LawTalk Blog

Should I engage in mediation to try and avoid a court trial?

Mediation is better than court

It often comes as a surprise to our clients that the vast majority (more than 90%) of all civil legal proceedings which are filed every year are never heard by the court at trial. Instead, most claims are settled in negotiation by the parties and therefore resolved without the need to go to trial. Generally, lawyers aim for such results, especially in the commercial context, given the expense associated with a trial.

When a matter has commenced at court; for example a Claim and Defence have been filed, there is still plenty of time to ask the court to set your matter down for mediation rather than proceed to the potential of a full trial. Ideally, mediation would occur before the parties even engage in litigation in the first place.

Mediation is basically a discussion between the parties overseen by an independent third party; the mediator who is qualified and accredited and who helps to facilitate a resolution of the dispute. If there is no resolution at the mediation, your matter can continue towards trial  or you can have more than one mediation.

The South Australian Magistrates Court has a list of mediators that you can choose from.  If you cannot agree on a mediator with the other party the Registrar will appoint one for you. The cost of mediation will be shared equally between you and the other party and is a much cheaper option to full trial. 

Mediation has some clear advantages. The main advantage is cost saving. Going to trial can be a very costly exercise. A successful resolution through mediation means that both you and the other party spend less money and you are able to reach an agreement that is flexible and suits you both.

Mediation is also effective in that it enables you to quickly resolve your dispute, without having to wait for court dates. Also because you have both negotiated the outcome yourselves it is more likely that both parties will adhere to the outcome and make payments for the debt etc.

It is also important to note that the mediation is confidential and without prejudice (i.e. what is said cannot be brought up against you at a later date in court proceedings).

An excellent lawyer will have a strong commercial sense and understand that clients want to resolve disputes in a cost effective and efficient manner. We are able to assist you with settlement negotiations and organising mediation to resolve your matter. The assistance of a lawyer in preparing for a mediation or settlement negotiation is also crucial to ensuring that the result is favourable to you.


Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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