Adam burling is available for comment at 230pm at the

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Adam Burling is available for comment at 2:30pm at the Tasmanian Parliament House lawns or on 0407 541 335 Louise Morris is available for comment on 0408 906 310 For more information on the Gunns20 case, contact: Adam Beeson, Legal Coordinator of Friends of Forests and Free Speech , Ph 6231 3084
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Court-annexed ADR Required by court to attend ADR Not required to settle but must negotiate IN GOOD FAITH This is a question of fact based on all the circumstances (See next slide!) How do courts enforce this requirement? COSTS ORDERS DOES mandatory mediation make sense?
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How can courts identify the absence of good faith? In Western Australia/Strickland [1997] NNTTA 31 at pages 10 – 11, Tribunal Member the Hon C J Sumner of the National Native Title Tribunal interpreted the provisions of the Native Title Act 1993 (Cth) requiring the government to negotiate with native title owners in good faith before compulsory acquisition under the Act. The Tribunal Member found it “necessary to look at the conduct of the party as a whole. However, to aid in this process it is legitimate to look at certain indicia which may point to whether the obligation to negotiate in good faith has been fulfilled. Such a list cannot be prescriptive or exhaustive and the weight given to any item must depend upon the circumstances of the matter.”
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How can courts identify the absence of good faith? (Continued) Some of these indicia include: v the unexplained failure to communicate with the other parties within a reasonable time v failure to contact one or more of the other parties v failure to take reasonable steps to facilitate and engage in discussions between the parties v failing to respond to reasonable requests for relevant information within a reasonable time v stalling negotiations by unexplained delays in responding to correspondence or telephone calls v unnecessary postponement of meetings v sending negotiators without authority to do more than argue or listen v refusing to agree on trivial matters eg a refusal to incorporate statutory provisions into an agreement v shifting position just as agreement seems in sight v adopting a rigid non-negotiable position v failure to make counter proposals v unilateral conduct which harms the negotiating process eg issuing inappropriate press releases v refusal to sign a written agreement in respect of the negotiation process or otherwise
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Court-annexed ADR under the Civil Procedure Act Chapter 5 - Appropriate Dispute Resolution A court may order, at any stage of a proceeding, that the proceeding, or part of the proceeding, be referred to ADR (s. 66). These powers are additional to those under other Acts or the Rules (s. 69)
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Court-annexed ADR under the Civil Procedure Act Section 3 defines ADR to mean a process attended by a party for the purpose of negotiating a settlement or narrowing the issues in dispute, including: mediation, whether or not referred under rules of court early neutral evaluation judicial resolution conference settlement conference reference of a question to a special referee expert determination conciliation or arbitration
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