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

ecome infected with the conciliatory spirit and settle. Even if only a
small percentage of those who have been forced to mediate settle, it
is better than never giving the process a chance.‖ 19
11.17 Halsey continues to be the leading authority in England and Wales
on the issue of whether a court has jurisdiction to order a party to ADR against
their wishes and it has firmly made a distinction between the duty of the court to
encourage parties to use mediation and the power to force parties to use
mediation against their will.
(b) New South Wales
11.18 The New South Wales Civil Procedure Act 2005 permits the New
South Wales Supreme Court, at any stage of the proceedings, to refer parties to
mediation. 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.
Initially there was a general acceptance of the view adopted by Barrett J. in
Morrow v Chinadotcom Corp 20 that ―mediation forced upon one of the parties,
rather than voluntarily embraced by all of them, would be unlikely to achieve
anything useful.‖ He noted that the court should think very carefully before
compelling what could turn out to be an exercise in futility that would only
increase the delay and expense of a final decision by the court. He refused to
make an order for mandatory mediation and this decision was upheld on
appeal. However, in a later decision Remuneration Planning Corp Pty Ltd v
Fitton 21 the New South Wales Supreme Court held that:
―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.‖
11.19 In that respect, the New South Wales Supreme Court has recognised
that mandatory mediation may be suitable in some cases. In the defamation
case Waterhouse v Perkins 22 , the plaintiff did not wish to mediate. Levine J was
not persuaded by the plaintiff's arguments and held that there were a number of
19 Ibid. See also Sautter ―Halsey-mediation one year on‖ (2005) 155 NLJ 7176.
20 [2001] NSWSC 209 (28 March 2001).
21 [2001] NSWSC 1208 (14 December 2001).
22 [2001] NSWSC 13.
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