special conciliation officer who is a senior officer of the labour relations division. Section 9 provides privilege to the communications:
“anything communicated to a conciliation officer or special conciliation officer in connection with the performance of his functions under this ordinance shall not be admissible in evidence in any proceedings before an arbitration tribunal or board of inquiry, except with the consent of the person who communicated it to the conciliation officer or special conciliation officer”.
12.133Section 80(6) of the Disability Discrimination Ordinance (Cap 487) provides that:
“Evidence of anything said or done by any person in the course of conciliation under this section (including anything said or done at any conference held for the purposes of such conciliation) is not admissible in evidence in any proceedings under this Ordinance except with the consent of that person.”1268
12.134For the removal of any doubt, particularly if a court annexed mediation scheme is established, we recommend a statutory provision giving privilege to all qualified family mediators, similar to that provided in the Civil Evidence (Family Mediation) (Scotland) Act 1995.1269
Immunity from liability
12.135Many Australian statutes provide immunity and protection from civil liability to mediators operating in court annexed mediation schemes or government agencies. The justification for providing this is that it may hinder the development of mediation if a mediator could be sued for negligence.1270 It is also assumed that mediators attached to a court or approved organisation comply with certain standards of quality and accountability which reduce the chance that they will be sued. Section 19M of the Australian Family Law Act 1975 provides:
“A family and child mediator,… has, in performing the functions of such a mediator…, the same protection and immunity as a Judge of the Family Court has in performing the functions of such a Judge”.
12.136We recommend that a provision granting immunity on similar lines to section 19M of the Australian Family Law Act 1975 should be introduced to protect qualified family mediators.
1268 This is similar to Section 84(6) of the Sex Discrimination Ordinance (Cap 480).
1269 In Ontario, Newfoundland, the Yukon, Quebec and Saskatchewan, legislation protects the confidentiality of disclosures made during mediation by a court-appointed mediator from admission in evidence without the consent of the parties.
1270 Boulle, Mediation: Principles, Process, Practice (1996) 254.