Mediation is a confidential and flexible process used to resolve commercial disputes without the need for a final hearing. It involves an independent third party, known as the mediator, who assists the parties to negotiate and, where possible, reach a commercially acceptable resolution.

Unlike a judge, a mediator does not decide the dispute or impose an outcome. The parties remain in control of the process and any settlement terms. This makes mediation particularly useful in commercial disputes, where the parties may wish to manage legal costs, preserve business relationships, avoid publicity, and achieve a practical outcome that a court may not be able to order.

Mediation can occur before court proceedings are commenced or after litigation is already on foot. In many commercial matters, the Court may order the parties to attend mediation before the matter proceeds to a final hearing.

Key Benefits of Mediation

The main benefits of mediation include confidentiality, efficiency, cost savings, commercial flexibility, and the preservation of business relationships. These benefits are particularly important in commercial disputes, where parties often want a practical and cost-effective outcome without the uncertainty of a contested final hearing.

Confidentiality

Mediation usually takes place on a confidential and “without prejudice” basis. This allows the parties to speak openly and explore settlement options without those communications generally being used against them later in court.

Efficiency

Commercial disputes can often be resolved at mediation within a day, or shortly afterwards. This can help the parties avoid the delay, disruption, and uncertainty associated with preparing for a contested hearing.

Cost Savings

A successful mediation can avoid the substantial legal costs associated with preparing for and running a trial. Even where a matter does not settle on the day, mediation may still narrow the issues and reduce the time and cost required to progress the dispute.

Commercial Flexibility

Mediation allows parties to agree to outcomes that are more practical, flexible, and commercially tailored than orders a court may be able to make. This can include payment arrangements, revised contractual terms, future business arrangements, or other negotiated outcomes.

Preservation of Relationships

Where the parties have an ongoing commercial relationship, mediation can reduce hostility and help them move forward on agreed terms. This can be valuable where the parties wish to preserve a business relationship, supplier relationship, partnership, or commercial arrangement.

The Role of the Mediator

The mediator’s role is to facilitate discussion, identify the real issues in dispute, and assist the parties to explore options for resolution.

The mediator may test each party’s position, examine the strengths and weaknesses of each side’s case, and help narrow the gap between competing offers. However, the mediator does not act as a judge and cannot force either party to settle.

The parties remain in control of the mediation process. Any settlement must be agreed by the parties themselves and properly recorded before it becomes binding.

What Happens on the Day of Mediation?

A commercial mediation usually involves a mixture of joint sessions and private meetings. The exact process can vary depending on the nature of the dispute, the mediator’s approach, the number of parties involved, and whether lawyers are attending.

At the start of the mediation, the parties may meet in a common room, where each side has an opportunity to outline its position. This may involve a short opening statement from each party or their legal representative.

The parties then often move into separate rooms. The mediator may go between the rooms, speaking privately with each party, conveying offers, testing arguments, and helping the parties work towards a possible resolution.

These private meetings are often referred to as “caucuses”. They are a normal part of the mediation process and allow each party to speak candidly with the mediator about risks, settlement options, commercial priorities, and possible compromises.

The process is flexible. Some mediations resolve quickly, while others take the whole day or require further negotiations after the mediation has concluded.

Confidentiality in Commercial Mediation

Confidentiality is one of the central features of commercial mediation.

What is said during mediation is generally treated as confidential and without prejudice. This means that offers, concessions, and statements made for the purpose of settlement usually cannot be relied on later in court if the matter does not settle.

This protection encourages parties to negotiate openly and make genuine attempts to resolve the dispute. It also allows parties to explore practical settlement options without necessarily weakening their position if the dispute continues.

Is a Mediation Outcome Binding?

A mediation outcome is not binding simply because an agreement is discussed in principle. For a settlement to become binding, the agreement usually needs to be clearly recorded in writing.

This may be done by way of a settlement deed, written terms of settlement, or consent orders filed with the Court. The appropriate form will depend on the nature of the dispute, whether proceedings have already commenced, and the terms agreed by the parties.

Until the terms are properly documented and agreed, care should be taken before assuming that a final and enforceable settlement has been reached.

Why Mediation Is Common in Commercial Disputes

Mediation is commonly used in commercial disputes because it gives parties a structured opportunity to resolve their matter without the cost, delay, and uncertainty of a final hearing.

For businesses, mediation can be particularly valuable because it allows the parties to focus not only on legal rights, but also on commercial realities. This may include cash flow, reputation, future dealings, management time, and the broader cost of continuing the dispute.

