Dear Minister for ACC,

Regarding mediated hearings arranged by Fairway Resolution Limited as a form of alternative dispute resolution in ACC's processing of claims for cover and entitlement under the AC Act;

Mediators are not employed by Fairway Resolution Limited. They are required to be registered with the Arbitrators' and Mediators' Institute of New Zealand, and must comply with this organisation's Code of Ethics. The Code's Ethical Statement # 6 provides that “confidentiality protection and exceptions given by statute will prevail over the Code”. In other words, legislation supersedes the Code.

Sections 14(B) and (C) of the Arbitration Act 1996 – inter alia – provides that arbitration (mediation) agreements are deemed to provide that the parties must not disclose confidential information. In other words, what is written into an Agreement to Mediate (usually written by the mediator and signed by the disputing parties before the mediation proceeds) is 'trumped' by the aforementioned provision.

Against this backdrop, can you please advise me;

1. Whether or not Fairway Resolution Limited has any legal right or entitlement to be provided with confidential information - verbal or written - about mediation hearings, and in particular to be copied any written notes made by the mediator and/or agreement that the parties may have reached between them?

2. Does the fact that there is a connection between the ACC and Fairway Resolution Limited - by way of a contract/service agreement that provides for mediation services - give rise to an expectation that Fairway Resolution Limited may and will receive information as to the outcome of mediated disputes, and, that that information will become part of Fairway Resolution Limited's corporate record? If so, what legislation provides for both of the aforementioned circumstances? And, if no legislation provides for either or both of the aforementioned circumstances, please provide a copy of the relevant policy, procedure of guideline that does.

3. Is there any provision - legislation, policy, procedure or guideline - that requires copies of written mediated agreements, signed by the disputing parties before mediation concludes, to be copied to Fairway Resolution Limited by mediators whose services they use? If so, please advise what the relevant legislation is or provide a copy of the relevant policy, procedure of guideline.

4. Is there any provision - legislation, policy, procedure or guideline - that requires a Mediation Report to be written by a mediator after a mediation has concluded, and regardless of whether or not agreement has been reached between the disputing parties? If so, what would such a report ordinarily look like and can you please provide a copy of an example with identifying information redacted.

5. Is Fairway Resolution Limited, and/or mediators whose services are utilized by Fairway Resolution Limited, paid any form of incentive income where settlement agreements are reached between disputing parties at mediation, or, is this recognized or compensated in any other way? If so, please provide a copy of the relevant policy, procedure or guideline.

Yours faithfully,

Lee M.