Published: 24 July 2018
Author: Stringer Clark

The top six questions we are asked about mediation

1. What is a mediation?

During the course of a legal matter, you may be asked to attend a mediation. A mediation is a forum for the parties to try and resolve their differences by reaching an agreement.

If successful, mediation avoids what can sometimes be lengthy and expensive litigation.

2. How does a mediation work?

A mediation is chaired by a mediator. The mediator is a neutral person, usually a solicitor or barrister who has experience in the relevant area of practice. Their job is to assist the parties to reach an agreement.

A mediator isn’t a judge or a magistrate, and so nothing the mediator does or says is binding on the parties. The mediator decides nothing, and it is completely up to the parties to reach their own agreement.

As a client, you will usually not be required to sit in the room where the negotiations happen. A mediation isn’t an opportunity for the other party to ask you questions directly or to cross-examine you.

Typically, you will be in a separate room and during negotiations, your legal team will discuss with you where things are at and will get your instructions, before continuing to negotiate your matter with the opposing party.

3. What happens if my matter doesn’t resolve at mediation?

If your matter doesn’t resolve at mediation, then it will typically proceed to court. This doesn’t necessarily mean that your matter will be heard in court before a judge or judge and jury, as there are still opportunities for it to settle both after the mediation, at the door of the court before your matter commences, or during the running of your matter.

4. Do I have to attend the mediation in person?

Generally speaking, it is preferable for you to attend the mediation. But, if you have issues or concerns with regard to attending a mediation, you should talk to your legal representative.

5. Who else will be at the mediation?

Usually, a mediation will involve the following people: the mediator, you and your solicitor and barrister/s, the opposing parties solicitor/s and barrister/s, and sometimes a representative from the relevant insurance company. If your matter involves a motor vehicle accident or work accident, it’s worth noting that the other driver or your employer do not usually attend mediations.

6. Am I bound by any offers made at the mediation?

No, generally speaking, if an offer is made by you during the mediation, that does not mean that you are in some way bound by it for the remainder of your case. 

It’s likely that you will find mediation is not as stressful as you think it might be. If you have any further questions in relation to the mediation process, please bring these to the attention of your legal representative prior to the mediation.