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• facilitate parties resolving disputes themselves;
• provide a fair mediation process;
• provide an expeditious process;
• provide an effective process;
• provide a cost-effective process; and
• provide an informal process.

• provide an interests based not a rights based mediation model;
• advise the parties and the LRT on an effective process;
• facilitate not evaluate;
• treat parties respectfully;
• observe confidentiality;
• act impartially and fairly;
• act expeditiously.

• Interests and rights
  The mediation model adopted by the LRT is an "interests based" not a "rights based" model. This means that parties are encouraged to discuss and attempt to settle their dispute on the basis of their interests rather than on the legal arguments framed to protect or advance their interests. For example, if an objection to a mining lease is referred to mediation, the Mediator should encourage the parties to focus on the substance of the miner's plans for and the objector's concerns about the project, rather than on any legal technicalities about the form or substance of the objection.

• Legal issues
  This is not to say that legal issues are irrelevant to mediation. An early discussion of legal issues may assist parties to understand the decision-making process and where the LRT proceedings fit in that process. It may also be helpful for parties to explore the legal arguments that have been raised, so they can assess their prospects if the matter has to be decided by the LRT. However, resolution of those arguments is best left for decision by the LRT, if the matter cannot otherwise be settled. Click here to access Preparing for Mediation - Information for Lawyers, which discusses the role of legal issues and of lawyers in LRT mediations.

• Mediation process
  Mediators may be in the best position to advise the parties and the LRT of the process that would maximise their chances of achieving resolution. Issues of timing, representation of multiple parties, information, location, cultural sensitivities etc may have an impact on when, where or how to best mediate a matter. If the time allowed for mediation or the arrangements set in the referring order do not appear to the Mediator to be appropriate, the Mediator should advise the parties and the LRT of this. The Mediator or the parties can apply to the LRT at any time for directions on any issue in the mediation (rule 327 Uniform Civil Procedure Rules (UCPR)). The Mediator can also make recommendations in the report to the LRT about further or other arrangements for mediation. Click here to access the pro forma Mediation Report.

• Process outcomes
  The Mediator can facilitate process as well as content outcomes. For example, agreements about procedural issues, resolution of expert issues, or agreed statements of facts and chronologies can significantly assist the parties and the LRT in the hearing process. Click here to access a document which provides guidance on process outcomes - Guide to Mediators - Transition to Hearing.

• Terminating the mediation
  The Mediator can abandon a mediation if they consider further efforts will not lead to the resolution of the dispute or an issue in the dispute. Before terminating a mediation, the Mediator must inform the parties of their intentions and give the parties an opportunity to reconsider their positions (rule 330 UCPR).

• The mediation agreement
  The Mediator must observe the requirements for concluding and filing a mediation agreement. The mediation agreement must be signed by each mediation participant and the Mediator (section 72 LRT Act). Unless the parties otherwise agree, the agreement must be:
  • placed in a sealed container such as an envelope;
  • marked with the LRT file number;
  • marked "Not to be opened without an order of the LRT"; and
  • filed in the LRT (rule 329 UCPR).

• Party participation
  The Mediator must encourage parties to actively participate. The Mediator must facilitate the parties discussing those issues that are important to them.

• Facilitator not advisor
  The Mediator must not make decisions for the parties about how to resolve their dispute. The Mediator must assist the parties to identify and evaluate a range of options for settlement. The Mediator must not give legal advice or express a legal opinion on an argument put by a party. The Mediator must not evaluate the merits of any arguments or options discussed during the mediation. However, the Mediator should encourage the parties to assess the implications of options and to evaluate their merit in the context of the issues discussed during the mediation and the parties' interests.

• Sources of information and advice
  The Mediator can gather information about the nature and facts of the dispute in any way they decide (rule 326 UCPR). The Mediator can also seek legal or other advice. But if legal and other advice involves extra cost, the Mediator must have the parties' agreement to pay the extra cost or an order from the LRT about those costs. If advice is obtained, the Mediator must disclose the substance of the advice to the parties (rule 328).

• Statutory requirements
  The Mediator must treat everything that happens in mediation as confidential, except in limited circumstances (section 73 LRT Act). The circumstances in which the Mediator can make disclosures are:
  • with the agreement of all mediation participants;
  • for the LRT Act;
  • for statistical purposes without revealing or being likely to reveal the identity of a person about whom the information relates;
  • for an inquiry or proceeding about an offence happening during the mediation;
  • for a proceeding founded on fraud alleged to be connected with, or to have happened during, the mediation;
  • under a requirement imposed under an Act.

• Contact with LRT Member
  The Mediator must not discuss what occurs during mediation with the LRT Member allocated to the case. This applies whether the Mediator is a Member of the LRT or not. The Mediator is required to provide a written report to the LRT Member by a date specified by the LRT. The Mediator must discuss the terms of the report with the participants in general terms and must provide them each with a copy of that report. Click here to access a Pro Forma Mediation Report.

• Native title mediations
  Mediators of matters that involve native title negotiations about mining and infrastructure projects need to be aware of the requirements in the Mineral Resources Act 1989 and the Native Title Act 1993 (Cth) to negotiate in good faith. If there is a subsequent dispute about whether the negotiations have been conducted in good faith, it is possible that the LRT will have to receive evidence of what took place in the mediation.

• Confidentiality of mediation agreement
  If an agreement is reached, unless the parties otherwise agree, the Mediator must ensure the agreement is sealed, has the Tribunal file number marked on the container and is marked "not to be opened without an order of the LRT" and is filed in the LRT (rule 329 UCPR).

• Exercising the Mediator's powers
  The Mediator must exercise their statutory powers, set out below, impartially and fairly. The Mediator has power:
  • to gather information about the nature and facts of the dispute (rule 326(1) UCPR)
  • subject to an order by the LRT, to decide whether a party can be represented and by whom (rule 326(2) UCPR);
  • to see the parties, with or without their representatives, together or separately (rule 326(3) UCPR);
  • to apply to the LRT for directions on any issue about the mediation (rule 327 UCPR);
  • to seek independent advice (rule 328 UCPR);
  • to abandon the mediation (rule 330 UCPR).

The Mediator's obligation of impartiality extends beyond the statutory powers and applies to the Mediator's conduct throughout the mediation.

• Dealing with power imbalances
  Treating parties fairly may not mean treating them the same way. A particular challenge for the Mediator in LRT matters may be dealing with power imbalances between the parties. It is not unusual for one party to be represented and the other not, or for one party to be more familiar with the decision-making context for the mediation than another. The Mediator must ensure that mediation sessions are conducted in a way that gives each party a real opportunity to address the issues of importance to them. The Mediator can also encourage the parties to discuss how gaps in information or knowledge can be addressed in the mediation. In seeking to address any power imbalance, the Mediator must seek to maintain the confidence of all parties in their impartiality and fairness.

• Conflicts of interest
  The Mediator must disclose to the LRT and to the parties any prior dealings with any of the parties and any interest they have in the outcome of the dispute.

  If the Mediator becomes aware of any circumstances that a reasonable person would consider could affect the Mediator's capacity to act impartially and fairly, the Mediator must immediately bring these circumstances to the attention of the LRT and the parties.

• the President's decision regarding the complaint;
• the reasons for that decision;
• what action, if any, has been taken as a result of the complaint.