by The Hon John Sackar AM KC*
I begin as is customary by acknowledging the Gadigal People of the Eora Nation as the traditional owners of this land. I thank the Australian Disputes Centre for their very kind invitation to deliver the 2025 ADR Address.
I also thank Acting Chief Justice Ward for hosting this event tonight in the Banco Court.
The parallel universes of Litigation, Mediation and Arbitration share similar objectives. Each is called a dispute resolution process, and the latter two are alternative dispute resolution processes, a term which it is generally accepted was originally coined by Professor Frank Sander in 1976 at the so-called Pound Conference.[1]
The single most important objective they all share is that they function in the public interest to quell disputes as cheaply and efficiently as can be. I say in they operate in the public interest because although mediations and arbitrations are conducted in private they each have a public purpose in working in tandem with the courts to implement the dispute resolution process. That is: their primary aim is to deal with disputes between the parties so as to resolve those disputes.
The two latter universes are those which I will concentrate upon this evening. Of course, I accept there are many hybrid procedures as well. And fundamental to each however is the involvement of an impartial person or persons to evaluate and facilitate or determine the resolution of a grievance.
One key topic I will focus on tonight is what happens when there is some error, misconduct or incompetence on the part of a mediator or arbitrator. If a judge commits an error of fact or law or for some reason should not determine the dispute at hand, there are clear procedures available to ensure justice is done and observed as being done. But in ADR, the process is less clear. In arbitration, there are some well-known avenues of redress but these are seldom used and quite limited. Protocols by which the integrity of the processes may be health checked, to ensure they are operating in the public interest, are vital in ensuring the important efficient synchronicity of each of the three parallel universes.
Broadly, I will:
- Discuss some background to ADR including recent developments;
- Consider the goal of dispute resolution;
- Consider when ADR is appropriate;
- Look at the duties owed in a mediation, and how a mediation might go awry; and
- Look at the duties owed in an arbitration, and how that might go awry.
At the start, it is worth emphasizing, however, a fundamental difference. In the mediation or arbitration context the appointment of the particular person or persons is generally by reason of a contract, which by its express provisions or incorporation of the rules of a peak or industry body govern the conduct of the person concerned. They are essentially consensual in nature except where ordered by a court.
However, the remedies against a mediator who has misconducted themselves are generally only contractual, although there could be professional disciplinary actions available in a given case. It is difficult though to see how a mediator could cause losses given the process is (supposed to be) largely facilitative, and the parties are routinely represented by their own lawyers. On the other hand, an arbitrator determines the parties’ rights, and jurisdictional challenges can keep an arbitrator in check. There are also statutory remedies against an arbitrator in these and other circumstances. And, the outcome of an arbitration outcome is generally not the subject of consent but rather an award enforceable by contract and by statute through the court system. An agreement following a mediation is of course contractual and does not, without more, obtain the effect of a judgment of the Court. However, in many cases the mediation will lead to an order of the Court, for example to dismiss proceedings.
Background
In recent remarks, the Lady Chief Justice of England and Wales, Baroness Carr of Walton-on-the-Hill, was quoted as suggesting that arbitrators, mediators and Courts must work together, and as follows:
“If we unite in this way,” she asked, “are we not likely to be better placed to thrive in the face of global challenges and to take advantage of future opportunities?”
And further:
“Could one way in which London looks to continue to develop better practice, to offer itself as a world-leading centre for dispute resolution, be for the three main forms of dispute resolution — mediation, arbitration and litigation — to come together and consider how they can best complement each other and learn from each other?”
Her Ladyship went on to suggest that this complementary approach should be front-of-mind: “conscious”.[2]
Further, as Lord Sales explained in a recent address: “For the rule of law, the important point is not access to courts per se, but access to an impartial system of adjudication.”[3]
These remarks are an apt starting point, and it is vital to acknowledge that the ‘three worlds’ of litigation, arbitration and mediation must work together for the system to operate. That is especially so in the UK given how overstretched judicial resources are there. Indeed, recently, the England and Wales Court of Appeal, constituted by the Lady Chief Justice, the Master of the Rolls and Birrs LJ, held that (in a judgment given by Vos MR), that the Court could lawfully order parties to Court proceedings to engage in ADR, even unwillingly.[4] The Court held that such an order could be made “provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost”[5] and noted that there were several relevant factors, including the form of ADR, whether the parties were legally represented, the urgency of the case, costs of ADR in light of the value of the proceeding, and the parties’ relative bargaining power.[6]
Such powers were introduced by statute in NSW by the Supreme Court Amendment (Referral of Proceedings) Act 2000 (NSW), which allowed for referral of matters (other than criminal matters) to mediation without the consent of the parties. It was opposed by the Bar Association, and attracted critical comment in the Bar News from Bret Walker SC, and a certain junior, one Andrew S. Bell.[7] That opposition fell on deaf ears, and these provisions were later moved from the Supreme Court Act to the Civil Procedure Act 2005 (NSW) upon that Act’s commencement.[8]
History
But this has all come a long way. The history of non-judicial resolution of disputes dates from at least 1800BCE in the Mari Kingdom (now Syria); arbitration and mediation were used in dispute resolution between kingdoms.[9] King Solomon famously offered to cut a baby in half to resolve a dispute between two women,[10] and the Western Zhou Dynasty of China had an official public post of mediator.
ADR also has a very long history in the common law. In that regard, consider the (astonishing) remarks of Lord Campbell, in an 1856 case called Scott v Avery:
“My Lords, I know that there has been a very great inclination in the courts for a good many years to throw obstacles in the way of arbitration. Now, I wish to speak with great respect of my predecessors the judges; but I must just let your Lordships into the secret of that tendency. My Lords, there is no disguising the fact, that as formerly the emoluments of the judges depended mainly or almost entirely upon fees, and they had no fixed salary, there was great competition to get as much as possible of litigation into Westminster Hall, and a great scramble in Westminster Hall for the division of the spoil…. Therefore, they said that the courts ought not to be ousted of their jurisdiction, and that it was contrary to the policy of the law.”[11]
Such a stir did these remarks cause that they were edited out of later reported versions.[12]
This kind of self-interest has, at least outwardly, long since departed from the judiciary’s collective mind. This was the case by 1991, 135 years later, when Sir Laurence Street, then the recently retired Chief Justice of New South Wales and undoubtedly an elder statesman of alternative commercial dispute resolution in this country, wrote:
“Arbitration has come of age. Mediation is being taught and practised. The holistic inter-relation between the procedures in the dispute resolution spectrum is becoming more generally recognised and understood. Practising lawyers are now conscious of their professional obligation to advise clients on the selection of the procedures best suited to the case in hand.”[13]
And as Justice Kirby in the Court of Appeal noted some time ago in Natoli v Walker, “the inclination of the judges (including myself) to review arbitral awards and to re-examine facts had to be brought to a halt” in light of “the clear preference of Parliaments throughout Australia … for the more robust and narrower approach favoured by the House of Lords in Pioneer Shipping Ltd & Ors v BTP Tioxide Ltd [1982] AC 724”.[14] The reference to Pioneer Shipping was to the so-called ‘Nema Guidelines’, named for the ship in that case. The guidelines, in a speech of Lord Diplock, laid down a narrow conception of the right to appeal from arbitral awards. Prior to Justice Kirby’s comment in Natoli, the Court of Appeal had held that, while the Nema Guidelines were “important factors”, the Court was “not convinced” that they were applicable to Australian cases; the Court rather preferred to consider “all the circumstances of the case”.[15] On the other hand, the Victorian Supreme Court had always been more amenable to the Nema Guidelines, and that approach ultimately won out.[16]
There is even entrepreneurship in ADR. Individuals occasionally attempt to invent new forms of ADR. One case heard by me involved a woman attempting to engage in ADR with her ex-husband. The ADR in question was that the woman had hired a notorious gangster, in an attempt to extract a better deal than her Family Court settlement.[17]
Arbitration Act 2025 (UK)
I should pause to note the recent commencement of the Arbitration Act 2025 in the UK. The Act is aimed at ensuring the primacy of the UK in arbitrations. It has some key reforms, including clarifying that the law applicable to an arbitration agreement is the law that the parties expressly agree upon, or, in the absence of such an agreement, the law of the seat of the arbitration.[18] Relevantly for something I will touch on later, it further clarifies that arbitrators must disclose any circumstances which might reasonably give rise to justifiable doubts as to their impartiality, and that this duty continues throughout their appointment, and applies to any matter of which they have actual knowledge but also any matter of which they should reasonably be aware.[19] Equally relevantly, immunity for arbitrators is extended so that arbitrators are immune from costs due to resignation unless the resignation is unreasonable,[20] and immune from costs of applications for removal unless the arbitrator has shown bad faith.[21] Other changes include a new procedure for jurisdictional challenges to remove rehearing of evidence,[22] and introduces a new power to make an award (or reject a claim) on a summary basis.[23] The reforms are far-reaching and are innovative.
