The Protocol has been drafted to promote and encourage the negotiated settlement and early, cost effective resolution of disputes by mediation. Primarily however, the Protocol provides guidance as to the rights and obligations of all participants under NZDRC's fully administered mediation service.
The Protocol is a necessary and important component of our fully administered mediation service because mediation, unlike arbitration, is consensual and not supported or underpinned by legislation.
The Protocol is incorporated into NZDRC's Mediation process by operation of clause 1.4 of the Mediation Rules.
2.0 Initiating Mediation
3.0 Appointment of the Mediator
4.0 The Mediator's role
5.0 The role of a Representative
6.0 The role of a Party
7.0 The role of a Support Person
8.0 The role of an Observer
9.0 The role of NZDRC
10.0 Termination of the Mediation
Effective 23 March 2018
4.1 The Mediator is an independent and impartial person in whom the Parties to a dispute place trust, respect, and confidence to assist them to negotiate the settlement of that dispute.
4.2 A Mediator must not accept an appointment to act as Mediator in a dispute if any circumstances past or present exist that would be likely to give rise to justifiable doubts as to the Mediator’s impartiality or independence in the eyes of any of the Parties to the Mediation, or which may be seen to prejudice or impair the performance of the Mediator’s duties in the conduct of the Mediation. The only exception to this rule is where, after full disclosure of all relevant facts, the Parties to the Mediation agree to the appointment of the Mediator.
4.3 In accepting an appointment, the Mediator assumes a continuing duty to disclose immediately to the Parties and NZDRC any circumstances arising in the future likely to give rise to justifiable doubts as to the Mediator’s impartiality or independence in the eyes of any of the Parties, or which may be seen to prejudice or impair the further performance of the Mediator’s duties in the conduct of the Mediation, until the Mediation is concluded.
4.4 If, during the course of the Mediation, the Mediator discloses to the Parties and NZDRC any circumstances that arise which the Mediator considers might reasonably be likely to give rise to justifiable doubts as to the Mediator’s impartiality or independence in the eyes of any of the Parties, or which may be seen to prejudice or impair the performance of the Mediator’s duties in the conduct of the Mediation, the Parties must confer. Unless the Parties agree to continue the Mediation with the Mediator, the Mediator must withdraw from the Mediation.
4.5 The Mediator must maintain impartiality towards all Parties at all times during the Mediation.
4.6 The Mediator does not have the authority to make binding decisions.
4.7 The Mediator’s role is to define and manage the conduct of the Mediation process.
4.8 The Mediator may conduct the Mediation in any manner that the Mediator thinks fit, having regard to the nature and circumstances of the Parties and the matters in dispute.
4.9 The Mediator, in consultation with the Parties, will establish basic rules and guidelines for procedure at the outset of the Mediation session. Such rules, may include, but are not limited to:
(a) the order of the presentation;
(b) the right of each Party to speak freely and without interruption;
(c) that all participants are to treat each other with courtesy;
(d) the right of any Party to take independent legal or expert advice during the Mediation;
(e) the right of any Party to talk to legal advisers or Representatives or expert advisers in private during the Mediation;
(f) the right of any Party to talk to the Mediator in private at any time during the Mediation;
(g) the right of any Party to terminate the Mediation after consultation with the Mediator; and
(h) basic common courtesies.
5.1 Parties may be represented at Mediation by any person whether legally trained or not, provided that the engagement of the Representative by a Party does not threaten or bring into question the integrity of the Mediation due to a past or present relationship with any Party or the Mediator, unless none of the Parties object after proper disclosure.5.2 The Mediator may withhold approval for a Representative to attend Mediation where the Mediator, in his or her sole discretion, considers the Representative’s attendance could threaten or bring into question the integrity of the Mediation.
5.7 The role of a Representative during the Mediation includes:
(a) participating in a non-adversarial manner and co-operating with other Representatives, participants, and Parties;
(b) conveying to the other Parties such legal, technical, practical, and personal matters as the Party he or she represents may wish the Representative to present;
(c) providing legal and/or technical advice;
(d) providing counsel, support, and encouragement;
(e) assisting the Parties to define the problem and develop possible settlement options; and
(f) preparing and recording the terms of any Settlement Agreement that might be reached for signature by the Parties before leaving the Mediation.
5.8 A Representative must maintain the confidentiality of the Mediation. All Representatives must sign the Confidentiality Agreement attached as Appendix 3 of the Rules as a condition of their attendance at the Mediation.
5.9If a Representative is required to disclose any confidential information either by law or otherwise in terms of Rule 7.4, the Representative must, save for where the safety of any person is endangered, immediately notify the Parties, the Mediator, and NZDRC, and provide full details of the intended disclosure and the reasons for it.
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6.1 A Party must provide NZDRC, the Mediator and every other Party with the names of those persons (if any) who will be accompanying that Party at the Mediation no less than three Days prior to the Mediation session.
