Going to mediation

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

When you get to mediation, the mediator will explain the process to you and your employer. If either or both of you have been given permission by the Court to be represented by lawyers, they should 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. For example, you think that you have been paid under the wrong Award or that your hours of work have not been recorded correctly. 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.

You, your employer and the mediator should be there in person. If your employer is a company, an officer of the company (for example, a director) will be there. If you or your employer have lawyers, and you have chosen to use the small claims procedure, the lawyers can only attend the mediation if the court has said they can.

It may be possible for you to bring a support person with you. You should check with the Court or the Fair Work Commission before bringing anyone with you to the mediation.

If you can’t be at mediation in person you may be able to attend by telephone. If you think you will need the mediation to be done by telephone, you should ask the Judge at the first directions hearing.

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 legal advice.

Deed of release and settlement

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

Sample Deed of release

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 (you) 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.

Sample Consent orders

If you and your employer do not file consent orders you should make sure your employer does what they agreed to do before you file a Notice of Discontinuance and stop your case. For more information about filing a Notice of Discontinuance, see Step by step guide: Stopping your case.

You may have to pay tax on the settlement amount. For example, if the settlement amount includes an amount for unpaid wages. If you are unsure, you should get legal advice.

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 about a further directions hearing, see Directions hearings in Going to the Federal Circuit and Family Court of Australia.