Dispute resolution methods

mediation

a method of dispute resolution that uses an independent third party to help the disputing parties reach a resolution. It is widely used by courts, tribunals, and other dispute resolution bodies.

It is a joint problem solving process in which parties sit down and discuss issues, solutions and possible future agreements

mediator

an independent third party who does not interfere or persuade but helps the parties in a mediation as they try to reach a settlement of the matter. If the parties come to a decision, they may sign terms of settlement.

terms of settlement

a document that sets out the terms on which the parties agree to resolve their dispute

how mediation is used

• two disputing parties, occasionally with rep

• mediator in charge of comm facilitation

• voluntary resolution is made

• possible enforcement if terms of settlement

conciliation

a method of dispute resolution that uses an independent third party t help the disputing parties reach a resolution. It uses a conciliator to make suggestions and form a solution.

conciliator

the independent third party in a conciliation, who helps the parties reach an agreement that ends the dispute between them. They can make suggestions and offer advice to assist in finding a mutually acceptable resolution, but the parties still reach the decision themselves.

how conciliation is used

generally courts do not use it, preferring to refer parties to mediation. Individual parties can arrange a conciliation independently.

Appropriateness of mediation and conciliation

factors to consider:

• whether the relationship will continue (eg neighbours)

• whether the parties are willing to compromise and stick to an agreement

• whether there is a history of violence/threatening behaviour

• whether they want to deal with it privately

• the urgency of a resolution

• a possible imbalance of power

strengths of mediation/conciliation

• involves a third party who assists in reaching a resolution

• much less formal than court, making it less intimidating and stressful

• conducted in safe and supportive environment and in a neutral space

• if successful, can save cost, time and resources.

• conducted in private, making it confidential for parties.

weaknesses of conciliation/mediation

• decisions may not be enforceable, meaning if the defendant doesn’t comply the plaintiff will have to go to court

• a party could refuse to attend

• if the matter is not resolved it could be a waste of time and money, eg legal fees

• in a high profile dispute, the community would not be able to see the dispute

arbitration

a method of dispute resolution in which an independent person is appointed to listen to both sides of a dispute and make a legally binding decision for the parties. The decision is known as an arbitral award. It is often less formal and more cost effective than attending a court hearing or trial, and parties have more control over the process

Arbitrators role

• not bound by rules of evidence but may inform themselves on any matter as they think fit.

• must ensure both parties are treated equally and are given the opportunity to present their case

• they are not required to conduct proceedings in a formal manner

when is arbitration available

• the parties agree to it

• the court orders it

• the claim is less than $10,000 and filed in the Magistrate’s Court

Appropriateness

factors to consider

• whether the parties agree, and the claim is less than $10,000

• whether the parties want a legally binding decision

• whether they want the involvement of a third party

• whether they want a public record of the decision.

strengths of arbitration

• binding and enforceable decision

• held in private

• parties have control over process

• arbitrator

weaknesses of arbitration

• parties have no control over outcome

• not available as a DRM if they don’t agree to it

• can be costly and take a long time

• can be too formal