Mediation & ADR FAQ

Mediation is a confidential, voluntary process in which a neutral third party helps disputing parties reach their own settlement. The mediator does not decide the dispute — they facilitate communication and negotiation between the parties.

Many courts and contracts require parties to attempt mediation before progressing to hearing. Under the Civil Procedure Act in NSW and equivalent legislation in other states, the court can refer proceedings to mediation with or without the consent of the parties.

A typical mediation includes opening statements, an exchange of positions, private sessions with each party (caucuses), joint negotiation sessions, and drafting a settlement if agreement is reached. Sessions often run for a full day or more.

Yes. Mediation is typically confidential and privileged under statute, contract, and the without prejudice rule. Admissions made during mediation generally cannot be used in subsequent litigation, with narrow exceptions for threats and criminal conduct.

A settlement reached at mediation is a contract and binds the parties once signed. It is enforceable in the same way as any commercial agreement. Where proceedings are on foot, the settlement is usually recorded in court orders or a deed of settlement.

Arbitration is a private dispute resolution process in which a neutral arbitrator (or panel) hears evidence and makes a binding award. Unlike mediation, the arbitrator decides the dispute. Arbitration is governed by the Commercial Arbitration Acts and, for international matters, the International Arbitration Act.

Arbitration is private, typically faster, more flexible on procedure, and has very limited appeal rights. It is chosen by contract (an arbitration clause) or post-dispute agreement. Awards are enforceable in Australian courts and under the New York Convention internationally.

Expert determination is an ADR process in which an independent expert determines a dispute (usually technical or valuation issues) based on their own expertise. It is creature of contract — the scope, process, and finality depend entirely on the parties' agreement.

Courts will generally uphold an expert determination unless the expert departed from their instructions, answered the wrong question, or acted in bad faith. Errors within jurisdiction are not usually grounds to set aside.

Conciliation is similar to mediation but the conciliator typically provides advice or suggestions about possible outcomes. It is commonly used in statutory schemes (Fair Work, anti-discrimination, workers compensation) where the conciliator has subject-matter expertise.

Aboriginal and Torres Strait Islander family dispute resolution (AFDR) is a culturally appropriate family dispute resolution process. It is recognised in legislation and practice frameworks for family law matters involving Indigenous families.

A Calderbank offer is a written settlement offer marked "without prejudice save as to costs". If the offer is not accepted and the recipient does worse at trial, the court can order indemnity costs from the date of the offer, giving Calderbanks significant tactical weight.

An offer of compromise is a formal settlement offer made under court rules that carries costs consequences if not accepted. Unlike Calderbank offers, it follows a prescribed form and has specific costs consequences set out in the rules of court.

Yes, and most cases in Australian superior courts are mediated at least once before trial. The court can refer matters to mediation under case management powers, and parties can agree to private mediation at any time.

Not strictly, but legal representation is strongly recommended for most commercial and family matters. Lawyers assess risk, test positions, draft enforceable settlement terms, and can step outside the room to advise on offers made during the session.

Med-arb is a hybrid process in which the parties attempt mediation first and, if that fails, the same person determines the dispute as arbitrator. It can be efficient but raises questions about confidentiality and bias from information learned during mediation.

Mediator fees are typically charged at an hourly or daily rate, shared equally between the parties. Experienced commercial mediators charge $5,000-$15,000+ per day. Family dispute resolution practitioners and community mediators are often available at lower or subsidised rates.

Generally no. Confidentiality in mediation is protected by statute, contract, and the evidence rules. Mediators are usually contractually and by statute excluded from being compellable witnesses about what happened in mediation, with narrow exceptions.

Yes. Under the International Arbitration Act 1974, international arbitral awards are enforceable in Australian courts as if they were judgments of the Federal Court, subject to narrow refusal grounds consistent with the New York Convention.

Use mediation where the parties want to preserve the relationship, control the outcome, and save time and cost. Use arbitration where a binding decision is needed, technical expertise is important, or the parties prefer a private forum to open court.