Mediation is an informal dispute resolution process convened by a trained third party (mediator) to help the parties resolve their dispute without the need for the Court to hear and decide the dispute. The mediator will not make any decisions about the case or give legal advice. No party is required to settle their case at 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; and
- can provide useful information to those involved in the dispute.
You may choose to use mediation at any stage before or during a Land Court case. The Land Court encourages the parties to try mediation before starting a case in the Court.
If a case has not started in the Land Court, you and the other party to the dispute can agree to mediation by a convenor from the ADR Panel to look at the ADR panel page on the Land Court site click here.
If a case has started, the Court will usually ask the parties if they have considered an ADR process such as mediation at a directions hearing or review. At any stage of the case, any party can request mediation.
If the Court directs the parties to mediation, it will usually direct mediation by a convenor from the ADR panel. If so, the mediation is subject to Land Court Practice Direction 1 of 2018. If the Court directs Judicial Mediation, that means the mediator will be a member or judicial registrar of the Court and it will be subject to Land Court Practice Direction 3 of 2017.
If you agree to or the Court directs you to mediation by a convenor of the ADR panel, the parties are expected to agree on the mediator. If you cannot agree, either party can request the Principal Registrar to appoint a convenor by sending a Form 1 Request for ADR Convenor to the Land Court Registry.
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.
You should come to mediation with an open mind, ready to work with the other side and the mediator to reach a settlement. The Court expects parties involved in a mediation to participate:
- genuinely and in good faith;
- and as directed by the mediator.
Mediation only works if you are well 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, could the case 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?
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.
The parties to the dispute must attend the mediation in person. If you cannot attend in person, the mediator may agree to you attending by phone, internet or AV facilities.
The mediator may also agree to you attending through a representative who does attend in person. However, attending through a representative makes the process more difficult. The purpose of mediation is to communicate with the other party and be open to negotiation. Sometimes information revealed at mediation is the key to resolving the dispute. If you are not there to hear this information, you may lose the opportunity to settle.
You must fully brief your representative on the issues, your concerns, and your preferred options for settling the dispute. You must also be available by telephone during the mediation to give further instructions to your representative and to decide whether to accept a settlement offer
You may bring an adviser, but the adviser’s role is to assist you, not to make decisions for you. Your adviser must comply with the mediator’s directions.
In complex cases you may want to include one or more experts who are advising you. The mediator will decide whether you and any other party may bring one or more experts and what role they will play in the 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.
Unless the Court orders the mediation must take place at a particular place, the mediator will decide the location in consultation with the parties.
If you reach agreement at a mediation, the mediator will assist you to record it. It is best to complete a written agreement, signed by all parties. If you cannot do that during the mediation, the mediator will discuss and record the process for the parties to finalise the agreement. The mediator may assist to prepare the agreement but cannot give legal advice.
The mediator will advise the court that the case has settled by filing a Mediator’s certificate - ADR Form 4.
If you cannot reach agreement at the mediation, and a case has not already started, any party may begin proceedings in the Court.
If a case has already started, the mediator will advise the court the case has not settled by filing a Mediator's certificate – ADR Form 4. The Court will review the case and make directions about the steps the parties must take to prepare for a hearing.
The mediation is not the only chance for parties to agree. They can continue negotiating privately even after the hearing has started. They can also ask the Court to direct some other ADR process.
The mediation is private and confidential. If the parties settle their dispute they may decide to keep some or all of the details of their agreement 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 the hearing.