legal / methods used to resolve disputes

methods used to resolve a civil dispute definition

parties to a civil dispute can use various methods to reach an agreement and settle the dispute without going to court. these methods are called dispute resolution methods.

methods used to resolve a civil dispute definition (continued)

they are a way to obtain an outcome in a civil dispute that does not involve a court or tribunal making a binding decision on the parties.

what dispute resolution methods are included in a civil dispute?

mediation, conciliation, and arbitration

why does the legal system encourage parties to use mediation, conciliation and arbitration to resolve disputes

because these dispute resolution methods are often less stressful and less expensive than court action. these methods are even less stressful and less expensive than issuing a claim through a tribunal

alternative dispute resolution methods

ways of resolving or settling civil disputes that do not involve a court or tribunal hearing (mediation, conciliation and arbitration)

mediation

a method of dispute resolution that uses an independent third party (i.e mediatr) to help the disputing parties reach a resolution

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

terms of settlement

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

conciliation

a method of dispute resolution that uses an independent third party (i.e a conciliator) to help the disputing parties reach a resolution

conciliator

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

compulsory conference

a confidential meeting between the parties involved in a dispute (in the presence of an independent third party to discuss ways to resolve their dispute)

arbitration

a method of dispute resolution in which an independent person (an arbitrator) is appointed to listen to both sides of a dispute and to make a decision that is legally binding on the parties. an arbitrators decision is known as an arbitral award.

arbitrator

an independent third party appointed to settle a dispute during arbitration. arbitrators have specialised expertise in particular kinds of disputes between parties and make decisions that are legally binding on the parties.

arbitral award

a legally binding decision made in arbitration by an arbitrator

mediation

mediation is a cooperative method of resolving disputes. it is a joint problem solving process in which the parties in dispute sit down and discuss the issues they disagree on, present their side of the case, and try ot reach an agreement through negotation.

mediation (continued)

any discussions during mediation are normally ‘without prejudice’ meaning the parties are free to openly discuss their dispute, and possibly weaknesses of thier own case, as these discussions cannot be used against them at a later date. if the parties resolve the case through mediation, they normally enter into a legally binding contract known as terms of settement.

mediation is avaliable to the parties in a civil dispute in the following ways

parties can organise a private mediation between them. parties in a court case are often reffered to mediation by a court before the final trial or hearing, to see if a resolution can be reached.

conciliation

is the process of dispute resolution involving the assistance of an independent third party that aims to enable parties to reach a decision. the third party known as the conciliator listens to both sides of the dispute and makes suggestions about appropiate ways of resolving the matter.

conciliation (continued)

the third party known as the conciliator listens to both sides of the dispute and makes suggestions about appropiate ways of resolving the matter. the conciliator assists the parties by exploring solutions to the dispute.

concilation (furthermore)

in concilation, the final decision is made by the parties, and is not binding. the parties often enter into terms of settlement which can be legally enforceable.

conciliation is used to resolve civil disputes in the following ways

parties in a dispute at the vcat are often sent to what is called a compulsory conference. some of the more specialised courts use a form of concilation

strengths of mediation and conciliation

a decision made by the parties during mediation and concilation is more likely to be acceptable to the parties as they have reached a decision themselves rather than it being imposed on them by a third party

strengths of mediation and conciliation

mediation and concilation are held in a less formal setting than a courtroom, like how there is no examination of witnesses, helping to alleviate any stress felt by the parties.

strengths of mediation and conciliation

mediation and concilationa are far less confrontational than a court room.

strengths of mediation and conciliation

matters can be discussed confidentially, without publicity and without the discussions being held against a party if the matter doesn’t settle as part of the process

weaknesses of mediation and conciliation

both parties must be willing to participate in mediation or conciliation for it to be successful

weaknesses of mediation and conciliation

mediators and concilators have no power to order parties to come to a decision, or even attend

weaknesses of mediation and conciliation

mediation and conciliation are not appropiate for some disputes, such as where one party has an unfair advantage or more bargaining power

arbitration

arbitration involves an independent third party (an arbitrator) who listens to the parties and tries to help them reach an agreement. if this is not possible, the arbitrator makes a binding decision on the parties.

arbitration continued, what is it used in? and what is allowed?

arbitration is often used in commercial situations and in international disputes. legal representation is usually allowed during the arbitration process, therefore, arbitration can be an expensive process.

arbitration furthermore (general rule) and how is it conducted

as a general rule, arbitration is more formal than mediation and conciliation, but can still be less formal than a court process. the way arbitration is conducted often depends on what has been agreed, that is parties can choose how evidence is presented and what procedural rules will apply

what two situations is when arbituation is conducted in victoria?

where the parties have previously agreed (normally in a contract) that any dispute that arises between them will be solved by arbitration, the parties normally arrange the arbitration between themselves and decide how it is to be conducted. then in the magistrates court, which uses arbitration to resolve civil claims of less than $10,000.

strengths of arbitration

arbitration is private and confidential, so it is attractive for parties who wish to avoid the publicity of a trial.

weaknesses of arbitration

arbitration is not as flexible as mediation and conciliation, meaning th eparties are normally limited to particular remedies or outcomes. arbitration can be as formal as a court process. arbitration is more expensive than mediation and conciliation because evidence is often gathered and put before the arbitrator.