rangement of Provisions

1. Short title and
commencement
2. Section 2 amended
3. New Part IIA inserted
4. Section 7 amended
5. Section 8 substituted
6. Section 9 amended
7. Section 11 substituted
8. Section 13 amended
9. New sections 13A and 13B
inserted
10. Section 16 substituted
11. Consequential amendment
12. Transitional

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2013, No. 18

AN ACT to amend the Alternative Dispute Resolution Act
2007 (“principal Act”). [9th
August 2013]

BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:

1. Short title and commencement - This Act may be cited
as the Alternative Dispute Resolution Amendment Act 2013,
and commences on the date it is assented to by the Head of
State.

2 Alternative Dispute Resolution Amendment 2013, No. 18

2. Section 2 amended - For section 2 of the principal Act:
(a) in the definition of “alternative dispute resolution”,
after “arbitration,” insert “judicial settlement,”;
(b) in the definition of “mediation session”, after
“means a meeting” insert “(including a meeting
conducted by telephone, video conferencing or
any other electronic means)”;
(c) insert the following definitions into their alphabetical
positions:

““Council” means the Mediation Council established by
section 6A(1);
“mediation” means a structured process, based on the
principle of self-determination, undertaken under
this Act comprising one (1) or more mediation
sessions in which one (1) or more impartial
individuals, without adjudicating a dispute or any
aspect of it, assist the parties to the dispute to do any
or all of the following:
(a) identify issues in the dispute;
(b) explore and generate options;
(c) communicate with one another;
(d) reach an agreement to resolve the whole or part
of the dispute.
“mediation communication”:
(a) means -
(i) anything said or done; or
(ii) any document prepared; or
(iii) any information provided,
for the purpose of or in the course of mediation; but
(b) does not include an agreement to mediate or a
mediated settlement agreement.
“Ministry” means the Ministry responsible for the
administration of this Act;
“rules” means rules made under section 16.”.

3. New Part IIA inserted - For the principal Act, after
section 6, insert:

2013, No. 18 Alternative Dispute Resolution Amendment 3

“PART IIA
MEDIATION COUNCIL

6A. Establishment-(1) The Mediation Council is
established comprising the following members:
(a) the Chief Justice, as chairperson;
(b) a Judge of the District Court, appointed by the
Chief Justice;
(c) the President of the Samoa Law Society or his or
her nominee;
(d) the Attorney General or his or her nominee;
(e) the Ombudsman or his or her nominee;
(f) the Chief Executive Officer of the Ministry or his
or her nominee;
(g) the President of the Accredited Mediators of
Samoa Association or his or her nominee;
(h) the President of the Chamber of Commerce or his
or her nominee;
(i) a member appointed by the Chief Justice in
consultation with the other members of the
Council.
(2) In this section, “appointed member” means a
member of the Council appointed under subsection (1)(b) or
(i).

6B. Terms, vacancy and termination-(1) An appointed
member:
(a) may be appointed for a term of up to three (3)
years; and
(b) is eligible for re-appointment; and
(c) on expiry of the term of appointment, continues
until re-appointed or a successor is
appointed.
(2) The office of an appointed member becomes vacant
if:
(a) the member fails to attend three (3) consecutive
meetings of the Council without the approval
of the chairperson; or

4 Alternative Dispute Resolution Amendment 2013, No. 18

(b) the member’s appointment is terminated under
subsection (3); or
(c) the member dies.
(3) The Council may terminate the appointment of an
appointed member for inability to perform the functions of
the Committee arising from infirmity of body or mind or for
misconduct in the office of a member.

6C. Functions-(1) The Council has the following
functions:
(a) to regulate and control mediation in Samoa,
including the regulation and control of
mediators from other countries who
undertake mediation in Samoa;
(b) to promote and uphold good and acceptable
standards of practice of mediation;
(c) to promote the interest of the public and the
interest of mediators on mediation in a
manner that is fair and just to all;
(d) to promote and encourage proper conduct by
mediators;
(e) to suppress illegal, dishonourable, improper and
unprofessional practices and conduct by
mediators;
(f) to preserve and maintain the integrity and status
of mediators;
(g) to promote opportunities for the acquisition and
diffusion of knowledge of the law and the
proper practice of mediation;
(h) to package and deliver or sanction the packaging
and delivery of trainings, conferences,
workshops and any other educational
programmes with a view to promoting proper
conduct of mediation;
(i) to initiate or contribute to the promotion,
development and reform of the laws on
mediation for the better conduct and
provision of mediation;

