I. Post-mediation procedures

I. Post-mediation procedures 

1. Where a full settlement is reached 

If mediation results in a full settlement, the parties should record the settlement in a written mediated settlement agreement. The agreement should clearly resolve all issues in dispute. Once signed, the agreement will generally be binding as a contract, provided the usual requirements for a valid contract are satisfied. 

If court proceedings are already on foot, settlement at mediation does not automatically end the court action. The parties must also take formal steps to deal with those proceedings.  

(i) Consent summons and orders 

The final agreement is often incorporated into a consent summons filed with the court, which then hands down a Consent Order or Consent Judgment in similar terms. This process transforms the private contractual settlement into an official court order, providing a high level of legal enforceability. If a party fails to comply with the terms, the other side can apply to the court for enforcement without having to initiate a completely new action for breach of contract. 

(ii) Tomlin orders 

The parties may use a Tomlin Order to stay proceedings on agreed terms, except for the purpose of carrying those terms into effect. The complex details remain in a separate, confidential schedule, while the order itself allows for expedited enforcement without starting a new action. 

(iii) Discontinuance 

The parties may jointly file a Notice of Discontinuance to withdraw all claims and counterclaims without the leave of the court. 

(iv) Duty to inform 

Under PD 31, the plaintiff has a specific duty to promptly inform the court if a settlement is reached, especially if proceedings were stayed. This allows the court to vacate trial dates and reallocate resources. 

If the dispute was in arbitration, the settlement can be recorded as a Consent Award (award on agreed terms), which is enforceable in the same manner as a court judgment. 

Post-mediation tasks may include fulfilling conditional aspects of the agreement (e.g., transferring shares) or attending follow-up meetings to review how the arrangements are working in practice, which is common in ongoing workplace or parenting relationships. 

Unless the parties agree otherwise, the mediator’s role ends once the mediation has concluded and any agreed post-mediation involvement by the mediator has been completed. 

2. Where a partial settlement is reached 

Mediation may resolve all or only part of the dispute. 

If only part of the dispute is settled, the parties should clearly record which issues have been resolved and which issues remain outstanding.  

For issues that remain unresolved, the legal proceedings remain on foot. The court retains jurisdiction to make directions for the further conduct of the trial regarding these outstanding matters. The court may then give further directions for the unresolved issues to proceed. 

For example, the court may: 

• recommend further mediation; 
• give directions for the remaining issues; 
• adjust the timetable; 
• deal with costs of the settled issues; or 
• list the remaining dispute for trial. 

A partial settlement can still be highly beneficial as it may resolve simple issues (like the exchange of documents), thereby shortening future court proceedings and saving time and costs. 

3. Where no settlement is reached 

Parties proceed with their original action in court or before an arbitral tribunal. 

The costs incurred during a failed mediation may be recoverable as costs incidental to the legal proceedings, provided the mediation was sufficiently connected to the litigation. 

While the substance of mediation remains confidential, the mediator may be required to report certain procedural facts to the court, such as whether the parties attended the mediation, the duration of the sessions, and that the process concluded without an agreement. 

Information shared during a failed mediation generally cannot be used as evidence in subsequent trials due to “without prejudice” basis. However, there are limited exceptions, such as where evidence is needed to prove if a settlement was actually reached or if there was unambiguous impropriety. 

The court may penalize a party with an adverse costs order if it finds they unreasonably failed to engage in mediation.