Alternative Dispute Resolution – what is the goal?
In his 2022 address to this group, former Chief Justice French opined that mediation could create inequality between groups of different power and status, and to lead to a lack of substantive fairness.[24] Part of his case was that, because mediations are overwhelmingly conducted in private, they cannot advance the public ‘accumulation’ of justice. That is true, but in my respectful view only to a point, and it draws attention to the goal of mediation. That goal, in my view, is the resolution of individual disputes. Indeed, one aspect of mediation that many find attractive – be they impecunious individuals or multinational corporations – is the very fact that it is conducted in private. And given that the need for mediation arises from individual disputes, one would assume the foremost goal of the mediation must be the resolution of that particular dispute.
To put that another way, mediations tend to be driven by commercial (or, at least, financial) reality and pragmatism. They do not tend to be driven by social justice, and in my view it is apt to mislead to speak of ‘social justice’ as a goal of mediation.
Another point that it is important to address is that the inequality of resources between litigants is not an obstacle. Indeed, on one view, the vices of that situation are remedied in mediation, where the playing field is considerably more level than in a lengthy and costly trial, or a grinding arbitration. But at a more principled level, these ideas were addressed by Bell CJ in discussing ‘justice’ in an Australian context, in which he expressly disavowed that the ‘equality of arms’ was a precondition to achieving justice:[25]
“In very few pieces of litigation will there be equality of resources, be they financial or human resources, and it is not the role of the courts to endeavour to achieve or bring about a circumstance of “equality of arms”. A citizen’s effective access to the courts, whether he or she is in custody or not, is not to be denied but that is a very different proposition to one that requires some broad or approximate equalisation of resources. In this sense, the expression “equality of arms” is apt to confuse.”
Of course, that statement is as true of the role of courts as it is of the role of ADR.
A further and important point to note on this front is that, unlike in litigation and arbitration, mediation may settle on a basis that is wholly outside the pleaded case. In the former forms of dispute resolution, the decision-maker is, of course, limited by the parties’ pleaded cases. In mediation, anything can happen by agreement. That is unique to mediation and in my view increases its attractions. For instance, in a recent case, an impugned contractual term was agreed to be replaced by a different contractual term with no damages to be paid and costs to be shared. That is a commercially sensible, practical and wholly commendable outcome, but it is one that litigation and arbitration cannot provide.
Arbitrability and Mediat-ability?
Certain disputes are simply not amenable to arbitration and must be litigated, as a matter of law and supported by sound public policy considerations. Ball J examined these matters thoroughly, in a case concerning whether two security for payment claims were arbitrable:
“Whether a particular dispute is capable of settlement by arbitration or not depends on the subject matter of the dispute and, in some cases, the mechanism that has been established to resolve it.
…
… in certain circumstances, it may be apparent from the nature of the subject matter or the way that it is dealt with by the legislature that it is appropriate for disputes concerning the subject matter to be resolved by the courts, or specialist tribunals established for that purpose. What normally distinguishes this class of case is the existence of some legitimate public interest in seeing that disputes of the type in question are resolved by public institutions or in accordance with structures established by the parties… Examples include proceedings to recover fines, proceedings relating to insolvency and competition law claims…”[26]
Added to this is that one statutory basis for setting aside an arbitral award is that “the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State”, which appears to pre-suppose that some subject-matters simply are incapable of arbitrability.[27] The result for Ball J was that the matter was not arbitrable as there was a lengthy and specific statutory scheme dealing with security for payments, which made no reference to arbitration.[28]
On the other hand, there is no reason why all civil disputes are not amenable to mediation of some kind.
Further, I should note that the recent decision of the High Court in Tesseract International confirms that claims involving questions of proportionate liability are arbitrable, even if the alleged concurrent wrongdoers are not all parties to the arbitration.[29] That decision was 5-2, with Edelman and Steward JJ dissenting. Justice Steward’s judgment concluded – relevantly for present purposes – as follows:[30]
“The result in this appeal highlights the limitations of arbitration. The fashionable trumpeting of the arbitral resolution of disputes may have overstated its virtues. Some disputes are better resolved in a court of law.”
While the underlying thrust of the comment is undoubtedly true, I am not sure that Tesseract did highlight the limitations of arbitration, so much as to emphasise its flexibility.
Mediation
To return to mediation, mediation can occur in a number of different ways:
- It can occur outside of litigation, with no contractual requirement, between parties who simply want to resolve a dispute.
- It can occur as part of a tiered dispute resolution clause, which may provide for non-executive conferral, executive conferral, mediation, arbitration, and/or any combination thereof.[31]
- It can occur by consent during litigious proceedings.
- It can occur by order of the Court during litigious proceedings.
In this last form of mediation, certain rules of Court apply in the mediation.[32] They include that the mediation must be attended by a representative of each party who has authority to settle the proceedings, and that remote appearances are only possible with leave of the Court or the meditator.[33] Further, within seven days after the conclusion of the last mediation session, the mediator must advise the Court of the time and date that the first mediation commenced, and the time and date that the last mediation session concluded.[34]
Duties of a mediator
Duties in a private mediation are, of course, contractual, and generally set out in the mediator’s agreement. The standard-form agreement contains clauses on good faith and the like, which I will set out shortly. However, it is worth considering the position of a mediator against the professional standards framework; put another way, do mediators need practicing certificates as lawyers?
Generally, a practicing certificate is required for accreditation, and of course a practicing certificate goes hand-in-hand with appropriate professional indemnity insurance. But there does not seem to be any rule that requires it, and this probably makes sense, given that mediators, almost by definition, do not provide legal advice as mediators. Of course, any mediator with a practicing certificate is required to comply with the professional obligations which those certificates bring with them.
To return to the (standard-form) mediators’ agreement, at least in NSW it provides for the mediator to be “neutral and impartial”, and generally provides contractual options to the mediator, such as to meet with the parties together and/or separately. It states that the mediator will not “give legal or other professional advice to any party”, “impose a result” or “make decisions”. It provides for the mediator to “disclose to the parties to the best of the mediator’s knowledge any prior dealings” with any of the parties as well as any circumstances which come to the mediator’s intention which might “reasonably be considered to affect the mediator’s capacity to act impartially”.
One further useful place to look as regards the duties of mediators is the Law Council of Australia’s Ethical Guidelines for Mediators.[35] The guidelines helpfully set out various principles with practical comments on the mediator’s role. One point made in the guidelines, which in my view is salutary, is that “A mediator cannot personally ensure that each party has made a fully informed decision when reaching an agreement to resolve a dispute” but should encourage the parties to seek the advice of other relevant professionals. Considerable emphasis is given to impartiality and avoiding any sense of prejudice to any party, including by avoiding giving advice on the merits. This includes the importance of disclosing conflicts of interest where they arise.
One other point that is made is the importance of recording any settlement in writing, and the guidelines encourage mediators to continue the mediation until a settlement is recorded in writing, which is also included in the standard-form mediation agreement. This can throw up its own issues. In a case I heard some years ago,[36] a two-page handwritten document was executed at the end of a mediation, termed the Heads of Agreement. One party then claimed not to be bound by it, and said there was no contract at all. After some back-and-forth, the other party sued, and won. I held that the Heads of Agreement indicated a plain intention to be immediately bound, even if it was contemplated that a fuller Deed would be executed, in the familiar categories of Masters v Cameron.[37] One imagines these sorts of issues arise from time to time – and perhaps are resolved by further mediations (however informal). But it underlines the importance of putting pen to paper in the room and in such a manner as to make it clear that the parties are bound by the basic terms of the agreement. Doing otherwise can lead to all sorts of vulnerabilities, and can lead to very awkward situations including mediators having to give evidence.[38]
I note for completeness that Australia has not ratified the Singapore Convention for the international enforcement of mediation and settlement agreements, although we did sign it on 10 September 2021. The Convention provides for a uniform framework for recognition and enforcement of mediation agreements.
