Australian workplaces are experiencing an unprecedented wave of formal disputes, with the Fair Work Commission facing record-breaking caseloads that are straining the entire employment law system. For employees who feel wronged and employers defending their decisions, the current climate means longer wait times, mounting stress, and significant financial costs—regardless of which side you’re on.
But there’s a better way, workplace mediation. Before disputes escalate to formal claims, workplace mediation offers a faster, more cost-effective, and less adversarial pathway to resolution. Understanding why disputes are surging—and what alternatives exist—can help both employees and employers make informed decisions about how to navigate workplace conflict.
The Numbers Tell a Concerning Story
The Fair Work Commission is on track to receive a record 55,000 cases in the 2025-26 financial year, according to Commission President Justice Adam Hatcher. General protections claims—which allege an employer took action against a worker for a prohibited reason, such as making a complaint—were 27 per cent above their five-year average in 2024-25, surpassing 6,000 cases for the first time.
Non-dismissal general protections claims saw an even more dramatic increase, jumping 43 per cent higher than the previous year—the largest year-on-year rise since these laws began under the Fair Work Act 2009 (Cth).
The federal courts have also experienced significant increases. General protections claims in the Federal Court more than doubled over three years, rising from 81 in 2022-23 to 185 in 2024-25. The Federal Circuit Court saw claims increase by almost 60 per cent over the same period.
Justice Hatcher has publicly expressed concern about this trajectory, warning that “a large proportion of claims are neither meritorious nor serious” and that the current situation is “unsustainable within our current operational, performance and funding structure.”
What’s Driving the Surge?
Experts point to multiple factors contributing to the rise in workplace disputes:
Greater awareness of workplace rights. Employees today have more access to information about their entitlements under legislation such as the Fair Work Act 2009. Digital resources, including AI-powered tools, are helping workers understand their options when they feel they’ve been treated unfairly.
Deteriorating workplace culture. Human resources consultant Rhonda Brighton-Hall, a former Commonwealth Bank executive, argues that overworked HR teams and economic pressures have created conditions where conflicts escalate quickly. “Boards, management, and human resources teams find themselves spending more and more time on tick-a-box, online training rather than on proactively focusing on the prevention of poor behaviour and creating better leaders and culture,” she says.
Pandemic-related strain. Mental health challenges that emerged during the pandemic continue to affect workplace relationships. Mariam Chalak, Senior Associate at Harmers Workplace Lawyers, notes that employees who suffered psychological injuries during this period are now “trying to navigate the workplace” while dealing with ongoing effects.
Management quality concerns. Workplace lawyers report seeing “a real lack of quality of management and poor corporate culture” alongside “very real examples of retaliation in the workplace.”
These factors suggest that many disputes stem from genuine grievances that, with early intervention, might never reach the formal claims stage.
The Hidden Costs of Formal Claims
While employees may feel vindicated by lodging a formal claim, and employers may feel compelled to defend their position, the reality of the formal dispute process often disappoints both sides.
For employees, the outcomes are frequently modest. Fair Work Commission data indicates that 75 per cent of cases that settle do so for less than $10,000, and 40 per cent settle for less than $4,000. After legal or advisory fees—which can run into thousands of dollars—the actual benefit to the worker may be minimal or even non-existent.
For employers, even defending against an unmeritorious claim is expensive. In one published decision, an employer incurred $80,000 in legal costs defending a case that “should never have been run” and where the employer “clearly did not have a case to answer.” Whether a claim succeeds or fails, the employer still bears significant costs in management time, legal fees, and workplace disruption.
For workplace relationships, formal claims are inherently adversarial. Once positions harden and lawyers become involved, the possibility of preserving a working relationship—or even achieving a constructive reference for future employment—diminishes substantially.
For everyone, the timeframes are long. The surge in claims means the Commission and courts face growing backlogs, extending the period during which both parties remain in limbo.
Why Workplace Mediation Offers a Better Path
Mediation provides an alternative that addresses the underlying conflict without the costs, delays, and adversarial dynamics of formal proceedings. Whether you’re an employee who feels mistreated or an employer facing a potential dispute, early mediation offers distinct advantages.
Speed. While formal claims can take months or even years to resolve, mediation can often be arranged within days or weeks. A skilled mediator can help parties reach agreement in a single session or a short series of sessions, allowing everyone to move forward with their lives and careers.
Cost-effectiveness. Mediation is substantially less expensive than formal proceedings. There are no court filing fees, no lengthy discovery processes, and no need for extensive legal preparation. Both parties can participate with or without legal representation, depending on their preferences.
Confidentiality. Fair Work Commission proceedings and court cases become part of the public record. Mediation, by contrast, is confidential. What’s discussed in mediation stays in mediation, protecting both the employee’s reputation and the employer’s brand.
Control over outcomes. In formal proceedings, a third party—a commissioner or judge—imposes a decision. In mediation, the parties themselves craft the resolution. This might include outcomes that a tribunal couldn’t order, such as a positive reference, an agreed communication to colleagues, training for managers, or a structured transition period.
Relationship preservation. Even when an employment relationship has ended, mediation can help parties part on better terms. This matters for employees who may need references and for employers who want to maintain their reputation as a fair workplace.
Addressing root causes. Formal claims focus on whether specific legal criteria have been met. Mediation can address the broader context—the miscommunications, the cultural issues, the management failures—that contributed to the dispute. This creates opportunities for genuine resolution rather than just legal outcomes.
When Should You Consider Mediation?
The best time to engage a mediator is before positions become entrenched. Consider mediation if:
- You’re an employee who feels you’ve been treated unfairly, but you’re uncertain about pursuing a formal claim
- You’re an employer who has received a complaint or notice of a potential claim
- There’s been a workplace incident that has created ongoing tension
- Performance management processes are becoming adversarial
- A valued employee has raised concerns that, if unaddressed, could escalate
- You’ve already lodged a claim but want to explore resolution before proceeding further
Even after a formal claim has been lodged, private mediation can sometimes achieve better outcomes than the Commission’s own conciliation process, particularly for complex matters or those involving senior employees.
A Note on Suitability
While mediation is suitable for the vast majority of workplace disputes, there are circumstances where other approaches may be more appropriate. Matters involving allegations of serious criminal conduct, situations where there is a significant power imbalance that cannot be addressed through the mediation process, or cases involving ongoing safety risks may require different interventions.
If you’re unsure whether mediation is right for your situation, a preliminary conversation with a qualified mediator can help you understand your options.
Moving Forward Constructively
The current surge in workplace disputes reflects genuine challenges in Australian workplaces—challenges around culture, communication, management capability, and employee wellbeing. These are not problems that will be solved by more formal claims or stricter procedural requirements.
What they require is a commitment to resolving conflicts constructively, addressing underlying issues, and preserving the dignity of all parties involved. This is precisely what mediation offers.
Whether you’re an employee feeling unheard or an employer facing a potential dispute, engaging a professional mediator early can save time, money, and emotional energy. It can also lead to outcomes that genuinely resolve the conflict, rather than simply determining a winner and a loser.
At Mediations Australia, our accredited mediators specialise in workplace disputes across all industries. We understand the legal framework, including the Fair Work Act 2009 and general protections provisions, and we’re experienced in helping parties find practical, lasting solutions.
If you’re facing a workplace dispute, contact Mediations Australia today to discuss how mediation can help you achieve a faster, better, and more cost-effective resolution.
