Native Title Mediator List

I am pleased to announce that I have been included in the Federal Court Native Title External Mediator List for 3 years

In making Federal Court orders in relation to the case management of claimant applications, the Court has referred to the ‘central role’ of the Tribunal in the mediation process. That role is apparent from the mandated terms of referral and is reinforced by the Federal Court’s facility to request the Tribunal to provide reports to the Court on the progress of mediation. The various statutory provisions relating to mediation conferences convened by the Tribunal are ‘ancillary to the referral of applications’ to the Tribunal for mediation and they ‘do not define the limits’ of the Tribunal’s role.

A myriad of factors impact on and determine how mediation occurs in each particular case. To its credit the Parliament, in developing the Act, made no attempt to dictate (in any sense of micro-management) how mediation should be conducted. There is no prescribed way of proceeding. Presumably the Parliament, having prescribed the qualifications for members of the Tribunal,was content to rely on the experience and qualification of members to decide how each mediation was to be carried out.

Accordingly the legislative directions on how mediation occurs are enabling and empowering rather than prescriptive.

The Tribunal may ‘hold such conferences of the parties or their representatives as the Tribunal considers will help in resolving the matter’.

The formal part of the mediation process is conducted at what are termed ‘conferences’. Each mediation conference must be presided over by a member.The president may appoint a consultant to mediate

The presiding member at a mediation conference is provided with a number of statutory powers, including:

• To allow parties to participate in a conference (b) In person (b) By telephone • By any other means of communication

• To hold conferences with only some of the parties

• To exclude persons from conferences at the member’s discretion

• To permit (with the consent of parties present) non-parties to attend a conference as observers or as participants

• To refer (at the member’s own initiative) to the Federal Court a question of fact or law that arises during a mediation and to continue the mediation whilst the referred question of fact or law is being determined by the Federal Court

• To prohibit, limit or qualify the disclosure to persons (including to other parties or parties’ constituencies) of any information given or statement made at or documents produced at a conference.

A mediation conference must be held in private unless the presiding member directs otherwise and no party objects.Conferences are ‘without prejudice’ to the parties. The Act specifically provides that ‘[in] a proceeding before the Court, evidence may not be given and statements may not be made, concerning any word spoken or act done at a conference’,unless the parties agree otherwise.