Court ordered mediation – general protections dismissal

About mediation

If you apply to the Federal Circuit and Family Court of Australia, you may be ordered to go to mediation.

Mediation is a chance for you and your employer to talk about your dismissal and settle your case without having a hearing in court. It is an informal way of solving a problem.

At mediation, a neutral person (the 'mediator') helps you and your employer to come together to discuss the issues and reach an agreement. The mediator's role is to help the you communicate and come up with solutions. A mediator will not take sides and cannot give you legal advice.

If you are ordered to attend mediation by the Federal Circuit and Family Court of Australia, the mediator will usually be a Registrar of the court.

Court orders

At the first directions hearing, the orders made usually include an order about you and your employer contacting the registry to arrange a mediation date. You can contact the registry to organise a date, time and place available for mediation. Make sure it's a date that you are able to attend.

• You should contact the registry where you filed the application. To find the contact details of the registry, see:
• Court locations on the Federal Circuit and Family Court of Australia website, or
• Commission offices on the Fair Work Commission website

When you contacted the registry to arrange mediation you would have been told where it was being held. If you are unsure, you should contact the registry again

Mediation process

Mediation is flexible and how it is run will depend on you, your employer, the circumstances of your case and the mediator. The usual steps that are taken in most mediations are:

1. The mediator will tell you what will happen in the mediation.

The mediator will explain the process of the mediation to you and your employer. If either or both of you have lawyers, they will also be present. The mediator will ask you to agree to some ground rules, for example that only one person speaks at a time and that everyone is polite and respectful.

2. Each party talks about the issues and how to resolve them.

The mediator will ask you and your employer to tell your side of the story and explain what you think the issues between you are. In a general protections claim, the issues might include the reason why you were sacked and what can be done to solve the problem. Usually you will tell your side of the story first. Your employer will then have their turn .

3. The mediator will talk to each of you in private.

The mediator will usually have a private session with you and a private session with your employer after you have each summarised your side of the story. During the private session you may be able to tell the mediator what you think would be a reasonable settlement. If you give the mediator permission, the mediator may tell your employer about any offer you want to make.

Who will be there?

You will be there and so will the mediator. If your employer is an individual, they will be there in person. If your employer is a company, an officer of the company will be there (for example a director) as well as their lawyer. If you have a lawyer, your lawyer will be there.

It may be possible for you to bring a support person with you to the mediation. You should check with the Registrar before bringing anyone with you to the mediation.

Confidentiality

Mediation is confidential. This means that whatever you raise in mediation can generally not be raised outside of mediation.

You should be aware that if you give information to your employer during the 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 leg​al advice​.

Preparing for mediation

To prepare for mediation, you should:

• learn about the mediation process
• think about the issues
• work out what you want
• understand your legal rights
• think about the options for ending the dispute
• understand your emotions
• plan how to communicate
• find out about interpreters
• gather documents and information.

For more information, see Step by step guide – Preparing for mediation.

Making an agreement

Deed of release and settlement

If you and your employer reach an agreement, the terms of the agreement can be put in writing. Any agreement can be put into a 'deed of release and settlement', which has the details of the agreement. You should get legal advice before signing a deed of release and settlement.

For an example of a deed of release, see:

• Sample: Deed of release (PDF, 31KB).

Consent Orders

If an agreement is reached at settlement you can also file 'consent orders' with the Court. Consent orders are orders agreed between the parties that can be made by the Court to finalise the case. Consent orders can include details about:

• when any payments need to be made
• what the parties can do if one side breaks the agreement
• the applicant filing a Notice of Discontinuance.

Consent orders are a good idea because if your employer doesn't do what they agreed to do you may be able to enforce the orders.

If you and your employer don't file consent orders you should make sure your employer does what they agreed to do before you file a Notice of Discontinuance.

 Any amounts payable to you in settlement of the case will usually be taxable. That means you will still have to pay tax on the amount you receive.

Can't agree

If you and your employer can't settle your case at mediation, the case will go back to court for further directions. A date for a further directions hearing may have been set at the first directions hearing. If no date was set, you can contact the Court to have your case listed again

For more information, see Directions hearings, in Going to the Federal Circuit and Family Court of Australia.