Environment Court

3. Alternative dispute resolution (ADR)

3.1 Introduction

3.1.1 Section 268 empowers the Court to arrange mediation and other forms of ADR. For the purpose of encouraging settlements of cases, it can authorise its members (Judges or Commissioners) or other persons to conduct those procedures.

3.1.2 The Court actively encourages forms of ADR and offers a mediation service run by its Environment Commissioners. The Commissioners receive comprehensive professional training for the purpose, and bring other professional skills and specialist knowledge to the task.

3.1.3 Other types of ADR can also be offered, whether by Environment Judges, Environment Commissioners, or other persons appointed for the purpose. Examples of other forms of ADR may include conciliation, conferences to narrow issues, meetings of relevant expert witnesses, arbitration, expert determination and judicial settlement conferences.

3.1.4 The Court regards mediation and other forms of ADR as particularly well-suited to resolution of many environmental disputes. ADR techniques are often highly cost-effective compared to proceeding to full hearing before the Court, and acceptable outcomes may be reached that would be beyond the jurisdiction of the Court in a hearing (see paragraphs 3.1.9 and 3.2.7.2), but sound preparation and input are important. The protocol contained in this Practice Note is intended to provide guidance and encouragement to that end.

3.1.5 The Court is not required by statute to, and does not, make the use of ADR processes mandatory. It is widely recognised that ADR processes offer the most value when they are voluntary, as they then offer flexibility, an interests-based approach, ownership of resolution of the dispute, and are often more conducive to the preservation of inter-party relationships as distinct from litigation.

3.1.6 The Court recognises that not all disputes are apt for resolution by ADR processes. Because every case is different, it is not sought to nominate types of cases as being more suited to this form of resolution than others. The Court expects parties in all cases to give due and proper consideration to undertaking ADR processes. It is important, however, that parties wishing to achieve resolution through mediation or other means short of a hearing by the Court act swiftly, so as to avoid delay in the allocation of a hearing fixture should resolution not be achieved and Court hearing time be needed.

3.1.7 During all stages of the life of cases, the Court expects parties to continue to address the applicability of ADR, be willing to consider it on an objective basis, and to employ it constructively. Even in cases where ADR processes might be less likely to produce a complete settlement, full consideration should still be applied to the use of them to narrow and settle issues within disputes.

3.1.8 Proceedings in which ADR has been undertaken will often become the subject of documentation referred to a Judge with a request for a consent order. The Judges will give due consideration, in exercising their overall decision-making discretion, to the making of consent orders, either in the terms sought by parties, or with modifications approved by them (whether to correct mistakes or ambiguities, or to bring the order within jurisdiction, or to meet any other point of concern).

3.1.9 Mediation and other ADR processes can sometimes produce, in addition to resolution within the case, outcomes that are beyond the jurisdiction of the Court. Such additional matters will not be included in a draft consent order placed before a Judge for approval, but may instead be made the subject of a separate agreement that may be enforceable in other forums.

3.1.10 Where parties agree to undertake ADR, the proceedings may either be placed in the parties' hold track or, if directed by a Judge, the parties may be required to commence or continue preparation for a hearing in parallel with the ADR process.

3.1.11 The protocol that follows is for use in mediations because that is the most common form of ADR offered by the Court (noting, however, that mediation in the Environment Court can at times encompass elements of conciliation and negotiation). If parties seek assistance through some other ADR method, application should be made to a Judge who will progress matters with them and make directions or otherwise assist to such end. Equally, it should not be forgotten that direct negotiation, constructively focussed, should be within the contemplation of parties at all times.

3.2 Mediation protocol: Court-assisted mediations

3.2.1 Initiation of mediation

3.2.1.1 Mediation may be initiated at any time during the life of a case, whether at the time of the first report to the Court under the case management track procedures, or subsequently. The agreement to mediate may come from the parties or be offered by the Judge.

3.2.1.2 Subject to any flexibility in procedure initiated or authorised by a Judge or a Commissioner, the parties will be deemed to agree to be bound by this protocol and guided by the preceding paragraphs of this Practice Note.

3.2.2 Appointment of mediator

3.2.2.1 Subject to such consultation with the Principal Environment Judge as is appropriate, the managing Judge or the Registrar (subject to any direction of a Judge) may appoint an Environment Commissioner to act as mediator, or may appoint a person who is not a member of the Court to do so. If the latter, agreement will be needed between the parties and the Registrar as to who will bear the costs of the mediation.

3.2.2.2 The mediator shall have no personal interest in the matters in dispute, neither will he or she be acquainted or connected with any of the parties, nor have knowledge of the dispute, except to the extent disclosed to the parties and accepted by them for the purpose of proceeding with the mediation.

