86BReferral of matters for mediation

86B  Referral of matters for mediation Federal Court must refer applications for mediation  (1) Unless an order is made under subsection (3) that there be no mediation under this Act, the Federal Court must refer each application made under section 61 to an appropriate person or body for mediation, including the ascertaining of agreed facts, as soon as practicable after the end of the period specified in the notice under section 66.  (2) In deciding whether to refer the application to a particular person or body, the Court may take into account the training, qualifications and experience of the person who is to be, or is likely to be, the person conducting the mediation.  (2A) Without limiting subsection (1), the application may be referred to a Federal Court Registrar. No mediation if it will be unnecessary etc.  (3) The Court, either on the application of a party or of its own motion, must order that there be no mediation under this Act in relation to the whole of the proceeding or a part of the proceeding if the Court considers that:  (a) any mediation will be unnecessary in relation to the whole or that part, whether because of an agreement between the parties about the whole or the part of the proceeding or for any other reason; or  (b) there is no likelihood of the parties being able to reach agreement in the course of mediation under this Act on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2) in relation to the whole or that part; or  (c) the applicant in relation to the application under section 61 has not provided sufficient detail (whether in the application or otherwise) about the matters mentioned in subsection 86A(1) or (2) in relation to the whole or that part. Factors to take into account  (4) In deciding whether to make an order that there be no mediation under this Act in relation to the whole of the proceeding or a part of the proceeding, the Court is to take the following factors into account:  (a) the number of parties;  (b) the number of those parties who have appointed the same agent under section 84B or same representative;  (c) how long it is likely to take to reach agreement on the matters set out in subsection 86A(1) or (2) in relation to the whole or the part of the proceeding;  (d) the size of the area involved;  (e) the nature and extent of any non‑native title rights and interests in relation to the land and waters in the area;  (f) any other factor that the Court considers relevant. Whole or part of a proceeding may be referred at any time  (5) In addition to referring a proceeding for mediation under subsection (1), the Court may, at any time in a proceeding, refer the whole or a part of the proceeding to an appropriate person or body for mediation if the Court considers that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2).  (5A) In deciding whether to refer the whole or part of the proceeding to a particular person or body, the Court may take into account the training, qualifications and experience of the person who is to be, or is likely to be, the person conducting the mediation.  (5B) Without limiting subsection (5), the whole or part of the proceeding may be referred to a Federal Court Registrar. Orders about how mediation is to be provided etc.  (5C) If the Court refers, under subsection (1) or (5), the whole or a part of a proceeding to a person or body for mediation, the Court may at any time after the referral make an order about the following matters:  (a) the way in which the mediation is to be provided;  (b) whether the person who is to conduct the mediation may be assisted by another individual;  (c) any other matter that the Court considers relevant. No other referral for mediation etc.  (6) If the Court refers the whole or a part of a proceeding for mediation under subsection (1) or (5), then, unless the mediation ceases because an order is made under section 86C:  (a) no aspect of the proceeding is to be referred for mediation under the Federal Court of Australia Act 1976; and  (b) no order is to be made by the Federal Court requiring the parties to attend before a Federal Court Registrar for a conference with a view to satisfying the Registrar that all reasonable steps to achieve a negotiated outcome of the proceeding have been taken. 86BA  Mediator may appear before the Court  (1) A mediator may appear before the Court at a hearing that relates to any matter that is currently before the mediator for mediation if the Court considers that the mediator may be able to assist the Court in relation to a proceeding.  (2) To avoid doubt, subsection 94D(4) applies to the mediator when appearing before the Court.  (3) Subsection 94D(5) does not prevent:  (a) the mediator from appearing before the Court under subsection (1); or  (b) if the mediator may appear before the Court under subsection (1) and the person conducting the mediation is not the mediator—that person from representing the mediator before the Court.  (4) This section does not give the mediator, or the person conducting the mediation, the right to become a party to the proceeding.