Supreme Court of NSW
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Mediation


Next available mediation sessions
This information is published at the end of the daily Court Lists – use this link, select the required Court List and then scroll to the end of it to see the relevant notice.


WHAT IS MEDIATION?

Mediation is a process where a neutral and independent person (a mediator) helps the parties in a dispute to reach their own solution. The parties usually agree who will be the mediator for their dispute, except in court-annexed mediation.

It is an alternative to having a Judge make a decision after a contested hearing between you and the other party. A Judge would give a decision after hearing the case (usually in open court), establishing the evidence that is admissible (from any evidence that is inadmissible), and determining how the law applies to the case.

At mediation, each party has the opportunity to voice their point of view. The mediator helps the parties to focus on the real issues of the dispute and explore options to resolve these. The mediator does not impose a solution or give tactical advice.

In mediation, the options that can be explored to resolve the dispute are often broader than those that can be considered by a Judge of the Court.

If the parties resolve their dispute at the mediation, they may make a written agreement and have orders made by the Court to finalise the case. Those orders have the same standing as orders made by a Judge, and can be enforced, if necessary.

In contrast to court proceedings, which are open to the public, the mediation process is private and confidential. Anything said or produced in evidence at a mediation session cannot be used in a later hearing, except in exceptional circumstances.

It is the duty of all parties to the mediation to participate in good faith. A mediator can terminate a mediation session and make a report to the Court if this duty is breached.

Mediation is available for all civil matters. It is not the intention of the Court that mediation will be ordered in all proceedings. However, the Court expects that parties will have considered mediation of their dispute as an alternative to a contested hearing.
WHY CONSIDER MEDIATION?

There are numerous benefits that can arise from mediation, including:
Early resolution
Less costs to parties
Greater flexibility in resolving the dispute
Finality
Privacy

Early resolution

Mediation can be undertaken at any time in the proceedings suitable to the parties. It can be arranged to occur within a few weeks, or earlier if urgent. If the parties resolve the dispute at mediation, the necessary court orders will be drawn up and signed at the close of the mediation session. This usually finalises the case.

In comparison, if a case goes to hearing before a Judge, then usually some months are required to exchange evidence and prepare the case for hearing. The hearing of the case usually occurs a few months after all the evidence is prepared (unless the parties can persuade the Court that their case needs to be heard ahead of other cases that are already waiting). At the end of the hearing, the Judge usually requires further time to prepare a judgment.

Less cost to parties

When cases are mediated, parties and their legal representatives will generally still need to prepare some evidence, but this will be less than the preparation for a court hearing. To prepare a case and present it for a court hearing will be more costly than preparing for mediation.

The mediation session is usually shorter than the court hearing. Many legal fees are charged on a time basis.

As well as deciding how to resolve the dispute, the parties can also agree on how to apportion the legal costs that have been incurred up to the time of the mediation.

If the dispute goes to a hearing, the Court will charge a hearing fee that is separate to the fees charged by a party’s lawyers. Further, the Court’s judgment can include orders for an unsuccessful party to pay the legal costs of the successful party.

Even if a resolution is not achieved and the dispute ultimately ends in Court, the mediation process can have helped to clarify and define the real issues in dispute. This can shorten the court hearing time and help parties to minimise eventual legal costs.

Greater flexibility in resolving the dispute

Using mediation, the parties work out their own resolution of the dispute. A solution is not imposed upon them. Also, the parties can resolve the dispute in broader and possibly more practical ways than those the Court can consider. These aspects can be particularly important if the dispute is within a family or ongoing business relationship.

Finality

A mediated solution is a settlement between the parties, and so generally cannot be the subject of an appeal.

Privacy

The mediation process is conducted between the parties, without public observers. In contrast, a contested hearing before a judge is usually conducted in a courtroom that is open to the general public. Parties to the dispute can be called as witnesses and required to give evidence at the court hearing.
HOW ARE CASES REFERRED TO MEDIATION?

This is done by a court order. The parties can ask the Court to make an order for referral, or the Court may consider the case appropriate for referral, even if the parties do not ask. The Court has the power to make a referral to mediation with or without the consent of parties. Parties can use either of two types of mediation – court-annexed mediation or private mediation.

The form for making an order for referral to mediation is available at the end of this document. When the Court makes an order for mediation the mediator must, within 7 days after the conclusion of the mediation session, advise the Court of the time and date the mediation session commenced and was concluded (as required under r 20.7 UCPR).
HOW MUCH DOES MEDIATION COST, AND WHO PAYS FOR IT?

Court annexed mediation

With court-annexed mediation, there is no charge for the mediator or use of rooms. The cost of legal representation is the responsibility of each party.

Private mediation

With private mediation, there are usually fees for the mediator and also for the use of rooms. In addition, some mediation agencies charge a commission/registration fee. Some mediators charge for preparation time separately from the mediation session.