6.2 A Party who is a natural person must attend the Mediation session in person.
6.3 A Party should be prepared to make a brief statement about the facts of the case, the issues in dispute, the outcome sought and other relevant factors, and to participate in the Mediation process in good faith with the intention of seeking settlement.
6.4 A Party must co-operate with the Mediator and be courteous to the Mediator and all other participants.
6.5 A Party must comply with reasonable requests and directions made by the Mediator to promote the fair, prompt, and cost effective resolution of the dispute before and during the Mediation session.
6.6 A Party must pay NZDRC’s Fees prior to delivery of the service or otherwise within three Days of demand.
6.7 Unless the Parties agree otherwise in writing, each Party will meet its own costs of the Mediation regardless of the outcome.
6.8 A Party must maintain the confidentiality of the Mediation. To the extent that a Party is required to disclose any confidential information either by law or otherwise in terms of Rule 7.4, that Party must immediately notify every other Party, the Mediator, and NZDRC, and provide full details of the intended disclosure and the reasons for it.
6.9 A Party must pay the relevant Fees and Expenses for the Mediation as set out in the Rules.
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8.2 Accordingly, NZDRC will from time to time, as a function of its overarching quality assurance and training programme, send a person or persons to observe the conduct of Mediations conducted under its Rules (Observer).
8.3 An Observer may observe the whole, or part, or any number of parts of any Mediation, but an Observer has no powers or rights whatsoever in relation to the conduct of any Mediation and no aspect of the matters at issue or the Mediation process should be discussed by any participant with an Observer.
8.4 The sole function of an Observer is to report to NZDRC for the purpose of measuring and monitoring the professional development and performance of its Mediators.
8.5 An Observer must maintain the confidentiality of the Mediation. An Observer must sign the Confidentiality Agreement attached as Appendix 3 to the Rules as a condition of his or her attendance at the Mediation.
8.6 Any Party may request that no Observer attends the Mediation. The Mediator and NZDRC must uphold that Party’s request.
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9.1 The role of NZDRC is to manage and administer the Mediation process in a professional, consistent, and certain manner, and to provide support and guidance to the Parties and Mediators in respect of the Mediation process.
9.2 In pursuit of those objectives, NZDRC will:
(a) maintain a comprehensive, informative, and effective website;
(b) maintain a panel of competent, experienced, and respected Mediators; and
(c) provide a fully administered Mediation service through the office of its Registrars, who will:
(i) select suitably qualified, experienced, and respected persons for its panels;
(ii) appoint Mediators who are competent, experienced, and capable of discharging their duties to the Parties independently and impartially in any particular case, and in the event that a Mediator becomes unable to act for any reason, appoint a substitute Mediator; and
(iii) provide all administrative functions necessary for the professional and competent delivery of its Mediation services.
9.3 NZDRC will maintain the confidentiality of the Mediation.
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10.1 The Mediation may be terminated at any time by a Party after consultation with the Mediator.
10.2 The Mediation may be terminated by the Mediator at any time if the Mediator feels unable to assist the Parties to achieve resolution of the dispute.
10.3 The Mediation will be terminated upon signing of a Settlement Agreement in respect of the matters referred to Mediation.
10.4 The termination of the Mediation does not relieve the Parties of their obligation to pay the Fees and Expenses of the Mediation incurred to that date in accordance with the schedule of Fees and the conditions set out in Appendix 1 to the Rules.
10.5 If no Settlement Agreement that finally resolves all the matters in dispute is reached within 30 Days of the Commencement Date, or any other period that the Parties agree, any Party may refer the dispute to arbitration for final and binding determination in accordance with the Arbitration Rules of the New Zealand Dispute Resolution Centre.
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This Protocol is intended to provide a guide to the rights and responsibilities of participants in the Mediation process under NZDRC’s Mediation Rules. This Protocol is not intended to be comprehensive or a substitute for independent legal advice, and Parties must rely entirely on their own skill, knowledge, and judgement when using this Protocol. Whilst every effort has been made to ensure that the information in this Protocol is correct, all persons wishing to use this Protocol should take independent legal advice. NZDRC, its agents, and its employees, do not assume any liability to any person for any loss or damage caused by any error or omission herein and expressly disclaim any and all such liability whether involving negligence, breach of contract, breach of fiduciary duty, or breach of statutory duty or any other duty, and any and all such liability is expressly disclaimed.
Material protected by this copyright notice may be reproduced and used by parties, or intending parties to Mediation administered by NZDRC, without formal permission or charge, provided that the material is reproduced accurately using the most up to date version, the material is not used in a manner that is misleading or deceptive, and the source and copyright of the material is acknowledged. Otherwise, no part of the material protected by this copyright notice may be copied, reproduced, utilised, adapted, distributed, republished, downloaded, modified, displayed, posted, stored in a retrieval system, printed, or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying or otherwise, on-sold, commercialised, or used to create derivative works without NZDRC's express and prior written permission.
© New Zealand Dispute Resolution Centre 2018.