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.

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 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. ​