Cains & Anor v Wadiwel & Ors

Substantive proceedings are to be heard between 28 and 30 May 2007. They concern an easement. There are a number of defendants as well as, of course, the plaintiffs. The plaintiffs seek an order that I refer these proceedings for mediation. That application is opposed by the defendants.

The Civil Procedure Act 2005, s 26(1) allows me to refer a matter for mediation, notwithstanding that one of the parties objects to that course.

Mr Cains, who appeared in person, says there was an informal mediation between the solicitor for one of the parties and the plaintiffs that, he says, almost reached a successful conclusion.

That statement is challenged by Mr Arch, the solicitor for the defendants. He says that there have been many negotiations over the period from 2003, when these proceedings were instituted, which have failed to achieve a successful outcome, and to refer the matter for mediation would simply add to the catalogue of unsuccessful attempts to finalise the matter.

Mr Arch submits that the appropriate tribunal to determine the issues with respect to easements is the Supreme Court of New South Wales and the matter has been set down for trial.

There has been no formal mediation in this matter. I draw a clear distinction between an informal mediation conducted by a solicitor and a formal mediation conducted by a person who has some expertise in dealing with issues and rival contentions.

In my view, there is a benefit in this matter being referred for mediation because, even if the matter cannot be finally resolved, there is a prospect that some of the issues may be confined by a person with expertise in dealing with rival contentions by parties.

I therefore refer these proceedings for mediation. If the parties cannot agree on a mediator within seven days, the Joint Protocol described in Practice Note SC Gen 6 shall apply and the mediator shall be the person appointed under the Joint Protocol.

I order that the mediator determine by whom the costs of the mediation shall be borne.