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Mediation

Mediation is a way of trying to reach an agreement about your legal dispute with the help of another person, called a mediator.

Mediation is an informal way of solving a problem. At mediation, the people involved in a dispute come together with the help of a neutral person called a 'mediator' to try and settle the dispute. The mediator helps people understand the problem, talk to each other and come up with solutions. A mediator will not take sides and cannot give you legal advice.

This topic can help you:

  • learn about mediation and how it can help you
  • prepare for mediation and learn what to do at mediation.

The people involved in mediation will often be called 'the parties'.

Mediation is an informal way of solving a problem. At mediation, the people involved in a dispute come together with the help of a neutral person called a 'mediator' to try and settle the dispute. The mediator helps people understand the problem, talk to each other and come up with solutions. A mediator will not take sides and cannot give you legal advice.

Mediation is one type of Alternative Dispute Resolution (ADR). ADR is a term for any process for resolving disputes with the help of an independent person without having a court hearing. One other sort of ADR is conciliation. Conciliation is similar to mediation, but a conciliator may suggest solutions to your problem and a mediator generally will not.

The material in this topic will help you prepare for conciliation and other sorts of ADR as well as mediation.

The mediator's job is to help both parties tell their side of the story. The mediator will also help the parties to:

  • work out what issues are important to them and why
  • find areas of agreement and common ground
  • work out how an agreement can be reached.

The mediator will not:

  • tell you what agreement you should make
  • make a decision for you
  • decide who is right or wrong
  • give you legal advice.

There can be differences in the way mediation is run. The best way to find out what will happen in your mediation is to talk to the mediator or the organisation providing the mediation. For more information on the different mediation services, see How to arrange mediation, below.

Mediation can happen:

  • face to face, usually at a venue organised by the mediation provider (for example, their offices)
  • with each side in a separate room and the mediator going between them (this is sometimes called 'shuttle mediation')
  • over a telephone conference call.

You should talk to your mediation provider about how mediation will be run in your case. If you have a particular preference for how the mediation should take place (for example you would prefer a face to face meeting), you should tell your mediation provider as they may be able to take your preference into account.

Mediation can happen at any time, including:

  • after a court case is started
  • during a court case
  • after a decision is made in a court case (for example, because a party is going to appeal a court decision).

Some courts and tribunals ask you to try mediation as a first step for resolving complaints and disputes.

If a court case has already started and you come to an agreement through mediation, you may be able to ask the court to record your agreement in the court's orders. Court orders are often easier to enforce than ordinary agreements, especially if your agreement is an informal one.

Mediation may also help where a court has made a decision, but there are still problems between the parties. This might be because:

  • one of the parties is considering an appeal
  • one or both parties have not complied with the court decision
  • new issues have come up.

If you are trying to decide whether or not mediation can help y​ou, see Why try mediation?

Many types of mediation, for example mediation at Community Justice Centres, are free. If you are using a private mediator, the private mediator will charge you a fee.

You should ask your mediation provider what fees (if any) apply in your case.

This page has information about the things you should think about when you are considering mediation. It also looks at when mediation may be compulsory, or not appropriate.

Pros

  • In a mediation, the people involved in a dispute decide the end result.
  • Mediation can be more flexible than a court case and deal with a wider range of issues. A court is limited to legal issues. An agreement in mediation could cover things that a court would not usually order. For example, an apology.
  • Mediation is usually quicker and cheaper than having a hearing in a court or tribunal.
  • Mediation gives everyone a chance to understand each other's point of view. Mediation can be a good way to try to keep a good relationship where people need to get along in the future. For example: neighbours, business relationships or employees and employers.
  • What happens in mediation is usually confidential. There are some exceptions to this. For more information, see What happens at mediation? below.

Cons

  • An agreement reached in mediation cannot always be enforced. However, it is sometimes possible to make an agreement reached at mediation enforceable. For more information on this see What happens at mediation? below.
  • If your case goes to court after mediation, things you raised in mediation could tell the other side about weaknesses in your case. Everything in mediation is confidential, but the other side might still use things you told them at mediation to find evidence they can use in court. (If you are worried about this, you should get legal advice and think carefully about what information and details you will give the other side at mediation. You can also share information with the mediators in a private session that will not be passed to the other parties in a dispute without you agreeing to this).
  • The other party does not have to give you information or documents that you want before mediation. Mediation may not be suitable if you need to get more information from the other party. For example, if you don't yet know the full value of your claim, you should think about whether you need more information and legal advice before reaching agreement at mediation.
  • The mediator cannot force everyone to come to an agreement. If one person is not willing to come to an agreement, mediation may not resolve a problem.
  • Where there is a public interest in the outcome of a case, it may be more appropriate for a court to make the decision.
  • Mediation may not be suitable in some circumstances, for example if one person is worried about the other person being violent or if there is a big power imbalance between the parties that will affect the ability of one side to negotiate on their own behalf.

