section in the Model Law.