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Mediation

Before deciding to take legal action, consider whether mediation may be appropriate. Mediation is a process where both parties agree to sit down in the same room with a mediator to resolve their dispute. The mediator is a neutral third party who helps the parties discuss the problem. However, it is up to the parties themselves to arrive at a solution. Mediation can be seen as advantageous compared to going to trial because:

  • mediation is an informal process in comparison to the court process, with less stress upon the parties
  • the mediator will not decide on how to settle the matter - this is for the parties to decide
  • the parties have more control over the process and outcome
  • free mediation services are available, whereas legal action involves court fees
  • mediation generally gives a quicker resolution than the court process
  • the privacy and confidentiality of the mediation process is assured (parties sign a confidentiality agreement prior to the first mediation session and, if you both agree, the outcome can remain confidential).

Mediation is not always advisable, for example if you feel the other party has much more power than you in the situation, or if you feel threatened by the other party.

There are a number of private mediators who specialise in resolving civil disputes. If you wish to engage your own mediator (with the agreement of the other party), you will need to meet the cost of the services, as well as arrange a suitable venue.

However there are also free services available. Uniting Communities Mediation Services provides free mediation to eligible people, to attempt to resolve disputes.

In addition, the Magistrates Court may order that the parties attend mediation at any stage of proceedings [Uniform Civil Rules 2020 (SA) r 331.1 and 131.3]. Where mediation is ordered by the Court, the parties are expected to participate appropriately in the mediation process and negotiate in good faith with a view to settling the dispute. In turn, the mediator is expected to provide a report to the Court about whether the dispute was resolved or narrowed and whether the parties did, in fact, participate appropriately. Where a dispute is resolved at mediation, the mediator is expected to assist the parties to record their agreement.

For debts, an Enforceable Payment Agreement (Form P2) can be used (see 'Enforceable Payment Agreements') [r 62.2].

Mediation  :  Last Revised: Tue May 12th 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.