Facilitation is a process whereby both parties use the Facilitation – assistance of an impartial third party to identify their core issues with one another and attempt to resolve these issues. [non–binding] Similar to facilitation, mediation is the process in which Mediation – the parties to a dispute use an impartial third party to consider their issues and reasoning behind the dispute, and attempt to consider alternatives to litigation and/or resolve the dispute in its entirety. In Australia, the ombudsman provides another impartial Ombudsman – third party body who can investigate and attempt to resolve complaints against an institution by a customer, client and employee. Duties during ADR processes Law Council of Australia Guidelines for Mediations – Duty of confidentiality [see confidentiality] any information during mediation unless parties agree Non–disclose – Same obligations in mediation as in Court Vic Bar r199 – Never false or misleading statements PCPR 18; Vic Bar 53 –– – [see candour in presentation of fact] Williams v Commonwealth Bank of Australia parties are dealing at arms' length in a commercial ‘Where situation in which they have conflicting interests it will often be the case that one party will be aware of information which, if known to the other, would or might cause that other party to take a different negotiating stance. This does not in itself impose any obligation on the first party to bring the information to the attention of the other party, and failure to do so would not, without more, ordinarily be regarded as dishonesty or even sharp practice’. Lawyers and clients must act, at all times, in good faith and Good Faith – attempt to achieve settlement of the dispute. Lawyer must approach ADR in good faith and with Act in good faith – an open and transparent mind. provided the relevant list of indicators as Western Australia v Taylor to whether a tribunal had been carried out in Good Faith Unreasonable delay in initiating communications in the first instance Failure to make proposals in the first place The unexplained failure to communicate with the other parties within a reasonable time Failure to contact one or more of the parties Failure to follow up a lcak of response from the other parties Failure to take reasonable steps to facilitate and engage in discussions between the parties Failing to respond to reasonable requests for relevant information within a reasonable time
Facilitation – Facilitation is a process whereby both parties use the assistance of an impartial third party to identify their core issues with one another and attempt to resolve these issues. [non–binding] Mediation – Similar to facilitation, mediation is the process in which the parties to a dispute use an impartial third party to consider their issues and reasoning behind the dispute, and attempt to consider alternatives to litigation and/or resolve the dispute in its entirety. Ombudsman – In Australia, the ombudsman provides another impartial third party body who can investigate and attempt to resolve complaints against an institution by a customer, client and employee. Duties during ADR processes – Law Council of Australia Guidelines for Mediations Duty of confidentiality [see confidentiality] Non–disclose – any information during mediation unless parties agree Same obligations in mediation as in Court – Vic Bar r199 Never false or misleading statements –– PCPR 18; Vic Bar 53 – [see candour in presentation of fact] Williams v Commonwealth Bank of Australia ‘Where parties are dealing at arms' length in a commercial situation in which they have conflicting interests it will often be the case that one party will be aware of information which, if known to the other, would or might cause that other party to take a different negotiating stance. This does not in itself impose any obligation on the first party to bring the information to the attention of the other party, and failure to do so would not, without more, ordinarily be regarded as dishonesty or even sharp practice’. Good Faith – Lawyers and clients must act, at all times, in good faith and attempt to achieve settlement of the dispute. Act in good faith – Lawyer must approach ADR in good faith and with an open and transparent mind. Western Australia v Taylor provided the relevant list of indicators as to whether a tribunal had been carried out in Good Faith Unreasonable delay in initiating communications in the first instance Failure to make proposals in the first place The unexplained failure to communicate with the other parties within a reasonable time Failure to contact one or more of the parties Failure to follow up a lcak of response from the other parties Failure to take reasonable steps to facilitate and engage in discussions between the parties Failing to respond to reasonable requests for relevant information within a reasonable time
Ethics_Summary.docx