4. Disputes and resolutions

Question 1

Disputes

Answer 1

• conflicts between people/groups are an inevitable part of human society
• role of law: one function of the law is to deal with disputes, does this through
  
  • system of rights/obligations that structure society
  • rules and principles by which disputes can be resolved
  • specialist bodies that adjudicate disputes
  • enforcement mechanisms
• court is pinnacle of dispute resolution – provides an impartial forum for the resolution of disputes
• litigation and the trial process
  
  • pre-trial: if dispute is not settled, continues to court (can have representation or none), parties have more control over outcome (more likely win-win)
    
    • discovery
    • paperwork: if dispute resolved, each party signs to saying consent to resolution
  • adversarial trial
    
    • evidence
    • argument
  • decision
  • appeal?
• reasons why a party to a dispute want to avoid the litigation and trial process
  
  • cost (unknown and unsure how long will go for): court fees, representation fees, parking fees
  • time
  • stress and mental health: a lot of uncertainty in litigation process

Question 2

What is ADR?

Answer 2

• Green (1978):
  
  • dealt with a large scale commercial dispute around patents, legal proceedings had commenced and the parties had spent several hundred thousand dollars and multiple years waiting for a hearing
  • parties agreed instead to set up their own “mini-trial” moderated by a neutral 3rd party (a former judge)
  • they met, exchanged information and senior management tried to resolve the dispute
  • after two days, the parties settled
  • saved the parties >$1million in legal costs and years more of waiting for a hearing and then a judgments
• DR: dispute resolution
• A:
  
  • alternative
  • assisted
  • additional
  • affirmative
• Federal Family Court: refers to it as ‘Primary Dispute Resolution’, because the Court disposes of 95% of matters by means other than litigation
• Sourdin (2012):
  
  • ‘processes that may be used within or outside courts and tribunals to manage, resolve or determine disputes or to reach agreement
  • where the processes do not involve traditional (more adversarial) trial or hearing processes, it describes processes that may be non-adjudicatory as well as adjudicatory, which may produce binding or non-binding decisions
  • it includes processes described as negotiation, mediation, evaluation, case appraisal and arbitration.’
• relationship between the no of disputes and method of resolution (in decreasing no. of disputes)
  
  • dispute arises
  • resolved personally
  • resolved via legal help or non-legal information and support
  • resolved via internal review
  • resolved via external dispute resolution (EDR)
  • resolved via ADR
  • resolved via admin review
  • resolved during court proceedings
  • resolved through court determination
• types of ADR can be distributed along a line between formal/adversarial interventionist – informal/consensual non-interventionist

Question 3

Types of ADR

Answer 3

• facilitative: involves a 3rd party, with no advisory or determinative role, who provides assistance in managing the process of dispute resolution
  
  • decision not necessarily binding
  • e.g. mediation, facilitation
• advisory: involves a 3rd party who investigates the dispute and provides advice on the facts and possible outcomes
  
  • e.g. investigation, case appraisal and dispute counselling
• determinative: involves a 3rd party investigating the dispute and the making of a determination, which is potentially enforceable
  
  • e.g. adjudication and arbitration

Question 4

Differences in types of ADR processes

Answer 4

• length and formality
• role of a 3rd party
• role of the parties
• subject of the dispute
• reporting and referral requirements
• objectives of the process
• philosophical underpinnings

Question 5

Negotiation

Answer 5

• disputants work out an agreement between themselves
• process in which the participants in a dispute personally, or through the use of representatives such as lawyers or agents, identify issues to be negotiated, develop options, consider alternatives and endeavour to reach an agreement
• if representatives are used, they act on behalf of the participants and may have authority to reach agreements on their behalf
• orange principle: needs to satisfy interests/meet needs, maximising personal gain (principled negotiation)

Question 6

Mediation

Answer 6

• process in which the participants, with the support of a mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes
• where an impartial 3rd party to assist the participants to reach their decision and resolve the conflict
• disputants, not the mediators, decide the terms of the agreement reached (mediators do not advise upon, evaluate or determine disputes)

Question 7

Concilitation

Answer 7

• process in which the parties to a dispute, with the assistance of a conciliator, identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement
• conciliator may have an advisory role on the content of the dispute or the outcomes of its resolution, but not a determinative role
• conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement
• conciliator more involved role e.g. helps with aspects of decision but not decision overall

Question 8

Arbitration

Answer 8

• impartial 3rd party (after hearing from both sides) makes a final, usually binding, decision
• discussion and decision, while structured, may not be as regulated by the formal procedures and rules of evidence as in a courtroom
• process in which the parties to a dispute present arguments and evidence to the arbitrator who makes a determination
• binding method of dispute resolution but more informal (more personal and emotionally driven with individual involvement in decision but doesn’t make the decision)

Question 9

Combined models

Answer 9

• process in which multiple dispute resolution processes might come into play
• negotiation-mediation: parties might begin by negotiating, but then utilise a mediator to help reach final agreement
• mediation-arbitration: a dispute resolution practitioner first uses one process (mediation) and then a different one (arbitration)

Question 10

When does ADR take place?