In some situations, you might be expected to try mediation before a court will consider your case.

For example:

  • You can only apply for a parenting order in a family law court when you have a certificate to say you have tried family dispute resolution or you are covered by one of the exceptions. For links to resources on Family Dispute Resolution, see How to arrange mediation, below.
  • A Local Court can adjourn (postpone) an Apprehended Personal Violence Order (APVO) application and refer a case to mediation with a Community Justice Centre (CJC). For more information on mediation by CJCs, go to the CJC website.

If you have been ordered to attend mediation, but you don't think that it is right for your dispute, you should talk to your mediator and get legal advice.

Mediation may not be right for every case. Even when mediation is meant to be compulsory (like Family Dispute Resolution) there are exceptions. For example, mediation may not be the right choice for you:

  • if there has been violence or threats of violence
  • if there is a big power imbalance between the parties in your dispute
  • when one of the parties involved will not agree to mediation
  • where you need a court order to protect you or to make the other party do something or stop doing something (and mediation cannot achieve this).

If you are not sure if mediation is the right choice for you, you should get legal advice. ​

There are lots of different organisations that provide mediation. Where you go for mediation will depend on the type of problem that you want to fix. This section links to many of the organisations that provide mediation.

Community Justice Centres (CJC) provides free mediation services. CJC mediators can mediate in different sorts of matters including neighbour disputes, community disputes, small debts and disputes at work.

You can arrange mediation at CJC by contacting C​JC.

If you ask CJC to arrange mediation, CJC staff will contact the other people involved in your dispute and invite them to mediate. If the other people agree, mediation may be arranged as soon as one week after your first call. Mediation at CJC is free.

The CJC​ website provides a range of resources to help you prepare for mediation.

People Community Justice Centres (CJC) has a program to help Aboriginal and Torres Strait Islander people mediate disputes and it has Aboriginal mediators. For more information on this program, go to the CJC web​site.

If you make an unfair dismissal or general protections application to the Fair Work Commission (the Commission), you will be asked to attend a conciliation conference before your case goes to a hearing. A conciliation conference is very similar to mediation and the information on this site about preparing for mediation will help you prepare for a conciliation conference. For more information on conciliation in employment matters, go to the Fair Work Commission website.

If you make a complaint to the Fair Work Ombudsman you may also be asked to attend a mediation conference. For more information on this process, go to the Fair Work Ombudsman website.

Family Dispute Resolution

Family Dispute Resolution is a process for resolving disputes about the care of children in family matters.

In Family Dispute Resolution, the people involved (for example parents, grandparents) meet with a mediator to talk through problems and try to come to an agreement. If you want to apply to a family law court for a parenting order (an order about children), you first need a certificate to say you have attempted Family Dispute Resolution.

There are some exceptions (for example, urgent matters or situations involving violence or child abuse). For more information on exemptions, go to Family Relationships Online.

If you think one of these exemptions applies to you, or you have another reason why you don't want to try family dispute resolution, you should get legal advice.

You need to use an accredited (approved) person to do this sort of mediation. It can be provided by private providers or by government Family Relationship Centres. You can find contact details for accredited FDR providers on the Family Dispute Resolution Register.

The mediator in family matters is called a "Family Dispute Resolution Practitioner".

For more information on Family Dispute Resolution:

Dispute Resolution Conferences in the Children's Court

The Children's Court can refer care and protection cases to a Dispute Resolution Conference (DRC) run by a court registrar or for mediation by an independent mediator. This is done before a case goes to hearing. At a DRC, the registrar does not make decisions, but helps the parties to identify issues and try to come to an agreement.

For more information, go to the Children's Court website or get legal advice.

There are private mediators who offer mediation services for a fee. Some may specialise in a particular industry or type of dispute. Private mediators will charge for mediations and the cost will often depend on how long the mediation lasts.

To find a private mediator you can:

In some cases, a court or tribunal can refer you and the other party directly to mediation before it hears your case.

For example:

  • In Apprehended Personal Violence Order (APVO) cases, the Local Court can refer the parties to mediation.
  • In small claims debt matters, the Local Court can order that the parties try mediation and adjourn the case so they can do this.
  • In fencing disputes, the Local Court or the Local Land Board can refer the parties to mediation and adjourn (postpone) the case so that the parties can first attend the mediation.

If you have a matter before the Local Court and you would like to try mediation, you should ask for a referral to mediation on the first date the case is listed (in small claims matters this is called the Pre Trial Review). In most cases you will be referred to Community Justice​ Centres for mediation.

