39. (1) (a) Subject to paragraph (b), the Director General may, where he or she is of the opinion that a complaint or dispute is capable of being resolved without being referred to an adjudication officer under section 41, refer the complaint or dispute for resolution to a mediation officer.

(b) The Director General shall not refer a complaint or dispute for resolution to a mediation officer if either of the parties to the complaint or dispute objects to its being so referred.

(2) Where a complaint or dispute is referred for resolution under this section the mediation officer concerned may—

(a) convene a meeting (in this section referred to as a “mediation conference”) in accordance with subsection (3) for the purpose of resolving the complaint or dispute, or

(b) employ such other means as he or she considers appropriate for the purpose of resolving the complaint or dispute.

(3) A mediation conference shall—

(a) take place at a time and place determined by the mediation officer,

(b) be attended by the mediation officer and the parties to the complaint concerned, and

(c) be conducted otherwise than in public.

(4) Where a complaint or dispute referred to a mediation officer under this section is resolved, whether by mediation or otherwise—

(a) the mediation officer concerned shall record in writing the terms of the resolution,

(b) each of the parties to the complaint or dispute concerned shall, if satisfied that it accurately represents the terms of the resolution, sign the record thereof, and

(c) the mediation officer concerned shall send the record as so signed to the Director General and give a copy thereof to each of the parties to the complaint or dispute, as the case may be.

(5) (a) Where a mediation officer has attempted (whether by convening a mediation conference or other means) to resolve a complaint or dispute referred to him or her under this section and such conference or the employment of those other means has not resulted in a resolution of the complaint or dispute, the mediation officer shall notify the parties to the complaint or dispute and the Director General in writing of that fact.

(b) The Director General shall, upon receiving a notification under paragraph (a), refer the complaint or dispute concerned for adjudication by an adjudication officer under section 41.

(6) The terms of a resolution of a complaint or dispute recorded in writing and signed by the parties to the complaint or dispute in accordance with subsection (4) shall be binding on the parties and if either party contravenes any such term, the contravention shall be actionable in any court of competent jurisdiction.

(7) The terms of a resolution referred to in subsection (4) shall not be disclosed by a mediation officer or by either party to the complaint or dispute concerned in any proceedings before a court (other than proceedings in respect of the contravention of the terms of the resolution), or otherwise.

(8) All communications (including communications during a mediation conference) by a mediation officer with the parties to a complaint or dispute referred for resolution under this section to him or her and all records and notes, including records and notes relating to a mediation conference held for the purposes of resolving any matter to which the complaint or dispute concerned relates, shall be confidential and shall not be disclosed in any proceedings before a court (other than proceedings in respect of a contravention of the terms of a resolution referred to in subsection (4) ), or otherwise.

(9) In this section—

“complaint” means a complaint presented to the Director General under section 41; and

“dispute” means a dispute referred to the Director General under section 41.