Section 28 of the Mediation Act 2023: Challenge to Mediated Settlement Agreement

Section 28 creates the enacted statutory framework for challenging a mediated settlement agreement before a court or tribunal of competent jurisdiction on specified grounds and within a prescribed time.

Section 28 - Statutory scheme

Who may challenge the agreement?

Section 28(1) refers to a mediated settlement agreement arrived at between the parties and permits either party seeking to challenge it to apply to the court or tribunal of competent jurisdiction. The provision begins with a non-obstante clause, giving the challenge mechanism overriding operation over inconsistent provisions in other laws once Section 28 is in force.

Grounds for challenge under Section 28(2)

1. Fraud: A challenge may be brought where the mediated settlement agreement is affected by fraud.
2. Corruption: Corruption is an express statutory ground for challenge.
3. Impersonation: An agreement may be challenged where impersonation is involved.
4. Matter not fit for mediation: A challenge is permitted where mediation was conducted in a dispute or matter not fit for mediation under Section 6.

The words "only on" in Section 28(2) make the listed grounds central to the statutory challenge mechanism.

Section 6 - Disputes or matters not fit for mediation

Section 6 provides the enacted framework identifying disputes or matters that are not fit for mediation, including the matters specified in the First Schedule, subject to the Act. Because Section 28(2)(iv) expressly refers to Section 6, conducting mediation in a legally excluded matter is one of the statutory grounds for challenging the resulting settlement agreement. Section 6 has not yet been brought into force.

Time limit for filing a challenge

Under Section 28(3), the ordinary period is 90 days from the date on which the challenging party receives the copy of the mediated settlement agreement under Section 19(3).

The proviso permits the competent court or tribunal to entertain the application within a further period of 90 days if it is satisfied that sufficient cause prevented the applicant from filing within the initial period. The wording therefore fixes both the initial statutory period and the additional period contemplated by the proviso.

Relationship with Section 27 enforcement

Section 27 provides the enacted enforcement framework for mediated settlement agreements and expressly makes enforcement subject to Section 28. Sections 27 and 28 therefore operate together in the enacted scheme: one addresses enforcement and the other specifies the statutory route, grounds and time for challenge. Neither Section 27 nor Section 28 has yet been brought into force.

Meaning of mediated settlement agreement

Section 3(n), which has been brought into force, defines "mediated settlement agreement" by reference to Section 19. The enacted Section 19 deals with the form and requirements of such an agreement, including signing by the parties, authentication by the mediator and provision of copies. Section 19 itself has not yet been brought into force.

Practical legal points

• A challenge under Section 28 is contemplated before the competent court or tribunal, not before the mediator.
• The enacted provision limits the challenge to the grounds expressly specified in Section 28(2).
• The limitation period runs from receipt of the copy contemplated by Section 19(3), not merely from the date on which mediation began.
• The additional 90-day period depends on the court or tribunal being satisfied that sufficient cause prevented timely filing.
• Because Section 28 is not yet in force, its statutory challenge procedure should not presently be represented as an operative remedy.