"The liability of third party neutrals has been a topic of concern ever since the formalisation of dispute resolution in Australia. Although there are no known cases in Australia of a third party neutral being sued for breach of contract, fiduciary duty or negligence, there is always the possibility that proceedings will be brought against a third party under such a cause of action. This type of action needs to be distinguished from a mere failure to advise where the third party neutral is for example a lawyer, which would probably attract sanctions under the Legal Profession Act 1987 (NSW) for unprofessional conduct or professional misconduct."
1. What are origins of and the policy justifications for according immunity from suit to ADR neutrals? Do you agree with these justifications? Give reasons for your answer.
2. What are the possible sources of immunity from suit applicable to ADR neutrals and to what causes of action might such immunity apply?
Notes:
1. Each element of your answer should, in particular, discuss whether and, if so, how immunity may apply to both non-judicial and judicial ADR neutrals, in particular:
- mediators;
- conciliators;
- arbitrators; and
- independent experts.
2. You should cite any relevant legislation, case law, policy documents and guidance issued by ADR institutions and institutional procedural rules in support of your answer. Comparison with overseas jurisdictions would be appropriate.
3. For the avoidance of any doubt, your answer must discuss immunity from suit for ADR neutrals only. You must not discuss the liability of third party legal advisers.