Mediation in NSW.

Mediation is compulsory in NSW will contest cases.

The law is such, that a Duty Judge will not allow a case to go before the court for hearing until the parties have attempted to settle the dispute; unless there is some very special reason that mediation should not take place.  The following is a summary of the process leading up to mediation and then what occurs during mediation.

Leading up to Mediation:

The plaintiff/s (claimant/s) will file into court documents commencing proceedings including either a 'Position Statement' or an 'Affidavit' of evidence outlining the claim. The opposing party/s will file in court details of the estate assets and liabilities and a response to the plaintiff's claim. There may be further evidence filed at a later date by the parties if required however usually the above documentation is sufficient for the purpose of mediation. At this point either the parties will agree to mediate or the court will order a mediation.

The Mediator:

The mediator is usually agreed upon by the parties legal team with the consent of the parties and failing agreement the court may appoint either a private mediator, a court mediator or a judge. In each State there is a list of experienced and qualified mediators to choose from. Sometimes retired judges act as 'private' mediators and sometimes retired or active experienced barristers and/or solicitors undertake the role.

Mediation Agreement:

If the mediation is with a 'private' mediator, the mediator will require all parties and their legal representatives to sign a mediation agreement acknowledging the law relating to mediation and setting out the conditions of the particular mediation. If the mediation is being conducted by a court official or judge  there is usually no agreement as such however at the commencement of the mediation the mediator will address all participants and explain to everyone the 'rules' and obtain acknowledgements from all present that they understand the 'rules' and will abide by them. 

The Parties must cooperate and act courteously and participate in good faith throughout the mediation and use their best endeavours to comply with reasonable requests made and procedural directions given by the Mediator in connection with the mediation.

Mediation Rules: 

Most courts have the power to order parties to mediation, with or without the consent of the parties and, for some disputes, the parties may be required to undertake mediation or settlement negotiations before commencing proceedings.   If a mediation has been ordered by a court, the parties should consult and comply with any relevant legislation court rules and practice notes.

In 'private' mediation a preliminary conference is recommended, with the parties in person or by telephone, to enable agreement upon the information required for the parties to reach an informed settlement and upon arrangements necessary for the mediation to take place.

The mediation agreement is to be signed by the mediator and the parties to the dispute, and any other persons attending the mediation should sign the confidentiality agreement.

1. The mediator’s fees are generally shared by the parties although frequently the fees will be paid by the estate first until further order of the court.

2. The Mediator will act fairly and impartially and assist the Parties to explore and develop options for the resolution of the dispute by agreement between them.

3. The Mediator will not make decisions for a Party or act as an arbitrator.

4. The Mediator will not give legal or other advice or decide how the dispute should be resolved or make decisions for any party.  

5. The mediation, including all preliminary steps, will be conducted in such manner as the Mediator considers appropriate.  

Confidentiality:

The Parties and the Mediator will not disclose any information or documents provided to them in the course of or for the purposes of the mediation to anyone not involved in the mediation unless;

(a)      authorised by the disclosing Party to do so;

(b)      in accordance with a requirement imposed by law.  

The Parties to the Mediation Agreement and others present will sign a confidentiality agreement which will most likely include the following;

1. An acknowledgement each understands and agrees that all information and documents created for the purposes of the Mediation and all matters discussed or information communicated in the course of the mediation are confidential.

2. That they will not use any information or documents provided for any purpose except the Mediation.

3. That they will not disclose to any person not involved in the Mediation any information or documents provided during the Mediation unless all of the Parties agree in writing.      

4. That if required to disclose the information or documents for any reason to notify each of the Parties and the Mediator in writing of the identity of any person to whom I am required to disclose the information and the reason for the disclosure.

Conflict of interest:

The Mediator will, to the best of his/her knowledge, disclosed to the Parties any prior dealings the Mediator has had with any of them and any interest the Mediator has in the Dispute.dIf, in the course of the mediation, the Mediator becomes aware of any circumstances that might reasonably be considered to affect his/her capacity to act impartially, the Mediator will immediately inform the Parties of those circumstances.  The Parties will then either agree to continue with the mediation before the Mediator or terminate the mediation.

Attending Mediation for a Will Dispute:

Unless otherwise agreed, each Party must be in attendance throughout the mediation. If a Party is unable to attend mediation that parties representative must have full written authority to:

(a)        negotiate and settle the dispute, and

(b)        sign a settlement agreement binding on that Party.

Communications with the Mediator: 

Any information disclosed to the Mediator in private will be treated by the Mediator as confidential and will not be disclosed to another Party unless the Mediator is authorised to do so by the Party making the disclosure or required by law to do so.

What is 'Privilege':

Any admission, concession, proposal or other statement or document made, prepared or disclosed in connection with the mediation other than a binding settlement agreement will be 'privileged' meaning will be;

(a)      be “without prejudice”;

(b)      retain the benefit of any privilege, and;

(c)      not be disclosed in or relied upon or be the subject of a subpoena to give evidence or to produce documents in any court proceedings.

Final Settlement of the Will Dispute:

Any resolution of the dispute will not be binding until the Parties have recorded their terms of settlement in writing and signed by all Parties or their authorised representatives before the conclusion of the Mediation and a copy provided to each Party.

The Parties may agree that the terms of settlement be confidential except for the purpose of enforcing the agreement ny application to the court.  

Termination:

The mediation will terminate when:

(a)  the time allocated for the mediationhas expired and the Parties have not agreed in writing to continue the mediation; or

(b)  a settlement agreement is signed in respect of the dispute; or

(c)  a Party, after consultation with the Mediator, gives written notice of termination to the other Parties and the Mediator.

Personal liability:

The Mediator will not be liable for any act or omissionin the performance of the mediation except in the case of fraud by the Mediator. 

In 'private' mediation the Parties are jointly required to release the Mediator from liability of any kind whatsoever arising out of or in any way referable to any act or omission by the Mediator in the performance of the mediation. 

Notification to the Court:

Where the mediation has been ordered by a court the Mediator will, after the conclusion of the mediation advise the court of the time and date that the mediation commenced and concluded. If the dispute has been resolved, either the mediator or one of the parties will file in court the settlement agreement. 

 Appeals to set aside a Settlement Agreement: 

The only ground for an appeal to the court is for fraud or false and misleading conduct. Otherwise, so long as the parties freely consented to the settlement agreement no appeal will be heard by the court.