2013, No. 18 Alternative Dispute Resolution Amendment 5

(j) to provide a means for the amicable settlement of
professional differences and disputes among
mediators;
(k) if requested, to provide advice to an accreditation
board established by the rules to be
responsible for the accreditation of
mediators;
(l) to carry out any other functions given to it under
this Act or any other law.
(2) The Council has all the necessary and incidental
powers to carry out its functions under this Act, rules or any
other law.

6D. Meetings and Secretary-(1) The following
provisions apply to a meeting of the Council:
(a) the chairperson, in consultation with majority of
other members of the Council, determines
the date, time and place of meetings;
(b) chairperson or, if the chairperson is absent, the
Judge appointed under section 6A(1)(b),
presides at a meeting;
(c) five (5) members constitute a quorum;
(d) all matters are to be decided by majority of votes
of the members present and voting;
(e) the chairperson has a deliberative vote and a
casting vote;
(f) minutes are to be kept by the Secretary and to be
confirmed by the members and signed by the
presiding member at its next meeting.
(2) Subject to this Act, the Council may regulate its own
procedures.
(3) The Chief Justice may appoint an employee of the
Ministry as Secretary of the Council.

6E. Protection of members-(1) A member of the
Council is not personally liable for any act done in good
faith in carrying out the functions or powers of the Council
under this Act or any rules or law.

6 Alternative Dispute Resolution Amendment 2013, No. 18

(2) An act or proceeding of the Council is not to be
invalidated if:
(a) there is a vacancy in the Council; or
(b) there is an irregularity in the composition or
appointment of an appointed member or
nominee of the Council; or
(c) an omission, defect or irregularity does not affect
the substantive merits of any act or
proceeding of the Council.

6F. Administration-(1) The Ministry must provide
necessary number of employees of the Ministry for the
administration and management of the Council.
(2) The Council may issue directives, signed by the
chairperson, to the employees on matters about mediation or
this Act.

6G. Service of documents - A document required to be
served on the Council is to be served by:
(a) personally serving it on the Secretary; or
(b) sending it by registered post to the Secretary of
the Council.”.

4. Section 7 amended - For section 7 of the principal Act,
after subsection (2) insert:

“(3) When referring a matter to mediation under
subsection (2), the court may take into account any factors
prescribed by the rules.”.

5. Section 8 substituted - For section 8 of the principal Act
substitute:

“8. Confidential information-(1) All mediation
communications are confidential and must not be disclosed
by a person except as authorised under subsection (2) or (3).

2013, No. 18 Alternative Dispute Resolution Amendment 7

(2) A person is authorised to disclose a mediation
communication if:
(a) the disclosure is made with the consent of -
(i) each of the parties to the
mediation; or
(ii) the mediator or all the mediators,
for the mediation; or
(iii) the person who made the
mediation communication, for mediation
communication made by a person who is
not a party to the mediation or not a
mediator; or
(b) the content of the mediation communication is
information that has already been made
available to the public, except for
information that is only in the public domain
due to an unlawful disclosure; or
(c) the content of the mediation communication is
information that is otherwise subject to
discovery in civil proceedings or to other
similar procedures in which parties are
required to disclose documents in their
possession, control, custody or power; or
(d) there are reasonable grounds to believe that the
disclosure is necessary to prevent or
minimise the danger of injury to a person or
serious harm to the well-being of a person
aged under 18 years or a person with mental
or bodily incapacity or infirmities; or
(e) the disclosure is made for research, evaluation or
educational purposes without revealing, or
being likely to reveal, directly or indirectly,
the identity of a person to whom the
mediation communication relates; or
(f) the disclosure is made for the purpose of seeking
legal advice on the mediation; or
(g) the disclosure is made pursuant to an enactment
or other law.

