What is a mediation?
A mediation is an informal dispute settlement process convened by a trained third party (mediator) to help them reach their own solution without the need for a court hearing. The mediator will not make any decisions about the case or give legal advice.
No party is required to settle their case at mediation.
Why use mediation?
- Can save time and money by avoiding a Land Court hearing.
- Is a lot less formal than a hearing.
- Allows you to come up with your own solutions and agreements, not limited by the orders that the Land Court can make if you can’t agree.
- Allows you to have your say, listen to the other parties’ points of view and weigh up options.
- Allows more options for resolving the dispute.
- Is confidential.
- Can provide useful information to those involved in the dispute.
What cases go to mediation?
The court generally encourages parties in all matters which have failed to resolve at a preliminary stage to engage in mediation prior to a matter going to hearing.
If a matter is an appeal against a valuation worth $5 million or less it will be initially listed for a preliminary conference, or if there is multiple experts providing interlinking evidence a court managed expert evidence (CMEE) may be more appropriate.
Who is the mediator?
The mediation can be convened, by:
- a member of the court
- by the judicial registrar or
- by an ADR panel mediator.
All Land Court panel convenors are accredited mediators with experience in a variety of fields from law to ecology. (Please refer to ADR Panel mediations or Register of panel of convenors for more information).
Attending in person
The parties to the dispute should attend mediation personally. Although you may attend mediation with an adviser, you are the only party who can agree to settle the dispute.
The purpose of mediation is to communicate with the other party and be open to settlement. You should listen carefully to the other side, as sometimes, unexpected information, which is revealed at mediation, can be the key to resolving the dispute. If you are not there to hear this information, you may lose the opportunity to settle.
You should also come to mediation with an open mind, ready to work with the other side and the mediator to reach a settlement.
If you cannot attend in person and the court allows you to attend through a representative, make sure the representative is fully briefed on the issues and your concerns and has comprehensive instructions. Be available by telephone to give further instructions, or decide whether to accept a settlement offer.
In complex cases you may wish to have your expert attend mediation. You will need the consent of all parties and the mediator. The expert is an observer and can only speak by invitation of the mediator.
How do I prepare for a mediation?
Mediation only works if you’re prepared. You should:
- Ensure you know your case thoroughly, by re-reading all the documents that have been filed by all parties.
- Identify your main concerns. Is it just a question of money or are there other issues that are important to you? Will a decision by the court meet your real concerns?
- Think about what the result might be if the case is heard by the Court. What are the strengths of your case? What are the weaknesses of your case? Is the law unclear and, therefore, might go to an appeal?
- Think about how you can negotiate to settle the case and what kinds of compromises you can make. The purpose of mediation is not to decide who is right but to explore settlement. What options might be acceptable to you?
- Consider the cost of proceeding to a trial and what orders might be made regarding costs at a final hearing. What have you spent so far? Do you have an estimate of the costs of going to trial? Are you engaging experts to help you with the case?
- Are there any other ‘costs’ involved in this case? Are you spending time on the case and not on your business? What effect is the stress of the dispute having on you/your family and friends? Could a decision in court affect your reputation?
How long is a mediation?
Generally, a mediation is scheduled for a half day or a day, depending on the number of parties and issues involved.
Any party may ask for time after or during the mediation to consider a settlement offer. If it seems the parties may reach agreement if given more time, the parties can ask the mediator to reconvene the mediation on another day.
Where is a mediation held?
A mediation is usually held in a place agreed by the parties to a dispute.
If the mediation is before a member of the court or the judicial registrar, mediation will usually take place at a courthouse that is convenient to the parties.
If the mediation is before an ADR panel mediator, you should discuss the location of the mediation with the other parties and the mediator.
What happens at a mediation?
The mediator will begin by outlining the process that they expect the mediation to take. They may set out some ‘ground rules’ to help the process run smoothly. The mediator will then invite each party in turn to speak about their concerns, and what they want to achieve from the mediation.
The mediator will then assist the parties to identify the issues for discussion, and help explore options to settle the case, without the need for a court hearing. The mediator may speak to each party separately. If they do, their discussion is confidential.
The mediation is ‘without prejudice’. This means that, if the case does not settle, a party cannot rely on anything said at the mediation as evidence at a later hearing. It is also private and confidential. If parties reach a settlement, they may also decide to keep the details of the agreement confidential.
The purpose of a mediation is not to give evidence, but a party can bring documents, maps and photos if this will help them to explain their view of the case. If given a few days’ notice, the court can provide access, during the conference, to public databases of relevant information, such as Queensland Globe.
What happens if we reach an agreement?
When parties reach agreement at a mediation, that agreement should be recorded in a written agreement and signed by all parties. It may not be possible to document the agreement at the conclusion of the mediation. The mediator can document the steps the parties will need to take and the time allowed for that process.
The mediator may assist you in preparing the agreement but, is not allowed to provide legal advice.
The mediator will advise the court that the case has settled by filing a Mediator’s certificate . – ADR Form 4
What happens if we cannot reach agreement at a mediation?
If you cannot reach agreement at the mediation:
- For pre-filing mediation, any party may begin proceedings in the court.
- For cases already filed in the court, the dispute will continue on to a final hearing and a Member of the court will make a decision.
The mediator will advise the court the case has not settled by filing a Mediator's certificate – ADR Form 4.
A mediation is not the only opportunity for parties to reach an agreement. Settlement negotiations can occur between the parties at any time and need not involve the court or a mediator. The court encourages the parties to actively explore settlement options at every stage of a case, even after the hearing starts.
Further information about mediations and the Land Court processes include: