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Mediation

What is mediation?

Mediation is a process where a neutral and independent person (a mediator) helps the parties in a dispute to reach their own solution. The parties usually agree who will be the mediator for their dispute, except in court-annexed mediation.

It is an alternative to having a Judge make a decision after a contested hearing between you and the other party. A Judge would give a decision after hearing the case (usually in open court), establishing the evidence that is admissible (from any evidence that is inadmissible), and determining how the law applies to the case.

At mediation, each party has the opportunity to voice their point of view. The mediator helps the parties to focus on the real issues of the dispute and explore options to resolve these. The mediator does not impose a solution or give tactical advice.

In mediation, the options that can be explored to resolve the dispute are often broader than those that can be considered by a Judge of the Court.

If the parties resolve their dispute at the mediation, they may make a written agreement and have orders made by the Court to finalise the case. Those orders have the same standing as orders made by a Judge, and can be enforced, if necessary.

In contrast to court proceedings, which are open to the public, the mediation process is private and confidential. Anything said or produced in evidence at a mediation session cannot be used in a later hearing, except in exceptional circumstances.

It is the duty of all parties to the mediation to participate in good faith. A mediator can terminate a mediation session and make a report to the Court if this duty is breached.

Mediation is available for all civil matters. It is not the intention of the Court that mediation will be ordered in all proceedings. However, the Court expects that parties will have considered mediation of their dispute as an alternative to a contested hearing.

Why consider mediation?

There are numerous benefits that can arise from mediation, including:

  • ​​​​E​​​​arly re​solution​​​
  • Less costs to parties
  • Greater flexibility in resolving the dispute​​
  • Finality​​
  • Privacy
  • ​Early resolution

    ​Mediation can be undertaken at any time in the proceedings suitable to the parties. It can be arranged to occur within a few weeks, or earlier if urgent. If the parties resolve the dispute at mediation, the necessary court orders will be drawn up and signed at the close of the mediation session. This usually finalises the case.

    In comparison, if a case goes to hearing before a Judge, then usually some months are required to exchange evidence and prepare the case for hearing. The hearing of the case usually occurs a few months after all the evidence is prepared (unless the parties can persuade the Court that their case needs to be heard ahead of other cases that are already waiting). At the end of the hearing, the Judge usually requires further time to prepare a judgment. 

    Less cost to parties

    When cases are mediated, parties and their legal representatives will generally still need to prepare some evidence, but this will be less than the preparation for a court hearing. To prepare a case and present it for a court hearing will be more costly than preparing for mediation.

    The mediation session is usually shorter than the court hearing. Many legal fees are charged on a time basis.

    As well as deciding how to resolve the dispute, the parties can also agree on how to apportion the legal costs that have been incurred up to the time of the mediation.

    If the dispute goes to a hearing, the Court will charge a hearing fee that is separate to the fees charged by a party's lawyers. Further, the Court's judgment can include orders for an unsuccessful party to pay the legal costs of the successful party.

    Even if a resolution is not achieved and the dispute ultimately ends in Court, the mediation process can have helped to clarify and define the real issues in dispute. This can shorten the court hearing time and help parties to minimise eventual legal costs.

    Greater flexibility in resolving the dispute

    Using mediation, the parties work out their own resolution of the dispute. A solution is not imposed upon them. Also, the parties can resolve the dispute in broader and possibly more practical ways than those the Court can consider. These aspects can be particularly important if the dispute is within a family or ongoing business relationship.

    Finality

    A mediated solution is a settlement between the parties, and so generally cannot be the subject of an appeal.

    Privacy

    The mediation process is conducted between the parties, without public observers. In contrast, a contested hearing before a judge is usually conducted in a courtroom that is open to the general public. Parties to the dispute can be called as witnesses and required to give evidence at the court hearing.

    How are cases referred to mediation?

    This is done by a court order. The parties can ask the Court to make an order for referral, or the Court may consider the case appropriate for referral, even if the parties do not ask.

    The Court has the power to make a referral to mediation with or without the consent of parties.

    Parties can use either of two types of mediation:  court-annexed mediation or private mediation.

    If you wish to have your case referred to meditation, download and fill out the Order for Referral to Mediation form.

