7.2 Dispute Resolution Methods

alternative dispute resolution methods

ways of resolving or settling civil disputes without a court or tribunal hearing

mediation

a method of dispute resolution that uses an independant third party to help the disputing parties reach a resolution

mediator

an independany 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

terms of settlement

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

conciliation

a method of dispute that uses an independant thrid party to help the disputing parties reach a resolution

conciliator

independant third party who helps the parties reach an agreement that ends the dispute between them and is an expert on the subject of dispute

can make suggestions and offer advice to assist in finding a mutually acceptable resolution, parties still reach the decision themselves

arbitration

a method of dipsute resolution in which an independant person is appointed to listen to both sides of a dispute and make a legally binding decision on the parties

arbitral award

a legally binding decision made by an arbitrator

Factors of Mediation

• two disputing parties with possible representitives

• third party = mediator; whose role is to facilitate communication between the parties

• resolution is made by the parties, voluntarily

• resolution may be enforceable if outlined in terms of settlement

• used extensively in Victorian Courts and VCAT

Factors of Conciliation

• two disputing partes, with possible representitives

• third party= conciliator; whose role is to facilitate communication between parties, and offer suggestions and solutions

• resolution is made by the parties, voluntarily- it may be on the advice of the conciliator

• resolution may be enforceable if outlined in the terms of settlement

• used primarily by VCAT and CAV

• not generally used by the Courts

Factors to Consider When Determining Whether Mediation and Conciliation are Appropriate

• whether the relationship between the parties will continue

• whether the parties are willing to meet in a spirit of compromise

• whether there is a history of violent and threatening behaviour

• whether one or both parties want privacy and confidentiality

• when the mediation or conciliation is to be held

• whether the matter is urgent

• whether there is a gross imbalance of power

Factors to Consider When Determining Whether Arbiration is Appropriate

• whether the parties have agreed to arbitrate the dispute or the claim is less than $10,000 and has been issued by the Magistrates’ Court

• whether the parties want a binding and enforceable decision made by an independant third party, or whether they would prefer to have control over the outcome and decide on the outcome themselves

• whether the parties wish to have the dispute considered by a Third Party and want evidence to be presented to that Third Party as part of the dispute

• whether both or one of the parties want the dispute to be resolved privately or confidentially or whether they want a public record about what has happened

Features of Arbitration

• two disputing parties, with possible representitives

• third party = arbitrator; whose role is to listen to the evidence and arguments of the disputing parties, then make a decision

• resolution is decided by the arbitrator

• arbitral award is legally binding

• used in the Magistrates’ Court for claims of less than $10,000, and in private and commercial disputes

Strengths of Mediation and Conciliation

• Involve an independant and impartial third party who does not take sides but facilitates the discussion and may assist the parties to reach a resolution themselves

• Much less formal than a court hearing, and therefore likely to be less intimidating, stressful and daunting for the parties

• Conducted in a safe and supportive environment, in a venue that is suitable for both parties rather than a venue like a courtroom which may be confronting or difficult to attend

• If successful, they can save a significant amount of time in waiting for a trial or hearing, can also save the costs of a full trial or hearing

• Normally conducted in private- can benefit parties who wish to keep the settlement confidential

Weaknesses of Mediation and Conciliation

• One party may refuse to attend, or may refuse to participate, in which case it may be a waste of time or money

• Decision reached may not be enforceable, or might be difficult to enforce, depending on the terms of settlement. Plaintiff will need to continue with their case anyway if the defendant fails to comply, spending more money and time on the dispute

• For high-profile disputes where the community may have interest in the outcome, there is no “open justice” or no ability to know what the outcome was, or whether the defendant admitted liability

• If the matter does not resolve, then it may be a waste of time and money. Often the parties have to spend money on legal fees preparing for and attending the negotiations only for it be unsuccessful

• Since the court is not deciding the case, one party may compromise too much, or one may be more manipulative or stronger, so the other party may feel intimidated

Strengths of Arbitration

• the decision is binding and fully enforceable through the courts- ensures certainty of the outcome

• normally held in private and will be confidential, and can be beneficial for parties wishing to avoid the publicity of a trial

• parties have control over how the arbitration is conducted by determining how evidence is to be presented and when steps are to be undertaken

• arbitrator is generally an expert on the subject matter and required to act impartially when making a binding decision

Weakensses of Arbitration

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

• Not avaliable method if the parties have not agreed to use it, or if the claim is not a small claim in the Magistrates’ Court

• Can be costly and take a long time depending on the nature of the dispute and the way parties have decided to resolve it

• Can be formal if the aprties have a agreed on a formal method of arbitration, adding to the stress, time and costs on both the parties i.e. if parties choose to exchange evidence during the hearing