Mediation is a process where a neutral and independent person (a mediator) helps the parties in a dispute to reach their own solution. The parties usually agree who will be the mediator for their dispute, except in court-annexed mediation. It is an alternative to having a Judge make a decision after a contested hearing between you and the other party. A Judge would give a decision after hearing the case (usually in open court), establishing the evidence that is admissible (from any evidence that is inadmissible), and determining how the law applies to the case.
At mediation, each party has the opportunity to voice their point of view. The mediator helps the parties to focus on the real issues of the dispute and explore options to resolve these. The mediator does not impose a solution or give tactical advice.
In mediation, the options that can be explored to resolve the dispute are often broader than those that can be considered by a Judge of the Court.
If the parties resolve their dispute at the mediation, they may make a written agreement and have orders made by the Court to finalise the case. Those orders have the same standing as orders made by a Judge, and can be enforced, if necessary.
In contrast to court proceedings, which are open to the public, the mediation process is private and confidential. Anything said or produced in evidence at a mediation session cannot be used in a later hearing, except in exceptional circumstances.
It is the duty of all parties to the mediation to participate in good faith. A mediator can terminate a mediation session and make a report to the Court if this duty is breached.
Mediation is available for all civil matters. It is not the intention of the Court that mediation will be ordered in all proceedings. However, the Court expects that parties will have considered mediation of their dispute as an alternative to a contested hearing.
There are numerous benefits that can arise from mediation, including:
Mediation can be undertaken at any time in the proceedings suitable to the parties. It can be arranged to occur within a few weeks, or earlier if urgent. If the parties resolve the dispute at mediation, the necessary court orders will be drawn up and signed at the close of the mediation session. This usually finalises the case.
In comparison, if a case goes to hearing before a Judge, then usually some months are required to exchange evidence and prepare the case for hearing. The hearing of the case usually occurs a few months after all the evidence is prepared (unless the parties can persuade the Court that their case needs to be heard ahead of other cases that are already waiting). At the end of the hearing, the Judge usually requires further time to prepare a judgment.
When cases are mediated, parties and their legal representatives will generally still need to prepare some evidence, but this will be less than the preparation for a court hearing. To prepare a case and present it for a court hearing will be more costly than preparing for mediation.
The mediation session is usually shorter than the court hearing. Many legal fees are charged on a time basis.
As well as deciding how to resolve the dispute, the parties can also agree on how to apportion the legal costs that have been incurred up to the time of the mediation.
If the dispute goes to a hearing, the Court will charge a hearing fee that is separate to the fees charged by a party's lawyers. Further, the Court's judgment can include orders for an unsuccessful party to pay the legal costs of the successful party.
Even if a resolution is not achieved and the dispute ultimately ends in Court, the mediation process can have helped to clarify and define the real issues in dispute. This can shorten the court hearing time and help parties to minimise eventual legal costs.
Using mediation, the parties work out their own resolution of the dispute. A solution is not imposed upon them. Also, the parties can resolve the dispute in broader and possibly more practical ways than those the Court can consider. These aspects can be particularly important if the dispute is within a family or ongoing business relationship.
The mediation process is conducted between the parties, without public observers. In contrast, a contested hearing before a judge is usually conducted in a courtroom that is open to the general public. Parties to the dispute can be called as witnesses and required to give evidence at the court hearing.
A mediated solution is a settlement between the parties, and so generally cannot be the subject of an appeal.
This is done by a court order. The parties can ask the Court to make an order for referral, or the Court may consider the case appropriate for referral, even if the parties do not ask.
The Court has the power to make a referral to mediation with or without the consent of parties.
Parties can use either of two types of mediation: court-annexed mediation or private mediation.
If you wish to have your case referred to meditation, download and fill out the Order for Referral to Mediation form.
When the Court makes an order for mediation the mediator must, within 7 days after the conclusion of the mediation session, advise the Court of the time and date the mediation session commenced and was concluded (as required under UCPR 20.7).
If the need is urgent, court-annexed mediation can be arranged to occur as early as the next working day. The Judge ordering the mediation will decide the degree of urgency that is warranted.
