Mediation FAQs

Frequently Asked Questions

Who can use mediation?  button to return to top of page

Mediation is open to any two parties who have a disagreement or dispute. Either or both of the parties can be individuals, businesses, companies or organisations.

What are the advantages of mediation?  button to return to top of page

A mediation typically costs far less than a court hearing (around $2500-$4000 per day, compared with as much as $40,000 per day for a court hearing).

The mediation is designed to allow the parties in dispute to come to an understanding of the other’s position and to discuss the issues; then hopefully to be able to negotiate an outcome that is acceptable to both.

The mediator’s role is to facilitate this process. The mediator does not act as a judge or adjudicator and will not take sides, or decide which party is right or wrong.

In mediation, both parties are in control of the outcome, while the result of a court or tribunal hearing is determined by the magistrate or judge. Even the successful party in a court case can end up still having to pay substantial legal fees.

A settlement will only result if both parties freely agree.

What is the role of the mediator?  button to return to top of page

The mediator is an independent professional who uses his/her skills to assist two disputing parties to negotiate an outcome that is acceptable to both parties.

The mediator is in charge of the conduct of the mediation and can direct the behaviour of the parties.

The mediator cannot give legal, financial, psychological or spiritual advice to the parties.

(see Rules of Mediation)

Can I force another person to mediate?  button to return to top of page

No, you can’t. Mediation can only work if both sides in a dispute agree to mediate.

Do I need a lawyer to arrange mediation?  button to return to top of page

Mediation is often arranged by lawyers acting for one or the other of the parties in dispute, but you can organise a mediation yourself without involving a lawyer.

Is there any paperwork or preparation before the mediation?  button to return to top of page

The mediator will send both parties a Mediation Agreement to sign (see example) and this is to be completed and returned to the mediator before the mediation commences.

The mediator may talk to each party separately (and confidentially) in order to find out what the main issues are for each party.

The parties should seek any relevant advice from lawyers, accountants, financial or other advisers, in order to be fully prepared for the mediation.

If either party represents a company, s/he will need to have written authority from all directors to negotiate a settlement and to sign a final Terms of Settlement document. Similarly, if a party represents members of a family, or business partners, or an organisation, s/he will need written approval of other decision makers to negotiate and sign a binding settlement document.

Do I need a lawyer to come with me to mediation?  button to return to top of page

No. It is your choice whether you have someone attend the mediation with you. However, both sides have to agree to allow the other to bring a lawyer or other person along to the mediation. Apart from lawyers, parties may bring other advisers, such as accountants or managers, or bring along family members or trusted friends.

Who can I bring with me to the mediation?  button to return to top of page

You can bring an adviser, a family member or a trusted friend. However, you need the agreement of the other party to have anyone with you and you can agree or not to the other party having someone with them. If you do not agree for the other party to have someone accompany them to the mediation, they may likewise not agree to you bringing someone along. It is common for disputing parties to each have one or more people with them to help them at the mediation.

Anyone who comes with you to the mediation will have to sign a Confidentiality Agreement before they will be allowed to attend.

How long does a typical mediation take?  button to return to top of page

A mediation can often be conducted in half a day (2-3 hours). If the matters in dispute are complicated or involved, the mediation may take all day. A mediation booked for a half day can also take longer and may need to extend beyond the time expected.

How much does a mediation cost?  button to return to top of page

This can depend on:

  • the time allowed for the mediation
  • the complexity of the issues
  • where the mediation is to take place
  • whether the mediation runs substantially over time
  • possible out-of-pocket expenses for the mediator, such as travel and accommodation for rural centres and costs of a suitable venue.

A private mediation can cost from around $1500 for half a day, $2500 for a full day; and as much as $4000 or so, depending on the mediator who is engaged. A court or tribunal hearing, on the other hand, can cost each party as much as $20,000 per day.

There may also be costs for the time the mediator spends talking to each party before the mediation, to allow proper preparation, as well as time for reading documents if the issues in the dispute are complex and there many documents. The parties will each pay 50% of these costs.

If mediation is conducted through a government department or office, such as the Victorian Small Business Commission, the costs of the mediation may be less than $200 per party.

If mediation is ordered by a tribunal or court, there may be set fees for the mediation.

Who pays for the mediation?  button to return to top of page

The parties share the cost of the mediation equally (e.g., for a full-day mediation, if the cost is $3000, each party would pay $1500).

Payment is made before the mediation commences.

What happens if the mediation takes longer than expected?  button to return to top of page

There will be a clause in the Mediation Agreement which sets out the hourly rate for the mediation to continue beyond the time set aside, if the mediation extends unreasonably long beyond that time. Payment of this hourly rate will be shared by the parties.

It is possible to adjourn the mediation if the mediator or either party has commitments that do not allow the mediation to continue beyond the time set aside. The fee payable for an adjourned mediation will be discussed by the mediator with the parties and payment arranged.

What happens if the mediation does not lead to a settlement?  button to return to top of page

If the parties cannot agree on an outcome that is acceptable to both, the mediation may be brought to an end without a settlement agreement. Both parties are then free to pursue other avenues, such as court or tribunal proceedings.

If the mediator thinks that a settlement may be possible if the mediation is adjourned, allowing the parties to have more time to consider their options, s/he may adjourn the dispute for further mediation on a later date.

Either party may bring the mediation to an end with the consent of the mediator. The mediator may also bring the mediation to an end if s/he thinks there is no longer a possibility of settlement.

There is no refund of the mediation fee if the parties fail to reach a settlement. The mediator will be committed to do everything s/he can to help the parties reach a settlement.

Is the result of mediation binding?  button to return to top of page

Yes. If the mediation is successful, the parties will sign a Terms of Settlement, which is binding.

What matters can be mediated?  button to return to top of page

Almost any dispute can be mediated, because of the nature of the mediation process itself. Disputes that are frequently mediated include:

  • leases
  • property boundaries and fence lines
  • landlord-tenant
  • employer-employee
  • family matters (see Family Dispute Resolution)
  • inheritance
  • business agreements
  • sporting and other clubs in dispute with members.

Courts and tribunals (such as VCAT) may order that parties mediate before returning to court.

Where does mediation take place?  button to return to top of page

Mediation is usually conducted in a large room with a table at which the parties can sit opposite each other with ample room for their documents. The mediator will sit at the end.

The venue may be at the offices of the solicitor acting for one of the parties (if both parties agree to this) or in a neutral place. The venue may need to be hired for the occasion.

The venue used will have at least one extra meeting room so that the parties may have private discussions away from each other.

It is also possible to conduct mediation online via Zoom, with each person involved (including the mediator) in a separate place and using a computer. If a party has an adviser (e.g. a lawyer) with them, they may both be in the same room or in separate places.

What if I have further questions?  button to return to top of page

If you have a question or concern that is not adequately addressed above, please complete the Contact Form.