Mediation FAQs
Fee rate for services up to 30 June 2027.
Mediation FAQs for Lawyers, Insurers and Claims Officers
Most lawyers have sat through a mediation. Fewer get asked to explain, in plain terms, why the process works the way it does. What can a mediator actually do? Can anything said in the room come back to bite a client later? What happens if the day ends without a deal?
This page answers the mediation questions that come up most often from solicitors, barristers, insurers and claims officers preparing a client for mediation in Australia. It covers how a mediation runs, from first enquiry to settlement. It explains who needs to be in the room and what confidentiality actually protects. It also covers what mediation costs, and what your options are if the matter doesn’t resolve on the day.
The answers below draw on practical experience running and attending mediations in personal injury, medical negligence, public liability and institutional abuse matters. These mediations have been conducted in person and online, across New South Wales, Queensland, Victoria, South Australia and Tasmania. Where a question turns on Australian law, confidentiality, court-ordered mediation, or whether a settlement is enforceable, the relevant legislation is named rather than left as a general assurance.
If you’re preparing a client for an upcoming mediation or weighing up whether mediation is the right next step, use the contents below to jump straight to what you need.
Table Of Contents
- What Mediation Actually Is
- How a Mediation Runs, From Enquiry to Settlement
- Who Needs to Be in the Room
- Confidentiality and What Can Be Used Later
- Costs, Timing, and Logistics
- When Mediation Works, and When It Doesn't
- Common Misconceptions About Mediation
- Is This Dispute Ready for Mediation? A Checklist
- Frequently Asked Questions
- Summary
What Mediation Actually Is
What is mediation?
Mediation is a confidential, voluntary process in which an independent mediator helps two or more parties negotiate their own resolution to a dispute. The mediator doesn’t decide who is right. They have no power to impose an outcome on anyone.
Instead, the mediator’s job is to help each side understand the other’s position, test the strength and weakness of their own case realistically, and work toward terms both sides can live with. Everything discussed is without prejudice, meaning it can’t be used in later court proceedings.
Mediation sits within a broader category Australian lawyers call alternative dispute resolution, or ADR,any process for resolving a dispute outside a courtroom.
How is mediation different from conciliation and arbitration?
There’s little practical difference between mediation and conciliation. Both are consensus-based: the parties keep control over whether and how to settle, and a neutral person facilitates rather than decides. Some practitioners use “conciliation” to describe a slightly more interventionist style, where the neutral might float suggestions — but a skilled mediator does this too, when it’s useful.
Arbitration is a different animal entirely. An arbitrator (like a judge) hears both sides and then hands down a binding decision. The parties lose control of the outcome the moment they agree to arbitrate. In mediation, they never do.
Is a mediation settlement legally binding?
Yes, once it’s signed. A settlement reached at mediation is typically recorded in a deed of release, heads of agreement or consent judgment, and from that point (and in some circumstances before that time) it’s enforceable like any other contract. Oral agreements reached during the session generally aren’t enough on their own, although there are cases in which an oral agreement has been upheld. It is best practice record any agreement in writing before everyone leaves the room.
Occasionally, the real win is rebuilding a relationship rather than settling a dollar figure. In those cases, the parties might rather not sign a binding agreement, and they’re free not to. Nothing compels a party to formalise an outcome it hasn’t agreed to.
How a Mediation Runs, From Enquiry to Settlement
How is a mediation arranged, and who chooses the mediator?
The parties usually agree on a mediator between themselves, or ask an accredited mediation provider for a nomination. Sometimes a court or tribunal will appoint one. Either way, the parties and the mediator sign a mediation agreement up front, covering confidentiality, fees and the basic ground rules for the day.
What happens before the mediation day?
Most mediators ask for a short electronic brief in advance — the key pleadings, expert reports and correspondence needed to understand the dispute, not the whole file. A common arrangement is for the plaintiff’s position paper to land about three business days out and the defendant’s the day before, so the mediator walks in already across the issues. That preparation step matters, a mediator who has to learn the dispute from scratch on the day wastes time that should go to negotiation.
What happens during the mediation itself?
Most mediations open with a joint session. The mediator explains how the day will run, then invites each party to outline its view of the dispute. From there, the mediator typically moves the parties into separate rooms, their “home base” for the day, and works between them.