3.2.3 Role of mediator

3.2.3.1 The mediator is an independent intermediary who will seek to act impartially, fairly and objectively, and to treat the parties in an even-handed way. The role of the mediator is to assist the parties to arrive at agreement to settle the dispute or issues within it.

3.2.3.2 The mediator's role does not involve making a determination to be imposed on the parties.

3.2.3.3 The mediator will seek to commence and conclude the mediation as promptly and efficiently as possible in all the circumstances of the case. He or she will aim to conclude the mediation in one session if possible, and the preference of the Court is that mediation will not go beyond three sessions except in exceptional circumstances.

3.2.4 Representation and attendance at mediation

3.2.4.1 Parties are at liberty to be represented by one or more persons who may have particular qualifications. The names and contact particulars of such persons shall be provided to the Court and to the other participants in the manner required by the Court's Registry.

3.2.4.2 Each party shall have at least one representative who retains consistency in that role through all sessions, who is fully authorised to participate (for instance by answering questions and co-operating in the mediation in any manner appropriate from time to time), and who is able to be present (save in exceptional unforeseen circumstances) during the whole of every session.

3.2.4.3 Where a party appoints a representative to attend the mediation, the party represents that, through the party's nominated representative, full authority exists to settle the dispute or issues at stake. Where such authority is not available in the case of any party, that party shall advise the other parties and the Court prior to the mediation, and the mediation shall not proceed unless all parties and the mediator agree to proceed on that basis. Bodies such as Councils, corporates, and groups are encouraged to provide their representatives with full delegated authority to settle.

3.2.5 Documents to be exchanged prior to mediation meetings

3.2.5.1 Depending on the nature of the case, the mediator may request from the parties prior to, or at, the first meeting, a written synopsis recording the nature of the dispute, relevant facts (whether agreed between the parties or in contention in the proceedings), and their respective interests and concerns. This step is entirely at the discretion of the mediator as to whether it occurs and/or how. The mediator will seek input from the parties on these matters. Such a synopsis may include written statements of factual information or expert opinion.

3.2.5.2 Copies of relevant documents may be attached to any such synopsis, or at least referred to with sufficient clarity for the mediator and other parties to understand what they are, the nature of them, and the particular aspects of them that are to be referred to or relied upon.

3.2.5.3 Copies of any synopsis and other documents provided to the mediator are to be provided to all other parties. If, however, a party wishes to communicate confidential information to the mediator, the party is to work with the mediator to put appropriate arrangements in place concerning the information and the consequent appropriate conduct of the mediation.

3.2.5.4 Any communication with the mediator outside of a mediation session shall occur only through the Court's Registry and with notice to all other parties.

3.2.6 Conduct of mediation

3.2.6.1 The mediator may conduct the mediation in such a manner as he or she thinks fit, having regard to the nature and circumstances of the dispute and the wishes of the parties.

3.2.6.2 The Court's Registry will arrange premises and appropriate furnishings and equipment for the mediation, and the mediator will arrange an appropriate timetable with assistance from the Registry.

3.2.6.3 The parties will be expected to co-operate in good faith with the mediator and with each other in attempting to settle the dispute or issues at stake. They will also be expected actively and constructively to assist the process by duly participating in it, and in providing documents, information, submissions, and other assistance suggested or requested by the mediator.

3.2.6.4 The mediation shall not be conducted under formal procedures or rules of evidence, and will be guided at all times by the mediator.

3.2.6.5 At the commencement of the mediation, the mediator will usually be expected to make an opening statement covering issues such as the role of the mediator, the conduct of the mediation and the confidential nature of the process.

3.2.6.6 The mediator may conduct joint or separate meetings with any one or more of the parties.

3.2.6.7 The mediator may ask questions and seek clarification, and may request the parties to exchange further information, or further explain their submissions and any information provided.

3.2.6.8 The mediator will refrain from providing any assessment of matters in dispute, whether legal, factual, or of expert opinion, or relating to possible outcomes for any aspect of the dispute. The parties and the mediator, however, may agree to depart from this protocol.

3.2.6.9 In mediations involving large numbers of parties, and in others involving complex issues, the Court may arrange for co-mediation to be undertaken by more than one mediator. Co-mediations and peer-reviews may also occasionally be undertaken in the interests of maintaining and enhancing the quality of the Court's mediation service.

3.2.7 Settlement

3.2.7.1 The mediator does not have the power to impose a settlement on the parties, but will endeavour to assist them to reach settlement of the whole or parts of their dispute.

3.2.7.2 The scope and terms of settlement which the parties may develop may not necessarily be limited by the jurisdiction of the Court. The parties may request that aspects of their agreement that are within jurisdiction be referred to a Judge for the making of consent orders, and may enter into separate agreements on matters outside jurisdiction.

