Before deciding to take legal action, consider whether mediation may be appropriate. Mediation is a process where both parties agree to sit down in the same room with a mediator to resolve their dispute. The mediator is a neutral third party who helps the parties discuss the problem. However, it is up to the parties themselves to arrive at a solution. Mediation can be seen as advantageous compared to going to trial because:
- mediation is an informal process in comparison to the court process, with less stress upon the parties
- the mediator will not decide on how to settle the matter - this is for the parties to decide
- the parties have more control over the process and outcome
- free mediation services are available, whereas legal action involves court fees
- mediation generally gives a quicker resolution than the court process
- the privacy and confidentiality of the mediation process is assured (parties sign a confidentiality agreement prior to the first mediation session and, if you both agree, the outcome can remain confidential).
Mediation is not always advisable, for example if you feel the other party has much more power than you in the situation, or if you feel threatened by the other party.
There are a number of private mediators who specialise in resolving civil disputes. If you wish to engage your own mediator (with the agreement of the other party), you will need to meet the cost of the services, as well as arrange a suitable venue.
However there are also free services available. Uniting Communities Mediation Services provides free mediation to eligible people, to attempt to resolve disputes.
In addition, the Magistrates Court offers a mediation service if you have sent the defendant a Final Notice of Claim using the Court's Form 1A (see 'Giving notice of intention to sue' below) or if you have already commenced legal action in the Court. If the court orders you to participate in mediation as part of the proceedings, there may be a cost of $500 unless the court agrees to waive the amount if you do not have the means to pay [see Third Schedule: Cost Scales, Cost Scale 2: Minor Civil Actions, item 5 contained in the Magistrates Court (Civil) Rules 2013, available here. See also Magistrates Court Civil Practice Directions 2015, Practice Direction 11(6) available here]. Where a fee for mediation is ordered, it will usually be born equally by the parties, and may be recoverable by the successful party to the dispute when the matter is finalised [see Magistrates Court (Civil) Rules 2013 Rule 72(2), available here].
Participating in mediation may also mean that if the matter proceeds to court, then certain court costs, such as the setting down for trial fee, can be reduced [Magistrates Court (Fees) Regulations 2004, reg 4(1a)].
If you come to an agreement, ensure you put it in writing. For debts, an Enforceable Payment Agreement (Form 1B) can be used (see 'Enforceable Payment Agreements').
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.