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What is mediation ?

Mediation is a confidential discussion between the parties in a dispute. A skilled, independent mediator helps the parties talk about the issues, identify a range of possible solutions and work towards an agreement that will end their dispute.

The Supreme Court can send any matters filed in the Commercial Court and Common Law Division to mediation.

All the people who have the authority to make decisions about the outcome of the dispute must attend the mediation. You can usually bring a person to the mediation to support you during the mediation. The person is there to support you and will not take an active role in the mediation. 

Benefits of mediation

  • Individuals and parties have a say in how their dispute might be settled.  
  • Disputes can be resolved faster and with lower legal costs than at trial. 
  • What is said during a mediation is confidential – discussions are not recorded or kept by the Court. This allows for open and meaningful discussion to resolve issues.
  • When parties reach agreement, they leave the mediation knowing the outcome of their dispute. They do not have to wait for a judgment deciding the outcome at a later date.
  • If the parties agree, the settlement agreement  can be confidential. 

The mediation process

This video explains to litigants what to expect at mediation and how to prepare.

This video explains what happens at mediation and how to prepare.

What is mediation?

A mediation is a private meeting where a mediator helps parties come together to discuss ways to reach an agreement.

The discussion at mediation is private and cannot be used at any later hearing to resolve your dispute before a Judge.

The mediator cannot tell anyone what is said at the mediation.

The mediator does not make a decision about the case and cannot give anyone legal advice. The mediator’s role is to help the parties have their discussion and think through all the options for reaching an agreement.

Mediation is less formal than a court hearing. At a mediation the parties usually sit around a table with the mediator to have their discussions.

The Court may order you to attend a mediation where the mediator is an Associate Judge or a Judicial Registrar. This is known as a judicial mediation.

For judicial mediations, someone from the court will contact the parties to arrange the date of the mediation. There is a Court fee for judicial mediation.

The Court may order you to attend a private mediation. A private mediation is where the mediator does not work at the Court.

For a private mediation the parties must choose the mediator, make the arrangement for the mediation and pay the mediator.

The Court is not involved in making the arrangements for private mediation.

What to expect at the Judicial mediation

Your mediation may take place in person at the Court or virtually over the internet.

If your mediation is in person you should arrive early to allow time to go through the Court security and find your room. Usually each party will be given their own room so that the mediator can have private discussions with each party before the mediation starts.

The mediator will explain the process to all parties. That process usually includes bringing all parties together at the beginning of the mediation for a joint session.

At the joint session the mediator will allow all parties to have their say about the issues and options to resolve the dispute.

After the joint session the mediator will usually have private discussions with each party in their separate rooms to continue exploring the options to resolve the dispute.

The mediator will talk to all parties about the risks and uncertainties of litigation and the benefits of reaching an agreement to resolve the dispute.

The mediator may act as a go-between between the parties or bring the parties back together to try to reach an agreement. 

How to prepare for mediation?

Mediation works best when everyone is prepared.

To prepare for a mediation make a list of the:

  • important details of the dispute;
  • options for resolving your dispute.

Remember that reaching an agreement is about negotiation so try to come to the mediation with more than one option.

It is a good idea to think about where you might be able to compromise on your options and what options the other party might put forward. 

What and who to bring to the mediation?

On the day of the mediation bring:

  • any documents that you want to show the other party or that you think the other party might want to see; and
  • your notes about what you want to say and your options; and
  • paper and a pen to make notes during the mediation.

If you have a lawyer representing you, your lawyer must come to the mediation with you.

You can bring a friend or family member to the mediation for support.

On the day of the mediation the mediator will decide who can be present in any joint session.

Everyone present at the mediation, must keep the discussions private.

If you reach an agreement

If you reach an agreement to settle your dispute, the parties write down what is agreed for all parties to sign.

If a party is not legally represented, they will be given a chance to get legal advice before signing the settlement agreement.

If you don’t reach an agreement

If you are unable to reach an agreement at the mediation your dispute will be sent back to the judge for a future hearing.

You can still contact the other party to keep trying to reach an agreement after the mediation.

Help and Support

For more information and assistance you can contact the Court’s self-represented litigants coordinators at unrepresented@supcourt.vic.gov.au.

