FAQ - Mediation

1. What is mediation?

If you have ever been involved in a legal dispute, you may have heard of the term ‘mediation’. In its most simple form, mediation is a process that involves parties sitting down to try to resolve a dispute, outside of the Court system.
The objective of mediation is for the parties to reach their own agreement. To ensure the process runs smoothly, it is overseen by a neutral third person, known as the ‘mediator’. Parties are also commonly represented by their legal advisors, who both appear and negotiate on their client’s behalf.
Mediation provides parties an opportunity to ventilate important issues, and enables parties to consider methods of resolving the dispute that may be broader than those contemplated by the Court.

2. How are matters referred to mediation?

Matters are generally referred to mediation by one of two ways. First, the parties’ legal representatives might make an assessment of your matter and decide that the issues involved are appropriate for mediation. Alternatively, your matter might be referred to mediation by the Court. In the second instance, the process is referred to as ‘Court-annexed mediation’. While a referral to mediation can occur at any stage during your Court proceedings, parties will generally wait until all pleadings are filed so that each party’s position can be assessed.
Because of the length and costs involved in litigating proceedings, it is our experience that Courts are increasingly encouraging parties to consider mediation as an alternative means to resolve their dispute.

3. Why should you consider mediation?

There are a number of reasons why clients should consider mediation as a means of resolving their dispute. One of the primary advantages is the possibility of reducing costs. While you will still be required to pay legal fees for your representation at mediation, this will be considerably less than the costs of preparing and conducting a hearing.
Another benefit of mediation is the possibility of resolving a dispute in its early stages. From the time the parties agree to mediate, it can take less than a month for the matter to be scheduled for mediation. The exact time frame however will vary according to the requirements of each party and, where relevant, the Registrar’s availability.
Mediation also has the advantage of offering the parties options that would otherwise not be available under Court orders. While a Court judgment may often result in a ‘winner’ and a ‘loser’, mediation enables parties to explore a range of possible compromises. For example, in certain cases an apology may be almost as important to a client as a monetary payment.
Mediation can also be useful where parties may require continued contact, for example in a business or family relationship.
Mediation is a confidential process. Parties are prohibited from using information revealed during the course of a mediation against the other party at any later hearing.

4. What will mediation cost?

For Court-annexed mediation, you will not be charged for the services of the mediator, who is likely to be a Registrar or officer of the Court. The only costs will be those incurred through your legal representation. However, should the parties decide upon their own mediator, a process known as ‘private mediation’, you will also be charged an individual fee by the mediator.
Because of the potential savings of resolving a dispute early, if we assessed your case as suitable for mediation, it is a course that we would encourage you consider.

5. What happens if you agree to resolve a matter at mediation?

Should the parties be able to reach agreement at mediation, a written document will be drawn up setting out the terms of the agreement. The document will be signed on the day of the mediation and is binding on the parties. You will be able to enforce this agreement at a later stage, if necessary.

6. What happens if you can’t agree to resolve a matter at mediation?

Should you be unable to reach an agreement at mediation, your matter may continue through the Court system until a final hearing. As set out above, the parties are each bound by confidentiality obligations that prohibit them from using any information obtained at the mediation.

7. Is mediation suitable for everyone?

No. While we generally regard mediation as beneficial to parties, it will not be appropriate in the following cases:
- A case involving allegations of violence;
- A case where a third party or parties, not participating in the proceedings, will be affected by a judgment; or
- A case where the party desires a definitive ruling or clarification of law.
Should you wish to discuss how mediation could assist to resolve your dispute, please contact a solicitor at our office on 9635 8266.