    When the Court makes an order for mediation the mediator must, within 7 days after the conclusion of the mediation session, advise the Court of the time and date the mediation session commenced and was concluded (as required under  UCPR 20.7).

    How much does mediation cost and who pays for it?

    Court annexed mediation

    With court-annexed mediation, there is no charge for the mediator or use of rooms. The cost of legal representation is the responsibility of each party.

    More information about court-annexed mediation

    Private mediation

    With private mediation, there are usually fees for the mediator and also for the use of rooms. In addition, some mediation agencies charge a commission/registration fee. Some mediators charge for preparation time separately from the mediation session.

    Private mediation costs vary from mediator to mediator. For an estimate of the overall costs, you could contact:​

  • ​​​​​​your legal adviso​r
  • a mediation provider organisation or a private mediator (private mediators and more mediation provider organisations are listed in the Yellow Pages).  ​
  • The cost of legal representation is the responsibility of each party. Usually each party pays an equal proportion of the costs associated with the mediation, although other arrangements can be agreed by the parties or ordered by the Court. The order of referral to mediation usually includes an order for how the costs are to be apportioned.

    If there is an issue of financial hardship, some mediation providers will consider requests for reduction of the mediation fee. This needs to be discussed with the mediation provider at the time of arranging the me​diation. Note that some mediation providers apply a specific means test to determine fee reduction.

    More Information about private mediation

    Mediators    

    Who can be a mediator?

    A person may be appointed by the Court to mediate a particular Supreme Court case if the person:

    Mediators are usually appropriately qualified lawyers, non-lawyers or Court registrars.

    The Chief Justice certifies registrars or other officers of the Court as qualified mediators for court-annexed mediation. There is no other list of mediators held or maintained by the Court.

    The Court does not train or accredit private mediators. For information on mediation training and accreditation, contact a mediation provider organisation (many are listed in the Yellow Pages).

    Finding a mediator

    If parties choose to use court-annexed mediation, a mediator will be assigned to the dispute from among the registrars and officers of the Court who are qualified mediators. The parties cannot select the mediator.

    If parties choose to use  private mediation, they decide who will be appointed as the mediator. Usually parties will be able to reach agreement on a suitable mediator. Otherwise, for some suggestions on where to obtain names of private mediators, see the section below titled What if parties cannot agree on a mediator?.    

    What if parties cannot agree on a mediator?

    If parties have been referred to mediation, but are having difficulty agreeing upon a mediator, then they can consider contacting a mediation provider organisation for assistance.

    Mediation provider organisations are neutral organisations and will generally provide a short list of member-mediators who are appropriate for the dispute. The parties can then select from the short list or ask for further names to consider.

    Joint protocol for referral to mediation

    The Court has a Joint Protocol arrangement (set out in paragraphs 19-35 of Practice Note SC Gen 6) with six mediation provider organisations that have agreed to maintain panels of mediators who are suitable to mediate Supreme Court cases.

    To contact these organisations use the following links:

    Australian Commercial Disputes Centre
    Australian Branch of the Chartered Institute of Arbitrators
    Institute of Arbitrators and Mediators Australia
    Law Society of New South Wales
    LEADR
    N​SW Bar Association Alternative Dispute Resolution

    If the parties remain unable to agree upon a mediator, then p​​arties should attempt to agree upon how the Court can appoint a mediator. Some options are: 

    • the Court may select a mediator to be appointed, or may appoint the mediator by using the processes of the Joint Protocol in Practice Note SC Gen 6
    • the Court may refer the dispute to a registrar or other officer of the Court who is certified by the Chief Justice as a mediator to meet with the parties to discuss mediation and report back to the Court with a recommendation as to whether the dispute is suitable for mediation
    • the Court may decide against ordering mediation.

    Urgent mediations

    If the need is urgent, court-annexed mediation can be arranged to occur as early as the ​next working day. The Judge ordering the mediation will decide the degree of urgency that is warranted.

    For urgent private mediation, parties must either contact a private mediator directly, or contact a mediation provider organisation to obtain assistance in locating a suitable and available private mediator.

    Most, if not all, of the Joint Protocol partner organisations can provide lists of suitable mediators in urgent situations.  ​​