A court has referred your matter to mediation, or the other side has proposed it, and you are preparing on your own.
Three numbers you have decided in advance, a clear picture of what happens if there is no agreement, a short pack to bring, and a rule about signing that protects you from the last hour of the day.
A NSW mediation solicitor and accredited mediator.
Deciding what a claim is worth and whether to settle it is the point in a matter where an hour with a lawyer is worth the most. If you can get one, spend it here, on your numbers and on the deed. Free services are on the Get help page. This guide is about preparing calmly and not being rushed; it cannot tell you what your case is worth.
The central rule
Much of what matters at a mediation is decided late in the day, by tired people, with a mediator pointing out the cost of not agreeing. The only defence is to have decided the important things the week before, on paper, when you were rested, and to treat the room as a place to apply those decisions rather than make them.
What mediation is
Mediation is a structured negotiation with an independent person, the mediator, who helps the parties talk but decides nothing. In NSW civil courts the court can refer a matter to mediation whether or not the parties agree, under Part 4 of the Civil Procedure Act 2005 (NSW), and each party is required to participate in good faith. Part 4 does not apply to every list (Local Court small claims are excluded), and a purely private mediation you arrange yourselves is not automatically governed by Part 4; its own agreement and the general law decide. Good faith means turning up prepared and engaging honestly. It does not mean agreeing.
The usual shape of the day: a joint opening where each side says briefly what the dispute is about; then private sessions, where the mediator moves between rooms carrying offers and questions; then, if there is agreement, a written record of it signed before anyone leaves. If there is no agreement, the matter continues on its timetable. What was said stays protected, but the mediator can report certain things, such as that a party did not participate in good faith, and the court's rules require some timing reports; the content of the negotiation itself is not what gets reported.
What stays private
For a mediation under Part 4, the Act makes what is said in the session inadmissible as evidence (privilege) and separately requires the mediator to keep it confidential; the two protections are different and each has exceptions. The precise limits are in the Act and there are exceptions, including to the mediator's own confidentiality. Two practical rules follow. Do not say anything in the room you would be unhappy to see quoted, even so. And do not treat the other side's words in the room as admissions you can rely on afterwards. The labels guide explains "without prejudice", which is the same idea applied to correspondence.
The mediator is not your adviser and does not decide who is right. A good one will test both sides' positions hard, in private, and that can feel like pressure. It is their job, not a verdict.
Your three numbers
Before the day, on a single card, write three figures and the reasons for each.
- Opening. Where you start. Justified by the evidence and the law, high enough to leave room, low enough to be taken seriously.
- Target. What you would be content to sign. The number you have checked against the alternative below.
- Floor. The number below which you would rather continue the case. Set it with the costs, the risk and the time of continuing honestly in front of you. Move it in the room only for a reason you can name, such as new information or advice, and never because of the hour or the tone.
If the dispute is not only about money, the same applies to terms: which non-money terms you need, which you would like, which you would trade. Write them down too. A term you did not think about before the day is a term you will decide badly at 4pm.
If you have advice, the numbers come from it. If you do not, be honest with yourself about what continuing will cost you in money, time and health, and what a court might realistically order. The prompt library's cost-and-risk review is a structured way to think it through, marked UNVERIFIED like everything else it produces.
Opening and target are negotiation. The floor is a decision about your life, made in advance and changed only on new information or advice. It is the number that lets you say, calmly and without heat, "I understand, and I am not able to accept that," and then go home. Having it is what "without dependence" means.
Know what nothing looks like
Write out, in a paragraph, what happens if the day ends with no agreement. The next date on the timetable. What you have to file and by when. The likely hearing date. What it will cost you to get there. What the realistic range of outcomes is. What you will do the morning after.
This paragraph is the most important preparation you will do. A person who can describe the road ahead in plain terms is harder to frighten in the room. A person who has not looked at it will accept almost anything to avoid it. Read the paragraph on the morning of the mediation.