Mediator Immunity
Importantly, the standard form mediation agreement contains the following exclusion clauses:
“The mediator will not be liable to a party for any act or omission in the performance of the mediator’s obligations under this agreement unless the act or omission is fraudulent.
The parties together and separately indemnity the mediator against any claim for any act or omission in the performance of the mediator’s obligations under this agreement unless the act or omission is fraudulent.”
These clauses are obviously powerful, and they provide a limited contractual immunity.[39] They draw attention to some important points:
- To require an indemnity presupposes that there is litigation against the mediator. I say that only to make the point that these clauses are not an “immunity” in the way that judicial immunity (to which I shall return) is a complete answer to a suit against a judge.
- No exclusion of liability occurs, nor is any indemnity granted, for any act or omission outside of the mediation agreement. While that might be difficult to conceive, if the mediator were to, say, negligently cause physical injury to someone during the course of the mediation, it would perhaps not be covered. Intentional injury would be in the same camp. In a recent judgment on judicial immunity, Justice Edelman adopted as an example of where immunity would not flow, an example given by Justice Beech-Jones in argument, of a judge jumping off a bench to punch counsel during argument. It was agreed that such a judge would not have the protection of judicial immunity, a good reminder to those judges, not myself of course, that patience is a virtue. Similarly, though, a mediator is not protected by the agreement if he punches a party to the mediation, even if the punch is in the course of the mediation.[40]
- There is no exclusion nor indemnity for any act which is “fraudulent”. That invites attention as to what that means, but broadly “dishonesty in bad faith” seems to suffice.
It should also be noted that the immunity – similar with other immunities, including judicial immunity and advocate’s immunity – does not make a mediator immune from professional standards complaints. For instance, the Australian Mediation Association accepts complaints about accredited mediators lodged within 12 months of the end of the engagement.[41]
Statutory Immunity for Court-annexed mediation
I have hitherto focused on mediations conducted pursuant to contract, but the position in Court-annexed mediation seems largely the same, save for one important exception. A Court appointed mediator in New South Wales has the same immunities as a judge by an express provision of the Civil Procedure Act.[42] The immunity of a judge falls to be tested, according to the High Court in Stradford, by “an objective inquiry into whether the conduct of the judge could be seen as a purported attempt to exercise the judicial function of the court to which they are appointed”.[43] It expressly extends to errors of jurisdiction.[44] It does not extend to attempting to resolve disputes in Courts to which they were not appointed (i.e. exercising the judicial function of another Court) or private acts unrelated to judicial office.[45] One can readily see how that translates to the limited functions of a mediator in a Court-annexed mediation, and how the immunity powerfully protects even the mediator who badly mangles the limits of his or her task.
It is worth bearing in mind that mediations to which this immunity applies are limited, only to one of the four categories of mediation I identified above. Recently, in an address, the Hon TF Bathurst AC KC raised the issue as to whether an order of the Court would need to name the mediator for the statutory immunity to apply. For my part, I agree with Mr Bathurst that this is likely to be the case.
Can mediators be sued?
A former Queensland Supreme Court Judge, Mr McMeekin, has considered the question of whether mediators can be sued (outside of the circumstances in which they are immune) in a thoughtful article.[46] He identified actions in tort, contract and for breach of fiduciary duties as potential options. In respect of the former, he points out the difficulty of setting an appropriate standard of care, and the potential role for the professional liability rules of the Civil Liability Act 2002 (NSW).[47] Those standards provide for a peer-standard of practice. He points out that establishing any tort would require “peculiar facts”. To that, I might add that establishing damage would require “peculiar facts”, to which I shall return soon.
In respect of a claim in contract, Mr McMeekin notes that mediation agreements tend to contain few promises other than to do one’s best to assist the parties to resolve their dispute. Promises such as these are unlikely to give rise to any claim for breach, or any ability to enforce the promise.
As to whether mediators might be fiduciaries, Mr McMeekin notes a large body of American academic material, ranging from the clearly skeptical,[48] to the wholly supportive.[49] The latter body tends to be based on the trust, confidentiality and professionalism that is expected of mediators. Mr McMeekin adds to that that mediators are highly qualified, and tend to conduct ‘evaluative mediating’, by indicating, where necessary, the mediator’s view of the case. For my part, I struggle to see how a mediator could be said to owe fiduciary duties to the parties. How would this work? A duty of undivided loyalty to two warring parties seems farfetched, even with the ‘moulding’ of a fiduciary duty.
Mr McMeekin does point out that, in any case, causation of any damage is likely to be an insuperable hurdle, given that any agreement is ultimately the parties’, and an inability to prove the counterfactual that a better outcome may have been available.[50] That would require some that the non-aggrieved party would have settled for more; in my experience, such evidence tends to be unforthcoming! Further, it is extremely difficult to prove ‘non-settlement’ as loss or to show some damage extraneous to the mediation outcome.[51] I add that any attempt to do so may run into scope of liability issues.
One final point on this is to consider whether judges should act as mediators. That is presently permitted in WA,[52] SA,[53] NT,[54] and Victoria.[55] I previously gave a paper on this topic, and was not warmly disposed to the idea.[56] I adhere to that view. In my speech, I pointed out that, although many proponents of the idea suggested that the gravitas of the judge aided settlement, any reliance on this idea was misconceived. First, it tends towards suggesting that it is desirable to pressure parties into settlement. Second, the point suffers from a fundamental illogic in that a judge can never mediate properly due to institutional constraints on suggesting to parties the prospects of how a case may be decided. Third, it, in my view, tends to abuse the institutional authority of a judge. The duty of confidence owed by a judge as to what happened in mediation can also be seen as antithetical to the judicial duty to ensure open justice so far as possible. That is not to say that some judges do not make remarks from the bench prefaced by the word “tentative”, in order to encourage one party to reconsider their position.
Duties of Practitioners in a Mediation
More prosaically, there are vitally important ethical duties of practitioners in a mediation, and it can be very unfortunate when the standard is not met.[57]
Some duties may be imposed by the mediation agreement. For instance, Sir Laurence Street used to incorporate into his mediation agreement that “legal advisers are not present as advocates”.[58]
Other duties are imposed by statute, including professional obligations, to which I will return shortly. These duties include not knowingly making misleading statements, and correcting any as soon as possible.[59] Although on their face limited to the Court, court is defined to include all mediations.[60]
However, one other duty that is imposed by statute is the obligation to mediate “in good faith”, which applies to court-referred mediations.[61] This is a very well-litigated concept and it is not always simple to determine whether parties have acted in good faith. The Court of Appeal has stated that the concept “requires the honest and genuine assessment of rights and obligations and it requires that a party negotiate by reference to such”.[62] It has been pointed out that this test gives rise to difficulties: how can the Court know what each party’s “honest and genuine assessment” was, consistently with legal professional privilege and without settlement negotiation privilege?[63] It has been held that the latter can prevent adducing evidence of the conduct at mediation which might show a lack of good faith.[64] Also in that case, it was held that failing to make clear well in advance of the mediation that a party did not intend to settle for any monetary amount (to avoid wasted costs on the part of the other party) was likely a breach of good faith.[65]
The overarching point, however, is that good faith should be objectively ascertainable.[66]
Further, the Law Council of Australia publishes guidelines for lawyers in mediations.[67] It emphasizes both confidentiality and good faith, as well as general duties of respect.[68] It notes that the primary task of lawyers is to help prepare clients by:[69]
“(i) undertaking a risk analysis and linking risks to the client’s interests;
(ii) explaining the nature of mediation;
(iii) identifying interests; and
(iv) developing strategies to achieve final outcomes.”