Private mediation costs vary from mediator to mediator. For an estimate of the overall costs, you could contact:
- your legal advisor
- a mediation provider organisation or a private mediator (private mediators and more mediation provider organisations are listed in the Yellow Pages).

The cost of legal representation is the responsibility of each party.

Usually each party pays an equal proportion of the costs associated with the mediation, although other arrangements can be agreed by the parties or ordered by the Court. The order of referral to mediation usually includes an order for how the costs are to be apportioned.

If there is an issue of financial hardship, some mediation providers will consider requests for reduction of the mediation fee. This needs to be discussed with the mediation provider at the time of arranging the mediation. Note that some mediation providers apply a specific means test to determine fee reduction.
MEDIATORS

Who can be a mediator?

A person may be appointed by the Court to mediate a particular Supreme Court case if the person:
- consents to being appointed, and
- agrees to comply with the provisions of Part 4 Civil Procedure Act and the provisions of Practice Note SC Gen 6.

Mediators are usually appropriately qualified lawyers, non-lawyers or Court registrars.

The Chief Justice certifies registrars or other officers of the Court as qualified mediators for court-annexed mediation. There is no other list of mediators held or maintained by the Court.

The Court does not train or accredit private mediators. For information on mediation training and accreditation, contact a mediation provider organisation (many are listed in the Yellow Pages).
Where to find a mediator

If parties choose to use court-annexed mediation, a mediator will be assigned to the dispute from among the registrars and officers of the Court who are qualified mediators. The parties cannot select the mediator.

If parties choose to use private mediation, they decide who will be appointed as the mediator. Usually parties will be able to reach agreement on a suitable mediator. Otherwise, for some suggestions on where to obtain names of private mediators, see the section titled 'If parties need help to agree upon a mediator...' .
IF PARTIES NEED HELP TO AGREE UPON A MEDIATOR …

If parties have been referred to mediation, but are having difficulty agreeing upon a mediator, then they can consider contacting a mediation provider organisation for assistance.

Mediation provider organisations are neutral organisations and will generally provide a short list of member-mediators who are appropriate for the dispute. The parties can then select from the short list or ask for further names to consider.

The Court has a Joint Protocol arrangement (set out in paragraphs 19-35 of Practice Note SC Gen 6) with six mediation provider organisations that have agreed to maintain panels of mediators who are suitable to mediate Supreme Court cases. To contact these organisations use the following links:

Australian Commercial Disputes Centre
Australian Branch of the Chartered Institute of Arbitrators
Institute of Arbitrators and Mediators Australia
Law Society of New South Wales
LEADR
NSW Bar Association Alternative Dispute Resolution

If the parties remain unable to agree upon a mediator, then parties should attempt to agree upon how the Court can appoint a mediator. Some options are:
- the Court may select a mediator to be appointed, or may appoint the mediator by using the processes of the Joint Protocol in Practice Note SC Gen 6.
- the Court may refer the dispute to a registrar or other officer of the Court who is certified by the Chief Justice as a mediator to meet with the parties to discuss mediation and report back to the Court with a recommendation as to whether the dispute is suitable for mediation.
- the Court may decide against ordering mediation.
COURT-ANNEXED MEDIATION

What is court-annexed mediation?

Court-annexed mediation is where a registrar or other officer of the Court is the mediator.

The registrars and officers who conduct mediations are qualified as mediators. Parties cannot select which registrar will mediate their dispute. Registrars conducted 683 mediations during 2010, with 51% of disputes being resolved by the close of the session. This percentage does not include the cases that reached an agreed resolution shortly after their mediation session.

The mediation usually takes place at Mediation Suite on Level 1in the King Street Court Complex, Sydney. There is no charge for the mediator or use of rooms.

The mediation listing will appear in the Court List. Unlike a court hearing, however, mediation sessions are closed to public observers.

The court-annexed mediation program is popular and there is usually about 4-6 weeks’ waiting time for court-annexed mediation. However, if the Court orders that the mediation be conducted urgently, this can be accommodated.
How are court-annexed mediations arranged?

For Court-annexed Mediations (including enquiries on the range of available dates), parties should contact the Court on the following numbers:
  • (02) 9230 8104 or (02) 9230 8081


Who should attend court-annexed mediation?

Each party should attend the mediation:
- if the party is an individual, he or she must attend in person.
- if the party is a company, or if an insurer is handling the case, then an officer who has authority to sign a binding settlement is to attend.

If there is some reason why this is not possible or necessary, the approval of the registrar-mediator must be sought at the earliest possible opportunity.
How long will it take?

Court-annexed mediation sessions are usually scheduled to last half a day. Some mediations require longer than this, so parties should be prepared to allow extra time. It is unusual for court-annexed mediation sessions to last more than one day.

The waiting time, from booking the mediation, is usually about 4-6 weeks. However, if the Court orders that the mediation is to take place urgently, this can be accommodated.
What preparation is required?