For urgent private mediation, parties must either contact a private mediator directly, or contact a mediation provider organisation to obtain assistance in locating a suitable and available private mediator.
Most, if not all, of the Joint Protocol partner organisations can provide lists of suitable mediators in urgent situations.
The Court has a Joint Protocol arrangement (set out in paragraphs 19-35 of Practice Note SC Gen 6) with six mediation provider organisations that have agreed to maintain panels of mediators who are suitable to mediate Supreme Court cases.
To contact these organisations use the following links:
If the parties remain unable to agree upon a mediator, then parties should attempt to agree upon how the Court can appoint a mediator. Some options are:
A person may be appointed by the Court to mediate a particular Supreme Court case if the person:
Mediators are usually appropriately qualified lawyers, non-lawyers or Court registrars.
The Chief Justice certifies registrars or other officers of the Court as qualified mediators for court-annexed mediation. There is no other list of mediators held or maintained by the Court.
The Court does not train or accredit private mediators. For information on mediation training and accreditation, contact a mediation provider organisation (many are listed in the Yellow Pages).
If parties choose to use court-annexed mediation, a mediator will be assigned to the dispute from among the registrars and officers of the Court who are qualified mediators. The parties cannot select the mediator.
If parties choose to use private mediation, they decide who will be appointed as the mediator. Usually parties will be able to reach agreement on a suitable mediator. Otherwise, for some suggestions on where to obtain names of private mediators, see the section below titled What if parties cannot agree on a mediator?.
If parties have been referred to mediation, but are having difficulty agreeing upon a mediator, then they can consider contacting a mediation provider organisation for assistance.
Mediation provider organisations are neutral organisations and will generally provide a short list of member-mediators who are appropriate for the dispute. The parties can then select from the short list or ask for further names to consider.
How much does mediation cost and who pays for it?
With court-annexed mediation, there is no charge for the mediator or use of rooms. The cost of legal representation is the responsibility of each party.
With private mediation, there are usually fees for the mediator and also for the use of rooms. In addition, some mediation agencies charge a commission/registration fee. Some mediators charge for preparation time separately from the mediation session.
Private mediation costs vary from mediator to mediator. For an estimate of the overall costs, you could contact:
The cost of legal representation is the responsibility of each party. Usually each party pays an equal proportion of the costs associated with the mediation, although other arrangements can be agreed by the parties or ordered by the Court. The order of referral to mediation usually includes an order for how the costs are to be apportioned.
If there is an issue of financial hardship, some mediation providers will consider requests for reduction of the mediation fee. This needs to be discussed with the mediation provider at the time of arranging the mediation. Note that some mediation providers apply a specific means test to determine fee reduction.
Court-annexed mediation is where a registrar or other officer of the Court is the mediator.
The registrars and officers who conduct mediations are qualified as mediators. Parties cannot select which registrar will mediate their dispute. Registrars conducted 683 mediations during 2010, with 51% of disputes being resolved by the close of the session. This percentage does not include the cases that reached an agreed resolution shortly after their mediation session.
The mediation usually takes place at the King Street complex. There is no charge for the mediator or use of rooms.
The mediation listing will appear in the Court List. Unlike a court hearing, however, mediation sessions are closed to public observers.
The court-annexed mediation program is popular and there is usually about 4-6 weeks' waiting time for court-annexed mediation. However, if the Court orders that the mediation be conducted urgently, this can be accommodated.
How are court-annexed mediations arranged?
The next scheduled date(s) for mediation can be found on the "Daily Court list".
Parties can also make enquiries regarding range of current mediation dates available by contacting the civil list clerks at email: sc.listings@justice.nsw.gov.au
Mediation booking requirements:
The parties are required to send an email request to the civil list clerks at sc.listings@justice.nsw.gov.au (note: the email is to include all email addresses for all parties in the proceedings).
The email request is to also include the Supreme Court case number and case name together with:
Note that if the mediation is half day duration then provide the start time preference of either: 9:30am or 2:00pm.