Some ethical duties are relaxed in mediation; for instance, the usual prohibition on contacting an opponent’s client is inferred to be relaxed, as it does not apply when the opponent consents.[70]
I turn now to potential remedies for misconduct in mediation.
Commercial Remedies
There are potential commercial remedies available for misconduct in mediation. In particular, it has been held that, at least in mediations that are not court-annexed, s 18 of the Australian Consumer Law applies, such that a party must take care not to mislead or deceive another.[71] That is, mediations can be “in trade or commerce”, even when conduct on a “without prejudice” basis.
In one case, heard by Ward J, as the Acting Chief Justice then was, Energy Australia was sued on the basis of a letter sent in the course of without prejudice settlement negotiations. Her Honour considered the category of cases concerning allegedly misleading conduct in mediations to determine that there was no defence to, or immunity from, allegations of misleading or deceptive conduct for without prejudice negotiations merely on the basis that such statements were not made ‘in trade or commerce’.[72] This necessarily included mediations. Whether a statement was made ‘in trade or commerce’ was to be determined by ordinary concepts. However, no damages were awarded as the plaintiffs could not show they had suffered any due to the misleading statement. This, it might be thought and as I alluded to before, is a common characteristic of potential claims against practitioners, and for that matter, mediators, involved in a mediation; as a facilitative process, mediation is not apt to cause loss or damage beyond relatively trivial amounts, such as a mediator’s fees.
Another case, heard by a Court of Appeal comprising Mason P, Priestley JA and Sheppard AJA, considered a mediation conducted by Sir Laurence Street.[73] The parties had settled at mediation, but the appellants, represented by fresh counsel, refused to be bound by the settlement, and on an application to enforce it, brought a cross-claim pleading fraud and misleading and deceptive conduct on the part of the Commonwealth¯ Bank, the respondent to the appeal (and the plaintiff below). At the mediation, the bank had relied on an unsigned statement of a Mr Neale, as though Neale would have given evidence to the effect of the statement, where the Bank knew that he would not.[74] The Court held that this action was misleading and seemed to accept that the law of misleading and deceptive conduct could apply in mediation.[75] In so finding, the Court made the following comments, which bear repeating:[76]
“The process of mediation which is here involved is not properly categorised as a process of negotiation alone. Certainly the mediation was entered upon in an attempt to assist the process of negotiation which had been proceeding but, to use his Honour’s expression, had reached a “Mexican standoff”. The mediation was part of a process designed to bring about the settlement of a long-standing dispute which was the subject of pending litigation which had proved intractable to settlement. That made it likely that, if the matter were to be settled, the settlement would only be achieved with the assistance which a mediator could give.”
Similar issues arose in Pihiga Pty Ltd v Roche, concerning a wealthy South Australian family who had gone to mediation to attempt to facilitate the orderly transfer of a family property business after relations had broken down.[77] A deed of settlement was signed following a mediation before the Hon Ian Callinan AC KC. The mediation agreement provided that all negotiations would be confidential and without prejudice. Later, the applicants brought proceedings to declare the deed void, or for it to be set aside or rescinded, on the basis that false representations about the value of real estate assets and the financial position of the Group, had been made, which induced the entrance into the Deed and purchase of shares at a specific price. The respondents sought specific performance and defended the statements made on the basis that, if any such representations were made, they were either a genuinely held opinion or an opinion that was based on reasonable grounds.[78]
Injunctions were sought, on the grounds of ‘without prejudice” privilege, to prevent the introduction into evidence or reliance on any documents brought into or discussed during the course of the mediation and/or any oral exchanges made during the mediation. The Court declined to grant an injunction on the basis of “without prejudice” privilege. In so holding, Lander J focused on the fact that a concluded compromise had been said to be reached, and that the “without prejudice” rule cannot protect conduct which is said to be misleading or deceptive. His Honour also rejected an argument that the mediation agreement could have this effect, stating that the agreement went no further than the common law and further that, if it did, it would be contrary to public policy to allow such an agreement to exclude the effect of statutory prohibitions on misleading and deceptive conduct.[79]
In yet another case, heard by a Court of Appeal comprising Handley, Sheller and Fitzgerald JJA, the appellant alleged that his solicitor had been professionally negligent by unduly pressuring him into settlement at mediation.[80] The appeal was unanimously dismissed. The Court held that no undue pressure had been applied and that his advice had been sound; indeed, Handley JA held that the “considerable pressure [brought] to bear … was in the appellant’s best interests”.[81] Fitzgerald JA further noted that: “Advice to compromise based on a variety of considerations is not negligent if a person exercising and professing to have a legal practitioner’s special skills could reasonably have given that advice”.[82] His Honour later expanded on this statement:[83]
“Although it is in the public interest for disputes to be compromised whenever practical, a lawyer is not entitled to coerce a client into a compromise which is objectively in the client’s best interests, at least when the client alone must bear the consequences of the decision. The client, not the lawyer, is entitled to decide whether to compromise or to litigate.
Broadly, and not exhaustively, a legal practitioner should assist a client to make an informed and free choice between compromise and litigation, and, for that purpose, to assess what is in his or her own best interests. The respective advantages and disadvantages of the courses which are open should be explained. The lawyer is entitled, and if requested by the client obliged, to give his or her opinion and to explain the basis of that opinion in terms which the client can understand. The lawyer is also entitled to seek to persuade, but not to coerce, the client to accept and act on that opinion in the client’s interests. The advice given and any attempted persuasion undertaken by the lawyer must be devoid of self-interest. Further, when the client alone must bear the consequences, he or she is entitled to make the final decision.”
Finally, it is worth emphasising that the whole of the prohibition on misleading or deceptive conduct applies. That means, consistently with s 4 of the ACL, a statement without reasonable grounds about a future matter is misleading. In practical terms, this means that a knowingly false statement, or even a statement without a proper basis, even if not knowingly false, about what a client will do if the mediation fails could amount to misleading and deceptive conduct. Further, as is well known, silence can constitute misleading or deceptive conduct in certain circumstances.[84]
Another potential pitfall in mediation, or ADR generally, can be pressuring someone into it. In theory, a remedy might be available not only for coercion in mediation, but coercion to attend mediation. In one case, a contempt of Court was held to be available against three Rabbis, forming a Jewish religious Court, who threatened religious sanctions on an orthodox Jewish man who refused their summons, wanting a civil Court to resolve his dispute. The contempt was held to be available despite civil proceedings not yet being on foot.[85]
Professional Standards
There are also professional standards consequences for misconduct in mediation.
A good example of that is the case of Legal Services Commissioner v Mullins (‘Mullins’).[86] That case came out of a mediation of a claim for damages for personal injury. The barrister for the plaintiff in that case was Mullins, who failed to disclose to the defendant and its insurer that the plaintiff had been diagnosed with terminal cancer subsequent to the preparation and exchange of expert reports detailing the plaintiff ’s assumed life expectancy. Estimates of losses and future care needs were based on that assumption. The defendant insurer settled on the basis of the inaccurate report. Later, Mullins was found to have fraudulently deceived his opponent and was fined for professional misconduct.
Interestingly, not long after the case, there was some commentary that suggested that it stood for the proposition that greater duties were owed in a mediation than in other litigious contexts.[87] A/Prof Bobette Wolski has written an article on this issue. Like her, I am not sure that Mullins stands for the proposition that higher duties are owed in a mediation. Lawyers in a mediation are undoubtedly engaged in the practice of law, and so their conduct is governed by contract, tort, the common law and the professional standards regime as much as it normally is. “Court”, as defined in the barristers’ rules, includes mediations.[88] As such, there is a duty not to ‘deceive or knowingly or recklessly mislead the’ mediation.[89] That does not mean one has to be candid, in the sense of unnecessary revealing, as to facts (as opposed to the law)[90] and nor does one have to ‘correct an error in a statement made to the [mediation] by the opponent or any other person’.[91] General law obligations are similar.
In Mullins, the distinguishingly unfortunate feature of the case was that the practitioners had made representations prior to the mediation – which were critical, and which the practitioners knew the defendant would rely on – which they knew had been falsified.[92] They were obliged to correct the record, which they did not do. Indeed, at the mediation, Mullins made statements adhering to the reasonableness of what his client had offered. The solicitor, Mr Garrett, who remained silent at the mediation, was found no less culpable, on the basis that he had an independent responsibility to speak up, but maintained a fraudulent deception.[93] The fact that their client had instructed them not to reveal the truth was no defence.
