The NSW Supreme Court recently held in the case of Ku-ring-gai Council v Ichor Constructions Pty Ltd [2018] NSWSC 610 that where an arbitrator wants to take on the role of mediator, they must carefully follow the law or risk the arbitration be invalidThe Commercial Arbitration Act 2010 allows arbitrators to act as mediators under s27D(1), as long as all parties in the arbitration have given their written consent. In this case the arbitrator was given this consent and proposed that both parties withdraw their claims and bear their own costs – this was quickly rejected and the mediator proposed to continue with the arbitration.

However under s27D(6) this switch back to arbitration also needs the written consent of both the parties, and this was not sought. After a further four days of arbitration, Ichor Constructions protested and it was ultimately held that because of the lack of written consent the arbitration could not continue.

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