For more information on small claims matters, see the My Money section of this website. For more information on AVO matters, see the Apprehended Violence Orders section of this website. For more information on fencing disputes and neighborhood matters, see the My Neighbour section of this website.

If you come to an agreement at mediation, if all parties agree, you can ask the court or tribunal to make 'consent orders' in the same terms as your agreement. If the court does this, it means the agreement can b​e enforced in the same way as other orders of the court. If you are not sure whether you would like the court to make consent orders in the same terms as your agreement, you should get legal advice. For more information about agreements reached at mediation, see What happens at mediation? below. 

There are some practical steps you can take before you attend mediation. This section covers the things you should do to prepare.

For a handy worksheet that you can complete to help you prepare for mediation, see Preparing for Mediation - Worksheet.

You should find out everything you can about what will happen in the mediation. You can ask the mediator or organisation providing the mediation about the process they follow and how to prepare.

Check out the website of the mediation service, as many organisations provide written information about their process. Some of the places that provide mediation are listed on the section How to arrange mediation, below .

Take some time to think about the issues you want to talk about at mediation. Write them down. Think about each issue and why it is important to you.

Some of the issues may be more important to you than others. Make a note of the issues that are more important to you.

Think about what the other people involved in the dispute might say are the issues. Will they raise the same issues as you?

Think about what you want to achieve from the mediation. For example, it might be important to you to:

  • get a financial settlement
  • sort out the dispute so you can move on
  • maintain a relationship with the other party
  • get an apology
  • make sure what happened to you does not happen to someone else.

Think about what the other people involved in your dispute may want. Will they want something different? Are there things you both want?

If your dispute involves legal rights and responsibilities, you should get legal advice before mediation so you can make a good decision about any agreement. A lawyer can give you advice about what the law is, how the law applies to your dispute and what a judge might decide if your matter goes to court. A lawyer can also tell you about the court process, including how much time and money going to court might cost.

Remember, mediation can include discussion of all the issues in your dispute, not just legal rights. At mediation you can make an agreement that is different to what a court might decide.

Once you have worked out the issues in your case, you can think about the options for dealing with each one. Write down everything you can think of.

Read over each option and think about these issues:

  • Be realistic. Is what you want possible?
  • Think about what the other side may want. This may help you work out where your interests and theirs may be the same.
  • Think about whether what you want would be possible if you had to go to court. For example, you may want the other party to apologise. While this could be something you agree to in mediation, a court will not usually order an apology. You may need legal advice to help you understand what you are likely to get if you went to court.

It can be a good idea to talk to someone you trust, who is not involved in the dispute. They might come up with some new options for how to resolve the problem.

You may feel angry, hurt, upset or anxious about the dispute. This is normal and understandable.

You should spend some time thinking about how you feel about the dispute. Write it down.

Think about how these feelings may affect you in the mediation. Plan for how you can deal with your emotions if you become upset during the mediation. You could:

  • Ask the mediator for a break
  • Explain to the other side and the mediator what you are feeling
  • Ask to have a support person at the mediation.

Spend some time thinking about how best to talk during the mediation.

Try not to speak angrily or criticise the other party as this may make it harder to reach agreement. Use calm language. So instead of saying:

"You deliberately made me angry and frustrated".

You could say:

"I have felt very angry and frustrated".

For more information on how to talk and listen during a mediation, see What happens at mediation? below.

In some situations it is possible to take someone with you to mediation. You may be able to:

  • have a support person who does not talk for you but is just there to give you emotional, physical or other support
  • have someone speak for you if you think you might not be able to represent yourself at mediation, for example, if you are very young or elderly or have a disability
  • take a lawyer with you. The lawyer might speak for you or could listen and give you advice during a break from mediation.

You will usually have to ask your mediation service if you can bring someone with you to mediation. The mediation service will usually ask the other party whether they have any objections to you bringing the person that you want to bring. If you want to bring someone, but the mediation service says you can't, you should get legal advice or consider approaching a different mediation service.

If you need an interpreter, talk to your mediation service. Government services like Community Justice Centres (CJC) will usually arrange a free interpreter for you. If you have a private mediator, you may have to pay for an interpreter to attend the mediation.

You should gather all the documents that are important to your case and the information that supports your case. The mediator will not look at this evidence, but it may be helpful to show the other side so they can understand your position. It will also help you to understand the strengths and weaknesses in your case.

You should think carefully before you show documents or other evidence to the other party. Although mediation is confidential, if you show evidence to the other party, there is nothing to stop them using this evidence if your matter later goes to court and they can find the evidence in another way. If you are concerned about showing evidence that can weaken your case, you should get legal advice.