Both practitioners were ultimately fined for professional misconduct. Interestingly, the cases were determined on the basis of duties owed to opponents (not to Courts or mediators). And the distinction was somewhat elided in the decision between the duty of honesty – which is undisputedly vital – and the duty of candour, which is distinct, and limited. Candour – taken to mean openness – is not required in all circumstances,[94] and there is no affirmative duty of disclosure. In other words, the practitioner, although he/she must never mislead the Court, is not duty-bound to disclose matters which are properly confidential between him or herself and the client. But here it was decidedly dishonest to continue to falsely stand by a report, to induce the other side to settle, which the lawyers knew to be false. In the criminal context, as an aside, such an action has been held to found a claim for malicious prosecution.[95] And however the duty is described – to the mediation or to the opponents – it was plainly wrong. The same can be said of a recent case in Singapore, in which a case was settled, but then the legal practitioners contrived to keep an appeal on foot so as to allow one party – who were liquidators – to obtain a judgment on a point of law in their favour. The practitioners involved were suspended from practice.[96]
Arbitration
I now want to turn to considerations of arbitration.
The duties of practitioners in an arbitration are well understood and have much closer parallels with duties in litigation. Hence, my focus will be on the duties of an arbitrator.[97]
Duties of an arbitrator
A Tour of the Commercial Arbitration Act
Certain obligations can be imposed on arbitrators by the arbitration agreement itself. However, there are some statutory baselines which cannot be ignored.[98] Section 12 of the Commercial Arbitration Act 2010 (NSW) provides, in part:
“When a person is approached in connection with the person’s possible appointment as an arbitrator, the person must disclose any circumstances likely to give rise to justifiable doubts as to the person’s impartiality or independence.”
This obligation is a continuing one, and the section provides a basis for challenge when there is a “real danger of bias” on the part of the arbitrator.[99] I will return to this test later.
While the parties are free to agree on a procedure for any such challenge, in default of agreement the challenge must be made first to the impugned arbitrator, and then to the Court.[100] Further, if an arbitrator, “becomes in law or in fact unable to perform” their functions, or fails to act “without undue delay”, the Court may terminate the arbitrator’s mandate.[101] Of course, as a general proposition, the arbitrator is competent to determine his or her own jurisdiction.[102]
The arbitrator also has substantive duties. When the Act provides that “[t]he parties must be treated with equality and each party must be given a reasonable opportunity of presenting the party’s case”, it really appears to be placing such a duty on the arbitrator.[103]
There are various duties on the parties in the Act, but overriding them all are the “general duties” of the parties (which interestingly has no equivalent in the Model Law):[104]
“(1) The parties must do all things necessary for the proper and expeditious conduct of the arbitral proceedings.
(2) Without limitation, the parties must:
(a) comply without undue delay with any order or direction of the arbitral tribunal with respect to any procedural, evidentiary or other matter, and
(b) take without undue delay any necessary steps to obtain a decision (if required) of the Court with respect to any function conferred on the Court under section 6.
(3) A party must not wilfully do or cause to be done any act to delay or prevent an award being made.”
The role of the Court in these circumstances was explored by Stewart J in an address to ACICA.[105] He traces the supervisory role of the Court in arbitrations to the New York Convention and the UNCITRAL Model Law, arguing that the circumstances in which Courts will intervene are minimal and in line with consistent international standards, which supports predictability in arbitration. He also noted the very limited breadth of the public policy exception, and that, for instance, a different remedial model that did not result in restoring parties to their precontractual positions was not – for that reason – offensive to public policy, even if it was different to Australian policy.[106]
Further, the former Act used to contain provisions allowing for an arbitral award to be set aside on the basis of “misconduct”,[107] a concept which involved no moral turpitude but rather a mistake that vitiated the arbitral process.[108] Some aspects of this kind of “misconduct” still provide a basis for refusing recognition and enforcement of an arbitral award, including where:[109]
“the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced”
This underlines this distinction between mediation and arbitration to which I referred earlier, namely that arbitration is limited to the parties’ pleaded cases in a way that mediation is not.
Other aspects of “misconduct” have been removed from the Act, principally because they caused a considerable amount of litigation, contrary to the purpose of the arbitration process.
Bias
I want to pause for a moment on the ‘real danger of bias’ test.
To dovetail, the Australian test for judicial bias is well known, being the ‘double might’ test: “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.[110] That test has stood the test of time, and is robust and well-understood. It reinforces confidence in the administration of justice.
That was the position in Australia up until 2010,[111] when following a review ordered by then-Attorney-General McClelland, the International Arbitration Amendment Bill 2010 (Cth) was passed. This Act inserted s 18A, which adopted the ‘real danger of bias’ test.[112] This was also adopted in NSW.
It is not clear why that test was adopted. The test in the Model Law, following the 2006 amendments, was one of “justifiable doubts as to his impartiality or independence”.[113] The ‘real danger’ test, something quite different, came from R v Gough,[114] but as Emma Garrett notes in a helpful paper, the reform only adopted the ‘real danger’ standard from Gough; it did not adopt Gough’s other reform, which was to change the hypothetical decision-maker from a ‘reasonable bystander’ to a ‘reasonable Court’.[115] The statute did not opine on the ‘vantage point’ at all.The question remains why the test was adopted at all. The Explanatory Memorandum to the Commonwealth Bill provides some explanation:[116]
“Equating arbitrators with judges is not consistent with the principles underpinning arbitration. While there is no doubt that an arbitrator should be impartial, arbitrators will be selected by the parties in some instances because of their specific knowledge of an industry or particular arrangements. More typically an arbitrator will be a senior member of an international law firm, barrister, expert in a particular field or an academic. Accordingly, it is appropriate to apply a standard different than that for judges to such persons.”
The Memorandum goes on to note that Lord Goff, in his judgment in Gough, suggested the test should apply to arbitrators, although this was not in issue.[117] It was therefore adopted.
When the reform was adopted in WA, the relevant Committee report noted that the test would make “it harder to challenge an arbitrator in Australia”, removing a “common procedural tactic in high value international arbitrations”, thereby making “Australia more attractive as a seat for international arbitration”.[118] Whether there is empirically so remains an open question.
In any case, by the time of the amendments, the House of Lords had abandoned Gough and set up a ‘reasonable possibility’ test.[119] Thus, Australia adopted an outdated UK test.
For myself, I have real doubts that this was a good idea. If a decision-maker is reasonably apprehended to be biased, there are good reasons for recusal which have been very well explored in judgments and academic literature. Why it needs to be harder to make a recusal application, in light of the typically demanding standards of applications for recusal – consistently with the duty to hear and determine matters – is not clear. Neither is why arbitrators should be subject to lesser standards than judges; there is a real argument that arbitrators should be subject to higher standards, given the inherent dangers in privatized judgments, which can be enforced as judgments of the Court. In any case, maintaining the test as equivalent to the test for judicial bias, rather than re-inventing the wheel, would have seemed to me to be a more sensible course in 2010.
The test appears to have been considered three times, two of which by Beach J, who found that the ‘vantage point’ should be a ‘reasonable bystander’, consistently with the common law.[120] Interestingly, his Honour’s initial view, in obiter, was that the test was that of a ‘reasonable Court’, but by the time the issue was necessary to decide, he was convinced that the ‘reasonable bystander’ was appropriate. The third time was Ball J, who simply found it was an objective inquiry.[121]
Seemingly not yet considered is how the provisions apply to a multi-member arbitral panel. It would logically follow to me that the High Court’s decision in QYFM should be utilized.[122] That judgment tends to suggest that the individual impugned judge, or arbitrator, should initially consider the matter, and if he or she decides not to recuse him or herself, the other members of the Court of panel must then satisfy themselves of jurisdiction.[123]
Immunity
An arbitrator is “not liable for anything done or omitted to be done in good faith in his or her capacity as arbitrator”, including where an arbitrator is acting as a mediator.[124] This effectively provides a form of judicial immunity to arbitrators. It also reflects the former common law position that arbitrators were not liable in negligence for the way in which an award was made.[125]
On the other hand, in one Victorian case, prior to the statutory immunity, an arbitrator was ordered to pay the costs of an application for his removal, on the basis of his misconduct.[126] The misconduct apparently involved the arbitrator communicating directly with one of the parties. The Judge also suggested that the Institute of Arbitrators, having appointed the arbitrator, should ultimately bear the costs of the application. This suggestion seems to have been rejected at the time, and even the solicitor for the applicant describe it as an “off-the-cuff judicial comment”.[127]
How can arbitrations go wrong?
