What is mediation?
Mediation is a process in which a neutral third party (the mediator) helps you and the other party or parties:
- identify disputed issues
- develop options
- consider alternatives and
- try to reach an agreement.
Mediation is an alternative to a judge imposing a decision on you and provide an opportunity for parties involved in a legal dispute to reach an agreement without the uncertainty, cost and time of a court hearing. It is the process usually adopted to try to resolve disputes in general federal law matters in the Court.
Mediation offers many benefits over a trial by a judge, including:
- Time: a dispute can usually be resolved more quickly through mediation than through a trial.
- Cost: if a dispute can be resolved through mediation, the costs of preparing and running a trial can be avoided. Also, after a trial, the unsuccessful party may be ordered to pay the legal costs of the successful party.
- Flexibility: mediation offers parties more control over the process. A mediation process which is customised to your needs can be arranged with the mediator.
- Stress: mediation is less formal and less intimidating than appearing in court.
- Confidentiality: mediation is private. The judge is not informed of the content of the mediation, and the content cannot usually be used against a party if the case goes to trial. (It is recommended that you discuss mediation confidentiality with a lawyer.)
- Satisfaction: because you and the other party or parties decide and agree on the outcome of the dispute, you are more likely to be satisfied with the result and to comply with what has been agreed.
- Finality: settlement agreements can usually be modified only if all parties agree.
Who is the mediator?
In a privately organised mediation, the parties can choose the mediator. The law society, law institute or bar association in the state or territory where you live will be able to provide a list of accredited mediators. Some of them will have expertise in specific areas.
When a judge orders you to attend mediation, the mediation is usually conducted by a registrar of the Court.
Who attends mediation?
You must attend a scheduled mediation. If you have a lawyer, your lawyer must also attend. If a party to a dispute is an organisation (rather than an individual), it is essential that those who attend the mediation on behalf of the organisation know enough about the relevant issues in dispute to consider how the matter might settle. They must also have the authority to:
- make decisions about settling the dispute and
- enter into an agreement on behalf of the organisation.
If you are not legally represented, you may ask to bring someone for support.
How do I prepare for mediation?
Be sure you understand the issues in dispute, including the facts and sources of conflict. Before the mediation, consider also:
- what is important to you in any resolution of your dispute
- how best to communicate this, both to the mediator and the other party
- what you want to say at the start of the mediation to help resolve the dispute
- what the other party might want and how you might accommodate what they want in any offer of settlement
- what you might offer in settlement
- what costs you have already incurred and are likely to incur, and what part of the costs might be recovered, and
- the possible outcomes if the matter were to proceed to a trial, including the amount of any damages claimed and any limits on the Court to award these.
How much does mediation cost?
A modest fee applies to mediation when conducted by a registrar and is ordinarily paid by the applicant, unless otherwise ordered. For further information, see the fees page.
If you have a lawyer, you will usually have to pay your lawyer’s legal costs of preparing for and attending mediation.
What does the mediator do?
Before starting mediation, the mediator will consider the best process for mediating your dispute, taking into account the parties’ suggestions, where possible.
The mediator will begin by explaining the process and will then discuss the background to the matter and the issues in dispute.
The mediation itself is flexible and can be tailored to the circumstances. The mediator has no advisory role regarding the content of your dispute or its outcome and cannot make binding determinations. However, the mediator may help negotiations by asking questions, encouraging open discussion, offering different perspectives and expressing issues in alternative ways.
What happens after mediation?
After mediation, the mediator will notify the Court of the outcome. If an agreement is reached, you and the other party or parties can file consent orders with the Court. You can reach agreement on some or all of the issues in dispute.
If you don’t reach an agreement on all the issues, your case will proceed to a hearing.
If you reach agreement, the details of that agreement will usually be recorded and signed by all parties before the end of mediation. The mediator will notify the judge that the matter has settled. The mediator will not provide the judge with any details of the mediation discussions or the terms of any agreement you reached without permission from you and all other parties. Once the agreement is finalised, you will usually formally notify the Court that the case is not going to proceed, and the case will be closed.
If the matter is not fully settled there may be discussion about what needs to be done to prepare for trial and the file will return to the judge. The mediator will notify the judge of the outcome but not the content of the mediation. Even when a matter does not settle, the mediation might help you to clarify the issues.
Remember that you and the other party or parties can reach an agreement at any stage before the final hearing.