Mediation Cases

• Jingalong Pty Limited v Todd ¹⁾

• Cook v Taing ²⁾ CONTRACT – Settlement – previous mediation – mediation agreement – subsequent negotiations between parties – whether mediation agreement continued to apply – meaning of “mediation” – mediator reporting to court – parties’ representation to court that proceeding settled – correspondence between parties purporting to settle proceeding – whether settlement subject to written contract – binding agreement reached – Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 applied – compliance with court orders – Civil Procedure Act 2010 (Vic), ss 7, 16, 19, 22, 24 and 25 – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 50.07(4).
• Peterborough City Council v Enterprise Managed Services Ltd ³⁾

• McMahon v Permanent Custodians Ltd ⁴⁾
• Sotiropoulos v Bico Designs Pty Ltd ⁵⁾ Agreements reached at mediation are, depending on the drafting of the agreement, enforceable. This is example of an agreement reached at mediation being enforced in subsequent proceeedings.
• Boardman v Boardman ⁶⁾ Agreements reached at mediation are, depending on the drafting of the agreement, enforceable. This is another example of an agreement reached at mediation being enforced.
• Chaina v Presbyterian Church (NSW) Property Trust (No. 10)

• A W Ellis Engineering Pty Limited and Ors v Malago Pty Limited and Ors⁷⁾

• ACCC v Lux Pty Ltd ⁸⁾

• Intelmail Explorenet Pty Limited v Vardanian (No 2) ⁹⁾
  • Ordinarily correspondence between parties engaged in a mediation process is, if such correspondence is properly written, not able to be used in Court unless used in enforcement of an agreed settlement.
  • Unfortunately, this premise is not always true and the following case is an example of when correspondence used in mediation ended up being used in Court

Some agreements contain an obligation to mediate in good faith.

• de Zylva v Hill ¹⁰⁾
• In this case damages were unsuccessfully claimed for a breach of an obligation to mediate in good faith

• Thomas v Powercor Australia Limited (Ruling No 1)¹¹⁾, Forrest J
  • I do not embrace as enthusiastically Finkelstein J’s second proposition in relation to a court’s caution at becoming involved in the consensual process of mediation.
  • I think that this Court needs to be proactive in its approach to facilitating and encouraging settlement.
  • This approach is endorsed by the impending introduction on 1 January 2011 of the Civil Procedure Act 2010, which will govern the conduct of this proceeding after that date.
  • A number of the provisions of the C.P.A. direct a court to actively pursue processes (including the making of orders) aimed at early settlement of a dispute.