There are a number of situations in which arbitrations have gone awry. Some of them are worth highlighting this evening.
Professor Doug Jones, also a judge of the Singapore International Commercial Court, in a learned article, highlights the difficulties arbitrators can have dealing with counsel misconduct. Indeed, he states that “Arbitral tribunals have often confronted the issue of the counsel misconduct, with decisions leading to different, and sometimes conflicting or contradictory results”, and notes a controversy over whether arbitral tribunals have the power to dismiss lawyers.[128] The answer must surely depend upon the source of power, the rules, and the inherent jurisdiction of arbitrators to control the processes of arbitration. For instance, the London Court of Arbitration Rules give arbitrators power to discipline a party’s representative by i) a written reprimand, ii) a written caution or iii) any other measure necessary to fulfil within the arbitration the general duties required of the Arbitral Tribunal.[129] The latter seems to me to allow for the dismissal of a party’s representative if required.
Professor Jones raises a concern that “arbitrators face a temptation to be biased towards a particular party in an arbitration, or class of party, in an effort to become more appealing for reappointment purposes”.[130] This is a reasonable concern, especially given the nature of arbitral work, which requires an inflow of referrals, at times with extravagant fees. It is difficult to see how this would easily be resolved.
Recently, a real possibility of bias was found on the part of Dame Elizabeth Gloster.[131] Dame Elizabeth had been appointed to a three member Tribunal by Shell, for whom Freshfields were acting. Dame Elizabeth disclosed two prior appointments by clients represented by Freshfields in unrelated matters in the preceding two years, but these initial disclosures were incomplete. Between 2018-2023 she had received a total of eight arbitral nominations and / or appointments and expert instructions, in which Freshfields were acting, and these additional appointments were not disclosed in a timely manner. By the time all disclosures were made on 9 December 2023, the Tribunal had rendered all four Awards. The Court held that, while a fair-minded observer may not have had an apprehension of bias if there had been timely disclosure of the totality of the engagements between Dame Elizabeth and Freshfields, in this case the lack of disclosure, combined with the extent of the prior appointments, did give rise to such a possibility.
Of course, although judges have similar issues concerning the frequency with which some litigants are in their Court, it is a radically different thing for an arbitrator to be in the same position, given the need for referrals of work.
On the other hand, in a not completely dissimilar case, the High Court of England and Wales declined to disqualify Michael Beloff KC, who had been appointed to an arbitration panel as Chair.[132] He had previously been involved in 12 arbitrations in which one of the party’s solicitors had been involved, although he had been appointed by those solicitors in only three cases.[133] He had also advised one of the parties four times, but all more than two years prior to the arbitration.[134] The other party, who only found out about these matters after Mr Beloff’s appointment, asked him to recuse himself. He did not, and this decision was upheld. The advices were unrelated to the subject of the arbitration, and the previous arbitral appointments were unrelated. There was a further important difference; in this case, Mr Beloff was appointed as a neutral Chair by the parties’ respective choices of arbitrator.[135] Accordingly, the application was dismissed.
Indeed, judges who also act as arbitrators in a particular jurisdiction can cause issues of perceived bias. This can cause a heightened level of awkwardness and deference when a first-instance judge is required to rule on his or her colleague’s conduct as an arbitrator.[136]
This includes, by way of a recent Singaporean examples, finding that an arbitral panel had breached natural justice by making findings that had “no nexus” to the parties’ pleaded cases.[137] Another example involved a finding of a breach of natural justice when a defendant in an arbitration was allowed to run an extension of time argument, which was raised for the first time in closing submissions.[138] In both cases, the awards were set aside. One was remitted, and the other was determined by the Court as the award could be easily recalculated.
Another example involves a case where a dissenting arbitrator on a three-member panel accused the majority arbitrators of “distortion of the deliberation history” and complained that he had “lost any and all trust in the impartiality of [his] fellow arbitrators”, stating that they had “engaged in serious procedural misconduct” and had attempted “to conceal the true ratio decidendi from the parties”.[139] The losing party went to Court to seek production of the arbitrators’ records of deliberation, which the Court held were protected as an implied obligation of law supported by strong public policy reasons. In this case, the Court declined to order production on the basis that any challenge to the award could be made on the merits of the award itself, without recourse to deliberations. Ultimately, a challenge to the award was dismissed,[140] as was an appeal from that decision.[141]
Regardless of the results of the above, it seems to me to be problematic as an example of judicial probity and comity for a sitting judge to force one’s judicial colleagues to sit in judgment of one’s conduct as an arbitrator. That is bound to lead to problems, including where the arbitral process is opened up to scrutiny.
Problems and/or difficulties can also arise when multiple methods of dispute resolution are utilized. For instance, in case, an arbitrator asked the parties if they would consent to him acting as mediator, and putting forward a settlement proposal.[142] The parties consented, the arbitrator did so, and the proposal was rejected. He continued hearing the case. However, although he obtained written consent to act as mediator, he did not obtain written consent to continue the arbitration, as required.[143] At first instance, McDougall J held that the arbitrator had acted as a mediator, had not obtained written consent as required to resume the arbitrator, that the respondent had not waived its right to object and nor was it estopped from doing so.[144] The arbitrator therefore had no mandate to continue the arbitration. An appeal was dismissed on the basis that there was no right to appeal, as the proceeding had concerned whether the arbitrator was “unable to perform” his functions, meaning the decision of the Court at first instance was “final”.[145]
Another class of case involves incompetence of counsel. In an extraordinary judgment in the UK, Nigeria successfully challenged a US$11 billion arbitral award on the basis that the award was obtained by fraud and conduct contrary to public policy, including bribery of a witness, improper retention of privileged documents and perjury by a key witness.[146] Knowles J described the arbitration as a “shell that got nowhere near the truth”.[147] Part of the reason for this was, put bluntly, the incompetence of Nigeria’s counsel, described as such:[148]
“…But the case has shown examples where legal representatives did not do their work to the standard needed, where experts failed to do their work, and where politicians and civil servants failed to ensure that Nigeria as a state participated properly in the Arbitration. The result was that the Tribunal did not have the assistance that it was entitled to expect, and which makes the arbitration process work. And Nigeria did not in the event properly consider, select and attempt admittedly difficult legal and factual arguments that the circumstances likely required. Even without the dishonest behaviour of P&ID, Nigeria was compromised.
But what is an arbitral tribunal to do? The Tribunal in the present case allowed time where it felt it could and applied pressure where it felt it should. Perhaps some encouragement to better engagement can be seen as well. Yet there was not a fair fight. And the Tribunal took a very traditional approach. But was the Tribunal stuck with what parties did or did not appear to bring forward? Could and should the Tribunal have been more direct and interventionist when it was so clear throughout the Arbitration that Nigeria’s lawyers were not getting instructions, …”
The Judge did not decide whether the award should be set aside on the basis that it was not a ‘fair fight’, it not being necessary to do so. But this would have involved analysis of the extent to which the Tribunal can ensure a fair fight when it has a general duty to act fairly and impartially between the parties.[149]
Lastly, I note that we have very enlightened rules in this jurisdiction. In Dubai, until relevantly recently, arbitrators could wind up in jail for “failing to maintain integrity and impartiality”, terms which were not defined in UAE law.[150] Qatar seems to have similar rules.[151]
As a final note, my chief concern tonight has been to point out accountability mechanisms in the ADR context. These are difficult but necessary questions if ADR is to continue to have social and legal legitimacy and to work efficiently in parallel with the Courts, as it must.
