Mediation – a short guide

Mediation is:

  • a process which allows parties to discuss conflict, identify key issues and seek a flexible, mutually beneficial solution with the assistance of an impartial, specially trained third party.
  • confidential – the discussions that occur during the mediation cannot be used by either side as evidence at trial.
  • frequently used to attempt to resolve all kinds of disputes which would otherwise end up being decided by an uncertain and expensive trial.
  • a method of alternative dispute resolution (ADR). See our factsheet on Alternative Dispute Resolution for more information.

Why mediate?

Parties already involved in court proceedings will often think that mediation is not a viable option in their case, for a variety of reasons:

  • “I’m right, and I am entitled to obtain justice in the court”.
  • “I have tried to approach the other party, but they are completely inflexible – they will not negotiate with me”.
  • “I will be bullied – the other party is much better at asserting their rights and I need a judge to make orders to make sure the outcome is fair”.

In fact, experience shows that mediation is capable of assisting to resolve just about any dispute. Suitably qualified mediators have extensive training to ensure that a fair and confidential discussion can take place between the parties. Other benefits of mediation include:

  • TIME: mediations can often take place at a few weeks notice and may only take half a day, whereas a trial may take several days or more and may only occur once years of pre-trial court procedures are complete.
  • COST: mediations are cheap, particularly when compared with the costs of preparing for and attending a trial.
  • IMPARTIAL: mediators are trained to be guided by the parties, whereas judges are often limited by historic case law, procedural rules and statutory limitations.
  • FLEXIBLE: mediators can help parties reach a variety of solutions according to the needs of the parties, such as written apologies, press releases and exchanges of property – judges have a set and very limited array of orders that they can make in any given case. With mediation, you can control the outcome. If you go to trial, the judge makes the final decision for both parties.
  • UNCONSTRAINED: even if you agree to mediate, your right to pursue (or continue) court proceedings is not affected unless the parties agree to a settlement at the mediation.
  • EFFECTIVE: mediations have a high success rate – even when parties do not achieve a settlement at mediation, the process will often clarify the issues that need to be resolved at trial.

What to expect

Mediations ordinarily commence in a meeting room, with all of the parties involved in the dispute gathered around a table. The mediator will introduce themselves and the parties present and lay down the ground rules for how the mediation will unfold. Each party is then given an opportunity to present their case and describe the issues in their own words. Sometimes the mediator will meet with the parties before the mediation for “preliminary sessions” to discuss these issues.

Once each side has had the opportunity to speak and be heard by all of the parties, each side will ordinarily leave the meeting room and go away into their own private ‘break out’ room. In these break out rooms, parties have the opportunity to consider their case and discuss with the impartial mediator any issues which have arisen. The mediator will move between each break out room to assist the parties, in private, to identify key issues and opportunities for a resolution.

How to prepare

Mediation may be the last opportunity you are given to meet with the other party to resolve the matter on your own terms before trial. It is important to be well-prepared to make the most of mediation.

  • Prepare a short statement, not more than a couple of pages, ready to read as an opening summary of your position. Include a brief background and the key issues you would like to discuss. Do not get bogged down in the many minor issues that often arise in disputes.
  • Collate copies of key documents that are relevant to the issues in dispute. Unlike a trial, you do not need to have every relevant document with you, but having copies of key documents will be helpful.
  • Think about what you would like to achieve and what the other party would like to achieve, and what outcomes you would be willing to agree to.
  • Consider the possible cost implications of making (or rejecting) any offers to settle, particularly any Calderbank offers.” Chapter 5, Part 9 of the Uniform Civil Procedure Rules 1999 (Qld) allows the court to impose cost penalties on parties who reject offers of settlement, if the outcome of the court proceeding is less favourable than the rejected offer.
  • Ask a friend or family member to attend the mediation with you or to be available to talk to you by telephone.

At the mediation

Go to the mediation in good faith, that is, be prepared to listen to the other party’s version with an open mind.

  • Be prepared to accept there may be potential ‘soft spots’ in your case – even if your case is very strong, nobody has an entirely bullet-proof case.
  • Be prepared to speak up. It is common for people attending mediation to feel some pressure to reach an agreement. If you feel that you are being pressured to reach an agreement that you are not comfortable with, you should tell the mediator. Mediators are experienced in dealing with power imbalances between parties.
  • Be prepared to compromise, but only to the extent that the compromised outcome (if any) is one which you will be able to live with – an agreement reached at mediation will be binding on you.
  • Remember, if you hold out for everything you think you deserve, you may not only end up with nothing if you ultimately lose, but have to pay the other party’s costs as well.

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Where to go for help

  • LawRight is an independent, not-for-profit, community-based legal organisation that operates a civil law referral service for pro bono legal representation and direct legal services for particular disadvantaged client groups.For more information about the help available, and the process for applying for help, please see the LawRight website at www.lawright.org.au. LawRight’s Self Representation Service provides free legal advice and assistance to self-represented parties throughout the course of their proceedings in the Supreme and District Courts of Queensland, the Queensland Court of Appeal, the Queensland Civil and Administrative Tribunal and the Federal Circuit Court and Federal Court in Queensland. The Service is the only one of its kind in Australia, developed to meet a recognised need in all jurisdictions in which it operates.
  • You may wish to approach a community legal centre for assistance. To find your nearest community legal centre, please visit the Community Legal Centres Queensland website at www.communitylegalqld.org.au. There are a number of community legal centres throughout Queensland that hold regular advice sessions.

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