Step by step guide - Preparing for mediation

If you can't mak​e it that day?

If there is a very good reason why you cannot be available, you should contact the:

• Court, if your mediation is being run by a Registrar of that Court
• Fa​ir Work Commission​, if your mediation is there.

Do this as soon as you can.         

If you are running la​te?

It is important to be on time. If you are running late, you should call the Court or Fair Work Commission as soon as possible to let the person mediating your case know.

How long will it​​ t​​ake?

Make sure you are prepared to be at mediation for a while. Mediation can last all day. You may need to arrange time off work or child care.

If you need an interpreter you should contact the Court registry or Fair Work Commission as soon as possible after mediation has been arranged. They may be able to provide an interpreter for you. This is usually free.

What is a res​​​ponse? 

A Response is a document your employer should have filed after you served your application and claim. You should have received the Response before the first directions hearing.

Make sure you read your employer's Response carefully. This will help you understand what your employer is saying about your case. Make sure you also read any documents your employer has attached. Compare them with your documents.

If your employer says there is a problem with your application, for example, that you are not entitled to a payment you are claiming, or that a different Award applies to the work you do, you should get legal advice.

You should prepare for mediation so that you can get the most out of it. For more information about where your right to wages and entitlements come from, and what you might be entitled to, see Wages and entitlements.

Calculate how much you are owed

If you contacted the Fair Work Ombudsman before making a small claim in the Federal Circuit and Family Court of Australia and your case was investigated, the inspector may have given you a report which included a calculation of how much money your employer owes you. You can also use documents like pay slips and time sheets to work out what you are owed.

If you want to work out for yourself how much leave you are entitled to, you can use the Leave Calculator on the Fair Work Ombudsman website.

Get leg​al advice

You should get legal advice about:

• the strength of your case
• what you might be awarded if your case goes to a hearing
• whether you are owed any other amounts of money
• the effect of any payments on your Centrelink or other payments.

Who can go with y​ou?

It is a good idea to take a friend or relative to mediation with you, for support if you can. When organising the mediation, ask the Registrar if you are allowed to have a support person attend with you. This will help if you are angry or need to discuss any offers with someone. A support person will also help if you feel intimidated by your employer or their lawyer.

A support person can’t speak for you or represent you and should remain silent during the mediation.

Can you hav​e a lawyer?

You can only be represented by a lawyer with the Court’s permission if you are using the small claims procedure. If you have been given permission and you are represented by a lawyer, your lawyer must attend the mediation. If you want a lawyer, you will have to organise one yourself. For more information about finding a lawyer, see Ways to get help.

What do you ​want?         

Think about how you want to end your disagreement with your employer. Would you be prepared to settle for less than you believe you are entitled to? You might consider settling for less if:

• you want to avoid going to a hearing
• the evidence supporting your case is not strong
• it is important to you to continue having a good relationship with your employer
• you get a reference or statement of service from your employer if you have left your job.

For a handy tool to help you prepare your thoughts, see Worksheet - Preparing for mediation.

What are legal costs and expenses?

Legal costs usually refer to the costs of hiring a lawyer. Expenses might include costs such as your filing fee, photocopying costs, the costs of subpoenas, service fees and postage.

If you have had a lawyer help you with some or all of your case, you should ask your lawyer to prepare a bill of all your costs and expenses up to and including the day, or days, of mediation. That way you will be able to work out how much you have to pay your lawyer before accepting any offers.

You should put all the documents about your case together. You should have these with you during the mediation so that you can quickly find any information or documents you need.

What should yo​u take?

You will need:

• your notes and/or completed Worksheet: Preparing for mediation
• a copy of your application and claim
• a copy of the employer's Response
• copies of your most recent pay slips
• a chronology (which is a list of events in order of when they occurred)
• letters or emails from your employer to you about your work performance and/or dismissal.

Your application and small claims form contain your explanation of your complaint. Take the time to read these again and see if there is anything you have left out or anything else you think you want to explain in more detail. If you have made a mistake in your application or claim, you should get legal advice.

If you have not included dates for conversations, meetings or emails, make a note of these now.

Find out where t​o go

Check with the Court registry or the Fair Work Commission to find out where you have to go to attend mediation. Find out what time it starts and when it is expected to finish.

Work out how you will ge​t there

If you are going to drive, find out if there is any parking nearby, and how much it costs. You don't want to arrive late for mediation because you couldn't find a parking spot. If you are going to use public transport, check timetables and make sure you give yourself plenty of time.

What should you take?

Take the documents you have prepared, a notepad and some pens so you can write things down and take notes. Take a mobile phone with you just in case you want to call someone (such as a friend or relative) to discuss a settlement offer.

For more information on what to expect at mediation, see Going to mediation.