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
Find our what to expect during the mediation process, and about the role of the mediator.
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.
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 firstname.lastname@example.org@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 Justice Efthim
• Associate Justice Wood
• Associate Justice Daly
• Associate Justice Hetyey
• Associate Justice Matthews
• Judicial Registrar Gourlay
• Judicial Registrar Irving
• Judicial Registrar Englefield
• Judicial Registrar Keith
• Judicial Registrar Steffensen
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.