Answer 10

• pre-litigation ADR: WA both District Court and Supreme Court have mediation schemes
  
  • 2010: DC program held 2693 pre-trial alternative dispute resolution conferences, only 1.5% of matters that had the potential to go to trial were actually finalised by trial, Court Registrars are all accredited mediators
  • 2009: SC program mediated over 600 civil matters with a success rate of ~63%, almost every matter went to mediation and some went more than once
• self-referred litigation-related ADR
• court-connected ADR
  
  • Family Court requires Family Dispute Resolution to be attempted when a person seeks a parenting order
• court integrated ADR

Question 11

Advantages of mediation

Answer 11

• parties focus on the problem, not each other
• both parties have an opportunity to tell their side of the story
• provides a setting in which each party listens to the other
• parties can hear how their behaviour is affecting, has affected, the other
• more likely to keep to a solution if they are involved in the process of reaching it
• looks for a “win-win” situation, rather than the typical court winner/loser decision
• more likely to take people’s specific situations into account
• parties are encouraged to identify what they really want
• more likely to get to the root of the conflict
• holistic approach to the dispute between parties, not just the legal aspects
• looks not to the past but to the future, important where there is a continuing relationship between the parties

reduces court backlog

Question 12

Disadvantages of mediation

Answer 12

• coercion: less powerful party just agrees to the stronger parties demands because they ‘fear the worst’ outside the mediation setting
• mediation is used as ‘cheap justice’
• can disguise responsibility and ignore rights
• poor citizens get diverted to mediation because it’s cheaper than giving them government legal representation

compulsory mediation leads to parties just ‘going through the motions’

Question 13

Mediation is inappropriate when…

Answer 13

• either party is unwilling
• either party is incapable of taking part (e.g. mental/physical health issues) or keeping to any agreement
• it is not in one party’s interests to settle
• there is the threat of violence
• the dispute needs a public judgment

Question 14

Victim conferencing

Answer 14

What is it?

• individuals were able to air grievances
• offender able to see effect on victim first hand
• produces customised, workable solution that is achievable

Victim-offender mediation

• usually involves a victim and an offender in direct mediation facilitated by mediators or facilitators
• voluntary process of communication, conducted by a neutral mediator, which allows victims to express their needs and feelings, and offenders to accept and act on their responsibilities
• has benefits for victims and offenders at all stages of the criminal justice process because it deals with the personal effects of crime not usually addressed by the formal justice system
• hurt, pain and loss suffered by victims are acknowledged by offenders, and this acknowledgement is often the most healing part of the process
• when victims know their pain has been heard, they stop reliving the event and begin to put the offence behind them
• WA mediation:
  
  • initiated by victim, court or government services
  • VMU officers sit in at District Court and Magistrates Court sentencing mentions lists
  • available where an offender has pled guilty
  • resolution: usually involves an apology (verbal or written), an explanation for the offence, discussion of background and/or ongoing issues, the return of property and/or monetary compensation, and payment of the victim’s out-of-pocket expenses
• advantages:
  
  • victims: hold offenders accountable, receive apology/compensation, get directly involved
  • offender: possible sentencing reduction, making amends
  • community: rehabilitation

Question 15

Family group conferencing

Answer 15

• similar, but includes family, support persons and outside community representatives as well
• type of intervention is based on the idea of bringing the young offender, the victim, and their respective families and friends together in a meeting chaired by an appropriate independent adult (juvenile justice worker or police officer)
• collectively, the group goes through the reasons for the crime, the harm suffered, and the best ways to resolve the issues
• resolution: usually, some kind of apology is made by the offender to the victim, and often the offender has to repair the damage they have caused in some way (through undertaking community work, or mowing lawns of the victim for a month)
• NZ style model:
  
  • opening ritual: selected by the victim’s and/or offender’s family
  • introduction: brief introductions, explanation of process by coordinator, longer introduction; reasons for participation, outline of legal standing and clarification f roles
  • information sharing: summary of facts, response from offender, victim crime narrative, offender crime narrative, questions to offender by victim, impact on family, additional input from participants
  • family caucus: private time for problem solving, outside parties by invitation
  • plan: offender presents family’s plan e.g. material restitution, drug abuse treatment and/or community service, victim response/additions, consensus reached
  • closing ritual
• benefits:
  
  • offenders report greater procedural justice in conferences than in courts
  • offenders report higher levels of restorative justice in conferences than in courts
  • conferences increased offenders’ respect for the police and law more than court
  • victims’ sense of restorative justice is higher for those who went to conferences than for those who went to court