What is Mediation?

Mediation is a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute. Mediation is an alternative to a judge imposing a decision on the parties.

What cases are suitable for mediation?

All cases, regardless of their complexity or number of parties, are eligible to be referred to mediation. The types of matters commonly mediated at the Federal Court include commercial and corporations law, intellectual property, industrial law, consumer law, human rights, admiralty, tax and costs.

Some factors about your dispute may indicate that it is particularly suited to mediation, such as:

• a willingness to participate in mediation
• the possibility that a judge’s decision will not end the dispute
• the need for parties to find a way to preserve their relationship
• the existence of non-monetary factors and
• the potential for a negotiated outcome that better suits the needs and interests of the parties than a judge’s decision

Why mediate?

Mediation offers many benefits over a trial by a judge, including:

• Time: ordinarily a dispute can 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. Additionally, 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 outcome. 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 contents of the mediation. It is also usually unable to be used against a party if the case goes to trial. (The Court recommends you discuss mediation confidentiality with your lawyer).
• Satisfaction: because the parties decide and agree on the outcome of their dispute they are more likely to be satisfied with the result and to comply with what has been agreed.
• Finality: settlement agreements can usually only be modified with the agreement of all parties.

Who attends mediation?

The parties are in ultimate control of any decision to resolve their dispute. It is essential that people attend the mediation with sufficient knowledge of the relevant issues in dispute and the authority to make decisions about how it might settle after the mediation. If attending on behalf of an organisation the Court requires the attendee be an authorised officer who is able to make a decision about how the dispute might be settled and to enter into an agreement on behalf of the organisation.

What happens at mediation?

Before commencing mediation the mediator will consider the best process for mediating your dispute, taking into account suggestions from all parties where possible.

The mediation will commence with an explanation of the process, followed by a discussion about the background of the matter and issues in dispute.

The mediation itself is flexible and can be tailored to the circumstances. Mediators may assist negotiations by asking questions, encouraging open discussion, offering different perspectives and expressing issues in alternative ways. Parties may be encouraged to identify and test the consequences of potential solutions. It is common for the mediator to meet with the parties jointly and separately and further mediation sessions can be scheduled if necessary.

What are the possible outcomes of mediation?

The case may be settled:

• in full
• in part or
• parties may not be able to reach agreement

If agreement is reached about all or part of the dispute, the details of that agreement will usually be recorded and signed by all parties before the end of mediation.

If the dispute is settled in full 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 the parties reached without the permission of the parties. Once the agreement is finalised the parties 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 clarification of the issues often occurs.

Mediating a dispute does not mean there will be a delay in it being heard by a judge.

Sometimes the judge will order that if the matter does not resolve at mediation, then the Judicial Registrar may conduct a case management conference (‘CMC’). A CMC is a hearing at which the parties and the Judicial Registrar discuss how the matter can be most efficiently prepared for final hearing, amongst other things. Orders may be made by the Judicial Registrar at a CMC (but not at mediation). Unlike mediation, CMCs are conducted on an open basis, as if the parties were in Court. The mediation will be formally terminated before any CMC begins.

Mediation Resources: 

• Australian Mediation Association – What is Mediation?
• Family relationships Online
• Legal Aid – Family Dispute Resolution