This back-and-forth between joint sessions and private meetings is where most of the real movement happens. The mediator tests each side’s position privately, identifies where there’s room to move, and looks for ways to bridge the gap that the parties themselves might not raise directly with each other.
What is a private session, and why does the mediator use them?
A private session is simply a private, confidential meeting between the mediator and one party (and their advisers, if any). It lets a party speak frankly about the real strengths and weaknesses of their case, or what figure they’d actually settle for, without tipping their hand to the other side.
The mediator keeps everything raised in private sessions strictly confidential unless specifically told it can be passed on. This is what makes private sessions useful: parties say things to a mediator they’d never say directly to their opponent, and that candour is often what unlocks a deal.
How does a mediation end?
Three ways. It settles, and the parties sign a binding agreement. It doesn’t settle, and either party is free to walk away at any point without penalty, nothing said or tentatively floated during the session can be held against them later. Or the parties agree to suspend rather than end it, picking discussions back up later if circumstances change.
Who Needs to Be in the Room
Who should attend a mediation?
Anyone with real authority to settle. For an individual client, that’s usually the client themselves. For a company, government department or insurer, it needs to be someone senior enough to negotiate and bind the organisation. It shouldn’t be a junior officer who has to ring head office every twenty minutes.
Sometimes the true decision, maker genuinely can’t attend a government minister, an overseas insurer, a foreign-based executive. In that case, there should at least be someone with delegated authority to make a contingent commitment, one the principal will responsibly stand behind.
Do the parties need lawyers or other advisers present?
It’s the client’s choice. In a straightforward dispute, some parties prefer to handle the discussion themselves, with the mediator guiding the process and a support person nearby if they want one. Most personal injury, medical negligence and institutional abuse matters are too complex to be handled without lawyers (solicitors and often barristers).
The adviser’s role is to sit beside their client, not in front of them. They will often speak for the client at certain points, but the mediation belongs to the parties, not their representatives.
What if the person with authority to settle can't attend in person?
This comes up often with institutional defendants and overseas insurers. The practical fix is a clear delegation. Someone attends with explicit authority to negotiate up to (or down to) a defined point, plus a fast path to phone or video confirmation if the figure moves outside that range. Flag this with the mediator before the day, so it doesn’t slow things down once you’re in the room.
Confidentiality and What Can Be Used Later
Is mediation confidential?
Yes, on two levels. First, contractually: everyone in the room, parties, advisers, the mediator signs a confidentiality agreement before the mediation starts. Second, legally: section 131 of the Evidence Act 1995 (Cth) protects genuine settlement communications from being put into evidence. Mediations referred by a New South Wales court get extra protection too, under sections 30 and 31 of the Civil Procedure Act 2005 (NSW).
Can anything said at mediation be used in court later?
Generally, no. Discussions in mediation are without prejudice, meaning they can’t be relied on to prove anything if the matter ends up in court or arbitration. This is what allows lawyers to negotiate frankly at mediation, testing positions, floating numbers, conceding points provisionally, without those concessions becoming admissions later. There are narrow statutory exceptions (for example, where all parties consent to evidence being used), so it’s worth checking the specific mediation agreement and any court order if the matter is court-referred.
What's in a mediation agreement and confidentiality agreement?
The mediation agreement sets out the mediator’s appointment, the fee structure, confidentiality obligations, and confirmation that the mediator’s views and suggestions don’t bind anyone. The confidentiality agreement is signed by everyone present, including advisers and any support people. It commits them to keeping what’s discussed private. The usual exception: a party can still discuss it within their own organisation, or with their insurer, as long as that stays on the same confidential basis.
Costs, Timing, and Logistics
What does mediation cost in Australia?
Mediator fees are usually quoted as a half-day or full-day rate, agreed in writing before the mediation and split equally between the parties unless they agree otherwise. Each party separately covers its own legal and advisory costs, neither side can be ordered to pay the other side’s costs of the mediation itself. Expect extra charges for reading time spent on a large brief. Current rates for mediations with Edge Mediations are set out on the fees page.
How long does a mediation take?
Most run for either a half day (around four hours) or a full day, starting in the morning. Complex, multi-party disputes sometimes need a full day or longer; straightforward two-party matters can resolve in a half day. The mediator will generally recommend a duration if the parties cannot come to an agreement.
