Mediation
What does the mediator do?
The mediator:
- encourages both parties to discuss their dispute and arrive at an agreement
- if there is an agreement, asks both parties to document that agreement and sign it
- gives each party a copy of the agreement
- puts a copy of the agreement in a sealed envelope which is then filed with the registrar, together with a Form 35 – Mediator’s certificate (UCPR).
When the terms of the agreement have been complied with, the parties (or their lawyers) should file a Form 27 - Notice of discontinuance (UCPR) in the registry.
What happens at mediation?
If the mediator agrees, you can bring your lawyer and any experts who may be able to help resolve the dispute.
Mediation starts with the mediator explaining the process. It is conducted “without prejudice”. This means that anything said at mediation can not be used in evidence in a later trial without your consent.
Without prejudice discussions enable you to talk about your concerns openly and freely and, as part of this process, you can propose any ideas that might settle the case.
Mediation is a less formal process than a trial.
Usually you or your lawyer, if permitted to attend, speaks first. Then the respondent or their lawyer has an opportunity to speak.
Often, the mediator will talk to the parties separately.
Mediation only works if you are prepared. You will need to:
- make sure that you know the case thoroughly. This includes reading all the documents that have been filed by all of the parties.
- think about what the result might be if the case is heard by a judge.
- think about how you can negotiate to settle the case. What kind of compromises can be made?
- be aware of your legal expenses and whether you can afford it.
- be aware that you may have to pay the legal expenses of the other parties if the case is heard by a judge and you aren’t successful.
Mediation comes to an end if:
- you reach agreement and it is in writing and signed by all parties
- it is clear that agreement can’t be reached.
If you do reach an agreement, it may be made an order of the court. This will be in the form of a consent order and means that the court action is finished.
If the mediation agreement is not an order of the court, you can file a Form 27 - Notice of discontinuance (UCPR) when the terms of the agreement have been carried out.
If you fail to agree at mediation, the case can go to trial in the usual way.
Can your lawyer be present at the mediation?
The mediator has the right to decide whether the parties can bring their lawyers to the mediation.
Can the agreement be enforced by the courts?
The court can enforce the mediated agreement if you or the other party apply for an order to enforce the agreement and the agreement has been documented and signed by all parties plus the mediator.
What if the mediation is unsuccessful?
If the mediation is unsuccessful the dispute will go to trial in the usual way.
The failure to reach agreement cannot be used by either party against the other during the trial.
If the matter goes to trial, the successful party may be able to recover the costs of the ADR process.
Last updated 10 December 2007
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