Introduction

Mediation is a process which allows parties to discuss conflict, identify key issues and seek a flexible, mutually beneficial solution with the assistance of an impartial, specially trained third party. 

Mediations are confidential – the discussions that occur during the mediation cannot be used by the other side as evidence against you at trial. 

Mediation is frequently used to try and solve all kinds of litigated disputes which would otherwise end up being decided by an uncertain and expensive trial.

Mediation is a method of alternative dispute resolution (ADR). See our factsheet on Alternative Dispute Resolution for more information.

Why should I?

Parties already involved in court proceedings will often think that mediation is not a viable option in their case, for a variety of reasons:

• “I’m right, and I am entitled to obtain justice in the court”.
• “I have tried to approach the other party, but they are completely inflexible - they will not negotiate with me”.
• “I will be bullied – the other party is much better at asserting their rights and I need a judge to make orders to make sure the outcome is fair”.

In fact, experience shows that mediation is capable of assisting, if not resolving, just about any dispute.  Suitably qualified mediators have extensive training to ensure that a fair and confidential discussion can take place between the parties.  Other benefits of mediation include:

• TIME:  mediations can often take place at a few weeks notice and may only take half a day, whereas a trial may take several days and may only occur once years of pre-trial court procedures are complete.
• COST:  mediations are cheap, particularly when compared with the costs of preparing for and attending a trial.
• IMPARTIAL:  mediators are trained to be guided by the parties, whereas judges are often limited by historic case law, procedural rules and statutory limitations.
• FLEXIBLE:  mediators can help parties reach a variety of solutions according to the needs of the parties, such as written apologies, press releases and exchanges of property – judges have a set and very limited array of orders that they can make in any given case.
• UNCONSTRAINED:  even if you agree to mediate, your right to pursue (or continue) court proceedings is not affected unless the parties agree to a settlement at the mediation.
• EFFECTIVE:  mediations are strongly supported by the courts because of the high success rate – even when parties do not achieve a settlement at mediation, the process will often clarify the issues that need to be resolved at trial.

What to expect

Mediations ordinarily commence in a meeting room, with all of the parties involved in the dispute gathered around a table.  The mediator will introduce themselves and the parties present, and lay down the ground rules for how the mediation will unfold.  Each party is then given an opportunity to present their case and describe the issues in their own words.

Once each side has had the opportunity to speak and be heard by all of the parties, each side will ordinarily leave the meeting room and go away into their own private ‘break out’ room.  In these break out rooms, parties have the opportunity to consider their case and discuss with the impartial mediator any issues which have arisen.  The mediator will interact between each break out room to try and assist the parties, in private, to identify key issues and opportunities for a resolution.

How to prepare

Mediation may be the last opportunity you are given to meet with the other party to try and resolve the matter before trial.  It is important to be well-prepared to make the most of the mediation:

• Have a short statement, not much more than a couple of pages, ready to read as an opening summary of your position – restrict your statement to the key issues, do not get bogged down in the many minor issues that often arise in litigated disputes.
• Take copies of any key documents that support your case – unlike trial, you do not need to have every relevant document with you, but having copies of the key documents may be helpful.
• Think about what you would like to achieve – if you could get the other side to agree to whatever you wanted, what would that be?
• Think about your bottom line – what is the limit of what you can really afford to accept?
• Consider having a support person to either attend with you, or be available to talk to you by telephone.
• Be prepared to accept there may be potential ‘soft spots’ in your case – even if your case is very strong, nobody has an entirely bullet-proof case.
• Go to the mediation in good faith, that is, be prepared to listen to the other party's version with an open mind and be prepared to compromise.

Contact us

Please contact QPILCH by:

E:    services@qpilch.org.au
T:    07 3846 6317
F:    07 3846 6311
P:    QPILCH, PO Box 3631, South Brisbane BC, Qld 4101