Can mediation be conducted online?
Yes. Video mediation via Zoom or Microsoft Teams follows the same structure as an in-person session, a joint session, private sessions, the same confidentiality protections apply. It’s now routine for matters where the parties are spread across different states. It also removes travel cost and time, which matters for regional clients and interstate insurers.
Can a court order parties into mediation?
In many parts of Australia, yes. Under section 26 of the Civil Procedure Act 2005 (NSW), a NSW court can refer proceedings to mediation with or without the parties’ consent. Section 27 then requires each party to participate in good faith. The Federal Court of Australia Act 1976 (Cth) gives the Federal Court an equivalent power, under section 53A. Being ordered into mediation doesn’t mean being forced to settle. The negotiation itself stays voluntary, even when the referral wasn’t.
When Mediation Works, and When It Doesn't
When is mediation appropriate?
In practice, in almost any civil dispute. It’s used widely in personal injury, medical negligence, public liability, institutional abuse, insurance, commercial, construction and workplace disputes, and works as well for multi-party claims as for straightforward two-party ones.
There’s no single right moment to mediate. Some disputes are ready early, before either side has spent heavily defending an entrenched position. Others aren’t ripe until well into litigation, once both parties have tested their case through disclosure or expert evidence and have a realistic sense of where they stand. Mediation can run alongside an active court proceeding, it doesn’t have to wait for a hearing date, and it doesn’t have to stop once one is set.
Can mediation cope with a significant power imbalance between the parties?
It’s a fair concern, and it’s real. An institutional defendant facing an individual plaintiff, or a large insurer facing a self-represented claimant, brings an imbalance into the room.
Mediation manages this better than a courtroom does. Every party gets equal time to speak and be heard. Private sessionslets a weaker party test their position with the mediator, without the other side watching. Nobody can be forced to accept a number they’re not prepared to accept.
The mediator’s neutrality is the safeguard. It isn’t a guarantee that imbalance disappears, it’s a structural limit on how far it can be exploited.
What are the realistic prospects of settling at mediation?
Most mediations settle. Even when one doesn’t reach final terms on the day, the issues are usually narrowed and better defined than they went in. That reduces what’s left to fight about, and the cost of fighting it.
The often-cited “win-win” of mediation rarely comes from the dollar figure itself. It comes from both sides being able to put the dispute behind them, on a timeline they control, rather than waiting on a court list.
What happens if mediation doesn't succeed?
Nothing is lost. Both parties keep every right they had walking in. The discussion stays confidential. Neither side carries any “baggage” from what was said or tentatively floated, into the next stage, whether that’s further negotiation, a tribunal, arbitration or a court hearing. Quite often, a mediation that doesn’t settle still narrows the dispute. What’s left is a smaller, clearer set of issues for whoever decides it next.
Common Misconceptions About Mediation
“Agreeing to mediate makes my client look weak.” It doesn’t. Mediation is a controlled, confidential negotiation that either party can leave at any time without cost or prejudice. Plenty of hard-nosed litigators use it precisely because it lets them test settlement without showing their hand in open court.
“The mediator decides who wins.” No. A mediator has no authority to determine the dispute. That’s the entire point of the process, control over the outcome stays with the parties, not a third party.
“If we don’t settle, the day was wasted.” Rarely true. A failed mediation regularly produces a narrower, clearer set of issues, which can shorten and reduce the cost of whatever comes next.
“Mediation can’t happen once court proceedings have started.” It can, and frequently does, including while a hearing is already underway. Litigation and mediation aren’t mutually exclusive.
“Anything my client says at mediation could be used against them later.” Not usually. Without-prejudice protection and statutory confidentiality provisions exist precisely so parties can negotiate candidly. The exceptions are narrow and specific, not the default position.
Is This Dispute Ready for Mediation? A Checklist
- Has each side had enough disclosure or information exchange to assess the dispute realistically, rather than guessing at the other side’s case?
- Is there someone on each side with genuine authority to settle, or a clear delegation if not?
- Has anyone weighed the relationship value between the parties, is this a one-off dispute, or an ongoing commercial or institutional relationship worth preserving?
