Supreme Court of Western Australia

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Court Procedure

Mediation

Mediation – what you need to know

Being involved in a legal dispute can be costly and emotionally draining. For many people, just the thought of appearing in court is extremely stressful.

However, you might be surprised to learn that most civil cases in the Supreme Court are resolved before going to trial.

One way that's achieved is through MEDIATION.

The Court’s mediation program is designed to assist you to resolve your legal dispute simply, quickly and cost-effectively.  Mediations are conducted in a controlled and secure environment - and it's confidential.

Court’s mediation program is designed to assist you to resolve your legal dispute simply, quickly and cost-effectively.  Mediations are conducted in a controlled and secure environment - and it's confidential.

So, what is mediation?

Basically, mediation is an opportunity for the parties and their lawyers (if they have them) to talk it through and reach their own agreement with the support of a mediator. 

You may not realise that there is an alternative point of view to your own until you've heard it.  The mediator will help the parties and their lawyers talk to each other, in a respectful and safe environment.

You do not have to agree to resolve your legal dispute at mediation – however, you do have to cooperate, listen to the views of other participants and consider options for resolution. Typically, mediation is used as a forum to identify issues, develop options and to explore alternatives for resolving the legal dispute – some of which might not be available to you if you go to trial.

Who is the mediator?

A court registrar or a judge will act as the mediator.

Your mediator will be neutral and independent – once a registrar or judge has acted as a mediator for a case, they will not act as the case manager or trial judge for the same case.

The parties can agree to use and appoint their own private mediator, at the cost of the parties.

What are the benefits?

Mediation can be a faster and less expensive option than going to trial.  It gives parties the opportunity to determine how their dispute will be resolved, taking into account the things that are important to them.  Disputes can be resolved in a way that might not be able to be achieved by going to trial. 

With very few exceptions, what is said at mediation is confidential and no court records are kept of the conversation unless agreed by the parties. This allows the parties to honestly and frankly discuss the dispute, what each wants to achieve and the options for settlement.

You should get legal advice before discussing the mediation with anyone who did not attend it.  Resolving a dispute by agreement avoids the delay and additional expense involved in taking the case to trial. It also avoids the uncertainty of the outcome after trial.  If an argument is reached at or after mediation, it can take effect immediately.  If the parties wish, the agreement can also be embodied in an order of the court, which can be enforced by the court.  Even if the dispute is not resolved, mediation can assist parties to clearly define the issues which need to be resolved at trial, reducing the time and expense of trial.

Can I bring a friend?

Yes, you can bring a personal support person. The mediator will decide whether that person comes into the room or is available to you during the breaks. Typically, a support person will not be able to attend the mediation if they do not agree to keep what is discussed at mediation confidential, or if the other party does not agree to their presence.

Which cases go to mediation?

Almost all cases go to mediation at some stage. Your case manager will listen to your point of view when deciding when to order mediation and you can discuss the timing of mediation with your lawyer.

What does mediation cost?

The plaintiff in the proceedings will typically pay a fixed fee when lodging a request for mediation. 

You can confirm what fee is payable by speaking to your lawyer or by checking the schedule of fees on the Court's web-site – www.supremecourt.wa.gov.au.

Although there is a fee payable for listing the mediation in this Court, the parties do not otherwise pay for the use of the mediation rooms, or the time of the registrar or judge at mediation.  If the parties appoint a private mediator, they will pay for that person’s time and expenses.

What happens in the mediation room?

The mediator will speak directly to you and to the lawyers present, and you can speak openly.  Each party will have an opportunity to explain their view of the dispute.  Parties are encouraged to understand each other’s perspective.  Options for settlement are developed and explored.

If you have any security or safety concerns, you should raise them (directly or through your lawyer) with the Associate to the Mediator at least 2 days before mediation.  The court is usually able to make arrangements to address the security or safety concerns of the parties.

Where will the mediation be held?

Most mediations are held on Levels 7 and 8 of the David Malcolm Justice Centre, at 28 Barrack Street in Perth. The court has eight mediation rooms and a number of interview rooms where parties can meet and discuss matters privately, before and during mediation.

The court will also conduct mediations in towns and cities across Western Australia in appropriate cases.

Mediation is about speaking face-to-face but, sometimes, where appropriate, a party may be allowed to attend mediation by telephone or video link.  Such a request must be made to the court as soon as possible.

How should I prepare for mediation?

  • Be prepared to listen and to be listened to.
  • Think about what you want to achieve, and what you need to achieve, from the resolution of the dispute.
  • Speak when you are ready to respond, rather than as a reaction.
  • Be familiar with the aspects of your matter which are in dispute.
  • Think carefully about which aspects of the case you may be able to agree upon.
  • Talk to your lawyer about costs going forward.
  • Think about and develop options that may lead to a resolution.
  • Ensure you are not rushed – set aside a full day and make a genuine effort to reach agreement.
  • Be prepared to make a decision – mediation empowers the parties to reach their own agreement.  Many successful mediations result in a final and binding deal being done on the day of mediation.

Last updated: 31-Oct-2016

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