Should the Court order mediation ?
37 The applicant seeks, in the alternative, an order for compulsory mediation under the provisions of the Supreme Court Act 1970 and the Supreme Court Rules providing for such orders to be made. That jurisdiction is, of course, discretionary.
38 CCC's desire to see a Court ordered mediation is not shared by the Founders. They, in fact, vigorously oppose any such move, mainly on the basis that, as they see it, the matter is urgent and can best be dealt with by the ordinary processes of the Court.
39 The jurisdiction CCC seeks to invoke is created by s.110K of the Supreme Court Act which has been in its present form only since 1 August 2000 when the Supreme Court Amendment (Referral of Proceedings) Act 2000 commenced. Before that, the Court could not order mediation unless all parties to the proceedings agreed. Counsel drew my attention to two decisions of Perry J of the Supreme Court of South Australia in which the implications of the jurisdiction to order mediation over a party's opposition were briefly considered: see Hopcroft v Olsen, 21 December 1998 [1998] SASC 7009 and Baulderstone Hornibrook Engineering Pty Ltd v Dare Sutton Clarke Pty Ltd, 7 June 2000 [2000] SASC 159. Apart from confirming that, in an appropriate case, the Court should order compulsory mediation against the will of one or more parties, I do not think these authorities provide any particularly useful guidance. As Perry J said in the earlier case, after noting that there was a dearth of precedent to guide him:
"Be that as it may, it does not appear to me that precedent is of much assistance in determining the present application. Every case involves different circumstances. What might be an appropriate procedure in one case, may clearly be inappropriate in another."
40 It is appropriate, therefore, to turn to the circumstances of the present case and to the considerations which counsel submitted have relevance to the exercise of the Court's discretion.
41 Mr Macfarlan for CCC saw it as particularly relevant that the parties have, by clause 13.16 of their agreement, shown a predisposition towards alternative dispute resolution. He also says that the matter as a whole is not attended by such urgency that it would be unreasonable for the parties to spend time on a mediation before seeking to have the Court adjudicate.
42 Mr Walker, on the other hand, said that if, as has transpired, clause 13.16 is found not to be a source of an obligation to engage in mediation, the argument based on the presence of clause 13.16 in the SPA falls away, the reality being that the parties have not agreed to a mediation process at all. Mr Walker characterises the power of the Court under s.110K as a power to defer adjudicating the dispute between the parties. Before a Court does that, he says, there needs to be something to single the particular controversy out from the ordinary course and to justify the parties being subjected to the burden of the additional time and money that a mediation involves.
43 The fact that the parties showed in their agreement a desire to adopt some alternative dispute resolution procedure which, as in the present case, has been found to be of uncertain operation is, at most, of marginal relevance to the question whether the Court should impose some such regime against the will of one of them. That question has to be determined by reference to the circumstances which exist at the time of the proceedings, not at the time the parties contracted.
44 The clearly stated preference of one party to continue with the litigation which that party sees as the most appropriate means of dispute resolution must cause a Court to think very carefully before compelling what, on the face of things, may well turn out to be an exercise in futility attended by delay and expense. There will no doubt be some cases where such a course will be justified: where, for example, the Court perceives that emotional or other non-rational forces (including unreasonable intransigence) are at work and a proper sense of proportion may be introduced into the picture by the efforts of a third party skilled in conciliation.
45 The present proceedings involve commercial parties engaged in a commercial transaction. They may be taken to possess a reasonable degree of business sophistication and acumen. Presumably they (and certainly their respective solicitors) are well aware of the potential benefits, in many cases, of mediation and other non-curial resolution processes. If, with the benefit of that knowledge and the advice of their solicitors, they do not all see sufficient value in resort to some alternative procedure of their own choosing there is, it seems to me, very little, if anything, that is likely to be gained by the Court compelling them to pay at least lip service to it.
46 While the abstract pros and cons of compulsory mediation have been discussed elsewhere (see, for example, D. Spencer, "Mandatory Mediation and Neutral Evaluation: A Reality in New South Wales", (2000) 11 ADRJ 237), the Court's task in a particular case is to assess the situation before it. My assessment in this case is that mediation forced upon one of the parties, rather than voluntarily embraced by all of them, would be unlikely to achieve anything useful. I note in passing that a similar assessment by Cox CJ in Burke v Humphrey 18 December 2000 [2000] TASSC 178 caused him to observe that an order for compulsory mediation would have been inappropriate, even if the Tasmanian rule of Court purporting to allow the making of such an order had not been ultra vires.
47 For these reasons, CCC's alternative application based on s.110K of the Supreme Court Act and rule 70C of the Supreme Court Rules is also dismissed. Access to mediation or any other form of dispute resolution may be obtained at any time through a simple agreement among the parties to pursue such a course.