APPENDIX 2: CLAUSE 23 OF THE DRAFT
TRIBUNALS, COURTS AND ENFORCEMENT BILL
23 Mediation
(1) A person exercising power to make Tribunal Procedure
Rules or give practice directions must, when making provision
in relation to mediation, have regard to the following principles—
(a) mediation of matters in dispute between parties
to proceedings is to take place only by agreement between those
parties;
(b) where parties to proceedings fail to mediate,
or where mediation between parties to proceedings fails to resolve
disputed matters, the failure is not to affect the outcome of
the proceedings.
(2) Practice directions may provide for members to
act as mediators in relation to disputed matters in a case that
is the subject of proceedings.
(3) The provision that may be made by virtue of subsection
(2) includes provision for a member to act as mediator in relation
to disputed matters in a case even though the member has been
chosen to decide matters in the case.
(4) Once a member has begun to act as a mediator
in relation to a disputed matter in a case that is the subject
of proceedings, the member may decide matters in the case only
with the consent of the parties.
(5) Staff of the First-tier Tribunal or the Upper
Tribunal may, subject to their terms of appointment, act as mediators
in relation to disputed matters in a case that is the subject
of proceedings.
(6) Before giving a practice direction that makes
provision in relation to mediation, the person giving the direction
must consult the Advisory, Conciliation or Arbitration Service.
(7) The Lord Chancellor may by order prescribe fees
payable in respect of mediation conducted by staff of the First-tier
Tribunal or the Upper Tribunal.
(8) Fees payable under subsection (7) are recoverable
summarily as a civil debt.
(9) Subsection (8) does not apply to the recovery
in Scotland of fees payable under subsection (7).
(10) In this section—
"member" means a judge or other member
of the First-tier Tribunal or a judge or other member of the Upper
Tribunal;
"practice direction" means a direction
under section 18(1) or (2);
"proceedings" means proceedings before
the First-tier Tribunal or proceedings before the Upper Tribunal.
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