Mediation is an informal process aimed at assisting parties to a dispute to negotiate a settlement. Mediation allows parties to discuss their differences in private with the assistance of a neutral third party. The mediator’s first task is to help each party understand the other party’s view of the matter in dispute, and the second task is to help the parties make an objective assessment of the whole situation in order to reach a settlement. As part of the process, the mediator speaks confidentially to each party, arranges and chairs discussions and acts as an intermediary between the parties. All discussions which take place during mediation are without prejudice. The fundamental difference between mediation and arbitration (and litigation) is that the outcome of mediation is consensus-oriented.
A very recent decision (10 April 2019) of Judge Dowdy in the Federal Circuit Court of Australia in Sydney considered (for apparently the first time) both the constitutionality and propriety of the Federal Circuit Court ordering that a proceeding brought in the Fair Work Division of the Federal Circuit Court be mediated before a judge. His Honour held that it was incompatible with Chapter III of the Constitution for a federal judge to act as a mediator, and that in any event, it would be an inappropriate exercise of his judicial discretion to appoint either himself (as the parties had requested) or another federal judge to mediate the dispute.