3.2.7.3 It is preferable for the parties to make a binding commitment to the settlement of the dispute, and they should either have all necessary legal advice before mediation commences, or have access to it during the mediation process.

3.2.7.4 The mediator may, with the consent of the parties, seek information or advice from an Environment Judge and shall disclose the results of such enquiry to all parties in an even-handed way.

3.2.7.5 The mediator may work with the parties actively to stimulate communication and settlement, or may take a more passive role as he or she thinks appropriate.

3.2.7.6 Information will not be given under oath during the course of the mediation, and the Court gives no guarantee as to the accuracy of any information.

3.2.7.7 Participation in mediation shall not prejudice the existing legal rights of the parties, but parties should understand that a settlement or agreement reached through the process may change their legal rights and may be legally enforceable. On the other hand, there is civil case law precedent involving the granting of legal relief to parties who have declined to be bound by mediated agreements reached on the basis of an exchange of misleading information.

3.2.7.8 The mediator may assist the parties to record their agreements in writing, whether by way of heads of agreement, a detailed agreement, or a draft consent order and memorandum for a Judge. In the alternative, details of a draft consent order and memorandum for a Judge may be left to be reduced to writing immediately after the mediation, or otherwise within an agreed timeframe, but mediators will generally encourage the parties to record as much as possible of their agreement in writing before conclusion of the mediation session.

3.2.7.9 The mediator will advise the parties (if all or any of them are unaware) that the Judge considering any draft consent order has a discretion whether or not to make the order, or to recommend modifications to the parties. For example, the Judge may in the course of exercising his or her discretion have regard to matters of wider public interest than were addressed by the parties, and also the purpose and principles of the relevant legislation.

3.2.8 Confidentiality

3.2.8.1 Mediation is a private procedure. The parties and the mediator (subject to rights of the parties to take legal advice during the process) shall maintain the confidentiality of the process, and not discuss what occurred in the mediation with others who were not involved with the process.

3.2.8.2 The mediator may meet separately with any party or parties and may be offered information which is to be kept confidential from other parties. Subject only to any overriding duty to the contrary imposed by law, the mediator shall keep that information confidential and not disclose it to anyone else without the consent of the party who provided it. The parties should pay careful regard to whether settlement will be assisted by such conduct, however.

3.2.8.3 The mediation shall be without prejudice to the dispute, and shall not be referred to or relied upon in any other proceedings in the Court. The parties shall not, without the written consent of all other parties, introduce as evidence in any such proceedings:

• Documents prepared expressly for the mediation;

• Admissions made by a party in the course of the mediation;

• Views expressed or suggestions made by any party concerning a possible settlement of the dispute;

• Proposals made or views expressed by the mediator;

• The fact that a party had or had not indicated willingness to consider a proposal for settlement.

3.2.8.4  Nothing in this part of the Practice Note bearing on confidentiality shall prevent discovery, or affect the admissibility, of any evidence (being evidence that is otherwise discoverable or admissible that existed independently of the mediation process), merely because the evidence was presented in the course of the mediation.

3.2.8.5 Unless directed by the Court, the mediator shall not divulge any aspect of the mediation in any proceeding in the Court. The parties may collectively waive confidentiality, but unless that occurs, or a direction is specifically made by a Judge, he or she shall not divulge any matters disclosed in the mediation.

3.2.8.6 The mediator may only sit as a member of the Court to hear a proceeding on the subject matter of the dispute mediated, if the parties, the member concerned, and the Court are satisfied that it is appropriate.

3.2.9 Costs

3.2.9.1 The mediation, if conducted by an Environment Commissioner, will be without fee payable to the Court unless directed or authorised by any relevant legislation.

3.2.9.2 The parties shall meet their own costs of the mediation unless they agree otherwise between themselves.

3.2.9.3 The mediator has no power to make any order for costs as between parties or in favour of the Court.

3.2.10 Termination

3.2.10.1 A party may withdraw from a mediation at any time, but is encouraged not to do so and instead to participate in the full spirit of endeavouring to settle the dispute, or at least elements of it.

3.2.10.2 The mediation may be terminated at any time by agreement between the parties, or by direction of the mediator.

3.2.10.3 The mediator may terminate the mediation if he or she considers that a party's safety, or his or her own safety, is at risk.

3.2.10.4  Subject to any further input sought by a Judge from the parties, the mediation shall be concluded upon execution of a final agreement, or alternatively upon finalisation of detailed documentation left to be completed after the mediation.

3.2.11 Variation

3.2.11.1 The parties may vary this protocol by an agreement and under the guidance of the mediator, but are encouraged to utilise as much of it as possible as a procedure for settlement of planning and environmental disputes.