* Sixth Floor Selborne Wentworth Chambers; former Justice of the Supreme Court of New South Wales. I acknowledge the assistance of Jacob Lerner in the preparation of this address.
[1] National Conference on the causes of Popular Dissatisfaction with the Administration of Justice, 70 F.R.D.79 (1976).
[2] See Joshua Rozenberg, ‘Resolving Disputes’, A Lawyer Writes (5 June 2024), available at https://rozenberg.substack.com/p/resolving-disputes.
[3] Lord Sales, ‘What is the Rule of Law and why does it matter?’ (Speech, The Robin Cooke Lecture, Victoria University of Wellington, 12 December 2024) at 4, available here.
[4] Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416.
[5] Ibid at [74(ii)].
[6] Ibid at [61] and [63].
[7] Bret Walker SC and Andrew Bell, ‘Justice according to compulsory mediation’ (2000)(Spring) Bar News 7.
[8] See Civil Procedure Act 2005 (NSW) ss 26-29.
[9] Robert French, ‘Alternative Dispute Resolution and the Elusive Butterfly of Social Justice’ (Speech, 17 November 2022), available here, at [9].
[10] See Bible, 1 Kings 3:16-28.
[11] (1856) 5 HLC 811, 10 ER 1121.
[12] See Raguz v Sullivan (2000) 50 NSWLR 236; [2000] NSWCA 240 at [48] (Spigelman CJ and Mason P).
[13] Sir Laurence Street, ‘Editorial: The Courts and Mediation – A Warning’ (1991) 2 Australian Dispute Resolution Journal 203.
[14] Natoli v Walker, Court of Appeal, unreported, 26 May 1994.
[15] Qantas Airways Ltd v Joseland (1986) 6 NSWLR 327 at 333.
[16] Karenlee Nominees Pty Ltd v Robert Salzer Constructions Pty Ltd [1988] VR 614. See generally John A Morrisey, ‘New South Wales and Victoria divide. Has the Court inherent power?’ (August 1987) The Arbitrator 49. See also Stephen P Charles, ‘Appeals from Arbitration Awards’ (November 1988) The Arbitrator 105.
[17] Virginia Nemeth (by her tutor) v Australian Litigation Funders Pty Ltd [2013] NSWSC 529 at, e.g., [231].
[18] Arbitration Act 2025 (UK) s 1.
[19] Ibid s 2. This is already the position in NSW: see Commercial Arbitration Act 2010 (NSW) s 12(1)-(2), and the Commonwealth: see International Arbitration Act 1974 (Cth) Sch 2 Art 12.
[20] Arbitration Act 2025 (UK) s 4.
[21] Ibid s 3. This is already the position in NSW: see Commercial Arbitration Act 2010 (NSW) s 39. This also appears to reflect the Australian position: see International Arbitration Act 1974 (Cth) s 28.
[22] Arbitration Act 2025 (UK) s 11.
[23] Ibid s 7.
[24] Robert French, ‘Alternative Dispute Resolution and the Elusive Butterfly of Social Justice’ (Speech, 17 November 2022), available here, at [17]-[23].
[25] Commissioner of Corrective Services v Hamzy [2024] NSWCA 240 at [91].
[26] Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd [2011] NSWSC 195 at [37]-[38].
[27] Commercial Arbitration Act 2010 (NSW) s 34(2)(b)(i).
[28] Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd [2011] NSWSC 195 at [39]-[45]. Note also that matters involving an allegation of fraud cannot be referred to arbitration by a Court without the consent of the parties or otherwise if there are “special circumstances”: Uniform Civil Procedure Rules 2005 (NSW) r 20.8. The same applies if the matter is in the Small Claims Division of the Local Court.
[29] Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24, especially at [133].
[30] Ibid at [283].
[31] See, e.g., Inghams Enterprises Pty Limited v Hannigan [2020] NSWCA 82 at [18]; Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 at [6]; (2013) 298 ALR 666.
[32] See Uniform Civil Procedure Rules 2005 (NSW) Pt 20.
[33] Ibid r 20.6
[34] Ibid r 20.7
[35] (May 2019), available here.
[36] A W Ellis Engineering Pty Limited and Ors v Malago Pty Limited and Ors [2012] NSWSC 55
[37] Ibid at [152].
[38] See, e.g., albeit in an analogous context, Farm Assist Limited (In Liquidation) v The Secretary of State for the Environment, Food and Rural Affairs (No. 2) [2009] EWHC 1102 (TCC).
[39] See generally Robyn Carroll, ‘Mediator Immunity in Australia’ (2001) 23 Sydney Law Review 185.
[40] Commonwealth of Australia v Mr Stradford [2025] HCA 3 at [221].
[41] Australian Mediation Association, ‘Mediator Complaints’ (Webpage, accessed 6 March 2025), available here.
[42] Civil Procedure Act 2005 (NSW) s 33.
[43] Commonwealth of Australia v Mr Stradford [2025] HCA 3 at [88].
[44] Ibid at [112].
[45] Ibid at [88]. More generally, on the topic of judicial immunity, see Abimbola Olowofoyeku, Suing Judges: A Study of Judicial Immunity (Oxford University Press, 1993); David Pannick, Judges (Oxford University Press, 1987); and Shimon Shetreet, Judges on Trial (North Holland Publishing Company, 1976).
[46] Duncan McKeekin, ‘Suing Mediators – A Gathering Storm?’ (Paper presented at the Janus Club Meeting, Brisbane, July 2007). See also Charles Brabazon, ‘Dispute Resolvers’ Liability in Negligence’ (February 1997) The Arbitrator 227.
[47] See s 5O.
[48] See, e.g., Michael Moffitt, ‘Suing Mediators’ (2003) 83 Boston University Law Review 147 at 167.
[49] Rebekah Ryan Clark, ‘Writing on the Wall: The Potential Liability of Mediators as Fiduciaries’ (2006) Brigham Young University Law Review; Arthur A Chaykin, ‘Mediator Liability: A New Role for Fiduciary Duties?’ (1984) 53(3) University of Cincinnati Law Review 731 at 733.
[50] See also Michael Moffitt, ‘Suing Mediators’ (2003) 83 Boston University Law Review 147 at 175.
[51] Ibid at 182.
[52] Consolidated Practice Directions (WA) at 4.2.1 [4].
[53] Uniform Civil Rules 2020 (SA) at 131.2(2)(a).
[54] Supreme Court Rules 1987 (NT) at 48.13(2).
[55] See Civil Procedure Act 2010 (Vic) at ss 3, 66-68.
[56] See Justice John Sackar, ‘Should Judges be Mediators’ (Speech, Faculty of Law, University of Oxford, 2013), available here.
[57] See generally, Steven Standing, ‘Ethical and legal obligations in mediations and other negotiations’ (2015) (August) Brief 20.
[58] Sir Laurence Street, ‘Representation at Commercial Mediations’ (1992) 3 Australian Dispute Resolution Journal 255.
[59] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 23-25.
[60] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 125.
[61] See Civil Procedure Act 2005 (NSW) s 27; see also Dust Diseases Tribunal Regulation 2019 (NSW) r 37(2).
[62] United Rail Group Services Ltd v Rail Corporation of New South Wales (2009) 74 NSWLR 618; [2009] NSWCA 177 at [73].
[63] See Robert Angyal SC, ‘The Ethical Limits of Advocacy in Mediation’, available here.
[64] Murphy v State of NSW [2021] NSWSC 927 at [8]-[12]; see also Civil Procedure Act 2005 (NSW) s 30.
[65] Murphy v State of NSW [2021] NSWSC 927 at [11].
[66] See, e.g., Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 at [12]-[13].
[67] Law Council of Australia, ‘Guidelines for Lawyers in Mediations’ (May 2019), available here.
[68] For an interesting exploration of these guidelines and the role of emotion in mediation, see Kathy Douglas and Lola Akin Ojelabi, ‘Lawyers’ ethical and practice norms in mediation: including emotion as part of the Australian Guidelines for Lawyers in Mediation’ (2023) 26(2) Legal Ethics 297.
[69] Ibid at 5.
[70] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 52. See also Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 33.
[71] See, e.g., Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86; [1990] FCA 455 at [26].
[72] Rosebanner Pty Limited v Energy Australia [2009] NSWSC 43 at [411]-[412].
