How to apply for mediation of a civil dispute in NSW
In NSW, mediation of a civil dispute can occur through the courts (Supreme, District, and Local Courts can refer parties under the Civil Procedure Act 2005 (NSW)), through Community Justice Centres (CJCs) for community disputes, or privately through a mediator agreed by the parties. Mediation is confidential, without prejudice, and ends either with a signed settlement or a return to the dispute pathway.
The framework
Court-ordered mediation is authorised by Part 4 of the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) Part 20. Community Justice Centres operate under the Community Justice Centres Act 1983 (NSW). Confidentiality is reinforced by s 30 of the Civil Procedure Act.
The process
Confirm mediation suits the dispute
Mediation works for disputes where the parties can settle — commercial, property, succession, employment, neighbour, and family-law matters. It is less suitable where urgent injunctive relief, declaratory orders, or a clear precedent is needed.
Choose the mediation pathway
Options: (a) court-referred mediation under the Civil Procedure Act; (b) Community Justice Centres for community disputes; (c) private mediation by an accredited mediator; (d) industry schemes (e.g. farm debt, retail tenancy).
Obtain the other side's agreement
Mediation generally requires agreement unless ordered by the court. Write to the other party proposing mediation, the proposed mediator, and the process, costs, and date.
Apply or agree to mediation
For court-referred mediation, file a notice of motion or consent orders referring the matter. For CJCs, apply online. For private mediation, agree on a mediator and sign a mediation agreement.
Choose a mediator
Select a NMAS-accredited mediator with expertise in the subject matter (e.g. succession, construction, employment). Consider cost, availability, and style (facilitative vs evaluative).
Prepare a position statement and bundle
Prepare a concise position statement setting out the dispute, key documents, strengths and weaknesses, and settlement authority. Exchange or send confidentially to the mediator per the mediation agreement.
Attend the mediation with settlement authority
Each party must attend with sufficient authority to settle. Companies should send an authorised representative with clear instructions. Without authority, mediation stalls.
Participate in joint and private sessions
The mediator typically opens a joint session, then conducts private sessions (caucuses) exploring interests, options, and BATNA. Be prepared to adjust positions as new information emerges.
Document any settlement in writing
If a settlement is reached, sign terms of settlement or Heads of Agreement the same day — signed, dated, and legally binding. For court-referred mediation, file consent orders to close the proceedings.
If not settled, return to the dispute pathway
If the mediation does not resolve the dispute, the matter returns to the court or tribunal. What was said in mediation remains confidential and without prejudice under s 30 of the Civil Procedure Act 2005 (NSW).
Forms and templates
- Notice of Motion for Mediation (court-referred)
- Community Justice Centres application
- Mediation Agreement (private)
Common mistakes
- Attending without sufficient settlement authority
- Not preparing a clear, focused position statement
- Treating mediation as a discovery fishing exercise rather than a settlement process
- Failing to document agreed terms the same day (memory and goodwill decay quickly)
- Choosing a mediator without subject-matter expertise for technical disputes
Get this process right with Quillio
Quillio drafts mediation position statements, exchanges offers, prepares settlement deeds and Heads of Agreement, and extracts consent orders for court-referred mediation. See /practice-areas/dispute-resolution-lawyers or start a free trial at /free-trial.
General information only — not legal advice. Mediation confidentiality has limits, and a poorly documented settlement can reopen disputes. Obtain legal advice before attending, and before signing any settlement.
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