Mediation during the court process

Being referred to mediation by the Court

When a case goes to court, one of the things many magistrates and judges will consider is whether the people involved in the dispute have tried to resolve the issues themselves.

Sometimes the court will suggest that you attempt mediation. However, the court may also order you to attend mediation with CJC or another mediation service.

How does court-ordered mediation work?

If a court has ordered you to attend mediation, the court will send a referral form to CJC. CJC will contact you to discuss next steps. 

You may be in breach of a court order if you refuse to attend mediation, which may have consequences. If you are concerned about this, you should get legal advice.

Can anything I say at mediation be used in court?

In general, everything you say in mediation and any documents prepared for mediation cannot be shown to the court or talked about outside mediation. This is because mediation is usually 'privileged' (confidential) from the court. The reason mediation is confidential or privileged is so that people can be open and honest with each other when they are discussing matters. They do not need to worry about the court finding out they have admitted to making a mistake, apologising or saying what they would be prepared to accept as a compromise.

Although mediation is usually privileged and confidential from courts, there are some special situations where what people said at mediation or documents prepared for mediation can be shown to the court. These include situations when:

• all people at the mediation agree.
• the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property.
• the disclosure is that a child is at risk of significant harm.
• the parties have agreed in writing they intend their written agreement to be legally enforceable, in which case the court can be given information about the fact an agreement was reached and what was agreed.