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guides – Mediation Process
If you’ve reached the point where mediation is being discussed, you’ve already been through a lot. Something went wrong. A professional you trusted let you down. You’ve made a complaint, or a lawyer has sent a letter, and now someone is telling you the matter needs to go to mediation.
For most people, that word lands strangely. It sounds formal. It sounds like being forced into a room with the person responsible for your loss and being told to shake hands and move on. That’s not what it is.
Mediation is, in practice, where a significant number of professional negligence claims actually resolve — often faster, for more, and with far less stress than waiting for a court date that might be two years away. Fair Go Australia’s team has guided clients through mediation in professional negligence matters across every kind of claim. You will not walk into that room unprepared.
Plain-English explanation
Mediation is a structured, confidential negotiation process in which a neutral third party — the mediator — helps disputing parties work toward a voluntary agreement. The mediator does not decide who wins. They facilitate. Any resolution reached is because both sides agreed to it. In Australia, many courts now require parties to attempt mediation before a matter proceeds to trial.
That distinction matters. Mediation is not arbitration — where a third party hears both sides and then decides the outcome for you. And it is not litigation — where a judge determines the result after a formal hearing with evidence and cross-examination. Mediation sits between the letter of demand and the courtroom. You remain in control of whether you agree. No one can force you to accept a figure you consider inadequate.
In Australia, mediation is accredited under the National Mediator Accreditation System (NMAS), and court-annexed mediation programs operate across all major jurisdictions. It resolves more claims than most people expect — and frequently produces better outcomes than leaving the decision to a court.
Claims timeline
Mediation does not happen at a fixed point. Where it falls in the timeline depends on the claim and the parties involved.
In many cases, mediation is attempted after a formal letter of demand has been sent and the professional’s insurer has had time to assess the claim. At this stage, both sides have a reasonable picture of the strength of the case, and there is genuine motivation to resolve without the cost of litigation.
If court proceedings have been commenced, mediation may be ordered by the court as part of the pre-trial process. This is increasingly common across Australian jurisdictions — courts want parties to make a genuine attempt at resolution before consuming court resources. Mediation can also be agreed between the parties before any proceedings are filed, which is sometimes the most efficient path.
One thing worth knowing early: in the vast majority of professional negligence claims, the person sitting across the table is not the professional who harmed you. It is their insurer. Doctors, lawyers, accountants, and financial advisers carry professional indemnity insurance precisely for situations like this. You are negotiating with a claims manager and their legal team — not your former solicitor or your treating specialist. That changes the dynamic considerably.
On the day
A mediation session typically runs for half a day to a full day, though complex claims can extend beyond that. Here is what the process generally looks like in practice.
01
The mediator introduces the process, confirms confidentiality rules, and gives each party an opportunity to make an opening statement. Your lawyer handles this. You do not need to speak unless you choose to.
02
This is where most of the real work happens. The mediator meets separately with each party in caucus sessions — exploring positions, testing arguments, and identifying where movement is possible. You spend significant time here, entirely separate from the other side.
03
Offers move back and forth through the mediator. Positions shift. Your lawyer advises you on each offer — whether it reflects the realistic value of your claim, and what litigation would likely cost and deliver by comparison.
04
The session ends one of two ways: a signed agreement, or an acknowledgement that agreement was not reached. Both are legitimate outcomes. What is said at mediation is confidential and cannot be used in any subsequent court proceedings.
Preparation
Your legal team prepares the substantive material. But going into mediation with the right mindset makes a real difference. Before the day, you and your lawyer will work through all of this together — but here is what matters most.
If no agreement is reached
It is not the end of the road.
An impasse means the parties could not agree on that day, under those conditions. The claim does not disappear. In most cases, negotiations can continue informally after mediation. A further mediation session can be arranged. Or the matter proceeds toward a hearing.
What often surprises people is that even unsuccessful mediations tend to narrow the issues. By the time a matter reaches mediation, the parties have usually disclosed their key arguments and evidence. Even if no settlement is reached, both sides leave with a clearer understanding of where the real dispute lies — which can shorten any subsequent litigation considerably.
