Not necessarily. Parties can agree to refer their dispute to mediation.

However, once court proceedings are underway, a Queensland court can also order the dispute to mediation, including where the parties have not agreed to go.

No. Mediation is a normal part of commercial litigation.

Agreeing to negotiate doesn't mean admitting that your case is weak or that the other party is right.

The parties can agree on a suitable mediator and their fees when arranging consensual ADR.

If the matter is referred by the Court, the referring order deals with matters including the mediator and payment arrangements.

The mediator manages the negotiation, identifies the issues preventing settlement and helps the parties explore possible compromises.

The mediator may meet everyone together and may also meet each side privately.

Usually, that isn't the mediator's function. A mediator facilitates a negotiated agreement rather than adjudicating the dispute.

Case appraisal is the Queensland ADR procedure specifically directed toward an appraisal of the merits and a provisional decision.

Certainly. We are happy to mediate matters with or without representation by lawyers.

In court-referred mediation, the mediator has authority under the Uniform Civil Procedure Rules 1999 concerning whether a party may be represented and by whom.

Yes. If the Court's referring order or mediation arrangements require your attendance, you need to comply with those requirements.

More generally, the person attending for a company should have appropriate knowledge and settlement authority.

Parties to court-referred mediation must act reasonably and genuinely and assist the mediator.

Typically the mediator explains the process, each side outlines its position, issues are discussed and the mediator then conducts negotiations—often moving between private meetings with each side.

The objective may be complete settlement, but narrowing the issues is always valuable.

Absolutely.  Any mediaiton is also without prejudice privileged in the general law.

Court mediation is expressly conducted on a without-prejudice basis in statute law.

Queensland legislation also contains confidentiality protections for mediation processes, including restrictions on disclosure by the mediation convenor.

There are some limited exceptions such as for any criminal conduct done in a mediation.

Ordinarily, mediation discussions cannot simply be used as evidence at the subsequent trial.

There are limited exceptions, such as for criminal conduct in a mediation room, so “nothing can ever leave the room” is too absolute a statement, but the statutory framework gives ADR substantial confidentiality and evidentiary protection.

Mediation is intended to facilitate genuine negotiations, but the mediator cannot force you to accept a particular settlement.

The important distinction is between being required to participate in a mediation and being required to settle.

No.The mediator is there to facilitate, not to force.

Mediation involves settlement by negotiated agreement rather than adjudication.

You don't have to accept it. You can reject it, counteroffer or continue negotiating.

A large gap between initial positions is quite normal.

That's a strategic decision to make with your lawyer.

Private discussions with the mediator can be useful, but you should understand what information the mediator has permission to communicate to the other side.

Compare the proposed settlement with the risk-adjusted value of continuing the litigation, not simply the amount you believe you're legally entitled to.

For example, consider:

likely judgment × probability of success
minus remaining legal costs
minus adverse-cost exposure
minus enforcement/insolvency risk
minus the commercial cost of delay.

A $700,000 guaranteed settlement can sometimes be economically superior to pursuing a $1 million judgment that has significant litigation and recovery risk.

Usually, each party pays an equal share, up front to the mediator.

For court-referred ADR, the referring order addresses ADR costs, including the percentage payable by each party and payment arrangements.

Alternatively, the parties may be directed by the court to negotiate the mediator's fee.

That depends upon the settlement negotiated or, if the case continues, ultimately the Court's costs orders.

Settlement negotiations should therefore expressly address costs, rather than assuming the settlement figure automatically resolves them.

There is usually no final deal until everyone signs up a document such as settlement deed.

For mediation under the statutory court ADR framework, the resolution is written down and signed by or for each party and by the mediator, and it takes effect as a compromise.

Depending on the circumstances, the resolution may also result in consent court orders or discontinuance of the proceeding.

Not usually, once a binding settlement has been concluded.

This is why parties should treat the final stages of mediation seriously and obtain legal advice before signing settlement terms rather than assuming there will be a cooling-off period.

Often yes. That's one of mediation's major advantages.

Parties might negotiate payment arrangements, releases, confidentiality, return of property, future commercial arrangements and other practical solutions, subject of course to legality and appropriate drafting.

Partial resolution can still be useful.

The resolved issues can be documented while the unresolved issues continue through the court process.

Queensland's Civil Proceedings Act 2011 expressly contemplates resolution of the dispute or part of it at mediation.

It is rare for a mediation to not have achieved something usfeful.

If not resolved, the case continues toward trial in the ordinary way.

The failure to settle cannot itself be used against a party at trial.

Ordinarily the trial judge isn't told about the substance of the without-prejudice negotiations merely to determine the merits of the case at the trial, final hearing.

Different considerations can arise concerning costs and formal settlement offers after the trial decision with reasons are handed down, so specific advice from lawyers is important before making offers.

Usually when each party knows enough about the evidence and legal case to assess risk intelligently, but before most of the remaining trial costs have been incurred.

Too early, and crucial information may be missing; too late, and much of the costs saving benefit of settlement has already disappeared.

It is usually recommend that you know your case and the cases of adversaries thoroughly, review the documents filed at court or tribunal, consider the range of likely results at trial, think through possible compromises and assess the legal costs of continuing.

For most substantial civil cases, it is best to go through the exercise of calclulating of your:

• best case;
• realistic case;
• worst case;
• probability of success;
• remaining costs;
• adverse-cost exposure;
• settlement range; and
• non-financial objectives.

Usually, yes.

Winning and obtaining an economically satisfactory result aren't identical.

A strong plaintiff still faces delay, unrecovered legal costs, appeal risk and collection risk.

A strong defendant may still spend substantial money achieving a successful defence.

Mediation lets both sides put a price on those risks.

Treating it as a miniature trial whose purpose is to convince the mediator that they're right.

The real question is usually more commercial:

“Given the alternatives available to me today, what deal is better than continuing this litigation?”