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cases

Mediation Cases

2015

2014

  • 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).

2013

2012

2001

Confidentiality

    • 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

An obligation to mediate in good faith?

Some agreements contain an obligation to mediate in good faith.

  • In this case damages were unsuccessfully claimed for a breach of an obligation to mediate in good faith

An increased role for the Court in mediation?

    • 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.
1) [2015] NSWCA 7
2) [2014] VSC 428
3) [2014] EWHC 3193 (TCC)
4) [2013] NSWCA 201
5) [2013] FCA 25
6) [2012] NSWSC 1257 (18 October 2012)
7) [2012] NSWSC 55
8) [2001] FCA 600
9) [2009] FCA 1018 (11 September 2009) at p43
10) [2009] NSWCA 435 (23 December 2009)
11) [2010] VSC 489 (29 October 2010)

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