16 Representation by a professional Delete. Four respondents thought any party should be adviser such as a lawyer will only free to engage a lawyer without the agreement be permitted with the agreement of the other party. In reality, large tertiary of all parties or if the Operator providers often have in-house access to considers the party is a professional or legal advice and so limiting the corporation or is unable to involvement of lawyer will only disadvantage present their case adequately. students. 18 Agreed settlement Agreed settlement by negotiation or This section is about voluntary/consensual (1) The DRS operator must mediation settlement via negotiation and mediation. attempt to assist the parties to a (1) The DRS operator must attempt to dispute to reach an agreed assist the parties to a dispute to settlement. an agreed settlement by negotiation or mediation. 19(1) The adjudicator must give the The adjudicator must give the parties Mediation is a facilitative and neutral process parties notice of proposed notice of proposed decision on the which does not involve making decision on the basis of basis of information held by the recommendations to disputing parties. information held by the operator, operator, including any Anything discussed during mediation is including any recommendations recommendations made to the parties confidential to parties and cannot be used by made to the parties by the by the mediator and any submissions the adjudicator. mediator and any submissions on on those recommendations by the those recommendations by the parties. parties. N/A N/A The DRS rules should have a section Several respondents commented that there is to state that adjudication decisions no appeal right. Appeal right needs to be could be modified by the court, as balanced against the need for finality and the stipulated in the Education Act 1989. timeliness of decision-making. The Act does provide for the court to modify adjudication decisions if they are manifestly unreasonable. 21 Remedies under final decision: Remedies under final decision This section attracts the highest objection rate An adjudicator in a dispute may adjudication decision: of 44% - 11 respondents objected to this direct the following remedies: An adjudicator in a dispute may direct ceiling of compensation, saying that the That the provider pay the the following remedies: monetary jurisdiction is equivalent to the student claimant District Court without the same rules of
16 Representation by a professional adviser such as a lawyer will only be permitted with the agreement of all parties or if the Operator considers the party is a corporation or is unable to present their case adequately. Delete. Four respondents thought any party should be free to engage a lawyer without the agreement of the other party. In reality, large tertiary providers often have in-house access to professional or legal advice and so limiting the involvement of lawyer will only disadvantage students. 18 Agreed settlement (1) The DRS operator must attempt to assist the parties to a dispute to reach an agreed settlement. Agreed settlement by negotiation or mediation (1) The DRS operator must attempt to assist the parties to a dispute to an agreed settlement by negotiation or mediation. This section is about voluntary/consensual settlement via negotiation and mediation. 19(1) The adjudicator must give the parties notice of proposed decision on the basis of information held by the operator, including any recommendations made to the parties by the mediator and any submissions on those recommendations by the parties. The adjudicator must give the parties notice of proposed decision on the basis of information held by the operator, including any recommendations made to the parties by the mediator and any submissions on those recommendations by the parties. Mediation is a facilitative and neutral process which does not involve making recommendations to disputing parties. Anything discussed during mediation is confidential to parties and cannot be used by the adjudicator. N/A N/A The DRS rules should have a section to state that adjudication decisions could be modified by the court, as stipulated in the Education Act 1989. Several respondents commented that there is no appeal right. Appeal right needs to be balanced against the need for finality and the timeliness of decision-making. The Act does provide for the court to modify adjudication decisions if they are manifestly unreasonable. 21 Remedies under final decision: An adjudicator in a dispute may direct the following remedies: That the provider pay the student claimant Remedies under final decision adjudication decision: An adjudicator in a dispute may direct the following remedies: This section attracts the highest objection rate of 44% - 11 respondents objected to this ceiling of compensation, saying that the monetary jurisdiction is equivalent to the District Court without the same rules of
Changes-made-to-draft-DRS-rules-following-sector-consultation.docx