methods used to resolve civil disputes

what is mediation

• a confidential process where parties try to resolve a dispute in a neutral, non-confrontational setting with the help of a trained, impartial third party.

role of the mediator

• mediator is trained in facilitating conversation and cooperation, (rather than the subject matter of dispute). Their role is to help parities reach a mutually acceptable outcome to the dispute

outcome of mediation

• if parties reach a decision in mediation, it is not automatically legally binding, but parties can agree to enter a contract to make the terms they have agreed to a binding. A deed of settlement can be enforced through the courts.

what is conciliation

• conciliation is a confidential process where parties try to resolve a dispute with the help of a trained, impartial third party

role of the conciliator

• the conciliator is an expert in the industry or subject matter of the dispute. Their role is to facilitate discussion between the parties, suggest solutions and help them reach a mutually acceptable outcome to the dispute

outcome of conciliation

• if parties reach a decision in conciliation, it is not automatically legally binding, but parties can agree to enter a contract to make the terms they have agreed to binding. A deed of settlement can be enforced through the courts.

what is arbitration

• a non judical method of resolving civil disputes, where an independent third party, will listen to the parties to a dispute and make a final determination

role of the arbitrator

• the role of the arbitrator is to ensure the parties are treated equally and are both given an opportunity to present their best case, listen to the evidence, and make a final binding decision (arbitral award). The arbitrator can also make their own inquires.

when is mediation and conciliation appropriate

• There is a chance the parties will be able to decide an outcome to the dispute themselves

• The parties want a less costly dispute resolution option than courts

• the parties want control over the outcome

• the parties prefer a less formal environment

• the parties want any discussion and outcomes to be confidential/private

when is mediation and conciliation not appropirate

• the parties are unlikely to be able to resolve the dispute themselves and/or want a third party to decide the outcome

• there is a significant power imbalnce between the parties, or a history of violence/broken of promises

• parties want a legally binding outcome (although they can enter a deed of settlement, both parties are needed to sign it)

• parties want formality of the courts

• parties want their day in court or the publicity of a trial

when is arbitration appropriate

• parties have agreed to settle any disputes that arise through arbitration

• the parties want a third party to decide the outcome of their dispute and/or the parties want a legally binding/enforceable outcome

• the parties prefer a less formal environment with less strict rules of evidence/procedure

• the parties want any discussion and outcomes to be confidential/private - arbitration is often private but not always

arbitration is not appropriate

• parties want an outcome that can be easily changed/are nervous about a legally binding decision/want to decide the outcome themselves

• parties want the formality or strict rules of the courts

• parties want their day in court or the publicity of a trial