The defendant argued that the agreements between the parties to the proceeding related to those parties that were part of the mediation proceeding; this is also the wording of the agreement when it clarifies that in the event of a contradiction between the mediation agreement and the settlement agreement that preceded it, the mediation agreement will prevail - but it is clear that the mediation agreement did not cancel the settlement agreement sweepingly (which, as I recall, received the validity of a judgment), since it clarifies that the mediation agreement prevails over the settlement agreement only where it creates a dispute between them- See Section 1(i) of the Collective Arrangement and Dispute (j) which relates to an arrangement later than the first settlement agreement. If the mediation agreement had led to the annulment of the judgment, it would have required a clear statement in the framework of the settlement.
Moreover, as part of the mediation proceeding, Mrs. Rachel Levy, one of the parties to the proceeding, agreed to withdraw her claim to cancel the settlement (Civil Case 15541-09-09 filed with the Magistrate's Court in Ramla - a claim in which the plaintiffs here were also not a party) - go out and learn that the intended result of the mediation arrangement was not the cancellation of the first judgment, contrary to the plaintiffs' claim.
In addition, when examining the cause of negligence, the mediator's conduct must be examined in relation to the expectation of the conduct of a reasonable mediator - and I am not convinced that in the database available to the defendant, a reasonable mediator would have made a different decision. As stated above, I found the required test resin to be gross negligence - and this is not even slightly proven.
Therefore, the plaintiffs did not prove the defendant's breach of the duty of care - since the arrangement was made with awareness of the existence of the first settlement agreement, the parties' intention was to leave it in place (and therefore, as stated, it was even agreed to dismiss the proceeding that sought to bring about its cancellation) and as stated in the wording of the agreement, its provisions were intended to settle the dispute between the members of the Levy family and in relation to some of them only.
- Admittedly, the judgment in a family case 23548-05-18, which annulled the judgment that gave effect to the mediation arrangement, ruled that the grounds for cancellation stemmed, inter alia, from the plaintiffs' absence from the proceedings in a family case 1405-09-10. In this proceeding, the parties reached a mediation arrangement in a manner that the plaintiffs were not given their day in court, in light of the impact that the judgment had on their ability to realize the land (see paragraph 31 of the judgment). However, the defendant was not the one who chose the parties to the proceeding. (It should be noted that this proceeding had a parallel proceeding: Opening Stimulus 15541-09-09 - in which the plaintiffs were also not a party). The defendant was of the opinion that the dispute between the parties who were parties to the mediation proceeding could be resolved that relates only to their rights. However, in retrospect, it turned out that the planning authorities found that it was not possible to make such a separation in the land that was part of the joint ownership. The court, which was aware of the existence of the first judgment and the additional proceeding that took place between the parties (in which the court was asked to order the cancellation of the first judgment), did not find it appropriate to add additional parties to the proceeding. The parties themselves did not believe that this was necessary
As already noted above, in retrospect it is clear to all scholars that there was apparently room for all the landowners to join the proceeding that was conducted in a family case 1405-09-10- However, in real time, all the parties were of the opinion, as was the case"Q and the mediator that the intra-family dispute should not affect the rights of the plaintiffs herein.
- It should be noted that the plaintiffs did not see fit to bring any of the parties to the mediation proceeding to testify in order to learn about the mood and intentions of the contracting parties (as stated above, a mediation agreement is first and foremost of any contract for all intents and purposes).. Respectively, His interpretation will be derived both from his language and from the intention of the contracting parties).
The plaintiffs' claims that one of the parties to the settlement agreement is working with him in cooperation increase the gap in bringing any of them to testify.