General preparation

Parties should be ready to attend the mediation with the purpose of achieving an acceptable resolution of the dispute. This usually involves some compromise. It is the duty of each party to participate in good faith. A mediator can terminate a mediation session and make a report to the Court if that duty is breached.

Each party is to attend the mediation in person if an individual or by an officer who has authority to settle if the party is a company or if an insurer controls the proceedings.

Parties should be prepared to treat all participants in the mediation with common courtesy.

Parties should have thought about the issues that are important to them, and possible options for resolving these. Each party will be given the opportunity to discuss their issues uninterrupted at the mediation.

Parties should also have thought about what their best outcome would be, and also the extent to which they would be prepared to compromise.

Parties should be aware of their legal costs to date, and future legal costs if the case proceeds to a court hearing. Parties should understand that if they if they proceed to hearing but the judgment goes against them, they can be ordered to pay the legal costs of the successful party.

Document preparation

For Court of Appeal cases:
Each party is to inform all other parties and the mediator by letter of what it regards as the issues to be mediated.

For cases other than those in the Court of Appeal:
Parties must serve sufficient evidentiary material to enable a settlement to be reached at mediation. Unless other arrangements have been approved by the registrar-mediator before the mediation, the evidentiary material will include:

(a) For equity and probate cases – affidavit evidence which discloses material in support of the claim or defence. In mediations under the Family Provision Act, the defendant must comply prior to the mediation date with Schedule J of the Supreme Court Rules.

(b) For common law cases – expert reports and valuations.

Parties should consult about matters such as expert reports or valuations that will be necessary to effect settlement. Jointly retained experts may be utilised in an endeavour to keep down costs. In the absence of common ground between the parties with respect to matters such as valuations, the parties should serve before the mediation the material upon which they rely to support their position.

All affidavits served in the proceedings should be supplied as a tender bundle to the registrar-mediator one week before the mediation.
Where are court-annexed mediations held?

The court-annexed mediation sessions are conducted at the Mediation Suite, Level 1 in the King Street Court Complex . Enter from King Street and take the lift to Level 1. Click here to see a map and other visitor information.

PRIVATE MEDIATION

What is private mediation?

Private mediation is where the mediator is a person engaged directly by the parties to mediate the dispute. The mediator may or may not require a referral order from the Court.

A private mediator does not have to be a lawyer, but it is preferable that the person is qualified as a mediator. Click here for information on how to find a private mediator.

Private mediators usually charge for their services, and the fees vary from mediator to mediator. The mediator or the mediation provider organisation can give information about fees and charges.

The Court does not generally provide rooms for private mediations.

There is no court listing of private mediations.
How are private mediations arranged?

First, the parties need to agree on the mediator for the dispute. Parties may have a particular mediator in mind. If not, click here for some suggestions for finding a private mediator.

Once the mediator has been agreed upon, the parties legal representatives contact the mediator directly to make all arrangements – eg to establish:
- the costs
- the venue
- who should attend
- what preparation is required.

The Court does not hold a list of private mediators and cannot provide information on any arrangements that have been made for private mediation.
How long will it take?

For an estimate of how long the mediation session is likely to last, please contact the mediator directly.

The waiting time from the date of obtaining the referral order will depend upon the availability of the mediator chosen by the parties. If that waiting time is inconvenient, then it may be appropriate to consider using another mediator.

For information on where to find mediators, click here.

For information on arranging urgent private mediations, click here.
How to find a private mediator

Some sources of information are:
- recommendations or suggestions from the parties’ legal representatives.
- mediation provider organisations, including the Joint Protocol partner organisations.
- Yellow Pages - there are listings of many private mediators and mediation provider organisations in the Yellow Pages under ‘Mediators’ and ‘Mediation’. The mediation provider organisations may also be able to suggest particular mediators who have relevant additional qualifications or whose fees fall within a particular range.

URGENT MEDIATIONS

If the need is urgent, court-annexed mediation can be arranged to occur as early as the next working day. The Judge ordering the mediation will decide the degree of urgency that is warranted.

For urgent private mediations, parties must either contact a private mediator directly, or contact a mediation provider organisation to obtain assistance in locating a suitable and available private mediator. Most, if not all, of the Joint Protocol partner organisations can provide lists of suitable mediators in urgent situations.
THE JOINT PROTOCOL FOR REFERRAL TO MEDIATION

The Joint Protocol is contained in paragraphs 19-35 of Practice Note SC Gen 6.








FORM OF ORDER FOR REFERRAL TO MEDIATION

MS Word Format
RTF Format


Quick Links Supreme Court BulletCivil Procedure Act – Part 4
Supreme Court BulletUniform Civil Procedure Rules – Part 20
Supreme Court BulletPractice Note SC Gen 6 – Mediation
Supreme Court BulletNational Alternative Dispute Resolution Advisory Council
Supreme Court BulletLocation of Supreme Court (map)

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Last updated: 3 September 2012
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