A judge can make an order referring a dispute to mediation if they believe that the mediation process might help the parties resolve their dispute. This can occur at any time the dispute is at the Supreme Court, and even if one or more parties tell the judge they do not want to attend mediation. 

A party to a dispute can also ask the judge to make an order that all parties attend a mediation.

Mediation works best when all parties are fully prepared. Before the mediation , think about:

  • How much have I spent on the dispute so far and how much more will it cost if the dispute cannot be resolved at mediation?
  • What information or documents do I need to have productive discussions? For example bank statements, contracts, insurance policy, property valuation.
  • What information might the other party need from me?
  • What is most important to me? For example, knowing the outcome now rather than at some time in the future, avoiding a court order that I pay the other party’s legal costs , avoiding having my name appear online in a published legal decision, reducing my stress, fairness, maintaining an ongoing relationship with the other party?
  • What is likely to be most important to the other party?
  • If it doesn't resolve at mediation, what will happen if I lose my case at trial? Will that be the end of the litigation? How much would it cost to appeal ?
  • What are the practical issues that I need to consider that could affect how the dispute might be resolved? For example, are there tax consequences if my dispute is resolved in a particular way? How will my cash flow be affected?    

The mediator will prepare for the mediation by reading the Court file and any mediation position statements the parties prepare.
 

The role of the mediator is to help the people involved in the dispute, and their lawyers, to talk through:

  • the issues
  • options and alternatives to resolve the dispute
  • whether the parties can reach agreement about some issues, or the whole dispute.

Sometimes the mediator will help the parties to talk directly to each other. At other times the mediator will act as a go-between, shuttling between the parties. The mediator will ask questions to help the parties see problems from different angles and identify creative solutions.

The mediator will not:

  • breach confidence or take sides
  • give legal advice
  • decide the outcome of the dispute.

Each mediation is tailored to the particular dispute. A mediator may meet with each party  individually at the beginning of the mediation, or may begin with all parties together. The mediator will keep everyone informed of the mediation process or agenda that will be followed during the mediation.    

When the mediation begins the mediator will ask the parties to give their view of the dispute, encouraging everyone to listen and understand all perspectives. 

Once the issues in dispute are identified, options to resolve the dispute are discussed. This may happen with everyone in the same room or through the mediator talking with each party privately:

  • If the discussion leads to an agreed solution to the dispute, the parties’ lawyers will prepare a short document that sets out the agreed solution for each party to sign before the mediation is concluded.
  • If the discussion does not lead to an agreed solution to the dispute, the mediator will conclude the mediation and refer the parties back to the judge.
     

If you reached an agreement to resolve your dispute at the mediation , you will need to do the things you have agreed to do, within the timeframes you agreed to do them.

If you did not reach an agreement to resolve your dispute at the mediation, you will be notified of when you will have to attend the Court to talk to the judge about how your dispute will be prepared for hearing and when it will be heard.

Many disputes that do not resolve at mediation are resolved in the following days and weeks. Even if you did not reach agreement at the mediation, you should continue your discussions with the other parties about how to resolve your dispute.  

Where mediations are conducted

You will receive a notice from the Court telling you where and when your mediation will occur. Due to COVID-19 the Supreme Court is using the Zoom videoconferencing app to conduct mediations. You can find out more in our Guide to Zoom mediations.

If your mediation is going to be conducted in person rather than by videoconference, the Court will send you a notice telling you where the mediation will take place.

If you have any questions about where to go for your mediation, please contact whqvpvnyzrqvngvbaf@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@snoitaidemlaiciduj

Mediators at the Supreme Court

All of the Court's mediators are trained in mediation and have many years of experience. The following judicial officers conduct judicial mediations at the Supreme Court of Victoria. 

Associate Judges

  • Associate Justice Efthim
  • Associate Justice Hetyey
  • Associate Justice Matthews
  • Associate Justice Irving

Judicial Registrars

  • Judicial Registrar Englefield
  • Judicial Registrar Keith
  • Judicial Registrar Steffensen
  • Judicial Registrar Baker
  • Judicial Registrar Woronczak
  • Judicial Registrar Caporale
  • Judicial Registrar Conidi

Appropriate Dispute Resolution (ADR) Registrar , Nicholas Day, co-mediates with our judicial mediators and also conducts mediations.

Find out more

The Court's judicial mediation model provides more in-depth information about the process and the purpose of mediations.