The mediator will work with parties to:
- identify the disputed issues
- develop options
- consider alternatives
- help the parties reach an agreement.
The mediator does not advise or influence the parties regarding the content of the dispute, or the outcome or resolution of the dispute. They may however advise on or determine the mediation process to ensure its success.
We hold all mediations in private. This means that nothing you say in the mediation can be used outside of that process and cannot be revealed by the mediator or any of the parties, unless required by law.
We will arrange for the mediation to take place a mutually convenient location or via a private online facility.
Reasons to use mediation
Mediation allows the parties to resolve the conflict on mutually acceptable terms. It is less formal than arbitration and is often faster and cheaper. It can also be very effective in preserving relationships.
Mediation can be used for disputes over:
- disciplinary matters
- bullying, harassment or discrimination
- other types of disputes if the NST CEO approves in writing.
For a mediation to successfully resolve a dispute, the parties need to all agree on the outcome. This is different from arbitration, where the arbitrator will hear the evidence and make a binding and enforceable decision about the outcome.
The outcome of a mediation is also not binding unless the parties take additional steps to formalise the agreement. This means both parties must act in good faith and be resolution focused. However, as the parties have more control over the outcome, there are good prospects that all parties will be satisfied with the result.
We encourage all parties to be as open and honest as possible in a mediation and to consider all possible options for resolution. The confidential nature of mediation means that compromises made in a mediation cannot be used in an arbitration, or elsewhere, if the parties are not able to resolve the dispute.
Differences between mediation and conciliation
There are some key differences between mediation and conciliation.
The mediator facilitates positive dialogue so that parties are able to reach their own outcome.
The conciliator is a facilitator and also takes a directive and advisory role. They have particular expertise in the area of the dispute.
The mediation process is informal, flexible and can be structured to maximise the parties’ needs. The mediator seeks the parties’ agreement on how they would like the mediation to proceed.
The conciliator determines the process including its formality and duration.
The mediator remains neutral and helps parties understand each other’s respective interests and positions. They identify areas of common ground.
The conciliator helps parties understand each other’s respective interests and positions. They also actively provide opinions on the facts and evidence, and the relative strengths and weaknesses of the parties’ cases.
The mediator helps parties to develop their own lasting solutions and to preserve ongoing relationships.
The conciliator makes suggestions about how the dispute might be resolved. They provide advice on possible terms of settlement but cannot impose a resolution.
Most mediations will cost $750. This fee includes the application fee as well as the cost of providing the mediation service. If it is a complex mediation, lasting more than 1 day, a further $750 per day may apply for every extra day.
See Our process for how we handle dispute resolution generally.
There are a few details specific to mediation:
- Before making an application for mediation (or conciliation or case appraisal) you should always talk to the other party/parties and seek their agreement. This is because mediation relies on the willingness of all parties to compromise and reach an agreed outcome to be successful.
- You then nominate mediation as your preferred process when you lodge an application with the Registry.
- Before we can formally accept an application for a mediation, either:
- you must pay the application fee (the parties can decide how to split the application fee between them), or
- apply for us to waive the fee on the grounds of financial hardship.
- Once we receive an application and accept it as valid, the NST Registry will organise a Preliminary Conference with the parties. During the Preliminary Conference, the CEO or their delegate will confirm that the parties are willing to proceed with mediation and work together with them to determine:
- the matters in scope for the mediation
- authority of the participants to settle the dispute
- the key evidence that parties will be providing
- the timeframes for making submissions
- the likely timeframes for conducting the mediation
- involved parties that have not been previously identified
- logistics – including the time and location of the mediation session
- additional costs (where relevant)
- the allocation of an NST Member to conduct the mediation.
- After the Preliminary Conference, the NST Registry will allocate an NST Member to be the mediator, either with agreement of the parties and the NST CEO, or if the parties can’t agree, as determined by the NST CEO.
- The parties will then sign a Mediation Agreement. The agreement sets out the matters they discussed and agreed at the Preliminary Conference, including the way that the mediation will be conducted and any steps to be taken prior to the mediation.
- We will confirm the date, time and location for the mediation
- At the start of a mediation, the mediator will:
- explain the process and procedure for conducting the mediation
- provide a brief description of their role as mediator
- set ground rules based on the agreement the parties reached.
- After this, the mediation process generally takes place in two parts:
- Part 1: understanding the source of conflict
- Part 2: options for resolution.
At all stages, the mediator will assist the parties to articulate their own interests and understand those of the other parties in a neutral and future-focused way.
Part 1 will usually consist of the parties identifying their concerns and the mediator providing a summary for each party. This helps clarify the disputed matters. The mediator may then work with the parties to set an agenda for negotiation and cooperative problem solving. The mediator will focus on helping the parties to have a constructive and meaningful conversation about these issues. Ideally this will happen in a joint session but private meetings can be accommodated.
Following Part 1 the mediator may have a private meeting with each of the parties, to help identify any issues that they may not feel comfortable addressing in joint sessions. This helps the parties prepare for Part 2 negotiations – generating options, and working out the areas of agreement or where compromise makes sense.
- Part 2 will usually consist of discussions of possible options for resolution. Where necessary, there may be several rounds of private meetings and joint negotiation sessions as the parties work through the issues.
- The format of the mediation may change depending on circumstances and the nature of the dispute, and depending on the preference of the parties. Some sessions may proceed with all parties and the mediator in the same room. In sensitive situations, parties may remain in separate rooms the whole time with the mediator speaking with each participant individually. The mediator will assist in creating the best process.
- The mediation ends when the parties enter into a written settlement agreement that resolves the dispute. Each party will leave the process with clarity about the agreement reached.
- If a mediation does not assist to resolve the dispute between the parties, the parties may consider proceeding to arbitration in the NST to make a decision. If the parties agree, the mediator can assist the parties by contacting the NST Registry to arrange a new case conference for arbitration.
Considering if mediation is right for you
How complex is the dispute? Mediation is ideal for clear and contained disputes. If there are a range of significant and complex issues that you and the other parties disagree on, you may wish to consider arbitration or conciliation.
How much are you willing to pay to resolve the dispute? Most mediations will cost $750.
What kind of outcome are you seeking? Mediation will generate a mutually acceptable outcome. The parties are responsible for the terms of the agreement – it will not be imposed on you – and it can be much more flexible than awards made in arbitration. Other processes available in the NST can be used to determine the issues. For example, in an arbitration, the NST can order any outcome that is available under the rules of a sport.
Will you be need a lawyer or advocate? Parties in all matters before the NST may be self-represented and do not require legal assistance. Self-represented parties may prefer mediation (or conciliation). These methods of dispute resolution are more facilitative than arbitration, and can be much less formal and stressful.
Can you bring a support person? You are welcome to bring a support person with you to the mediation although they will be bound by the confidentiality of the process (and may need to sign a Confidentiality Agreement) and the other party will need to be informed of their attendance. A support person will not ordinarily participate in any joint sessions.
What happens if you cannot attend the scheduled mediation? Tell us as soon as possible and we might be able to change the date.
What happens with any agreement? The outcomes of mediation, conciliation and case appraisal are never published.