de nove, I agree with most of the technical points of your post....

de nove, I agree with most of the technical points of your post. I think that you have understated the confidentiality aspect of mediation. Confidentiality is most likely in mediation. See the rules of the IAMA (Institute of Arbitrators and Mediators of Australia.)

I do have a problem with your expression of opinion
"AGS commenced proceedings, fought for a couple of years...do you think they would settle on terms that are not favourable to them?????"

There are always two sides to litigation. It is a rare party that would defend a completely untenable position for two years. That party has no doubt received top advice (most likely from more than one set of counsel) and one would assume that they have chosen to defend on the basis of that advice.

Parties choose to settle for a number of reasons
1) to avoid the cost of ongoing litigation. It would not surprise me if each parties costs are comfortably in seven figures.
2) Litigation is always a risk. Here the court are being asked whether behaviour is misleading and deceptive. This is a subjective judgement.
3) Management attention is drawn away from the business at hand -nothing is happening on the site with all the costs that this incurs.

I agree that this matter may well be close to settlement. I don't believe it is the foregone conclusion that you say that it is. I believe that many brokers and others legal teams will have followed the unfolding litigation and they will already have a strong view of how things will develop.

I have topped up my position twice over the last six days but I don't think its a one way bet.