If mediation does not produce a fair result, Fair Go Australia does not walk away from the claim. The process continues. The option to resolve always remains open, right up until a court delivers its judgment.
Settlement deeds
Yes — and this is important to understand.
If the parties reach agreement at mediation, that agreement is documented in a settlement deed. Once signed, it is legally binding and enforceable. You cannot reopen the claim later, and the professional’s insurer cannot claw back what they have agreed to pay.
A settlement deed typically covers the amount being paid, the timeline for payment, any confidentiality requirements, and a release of all claims arising from the same conduct. It is a final document.
Do not sign anything on the day without your lawyer reviewing it first. This is not a formality — the wording of a settlement deed matters, and errors or omissions can have real consequences. Fair Go Australia’s team reviews all settlement documentation before it is executed.
Act before time runs out.
In most Australian states, professional negligence claims must generally be commenced within 3 years of the date you became aware — or should reasonably have become aware — of the negligence. This period varies by state and by the nature of the claim. Missing the deadline can permanently extinguish your right to claim. If you are unsure whether your limitation period is still open, contact our team for a free assessment as soon as possible.
One thing that catches people off guard: pursuing mediation does not stop the limitation clock. If your limitation period is approaching, proceedings may need to be filed to preserve your rights — even if mediation is actively underway or planned. These two things can happen simultaneously, and your lawyer will advise you on when filing is necessary to protect your position.
Our approach
Mediation is not something we hand off. The preparation starts well before the session date.
We review the full evidentiary picture, stress-test the likely range of outcomes at trial, and give you a clear view of what a reasonable settlement looks like in your specific circumstances. You go into mediation knowing what we are trying to achieve and why.
On the day, your lawyer does the heavy lifting. You are briefed, supported, and involved in every decision — but you are not expected to negotiate or speak to the other side directly.
You have already dealt with enough uncertainty. A free case evaluation is the clearest next step — it gives you a straight answer on whether you have a claim, what resolution might look like, and whether mediation is likely to be part of that process.
We respond to all enquiries within 1 business day.
Common questions
Not always — but often. Many Australian courts now require parties to attempt mediation before a matter proceeds to a hearing. Whether mediation is compulsory in your matter depends on the jurisdiction, the stage of proceedings, and any court orders made. Even where it is not compulsory, it is almost always worth attempting. Most professional negligence claims settle before trial, and mediation is frequently where that settlement happens.
In most professional negligence mediations, you will not be in direct contact with the professional at all. The party on the other side of the table is typically the professional’s insurer, represented by a claims manager and their legal team. Even where joint sessions occur at the start, the bulk of mediation takes place in separate rooms. Your lawyer manages all direct communication.
You reject it. Mediation is voluntary — you are never required to accept an offer you consider inadequate. Your lawyer will advise you on whether an offer reflects the realistic value of your claim, and what the risks and costs of continuing toward litigation look like by comparison. The decision is always yours.
If mediation has been ordered by a court, refusing to attend without good reason can have consequences — including adverse cost orders. If mediation has been proposed but not ordered, you have more latitude. Your lawyer will advise you on the implications in your specific situation. Refusing mediation outright is rarely in a claimant’s interest.
Mediation costs typically include the mediator’s fee and the legal costs of both parties’ lawyers attending. In many professional negligence matters, the mediator’s fee is split equally between the parties. Your own legal costs are covered under the no-win, no-fee arrangement — you do not pay upfront. The insurer covers their own legal costs regardless of outcome.
A Calderbank offer is a formal written offer to settle made on a ‘without prejudice save as to costs’ basis. Unlike a standard without-prejudice offer, a Calderbank offer can be shown to the court after the matter is decided — specifically to argue that the other side acted unreasonably in rejecting a fair offer. These offers are often made around the time of mediation and can have significant cost consequences if ignored. Your lawyer will advise you if one is made.
Our goal is to help people in the best way possible. this is a basic principle in every case and cause for success. contact us today for a free consultation.
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