Mediator Immunity in Australia
(2001) 23 Sydney Law Review 185
39 Pages Posted: 24 Oct 2014
Date Written: 2001
Abstract
The question whether mediators can and should be immune from liability arising out of their mediation practice has largely been addressed in piecemeal fashion through legislation and carefully drafted mediation agreements. Yet doubts persist that matters can be left as they are. In the past decade several key bodies have raised questions about immunity that have not yet been resolved. Most recently, debate on the issue has been squarely called for by the National Alternative Dispute Resolution Advisory Council (hereinafter NADRAC) in its discussion paper The Development of Standards for ADR. Encouraged by the open-ended questions posed by these bodies and the urgings of a number of experienced mediators that further debate is needed on this issue in Australia, this article will review the legal and policy arguments for and against mediator immunity. While there have been deliberations by advisory bodies and academic writers in Australia and the United States, until fairly recently there has been little evidence in Australia of public debate on the significant privilege that has been conferred on mediators through statutory immunity provisions.
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