- Would a resolution in the next few months serve the client better than a hearing date that might be a year or more away?
- Is there at least a reluctant willingness on both sides to negotiate, even if neither expects to get everything they’re asking for?
If most of these are a yes, the dispute is very likely ready. If the answer to the authority question is no, fix that before the mediation date is set — it’s the single most common reason a mediation day under-delivers.
Frequently Asked Questions
What's the difference between mediation and an informal settlement conference?
An informal settlement conference is a meeting between clients and their representatives without a mediator. The purpose of the meeting is to try and negotiate a resolution of the dispute.
Mediation is run by an independent mediator chosen by the parties.
Do I need to prepare a position paper before mediation?
In most matters of any complexity, yes. A short position paper sets out the key facts, the issues in dispute and the relevant evidence. That lets the mediator prepare properly, so less time on the day goes to explaining background instead of negotiating.
Can my client send a representative instead of attending personally?
Only if that representative has real authority to negotiate and settle. Sending someone without that authority is one of the most common reasons a mediation stalls. The mediator ends up negotiating with someone who has to check every move with someone who isn’t in the room.
What happens if the other side doesn't negotiate in good faith?
Where a mediation has been court-ordered in New South Wales, the parties are required to participate in good faith under section 27 of the Civil Procedure Act 2005 (NSW). In practice, a mediator will usually identify a lack of genuine engagement early and can adjust the process — or end the session — accordingly.
Is mediation suitable for institutional abuse and historical claims?
Yes, and it’s increasingly the preferred path for these matters. These claims often involve a survivor seeking acknowledgment as much as compensation. At the same time, the institution is managing its own reputational and financial exposure. That mix is exactly where a private, structured negotiation can achieve more than an adversarial hearing.
Who pays the mediator's fee?
Ordinarily it’s split equally between the parties and set out in the mediation agreement before the day. Each party separately pays its own legal and advisory costs.
What documents come out of a successful mediation?
Usually a deed of release, heads of agreement, or consent judgment, whichever suits the matter and the court (if any) it sits within. Get the terms in writing and signed before everyone leaves; a verbal “in-principle” deal is not the same thing as a settlement.
Can mediation run alongside an ongoing court case?
Yes. Mediation doesn’t require litigation to be paused, and many matters mediate while a court timetable is still running in the background.
How do I choose the right mediator for a matter?
Look for relevant subject-matter exposure. A mediator who has actually run cases of the type in dispute understands the pressure points on both sides. Formal accreditation matters too, in Australia, that now sits under the Australian Mediator and Dispute Resolution Accreditation Standards, which replaced the former National Mediator Accreditation System. Bodies such as Resolution Institute accredit individual mediators against that framework.
What happens to the position papers and documents after mediation?
They’re used only for the mediation and aren’t admissible in later proceedings. Confirm in the mediation agreement how documents will be handled destroyed, returned, or simply not relied on, if that matters for the client.
Is online mediation as effective as in-person mediation?
For most matters, yes. The structure carries across video platforms like Zoom and Microsoft Teams without much loss of effectiveness: joint session, private caucusing, the same confidentiality protections. Highly adversarial or emotionally charged disputes can sometimes benefit from being in the same building. That’s the exception, though, not the rule.
How do I book a mediation?
Through the services page or directly via the online booking calendar. You’ll need to confirm half-day or full-day, the parties’ details, and your preferred dates.
Summary
Mediation gives the parties to a dispute control over both the process and the outcome — something neither litigation nor arbitration offers. It works because it’s voluntary in substance, even when the referral isn’t. It’s confidential in a way the law actively protects. And it’s flexible enough to suit a two-party personal injury claim, or a multi-party institutional matter, equally well.
The practical questions that decide whether a mediation day succeeds are rarely about the law. They’re about preparation. Is the right person with real settlement authority in the room? Do both sides have enough information to negotiate realistically? Does the mediator understand this type of dispute well enough to spot where the gap can actually close?
Ready to Book a Mediation?
If you're weighing up mediation for a personal injury, medical negligence, public liability or institutional abuse matter, the next step is usually simple. A short call to talk through the dispute, and the right format for it, is normally enough to get started.
Check availability and book a date, or get in touch to discuss a matter before committing to a date.
