(1) Subject to
subsection (3), evidence of —
(a)
anything said or done; or
(b) any
communication, whether oral or in writing; or
(c) any
admission made,
in the course of or
for the purposes of an attempt to settle a proceeding by mediation under
direction is to be taken to be in confidence and is not admissible in any
proceedings before any court, tribunal or body.
(2) Subject to
subsection (3) —
(a) any
document prepared in the course of or for the purposes of an attempt to settle
a proceeding by mediation under direction; or
(b) any
copy of such a document; or
(c)
evidence of any such document,
is to be taken to be
subject to a duty of confidence and is not admissible in any proceedings
before any court, tribunal or body.
(3) Subsections (1)
and (2) do not affect the admissibility of any evidence or document in
proceedings if —
(a) the
parties to the mediation consent to the admission of the evidence or document
in the proceedings; or
(b)
there is a dispute in the proceedings as to whether or not the parties to the
mediation entered into a binding agreement settling all or any of their
differences and the evidence or document is relevant to that issue; or
(c) the
proceedings relate to a costs application and, under the rules of court, the
evidence or document is admissible for the purposes of determining any
question of costs; or
(d) the
proceedings relate to any act or omission in connection with which a
disclosure has been made under section 72(2)(c).
(4) A mediator cannot
be compelled to give evidence of anything referred to in subsection (1) or (2)
or to produce a document or a copy of a document referred to in subsection (2)
except —
(a) in
proceedings referred to in subsection (3)(d); or
(b) in
proceedings relating to a costs application where there is a dispute as to a
fact stated or a conclusion reached in a mediator’s report prepared
under the rules of court on the failure of a party to cooperate in the
mediation and the evidence or document is relevant to that issue.
(5) In subsections (3)
and (4) —
costs application means an application for the
costs of the mediation or of the proceedings to which mediation relates.
[Section 71 inserted: No. 27 of 2000 s. 18.]