Conclusion

Mediation is a practical and widely used method for resolving commercial disputes in New South Wales. It gives parties the opportunity to resolve their dispute confidentially, efficiently, and on terms they can control.

Not every dispute will settle at mediation. However, even where settlement is not achieved on the day, mediation can help narrow the issues, clarify the parties’ positions, and create momentum for later resolution.

For businesses seeking to avoid the cost, delay, and uncertainty of litigation, mediation is often a commercially sensible step.

Competing rights between a dominant and servient tenement

Disputes between neighbouring landowners can quickly escalate, particularly where legal access rights are ignored or interfered with. A recent New South Wales Court of Appeal decision highlights how important it is to obtain early legal advice when property rights are at risk.

In FitzGerald v Foxes Lane (NSW) Pty Ltd, the Court considered whether farming activities carried out over a registered right of carriageway unlawfully interfered with a landowner’s legal rights

The Issue: Interference With a Right of Carriageway

A right of carriageway is a legally protected easement that allows the owner of one property to pass and repass over neighbouring land. In this case, the landowner with the benefit of the easement relied on it for vehicle access to rural land. In this case the neighbouring landowner began cropping over the carriageway, using heavy machinery that created deep tramlines, obscured the access route, restricted vehicle movement and caused damage to vehicles. Despite ongoing objections, the interference continued.

The dispute ultimately required court intervention.

What the Court Decided

The NSW Court of Appeal confirmed that:

• A landowner cannot use their land in a way that substantially interferes with a neighbour’s legal right of access;
• Cropping activities that create deep ruts, limit vehicle access and reduce safety can amount to unlawful interference, even in a rural context;
• Economic convenience does not override legally registered property rights; and
• Courts may grant injunctive relief to restrain ongoing interference and regulate future use of land

The Court restrained the offending conduct, clarified how the carriageway could be used, and confirmed the dominant owner’s right to carry out limited maintenance works to restore safe access.

Why This Case Matters for Property Owners

This decision is a reminder that property rights including easements and rights of way are enforceable. Whether the interference arises from farming, construction, development or neighbouring land use, courts will intervene where legal access is compromised.

Importantly, disputes of this kind often become more costly and complex when left unresolved.

Early legal advice can help:

• Clarify your rights and obligations
• Prevent escalation into prolonged litigation
• Secure practical remedies such as injunctions or negotiated outcomes
• Protect the long-term value and usability of your land

How We Can Assist

We regularly advise property owners, landowners and businesses in disputes involving:

• Easements and rights of carriageway
• Interference with access or land use
• Injunctive relief and urgent court applications
• Property-related nuisance and trespass claims
• Strategic resolution of neighbour disputes

Our approach is practical, commercially minded and focused on achieving effective commercial and legal outcomes whether through negotiation or court proceedings.

Speak with our experienced team

If your access rights are being interfered with or you are involved in a land use dispute, obtaining timely legal advice is critical. We can assess your position, explain your options clearly and act decisively to protect your rights.

What Is Professional Negligence?

Professional negligence occurs when a professional fails to exercise the level of care, skill and diligence reasonably expected in their field, causing harm or loss to a client. A professional negligence claim may be brought against an individual or corporation that provides professional services and holds itself out as having specialised skills or expertise. Such claims may arise in negligence, contract, or both.

To establish professional negligence, the following elements must be proven:

• The existence of a duty of care
• A breach of that duty
• Causation
• Resulting loss or damage

Duty of Care

Professionals owe their clients a duty to exercise reasonable care, skill and diligence in performing the services for which they are engaged. The standard of care is informed by:

• The risks that were reasonably foreseeable at the time; and
• The precautions that a competent professional in the same field would have taken to minimise those risks.

This standard is not one of perfection, but of reasonable professional competence in the circumstances.

Breach of Duty

A breach of duty occurs where a professional acts, or fails to act, in a way that falls below the standard of care reasonably expected of a competent professional in the same position. However, a professional will not ordinarily be found to have breached their duty merely because an adverse outcome occurred. Where an inherent risk materialises and that risk could not have been avoided through the exercise of reasonable care and skill, liability will not usually arise.

Causation

Establishing liability requires proof that the breach of duty caused the client to suffer loss. This is addressed through the concept of causation.

Causation generally involves two key questions:

1. Whether the professional’s breach was a necessary condition of the loss (often assessed using the “but for” test); and
2. Whether the professional’s conduct materially contributed to the loss suffered.

Both elements must be satisfied for liability to be established.

