Dispute Resolution Methods

Mediation  Methods

•A method widely used by courts, tribunals and other dispute resolution bodies.

•Is a joint problem-solving process where parties sit down and:

•Discuss the issues they disagree on

•Present their side of the case

•Try to reach an agreement through negotiation.

•This is done with the help of a mediator (neutral and impartial)

Mediators 

•Trained to assist parties in dispute to reach decision.

•Mediators discuss issues and try to even out any imbalance between them, while providing them with support.

•No need to be an expert in area of law, but need to have good people skills and excellent conflict resolution skills.

•Job is to help people come to a decision, not make decision for them.

•They do not offer legal advice.

Mediation Role

•Discussions are without prejudice (free to openly discuss without fear of it being used against them later).

•If parties resolve the case through mediation they normally enter into a legally binding contract known as terms of settlement.

•Terms are normally confidential and cannot be disclosed to the public.

•Mediation is available in the following ways:

•Parties can organise private mediation between them.

•Parties in a court case are often referred to mediation by a court before final trial or hearing.

•Parties in a case heard by a tribunal are also often referred to mediation prior to the hearing.

Conciliation  Method

•Also a process involving an independent third party.

•Operates the same as mediation in many ways.

•Role of the third party (conciliator) is different.

•Conciliation is used to resolve disputes in the following ways:

•Many dispute resolution bodies use a form of conciliation to resolve disputes.

•Parties in a dispute at VCAT are often sent to compulsory conference.

•More specialised courts use a form of conciliation (e.g. Family Court of Australia)

Conciliator 

•Listens to both sides of the dispute and makes suggestions about appropriate ways of resolving the matter.

•Assists by exploring solutions.

•Usually someone with specialist knowledge about the subject matter.

•Final decision is made by the parties and is not binding.

•However, like mediation, can often enter into terms of settlement.

•Discussions in conciliation also ‘ without prejudice’

Strengths of mediation and conciliation

• Decision made is more likely to be acceptable to the parties, as they have reached the decision themselves 

• In a Less formal setting compared to a courtroom

• Assisted by an unbiased third party

• Save time and money

Weaknesses of mediation and conciliation

• Unless parties enter into terms of settlement, decisions made are not binding or enforceable 

• One party may dominate the other party and influence the other party of the third party especially if the other party does not have legal representation

• Not appropriate in some disputes for example one party has an unfair advantage or binding power 

• Both parties must be willing to participate

Arbitration  method

 Involves an independent third party (arbitrator) who listens to the parties and makes a binding decision.

 This is known as the arbitral award and is fully enforceable if parties do not comply.

 Professional arbitrators charge the parties a fee for acting in the dispute.

 Generally will have knowledge of the subject matter and expertise in applicable law.

 Legal representation is usually allowed in arbitration process, therefore can be expensive.

Arbitration formal

 Generally, arbitration is more formal than mediation and conciliation, but can be less formal than a court process.

 Generally two situation where arbitration is conducted in Victoria:

◦Where parties have previously agreed that any dispute that arises between them will be resolved by arbitration.

◦In the Magistrates’ Court, which uses arbitration to resolve civil claims of less than $10,000

Strengths of arbitration 

• Because it is private there is flexibility in the way it is conducted allowing parties to resolve the best ways to resolve the dispute 

• Less formal 

• Can be cheaper then the court process 

• The arbitral award (decision made by the arbitrator) is legally binding, which ensures the parties will most likely follow it 

• Arbitrator has expertise on the topic 

• Private and confidential

Weaknesses of arbitration 

• Not as flexible as mediation and conciliation

• Can be as formal as court process 

• More expensive compared to mediation and conciliation

• Parties have no control over the outcome imposed on them by the arbitrator

• Can take a long time 

• Not always available, generally only available where the parties have agreed on arbitration or for claims less than $10 000 in the magistrates court