Conciliation conferences

Conciliation conferences are the main opportunity to resolve civil disputes by negotiating a resolution or compromise that both parties agree to.

List of Appointed Conciliators and Mediators

Who must attend the conference?

You must attend the conference, unless the court registrar approves a telephone link. This might be possible if you’re ill, or if attending in person would be unreasonably expensive or inconvenient.

If a party is:

  • a company, or
  • an unincorporated association, or
  • represented by an insurer

then someone with full authority to settle the claim must attend the conference.

Your lawyer should also attend, unless you make prior arrangements with the registrar.

Minor civil matters

Lawyers cannot be present in minor civil matters unless

  1. the lawyer is one of the parties, or
  2. both parties consent to have lawyers present.

How should I prepare for the conference?

At the conference, you should be ready to resolve or settle the dispute.

Therefore before the conference:

  • you and the other party should exchange any up-to-date information needed to discuss the issue in dispute. This might include details about the injury or damage or copies of discoverable documents.
  • you or your lawyer should file this information with the registrar at least three days before the conference. This will help your conciliator understand the matter.

How will the conciliation conference proceed?

  • Each party will outline their claim or defence.
  • The conciliator will define the issues in dispute, in discussion with both parties.
  • The conciliator may have a private discussion with each party separately.
  • Options for resolving or settling the matter will be explored.
  • Offers to settle the claim will be made.

What does the conciliator do?

The conciliator is an impartial facilitator. They will:

  • help you define the issues in dispute
  • make sure the issues are properly explored
  • make sure each party has an opportunity to be heard

They will not give legal advice or advise on settlement.

Do I need a lawyer to be present?

It’s up to you and your lawyer whether you’ll pay an active role in the conciliation conference.

Sometimes the two parties agree that their lawyers will leave the conference, and they’ll resolve the matter themselves. In these cases, the lawyer should be available to return to the conference so they can advise on any agreement reached and prepare consent judgments.

Minor civil matters

Lawyers cannot be present in minor civil matters unless

  1. the lawyer is one of the parties, or
  2. both parties consent to have lawyers present.

Are the conciliation conferences confidential?

Yes. Anything discussed or admitted at the conference cannot be used outside the conference.

If the conciliator meets privately with each party, the matters they discuss:

  • will not be disclosed to the other side
  • will not be discussed with the Magistrate

The court record will only note directions given at the conference.

How are offers of settlement made?

At the conciliation conference for matters that are not minor civil matters, each party must make an offer to settle the dispute.

These offers will be recorded; if no offer is made, ‘nil offer’ is recorded.

The Magistrate:

  • will not be told about offers of settlement until after they give their judgment
  • may take these offers into account when making costs orders

Conciliation conference cost

In minor civil claims: there is no charge for the court's facilities or the conciliator's time.

In civil claims: the cost of the mediation is generally shared equally by the parties (or as ordered by the magistrate).

Lawyer costs: whoever is unsuccessful at a hearing usually pays for the cost of both the claimant’s and the defendant’s lawyer’s time at the conference.

Penalty rules cost

Matters that are not minor civil matters cost penalty rules encourage both parties and their lawyers to make:

  • a realistic assessment of their chance of success
  • a reasonable and realistic claim and offer

They safeguard against:

  • making an extravagant claim (if you’re a claimant)
  • making an inadequate offer (if you’re a defendant)

These rules and the formula used to calculate the penalties are detailed below.

Rule 141(2): For inadequate offers

Rule 141(2) says that if a claimant obtains a final judgement for an inadequate offer (that is, an amount equal to or less than the defendant’s offer), the claimant is only entitled to ‘party‑party costs’ (where the court orders that one party pay the court costs of the other party) for up to 14 days after the date of offer being made. After that, the defendant is entitled to party‑party costs.

Example for an inadequate offer

The claimant begins a claim for $15,000.

At the conciliation conference, the defendant files an offer of $2,000.

Judgment after the trial awards the claimant $10,000; their party-party costs are assessed at $3,000.

The claimant is entitled to:

  • an order for costs on the judgment (of $10,000), as it exceeds the defendant’s offer (of $2,000)
  • a bonus up to his full lawyer-client costs, because the judgment is more than 200% of the defendant’s offer

The formula used to calculate penalties in this instance is:

C = 2 x P x (J-A)

J

  • C is the costs to which the party is entitled
  • P is the costs of the party, as agreed or assessed
  • J is the amount awarded by the judgement, exclusive of costs and interest
  • A is the amount contained in the offer or the payment into Court

So the claimant would be entitled to:

C = 2 x 3,000 x (10,000 – 2,000)

10,000

which amounts to $4,800, compared with the assessed party-party costs of $3,000.

Rules 142 and 143: For excessive offers

Rules 142 and 143 have two formulae for imposing further costs penalties on either parties if the claimant obtains final judgment of an excessive offer (that is, less than half or more than double the defendant’s offer).

The greater the difference between the offer and the amount awarded, the greater the effect on the costs entitlement.

Example for an excessive offer

The claimant begins a claim for $15,000.

At the conciliation conference:

  • the claimant files an offer of $10,000
  • the defendant files an offer for $3,000

Judgment after trial awards the claimant $4,000; their party-party costs are assessed at $3,000.

The claimant is entitled to an order for costs on the judgment (of $4,000) as it exceeds the defendant’s offer (of $3,000).

But because the judgment is less than 50% of the amount claimed ($15,000), the penalty rules apply to reduce the claimant’s costs entitlement.

The formula used to calculate penalties in this instance is:

C= 2 x P x J

A

  • C is the costs to which the party is entitled
  • P is the costs of the party, as agreed or assessed
  • J is the amount awarded by the judgement, exclusive of costs and interest
  • A is the amount contained in the offer or the payment into Court

So the claimant would be entitled to:

C = 2 x 3,000 x 4,000

10,000

which amounts to $2,400 compared with the assessed party-party costs of $3,000.