Damages

If professional negligence is established, damages may be assessed by reference to:

• The value of opportunities lost as a result of the negligence;
• Costs incurred because of the negligent conduct; and
• The cost of rectifying problems caused by that conduct.

Damages aim to place the client, as far as possible, in the position they would have been in had the negligence not occurred.

The Role of Peer Professional Opinion

In New South Wales, professional negligence claims are governed by the Civil Liability Act 2002 (NSW). Of particular importance is section 50, which provides that a professional does not incur liability in negligence arising from the provision of professional services if it is established that their conduct was widely accepted in Australia by peer professional opinion as competent professional practice.

Key points include:

• Peer professional opinion does not need to be universally accepted to be regarded as “widely accepted”;
• The existence of differing, widely accepted peer opinions does not prevent reliance on one or more of those opinions.

As a result, a plaintiff must demonstrate that the professional acted contrary to widely accepted peer professional opinion and that this departure caused the loss or damage suffered. This typically requires expert evidence from a suitably qualified professional in the same field. Conversely, a professional may successfully defend a claim by establishing that their conduct was consistent with widely accepted peer professional opinion, even where loss has been suffered.

How We Can Assist

Professional negligence claims are complex and usually highly technical. They require careful analysis of the factual circumstances, the applicable standard of care and detailed expert evidence.

We advise and act for both plaintiffs and defendants in professional negligence matters, providing clear, strategic and practical advice at every stage of the process.

If you believe you have suffered loss as a result of professional negligence, or if you are facing a claim, we invite you to contact us for a confidential consultation.

What is a Binding Financial Agreement?

A Binding Financial Agreement (“BFA”), or pre-nuptial agreement, is a document or series of documents that govern your property interests in the event of a separation during a marriage or a de facto relationship. A BFA can be entered into before, during or after a relationship. If made after marriage, the BFA must be made within twelve months of an order of divorce.

Family Law Act 1975

In Australia, BFA are recognised as legally binding documents under the Family Law Act 1975 (“the Act”). The BFA must comply with the strict formal requirements set out in the Act.

The requirements for a BFA include:

1. Disclosure of the assets and liabilities that are to be covered by the BFA and all relevant financial information (including any business owned or property owned).
2. Before signing, both parties must obtain independent legal advice about:

• the effect of the agreement on their rights, and
• the advantages and disadvantages of the agreement.

3. The BFA must be freely entered into by both parties.
4. The BFA must be signed by both parties, and
5. You must have a certificate showing that you have received free legal advice about the BFA. If you do not have this certificate, the BFA may not be binding.

For a BFA to be legal and binding, it must comply with the strict formalities set out in the Act, particulars the requirement for each party to enter the BFA of their own free will and be fully informed.

Can a Court set aside Binding Financial Agreements?

BFA’s can be set aside by the Family Court if they are not carefully drafted and properly executed. The most common reasons BFA’s are set aside are because:

1. The BFA was obtained by fraud or duress (for example, requiring someone to sign the BFA shortly before the parties’ wedding under threat of not going through with the wedding).
2. A party failed to disclose assets or information relevant to the BFA.
3. The BFA was entered into to defeat or defraud a creditor or with reckless disregard to the interest of a creditor.
4. There have been significant changes to either or both parties’ circumstance which makes it impractical to carry out the BFA.
5. Since the making of the BFA, there has been a change in circumstances such as those relating to a child if it would result in hardship for the child or their carer if the Agreement is not set aside.

If the BFA is set aside, then each party is free to apply to the court for a property settlement, like any other separated couple. The law of contract is applied when courts consider the enforceability of BFA’s. Specialist legal advice is essential any of the parties wants to maximise their chances of having a valid and biding BFA.  

Terminating Process

A BFA can be “terminated” in one of two ways:

1. The parties enter into another financial agreement, provided that a specific provision is included in the new agreement stating that the former agreement is terminated; or
2. The parties can enter a “termination agreement” pursuant to section 90J (for married couples) or section 90UL (for de facto couples). As with the original BFA, for a termination agreement to be binding and enforceable, it must be signed by all parties to the agreement, and each of the parties must have received independent legal advice with respect to the termination agreement.

Summary

A Binding Financial Agreement can be a cost-effective way to safeguard assets you have worked hard to accumulate, protect your future income or inheritance, and ensure that you, and any children, are financially supported in the event of an amicable or non-amical relationship breakdown. However, it’s crucial to understand that BFAs are complex legal documents that require expert family law advice. BFA must be specifically tailored to the individuals involved, which means your lawyer should offer both strategic insight and careful attention to detail.