For a handy worksheet to guide you through the steps listed on this page, see Worksheet - Preparing for Mediation .

For information about what to expect at mediation, see What happens at mediation? below.

For a list of things you should take with you to mediation see Checklist - Things to take with you to mediation. ​

This section looks at some of the questions you might have when you are going to mediation.

 

There is no set structure for mediation and when you go to mediation the mediator might suggest a process different from the usual to best fit your situation. However, mediation will usually involve the following steps:

  1. The mediator will introduce all the people attending and ask everyone to agree to a process to be followed or some ground rules.
  2. The mediator will give each party a chance to explain what they think the problem is.
  3. The mediator will help the parties to discuss the problems they have described.
  4. The mediator may take time to talk to the parties separately and/or give the parties time to talk to their lawyers or support people.
  5. If the parties can come to an agreement, the mediator will help them decide if or how they want it recorded.

The organisation that is mediating your dispute will be able to give you the best information on what happens in their mediation meetings. To find out more about organisations that provide mediation, see How to arrange mediation.

Here are some tips to help you get the most out of mediation:

  • Explain things clearly and positively.
    For example instead of saying: "You are deliberately not returning my telephone calls to upset me!" You could say: "I would like to make an arrangement about returning telephone calls. I feel upset when I don't receive a reply."
  • Talk about the things that you decided were important when you were preparing for mediation.
    When it is your time to talk, focus on the issues you decided were important. If you haven't already, see Preparing for mediation.
  • Try to keep calm.
    People will hear and understand you better if you stay calm. Sometimes this can be difficult. If you are getting upset, you can ask the mediator for a break.
  • Be understanding if the other party gets upset.
    Everyone finds disagreements difficult. Treat everyone else the way you would like to be treated.
  • Listen carefully.
    This is your chance to understand what the other party is upset about.
  • Ask questions.
    If you don't understand something, or you are not sure if you have understood, wait until the person speaking has finished and then ask a question. If you are worried you will forget your question, write it down.
  • Wait your turn to talk.
    The mediator's job is to make sure everyone gets a chance to talk. You will have a chance to say the things you want to say after the other party or the mediator has finished speaking.

Mediation is confidential, which means that what is said during mediation cannot usually be used outside the mediation. Be careful though, there are some exceptions, especially if the mediator hears something that affects the safety of someone else, like a child.

You should also be aware that if you give information to the other party during a mediation, although they cannot give evidence about what you said during the mediation (as this is confidential), there is nothing to stop them using this information if your matter goes to court later and they can find the evidence in another way. If you are concerned about giving information that can weaken your case, you should get legal advice before the mediation.

Agreements reached at mediation are also usually confidential. If you reach agreement with the other party and you want to be able to show the agreement to others (for example to a court or government department), there needs to be a term in the signed written agreement saying you can do this.

If you come to an agreement, the mediator may help you put this in writing. Make sure you understand what you are agreeing to. If you are not sure about anything, ask questions. Tell the mediator if you need time to think about things or get legal advice before making an agreement.

When you make an agreement at mediation, you and the other party can also agree whether it will be an informal agreement made 'in good faith' or whether it will be enforceable. An agreement is enforceable if it is legally binding and parties can take legal action to make the other side keep to the agreement.

If an agreement is simply 'in good faith' everyone relies on the promise of the others to do what has been agreed. These sorts of agreements usually cannot be enforced.

At mediation, you and the other parties should decide what status you want the agreement to have and what steps you want to take if you want the agreement to be enforceable.

CJC mediations are generally made 'in good faith' and will only be enforceable if all parties agree to sign a legally binding document. There are some exceptions to this, such as where mediation is court-ordered.

If you have been referred to mediation by a court or you are going to conciliation as part of court or tribunal proceedings, you can ask the court or tribunal to make the agreement into an order of the court. This is called making 'Consent Orders'. Consent Orders can be enforced in the same way as any other court order.

If you reach a confidential agreement at mediation, but you want to be able to show the agreement to others (for example to a court or government department), it is possible to include a term in the signed written agreement saying you can do this.

If you come to an agreement in Family Dispute Resolution, you can then enter into a parenting plan or file Consent Orders with the court. You should get legal advice if you are considering this step.

Before you go to mediation, you should discuss the status of an agreement with a lawyer as part of getting legal advice on your matter. For more information on how to prepare for mediation, see Preparing for mediation.

If you and the other people in the legal matter can't resolve the problem in mediation, it is still possible to go to court and have a hearing.

In some types of family dispute resolution, you cannot take the same lawyer that came with you to the mediation to court. ​