This guide is for parties involved in a motor vehicle dispute which has been referred to a compulsory conference. The conference will be conducted by a Tribunal Member and will focus on mediating the dispute.
What is a mediation?
Mediation is a flexible and confidential process used to help parties resolve a dispute at any stage of the proceedings. If the matter is resolved at mediation, there is no need to proceed to a Tribunal hearing.
Why is mediation a good idea?
Mediation is often a much faster way to resolve a dispute.
Due to increasing demands on the Tribunal’s resources, there can be significant delays before a matter is listed for hearing. It is not uncommon for a case to take more than a year to reach a hearing date, even after it is ready to be allocated a hearing date. Preparing for a hearing also requires considerable time, effort, and emotional energy.
If your matter is resolved at mediation, you can move on from the dispute more quickly and at a lower cost than if you proceed to a hearing. If the matter does not settle, you have not lost anything — you will have a clearer understanding of the issues and can still proceed to a hearing.
Mediation also allows you to remain in control of the outcome. Unlike a hearing, where a Tribunal Member decides for you, mediation allows the parties to decide how the dispute is resolved. You are not required to accept any proposal you are not satisfied with.
Mediation is confidential. Unlike hearings, which are often public and result in public decisions, mediation is a private process between the parties.
What is the role of the mediator?
The mediator’s role is to assist the parties to discuss their dispute and reach an agreement.
The mediator does not provide legal advice or advocate for either party. Mediators are impartial and focus on helping the parties find a way to resolve the dispute. The outcome is determined by the parties, not the mediator.
Preparing for mediation
Mediation is most effective when parties are well prepared and approach the process constructively.
Before mediation, you should:
- Be thoroughly familiar with your case, including all filed documents;
- Prepare a bundle of documents and evidence to bring to the mediation to support your claim or response;
- Consider what the likely outcome might be if the matter proceeds to a Tribunal hearing;
- Think about how you can negotiate and what compromises you may be willing to make;
- Consider the costs and other impacts of proceeding to a hearing;
- Notify the mediator and the other party if you intend to have a legal or other representative attend the mediation with you. You do not need permission to be represented at mediation.
What happens at mediation?
The mediator will usually begin by explaining the mediation process.
Typically, the applicant will make a brief opening statement outlining the issues in dispute and the outcome sought. The respondent will then do the same. The mediator may speak privately with each party to better understand their position before bringing the parties together to continue discussions to explore the issues and help the parties reach a resolution.
All discussions during mediation are ‘without prejudice’. This means anything said during the mediation cannot be used later at a hearing if the matter does not settle.
The aim is to resolve the dispute or, at the very least, narrow the issues in dispute and work towards an outcome acceptable to both parties.
How mediation ends
Mediation concludes when:
- The parties reach an agreement; or
- The allocated time expires without agreement.
The end of a mediation without agreement does not mean parties cannot continue to negotiate and attempt to resolve the dispute.
Mediation may also end early if a party chooses not to continue or if the mediator considers that further discussion would not be productive.
Is my agreement reached at mediation legally enforceable?
Yes. A signed agreement reached at mediation is legally binding.
The parties may also agree to proposed Tribunal orders, known as consent orders. For example, the parties may agree the application is withdrawn and each party bears its own costs.
What happens if the parties do not reach agreement?
If the parties do not reach agreement, the Tribunal will make further orders to progress the matter towards a final hearing.