8 Alternative Dispute Resolution Amendment 2013, No. 18

(3) A person may disclose a mediation communication
with leave of the court under section 11:
(a) for enforcing or challenging a mediated
settlement agreement;
(b) for establishing or disputing an allegation or
complaint, pursuant to the rules, of
professional misconduct made against a
mediator or any other person who
participated in the mediation in a
professional capacity;
(c) for any other purpose that the court considers
justifiable in the circumstances of the case.
(4) A person who contravenes subsection (1) commits
an offence and is liable on conviction to a fine not
exceeding 10 penalty units or to imprisonment for a term
not exceeding 12 months, or both.”.

6. Section 9 amended - For section 9(a) of the principal
Act, delete “on the order of a court”.

7. Section 11 substituted - For section 11 of the principal
Act substitute the following sections:

“11. Admissibility and disclosure of evidence-(1) A
mediation communication may be admitted in evidence in
any proceedings (including judicial, arbitral, administrative
or disciplinary proceedings) only with leave of the court
under subsection (2).
(2) The court specified in subsection (3):
(a) may, on application by any person, grant
leave for a mediation communication to be
disclosed under section 8(3) or to be
admitted in evidence under subsection (1);
and
(b) must take into account the following matters in
deciding whether to grant leave for a
mediation communication to be disclosed or
admitted in evidence -

2013, No. 18 Alternative Dispute Resolution Amendment 9

(i) whether the mediation
communication may be, or has been,
disclosed under section 8(2);
(ii) whether the leave has been
granted to disclose a mediation
communication under section 8(3);
(iii) whether it is in the public interest
or the interests of the administration of
justice for the mediation communication
to be disclosed or admitted in evidence;
(iv) any other circumstances or
matters that the court considers relevant.
(3) The court specified for subsection (2) is:
(a) the Supreme Court if the mediation
communication is sought to be disclosed or
admitted in evidence in proceedings in the
Supreme Court;
(b) the District Court if the mediation
communication is sought to be disclosed or
admitted in evidence in any proceedings in
the District Court;
(c) the District Court in any other case.

11A. Directions - At any time after the commencement
of proceedings, any party or the mediator may apply to the
court for directions on any matter relating to the mediation
of issues in those proceedings.”.

8. Section 13 amended - In section 13 of the principal Act,
for “The parties to a mediation undertaken in accordance with
this Act may jointly” substitute “A party to any mediation
may”.

9. New sections 13A and 13B inserted - In the principal
Act, after section 13, insert:

10 Alternative Dispute Resolution Amendment 2013, No. 18

“13A. Pre-filing mediations - The Chief Justice may
issue written directives in relation to proceedings that
should not be filed in court unless mediation has been
attempted.

13B. Mediation outside courts - This Act may, by
Rules, apply to and regulate mediation undertaken outside
the court system.”.

10. Section 16 substituted - For section 16 of the principal
Act substitute:

“16. Rules and forms-(1) The Head of State, acting on
the advice of the Prime Minister and with the concurrence
of the Rules Committee, may make rules to give effect to or
for the purpose of this Act, and in particular to make rules to
provide for the following:
(a) the training, accreditation and registration of
qualified mediators;
(b) the establishment of an accreditation board and
its functions;
(c) the procedures and powers to be applied by
mediators in mediation sessions; and
(d) the powers of court officers to conduct mediation
sessions, or to perform any role or power in
relation to mediation sessions;
(e) subject to subsection (3), the fees for mediators
for work undertaken in mediation sessions;
(f) the powers of the court to require parties to
undertake any alternative dispute resolution
procedures ordered under this Act;
(g) the regulation of mediation outside of the court
system.
(2) Rules may prescribe offences and penalties for fine
not exceeding 10 penalty units or imprisonment not
exceeding 12 months, or both.
(3) Any fees prescribed in the rules are subject to the
prior approval of the National Revenue Board established
under the Public Finance Management Act 2001.

2013, No. 18 Alternative Dispute Resolution Amendment 11
(4) The Chief Justice may approve forms for the
purposes of this Act.”.

11. Consequential amendment - For references to
“Regulations” in sections 5, 6, and 15(7) of the principal Act,
substitute “Rules”.

12. Transitional - At the commencement of this Act:
(a) the existing Mediation Steering Committee continues
to function as if it were the Council, until the
Chief Justice decides otherwise; and
(b) a person who has already been accredited in Samoa
as a mediator continues to act as a mediator as if
the person were accredited under this Act and the
rules.

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The Alternative Dispute Resolution Amendment Act 2013
is administered by the Ministry of Justice
and Courts Administration.