What happens next:
Subject to availability, the matter will be listed on an available date as indicated and an email confirmation sent to all parties confirming the listing of the mediation and the time.
If the range of dates provided are unavailable, then an email detailing the current availability will be sent so that the parties can negotiate and agree on a date that is convenient and send a further email request.
Note: If the parties are seeking a mediation date outside a range ordered by the Court, then the parties will need to seek a timetable change ahead of making a booking for a mediation.
Each party should attend the mediation:
If there is some reason why this is not possible or necessary, the approval of the registrar-mediator must be sought at the earliest possible opportunity.
Court-annexed mediation sessions are usually scheduled to last half a day. Some mediations require longer than this, so parties should be prepared to allow extra time. It is unusual for court-annexed mediation sessions to last more than one day.
The waiting time, from booking the mediation, is usually about 4-6 weeks. However, if the Court orders that the mediation is to take place urgently, this can be accommodated.
Parties should be ready to attend the mediation with the purpose of achieving an acceptable resolution of the dispute. This usually involves some compromise. It is the duty of each party to participate in good faith. A mediator can terminate a mediation session and make a report to the Court if that duty is breached.
Each party is to attend the mediation in person if an individual or by an officer who has authority to settle if the party is a company or if an insurer controls the proceedings.
Parties should be prepared to treat all participants in the mediation with common courtesy.
Parties should have thought about the issues that are important to them, and possible options for resolving these. Each party will be given the opportunity to discuss their issues uninterrupted at the mediation.
Parties should also have thought about what their best outcome would be, and also the extent to which they would be prepared to compromise.
Parties should be aware of their legal costs to date, and future legal costs if the case proceeds to a court hearing. Parties should understand that if they if they proceed to hearing but the judgment goes against them, they can be ordered to pay the legal costs of the successful party.
Document preparationFor Court of Appeal cases:
Each party is to inform all other parties and the mediator by letter of what it regards as the issues to be mediated.
For cases other than those in the Court of Appeal:
Parties must serve sufficient evidentiary material to enable a settlement to be reached at mediation. Unless other arrangements have been approved by the registrar-mediator before the mediation, the evidentiary material will include:
Parties should consult about matters such as expert reports or valuations that will be necessary to effect settlement. Jointly retained experts may be utilised in an endeavour to keep down costs. In the absence of common ground between the parties with respect to matters such as valuations, the parties should serve before the mediation the material upon which they rely to support their position.
All affidavits served in the proceedings should be supplied as a tender bundle to the registrar-mediator one week before the mediation.
The court-annexed mediation sessions are conducted at the King Street Courthouse, located on the south-east corner of King and Elizabeth Streets, Sydney. Enter from King Street and take the lift or stairs to the mediation rooms on the first floor. Use the map and other visitor information to find your way to the King Street building.
This information is published at the end of the daily Court Lists. Select the required Court List and then scroll to the end of it to see the relevant notice.
Private mediation is where the mediator is a person engaged directly by the parties to mediate the dispute. The mediator may or may not require a referral order from the Court.
A private mediator does not have to be a lawyer, but it is preferable that the person is qualified as a mediator.
Information on how to find private mediators
Private mediators usually charge for their services, and the fees vary from mediator to mediator. The mediator or the mediation provider organisation can give information about fees and charges.
The Court does not generally provide rooms for private mediations.
There is no court listing of private mediations.
First, the parties need to agree on the mediator for the dispute. Parties may have a particular mediator in mind.
Some suggestions for finding a private mediator
Once the mediator has been agreed upon, the parties legal representatives contact the mediator directly to make all arrangements eg to establish:
The Court does not hold a list of private mediators and cannot provide information on any arrangements that have been made for private mediation.
For an estimate of how long the mediation session is likely to last, please contact the mediator directly.
The waiting time from the date of obtaining the referral order will depend upon the availability of the mediator chosen by the parties. If that waiting time is inconvenient, then it may be appropriate to consider using another mediator.
Information on where to find mediators
Information on arranging urgent private mediations
Some sources of information are:
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