Consultation Paper on Alternative Dispute Resolution - Law Reform ...

(iii) New South Wales
3.66 The Civil Procedure Act 2005 (NSW) permits the Supreme Court at
any stage of the proceedings to refer parties to mediation. 71 This power does
not depend on the consent of the parties nor is it the intention of the Court that
mediation will be ordered in all proceedings. 72 Initially there was a general
acceptance of the view adopted by Barrett J in Morrow v Chinadotcom Corp. 73
that there was no point in a mediation engaged in by a reluctant party. In a
frequently cited passage from Remuneration Planning Corp Pty Ltd v Fitton 74
the NSW Supreme Court held, however,
―since the power was conferred upon the Court, there have been a
number of instances in which mediation have succeeded, which have
been ordered over opposition, or consented to by the parties...it has
become plain that that there are circumstances in which parties insist
on taking the stance that they will not go to mediation, perhaps from
a fear that to show willingness to do so may appear a sign of
weakness, yet engage in successful mediation when mediation is
ordered.‖
(5) Voluntary Schemes v Compulsory Schemes & the Impact of
Costs Sanctions: England & Wales
3.67 In 2007, the Ministry of Justice for England and Wales published a
report entitled Twisting arms: court referred and court linked mediation under
judicial pressure. 75 This report evaluated two mediation programmes in Central
London County: a voluntary mediation scheme which had been operating in the
court since 1996 and an experiment in quasi-compulsory mediation which ran in
the court between April 2004 and March 2005.
3.68 Since 1998, the voluntary mediation scheme in central London
operates on the basis that information about the mediation scheme is sent to
both parties once a defence has been received by the court. This again
emphasises the importance of educating parties about the alternative processes
which are available to them for the resolution of their dispute. The decision as to
71 Part 4 of the Civil Procedure Act 2005. See also Practice Note No. SC Gen 6
Supreme Court – Mediation.
72 Part 4 of the Civil Procedure Act 2005.
73 [2001] NSWSC 209 (28 March 2001).
74 [2001] NSWSC 1208 (14 December 2001).
75 See Genn Twisting arms: court referred and court linked mediation under judicial
pressure, (Ministry of Justice Research Series 1/07, May 2007).
92