Mediation Conference

The usual form of mediation is a half day conference in the presence of a dedicated Registrar. The purpose of such a conference is to allow the parties to exchange their views in a forum where what is said is “off the record” and cannot be used in evidence at trial.

The experience of this Court is that such conferences lead to settlement in a high percentage of cases reducing the demand on Court resources and reducing the costs to the parties.

Pre-trial conferences are usually scheduled when an action is entered for trial.

In some instances the Court or the parties may consider that a settlement conference at an earlier stage of proceedings may be helpful. The Court has the power to order such a conference which is run on the same lines but is generally called a mediation conference. (District Court Consolidated Civil Procedures).

The main practical difference between a mediation and a pre-trial conference occurs if settlement is not achieved. In a pre-trial conference the action usually proceeds to a listing conference at which trial dates are set. After a mediation conference, the action will usually proceed to a case management hearing at which a Registrar will make directions to prepare the case for the allocation of a trial date at a late stage.

The most important thing a person can do to prepare for a conference is to meet with their lawyers well before the date on which the conference is to take place. The matters which need to be discussed include:

• The prospects of succeeding in the action (or successfully defending it if the party is a defendant).
• The relative strengths of the other parties’ cases.
• The parameters for settlement discussions.
• The best and moderate case outcomes following trial.
• The worst case outcomes following trial.
• The time and effort that will be involved in preparing
• The legal costs involved in going to trial.

A party may request their lawyer to give them advice in writing so that they can take it away and think about the issues discussed.

As to costs, the District Court Rules 2005 require a lawyer acting for a party to provide information in writing about the likely costs of the action prior to a pre-trial conference (rule 36). The specific information which must be provided is:

• The approximate legal costs and disbursements of the party up to and including giving the notice.
• The estimated future legal costs and disbursements of the party up to but not including the trial.
• The estimated length of the trial and the legal costs and disbursements associated with it.
• The estimated legal costs and disbursements that the party would have to pay to another party if the party were to lose the case.

The Law Council of Australia has produced a set of guidelines for lawyers in mediations. These guidelines provide a useful guide as to what you can expect from your lawyer in preparing for the mediation. Specifically, the Guidelines provide that a lawyer’s primary task is to help prepare clients for a mediation by:

• Undertaking a risk analysis and linking risks to the client’s interests.
• Explaining the nature of mediation.
• Identifying any particular outcomes which the parties would like to achieve from the litigation.
• Developing strategies to achieve final outcomes.

Last updated: 1-Jul-2019

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