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Mediation is an ADR process where an independent third party, the mediator, assists the people in dispute to identify the disputed issues, develop options, consider alternatives and try to reach an agreement.
A mediation session is usually a structured, face-to-face meeting with all the people in dispute and one or more mediators. Mediation may be voluntary and can be court ordered. It is an alternative to having a judge make a decision after a court hearing. Mediation provides opportunity to explore a broader range of options to resolve the dispute than may be available to a judge.
Mediations are private and confidential unlike court proceedings that are open to the public.
Generally, matters that are allocated a hearing date will also be referred to mediation unless the parties can satisfy the court that mediation is not appropriate.
Referral to mediation can be made without the consent of the parties. Mediation is to be undertaken by a mediator agreed by the parties or appointed by the court and may be (but need not be) a listed mediator.
It is the duty of all parties to the mediation to participate in good faith. The costs of mediation, including the cost payable to the mediator, are to be paid as agreed between the parties or as ordered by the court.
There are many registered mediators who can mediate your dispute.
The district court has established a court mediation program for civil cases listed in Sydney. The court considers a range of factors when considering referral to court mediation including; the financial circumstances of the parties, the prospect that legal costs might exceed the amount being claimed and the likelihood of the parties reaching settlement in mediation.
Court mediations are conducted by an assistant registrar and are held at Sydney District Court.
Referral to mediation is usually considered at the status conference, however, application can be made at any other time by filing a Notice of Motion and Affidavit.
For court mediation conducted by an assistant registrar, there are no fees payable to the mediator or for the mediation, although a party may be liable for costs to their lawyer. Refer to section 28 of the Civil Procedure Act 2005 regarding the courts power in relation to the costs of a mediation.
As part of the standard referral order, parties are required to exchange a concise written statement of issues at least five days prior to the mediation.
Parties are also required to supply the registrar, not less than five days before the mediation, with copies of all lay and expert evidence (including medical evidence) which has been served.
It is also helpful for parties and their legal representatives to discuss options to resolve the dispute and the implications for legal costs if the matter proceeds to hearing.
The registrar to whom the matter is assigned for mediation will advise parties of any additional preparatory steps required to be undertaken as soon as possible after the referral order is made.
If a matter settles at mediation the parties prepare their own consent judgment. Usually the assistant registrar conducting the mediation can provide the parties with a sealed copy of their consent judgment at the conclusion of the mediation.
07 Mar 2023
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