[73] Williams v Commonwealth Bank of Australia [1999] NSWCA 345.
[74] Ibid at [116] and [124].
[75] Ibid at [122].
[76] Ibid at [121].
[77] Pihiga Pty Ltd v Roche [2011] FCA 240.
[78] Ibid at [60].
[79] Ibid at [111]-[112].
[80] Studer v Boettcher [2000] NSWCA 263.
[81] Ibid at [53].
[82] Ibid at [63].
[83] Ibid at [74]-[75].
[84] See Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31.
[85] Ulman v Live Group Pty Ltd [2018] NSWCA 338.
[86] [2006] LPT 012.
[87] See Albert Monichino, ‘Mediation: An Honesty Free Zone?’ (2007) 5 Australian ADR Reporter 13 at 14; David Spencer, ‘Misconduct by a Barrister at Mediation and whether Evidence of an Offer Made at Mediation is Admissible’ (2007) 18 Australasian Dispute Resolution Journal 135 at 137; cf. Bobette Wolski, ‘The truth about honesty and candour in mediation: what the tribunal left unsaid in Mullins’ Case’ (2012) 36(2) Melbourne University Law Review 706 at 708.
[88] Legal Profession Uniform Conduct (Barristers) Rules 2015 r 125.
[89] Ibid r 26.
[90] Ibid r 31.
[91] Ibid r 19.3
[92] Legal Services Commissioner v Mullins [2006] LPT 12
[93] Ibid at [25] and [34].
[94] See Wolski at 737.
[95] See New South Wales v Landini [2010] NSWCA 157 at [66]-[72].
[96] Law Society of Singapore v Paul; Law Society of Singapore v Mohan [2024] SGHC 224.
[97] See Deborah Lockhart, ‘Ethical Obligations in Arbitration’, available here.
[98] Note also the provisions for reference to arbitration by a Court: Civil Procedure Act 2005 (NSW) Pt 5; Uniform Civil Procedure Rules 2005 (NSW) Pt 20 Div 2.
[99] Commercial Arbitration Act 2010 (NSW) s 12(5)-(6). See also International Arbitration Act 1974 (Cth) s 18A.
[100] See Commercial Arbitration Act 2010 (NSW) s 13.
[101] Commercial Arbitration Act 2010 (NSW) s 14(1)-(2).
[102] See Instagram Inc v Dialogue Consulting Pty Ltd [2022] FCAFC 7 at [37].
[103] Commercial Arbitration Act 2010 (NSW) s 18.
[104] Commercial Arbitration Act 2010 (NSW) s 24B.
[105] Justice Angus Stewart, ‘The Role of Courts in Relation to Commercial Arbitration’ (Speech, ACICA Corporate Members, 1 May 2023), available here.
[106] Guoao Holding Group Co Ltd v Xue (No 2) [2022] FCA 1584.
[107] Commercial Arbitration Act 1984 (NSW) s 42. See generally Graeme Robinson, ‘The Liability of Arbitrators, Mediators, Referees and Experts and the Application of Professional Indemnity Insurance’ (2004)(April) The Arbitrator and Mediator 23.
[108] See Sea Containers Ltd v ICI Pty Ltd [2002] NSWCA 34; see also Gordon & Gotch Australia Pty Ltd v Horwitz Publications Pty Ltd [2007] NSWSC 960.
[109] Commercial Arbitration Act 2010 (NSW) s 36(1)(a)(iii). See also Riesenberg v Weinberg (1959) SR (NSW) 106; Re McMaster Constructions Pty Ltd [1992] 1 Qd R 628.
[110] See Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [104].
[111] Explanatory Memorandum to the International Arbitration Amendment Bill 2010 at [86], available here. See also ICT Pty Ltd v Sea Containers Ltd [2002] NSWSC 77.
[112] International Arbitration Act 1974 (Cth) s 18A; Commercial Arbitration Act 2010 (NSW) s 12.
[113] UNCITRAL Model Law on International Commercial Arbitration 1985 (as amended in 2006) Art. 12.
[114] [1993] AC 646; [1993] UKHL 1.
[115] Garrett at 138.
[116] Explanatory Memorandum to the International Arbitration Amendment Bill 2010 at [87], available here. The NSW equivalent is even less helpful: Explanatory Memorandum to the Commercial Arbitration Bill 2010, available here.
[117] Ibid at [89]. R v Gough [1993] AC 646 at 669-670; [1993] UKHL 1.
[118] Legislative Council, Parliament of Western Australia, Standing Committee on Uniform Legislation and Statutes Review, Report 67 (November 2011) at 7.39, especially 7.39.4.
[119] Ibid at 139; see Porter v Magill [2002] 2 AC 357 and Halliburton Co v Chubb Bermuda Ltd [2020] UKSC 48.
[120] See Gui v Esposito Holdings Pty Ltd [2017] FCA 648; see also Sino Dragon Trading Ltd v Noble Resources International Pty Ltd [2016] FCA 1131.
[121] Hancock v Hancock Prospecting Pty Limited [2022] NSWSC 724 at [19]-[20].
[122] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15.
[123] Ibid at [100]-[103].
[124] See Commercial Arbitration Act 2010 (NSW) ss 27D and 39.
[125] Turner v Goulden (1873-74) L.R. 9 C.P. 57; Tharsis Sulphur & Copper Co Ltd v Loftus (1872-73) L.R. 8 C.P. 1; see Francis Russell, A Treatise on the Power and Duty of an Arbitrator (Stevens and Sons, London, 1882, 6th ed.) at 497.
[126] Road Rejuvenating & Repair Services v Mitchell Water Board & Anor (unreported, Supreme Court of Victoria, Nathan J, 15 June 1990). See John Amor-Smith, ‘The Immunity of Arbitrators Under English and
Australian Law’ (1991) 19 Australian Construction Law Newsletter 6 at 9.
[127] Peter Megens, ‘Arbitration – Disclaimers’ (1991) 18 Australian Construction Law Newsletter 5 at 6.
[128] Ibid at 35.
[129] London Court of Arbitration Rules r 18.6.
[130] Doug Jones, ‘How to maintain a fair and just process when counsel, clients and co-arbitrators appear to be conspiring against you’ (2013)(December) 32(2) The Arbitrator & Mediator 27 at 28.
[131] Aiteo Estern E & P Company Limited v Shell Western Supply and Trading Limited & Ors [2024] EWHC 1993 (Comm).
[132] Newcastle United Football Company Limited v (1) The Football Association Premier League Limited (2) Michael Beloff QC (3) Lord Neuberger (4) Lord Dyson [2021] EWHC 349 (Comm).
[133] Ibid at [8].
[134] Ibid.
[135] Ibid at [7].
[136] See, e.g., Enterra Pty Ltd v ADI Ltd [2002] NSWSC 700.
[137] Vietnam Oil and Gas Group v Joint Stock Company (Power Machines – ZTL, LMZ, Electrosila Energomachexport) [2024] SGHC 244.
[138] CAJ and another v CAI and another [2021] SGCA 102.
[139] CZT v CZU [2023] SGHC(I) 11
[140] CZT v CZU [2023] SGHC(I) 22.
[141] CZT v CZU [2024] SGCA(I) 6. Judgment was delivered by James Allsop IJ for the Court.
[142] Ku-ring-gai Council v Ichor Constructions Pty Ltd [2018] NSWSC 610.
[143] Commercial Arbitration Act 2010 (NSW) s 27D(4).
[144] Ku-ring-gai Council v Ichor Constructions Pty Ltd [2018] NSWSC 610] at [64], [81] and [93].
[145] Ku-ring-gai Council v Ichor Constructions Pty Ltd [2019] NSWCA 2; see Commercial Arbitration Act 2010 (NSW) ss 14(1) and 14(3).
[146] The Federal Republic of Nigeria v Process & Industrial Developments Limited [2023] EWHC 2638 (Comm), relying on Arbitration Act 1996 (UK) s 68.
[147] The Federal Republic of Nigeria v Process & Industrial Developments Limited [2023] EWHC 2638 (Comm) at [580].
[148] Ibid at [587]-[588].
[149] Arbitration Act 1996 (UK) s 33.