Mediation is the Papua New Guinean way of resolving disputes, and since 2000 the District Courts Act has formally provided for it. The provisions are short and the practice varies from court to court, but the framework is there.
The power
(1) A Magistrate approved by the Judicial and Legal Services Commission for the purpose, or a person appointed by the District Court, may mediate between the parties in a civil matter at any stage of or before the hearing with a view to the just and amicable settlement of the matter.
(2) A District Court may postpone or adjourn the hearing of a complaint in a civil matter where it considers that by doing so a just and amicable settlement will be or may be reached.
(3) Where a settlement has been reached under this section, the District Court may embody it in its decision without further hearing.
The section was inserted by the District Courts (Amendment) Act 2000. It applies to civil matters only. The Magistrates’ Manual notes that a magistrate must be approved by the Commission to mediate, but that parties remain free to engage anyone they both accept as mediator or arbitrator outside the section, and that magistrates should encourage such attempts where they do not disrupt the Court’s list.
How it works
| Stage | Provision |
|---|---|
| Either party, or the Court, raises settlement; the Manual’s pre-hearing checklist includes asking whether it has been explored | s 22B(1) |
| The Court adjourns to allow mediation, before an approved magistrate, an appointed mediator, or a person the parties choose | s 22B(2) |
| Mediation held; what is said is confidential | s 22D |
| If settled: the terms are put to the Court and embodied in an order, which can be enforced under Part IX | s 22B(3) |
| If not settled: the case returns for hearing, before a different magistrate if the mediator was a magistrate | s 22C |
The Manual lists the factors for a magistrate deciding whether to mediate personally: his or her ability to mediate the particular dispute; the availability of another qualified person; the parties’ attitude and the likelihood of success; the effect on case management, especially where the only available magistrate would have to disqualify himself if mediation failed; and the effect on the parties’ costs.
If mediation fails
Where a Magistrate has acted as mediator under section 22B(1) but the mediation has failed, the Magistrate shall not, except at the request of the parties, hear or continue to hear or determine the proceedings, and in the absence of such a request arrangements shall be made for the proceedings to be dealt with by another Magistrate.
This protects the parties from being judged by someone who has heard their without-prejudice positions. In a one-magistrate district it is the practical obstacle to magistrate-led mediation, which is why section 22B also allows an appointed person to mediate.
Confidentiality
Evidence of anything said or of an admission made in the course of an attempt at mediation under section 22B is not admissible in any court in the country or in proceedings before any person authorised by law to hear, receive and examine evidence.
A concession made at mediation cannot be used at the hearing, in the National Court, or before a tribunal. The protection attaches to mediation “under section 22B”, so parties mediating privately should say expressly that the discussion is without prejudice.
Why put the settlement in an order
A settlement embodied in the Court’s decision under section 22B(3) is an order of the Court: it can be enforced by warrant of execution, garnishee or, where it requires an act, by section 171, and it is final under section 152. A private settlement is only a contract, enforceable by a new complaint if broken. Parties who settle should therefore ask the Court to make the order, including any instalment terms under section 165.
The 2009 amendment: compulsory mediation
The District Courts (Amendment) Act 2009 replaces section 22B with a regime under which the Court may order the parties to mediate or mediate itself, and shall not commence hearing a complaint in a civil matter prior to a mediation, with a second mediation available at the parties’ request after a failed one. But new section 22B(6) provides that no mediation under the section may commence unless the Chief Magistrate makes rules of practice and procedure for it under sections 21A and 278. The Act commences on gazettal, and the consolidation used here records that it had not commenced. Until it does, and rules are made, mediation remains voluntary under the 2000 version.
Mediation elsewhere in the system
Village Courts are required to attempt mediation before adjudicating, under section 53 of the Village Courts Act as the Manual describes it, and the Adultery and Enticement Act 1988 requires mediation before an adultery action; see mediation before an adultery action. The National Court has its own compulsory scheme under the Alternative Dispute Resolution Rules 2022. The District Court’s provisions are the least prescriptive of the three.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.