What is mediation?
Mediation is a process in which the parties to a dispute, with the assistance of an impartial mediator, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.
When is mediation available?
How is mediation undertaken?
Mediation in the Court is undertaken pursuant to s 26 of the Civil Procedure Act 2005. The Court may refer any proceedings, or part of any proceedings, for mediation by a mediator agreed to by the parties or appointed by the Court. The Court may refer proceedings to mediation with or without the consent of the parties (s 26(1) and (2) of the Civil Procedure Act 2005).
The Court provides a mediation service at no cost to the parties by referral to a commissioner or registrar of the Court, who are trained and nationally accredited mediators.
The Court may also refer proceedings for mediation to an external mediator not associated with the Court, by agreement of the parties. The parties are responsible for paying the costs of an external mediator.
The mediator may give directions as to the preparation for, and conduct of, the mediation (s 32 of the Civil Procedure Act 2005).
Duty to participate in good faith
Each party to proceedings which have been referred to mediation must participate, in good faith, in the mediation (s 27 of the Civil Procedure Act 2005).
Outcomes and orders
A mediation might result in the following outcomes:
the parties might agree on the terms of a decision in the proceedings that would be acceptable to the parties — if a decision requires the Court to make orders, the matter would need to be listed before the Court for it to consider and, if it considers the terms appropriate, make orders in accordance with the decision agreed to by the parties; or
the parties might not agree in which case the matter is referred back to the Court for listing for hearing before a different commissioner or a judge.
Further information on mediation
Further information on mediation generally is available on the Courts and Tribunal Services website at mediation.
Communication tips for mediation
Listen carefully to what everyone is saying.
Try to speak clearly and calmly.
Take turns when speaking, don't interrupt the other person or speak over them.
Write down the points to which you need to respond so you don't forget them when it is your turn to speak.
Make sure you understand exactly what is being said and ask questions if you don't understand something.
*Tips supplied by Community Justice Centres (CJC) NSW