Flag a settlement negotiation note before it is indexed
Key facts
- Human involvement
- YellowClose supervision
- How AI is used
- Before a note, letter or draft is added to the know-how bank, record whether it is a communication made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or a document prepared in connection with such an attempt. Record any statement in it that it was not to be treated as confidential. Do not decide that an exception applies. Do not decide that the note may be indexed or that evidence of it may be adduced.
- What the lawyer must review
- The lawyer decides whether section 131 of the Evidence Act 1995 (Cth) applies, where that Act applies, and whether the note may be indexed. Subsection (1) says evidence is not to be adduced of a communication made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or of a document, whether delivered or not, prepared in connection with an attempt to negotiate a settlement of a dispute. Subsection (5) says a dispute is one of a kind in respect of which relief may be given in an Australian or overseas proceeding, and that an attempt to negotiate a settlement does not include an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding. A communication by a person in dispute includes a communication by an employee or agent. Consent of a person in dispute includes consent of an employee or agent who is authorised to consent. Commission of an act includes a failure to act. Subsection (6) says power means a power conferred by or under an Australian law. Subsection (2) sets out when subsection (1) does not apply, including consent of the persons in dispute, disclosure of the substance with the express or implied consent of all of them, a statement that the communication or document was not to be treated as confidential, a proceeding to enforce an agreement to settle or in which the making of such an agreement is in issue, relevance to determining liability for costs, and the further cases in paragraphs (c), (e), (g), (i), (j) and (k). Paragraph (j) covers a communication made or a document prepared in furtherance of a fraud, an offence, or an act that renders a person liable to a civil penalty. Paragraph (k) covers the case where a person in dispute, or an employee or agent, knew or ought reasonably to have known that it was made or prepared in furtherance of a deliberate abuse of a power. Subsections (3) and (4) provide for a finding, on reasonable grounds, for paragraphs (2)(j) and (2)(k). The lawyer makes that judgment. The tool does not. State evidence statutes were not opened. This is not a privilege flag under sections 118 or 119, and it is not a check of material produced under compulsion.
- Written for / version
- US
Open a jurisdiction version of this task to see which instruments apply: US
Who does what
| Role | What they do |
|---|---|
| Assistance | Before a note, letter or draft is added to the know-how bank, record whether it is a communication made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or a document prepared in connection with such an attempt. Record any statement in it that it was not to be treated as confidential. Do not decide that an exception applies. Do not decide that the note may be indexed or that evidence of it may be adduced. |
| Lawyer | Set the scope, supervise the work closely, verify every part relied on, resolve omissions and exceptions, and approve the exact output. |
Checklist
- Flag the note if it is a communication or a document in connection with an attempt to negotiate a settlement. Do not decide an exception.
- A negotiation of a criminal proceeding, or an anticipated criminal proceeding, is outside the definition in subsection (5)(b). Record that character and leave the conclusion to the lawyer.
- Consent by an employee or agent counts only if that person is authorised to consent, under subsection (5)(d).
- Do not treat the note as a privilege review or as a check of material produced under compulsion. Those are separate tasks.
Sources
- Evidence Act 1995 (Cth) section 131 · 2026-10-22
These are suggested working checks. Confirm the required checking with the responsible lawyer before work starts; the checking approach does not establish permission to use AI.