Mediation is a less formal process than a trial. Mediation is conducted ‘without prejudice’, meaning nothing you say at mediation can be used in evidence in a later trial without your consent.
Without prejudice discussions enable you to talk about your concerns openly and freely. You can propose any ideas that might settle the case.
The mediator will decide whether the parties can bring lawyers to the mediation.
The mediator’s role
- encourages both parties to discuss their dispute and arrive at an agreement
- has parties document the agreement (where there is one) and sign it
- gives each party a copy of the agreement
- files a copy of the agreement in a sealed envelope with the registrar with a Form 35 - Mediator's certificate (UCPR) .
Mediation versus case appraisal
Mediators are impartial and help parties come to an agreement themselves.
Case appraisers assess the merits of each party’s case and make a decision about the dispute, which is put in writing.
Preparing for mediation
Mediation only works if you’re prepared. You need to:
- ensure you know the case thoroughly, including reading all the documents that have been filed by all 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 and what kinds of compromises you can make
- consider your legal expenses and whether you can afford to continue to a trial. Remember you may have to pay the other party’s legal expenses if a judge hears the case and you’re not successful.
What happens at mediation
To start, the mediator explains the process. If the mediator agrees, you can bring your lawyer and any experts who can help resolve the dispute.
Usually you or your lawyer speaks first. Then the respondent or their lawyer has an opportunity to speak. Often, the mediator will talk to the parties separately.
During the mediation the mediator will ensure that all parties have their say and that the discussions are respectful and productive
The goal is to resolve the areas of dispute or at least narrow them, and reach an agreement that is acceptable to both parties.
How mediation ends
Mediation ends when you either reach agreement in writing and all parties sign it, or you can’t reach an agreement.
- If you do reach agreement, it may be made an order of the court. This is a consent order that means the court action is finished.
- If you reach agreement and it’s not an order of the court, you can file a Form 27 - Notice of discontinuance (UCPR) in the registry once the terms of the agreement have been fulfilled.
- If you fail to reach agreement, the case can go to trial in the usual way.
Going to trial
If the mediation is unsuccessful, the dispute goes to trial in the usual way. Neither party can use the failure to reach agreement against the other during the trial.
At a trial, the successful party may be able to recover the costs of the ADR process.
Enforcing an agreement
The court can enforce the mediated agreement if both:
- you or the other party apply for an order to enforce the agreement
- all parties and the mediator have documented and signed the agreement.