4.1.4 Alternative Dispute Resolution Methods

Question 1

Mediation, Conciliation and Arbitration are only:

Answer 1

Used to resolve civil law disputes

Question 2

Mediation:

Answer 2

Involves the use of an impartial third party known as a ‘mediator’ who facilitates discussion between the two parties to assist them into reaching an agreement. The mediator does not make the final decision. The agreement is not binding unless the parties sign a binding terms of settlement (which they normally do.)

Question 3

Conciliation:

Answer 3

Involves an impartial third party, a ‘conciliator’ who listens to both sides and suggests ways in which the parties should resolve the dispute. The conciliator normally exercises more influence than a mediator. The conciliated agreement is not binding unless the parties sign a binding terms of settlement (which they normally do)

Question 4

Arbitration:

Answer 4

Arbitration involves a third party, an arbitrator, who listens to both sides and suggests ways in which the parties could resolve the dispute. If the parties cannot agree, the arbitrator makes the final binding decision. Arbitration is less formal than Mediation and Conciliation, but more formal than judicial determination.

Question 5

Judicial Determination:

Answer 5

The decision of a judge or magistrate. The Judge or Magistrate is an impartial adjudicator and the decision is binding on parties. The court is bound to follow strict rules of evidence and procedure, as well as adhering to rules regarding the burden and standard of proof required in cases.

Question 6

Mediation Used by the Court:

Answer 6

Normally a mandatory civil pre-trial procedure. Mediation is compulsory for claims under $40,000 in a number of Magistrates’ Courts, for example Broadmeadows, Sunshine. Mediation is used by the courts to encourage an ‘out of court’ settlement.

Question 7

Conciliation Used by the Court:

Answer 7

Conciliation is used in pre-hearing conferences in the Magistrates’ Court. The Family Court often sends the parties to a conciliation conference before the matter goes to court. Used by the courts to encourage an ‘out of court’ settlement.

Question 8

Arbitration Used by the Court:

Answer 8

Arbitration is used by the Magistrates’ Court for matters below $10,000

Question 9

Judicial Determination Used by the Court:

Answer 9

Most Victorian Courts in the hierarchy use judicial determination to resolve disputes, a process called trials in superior courts and hearings in the Magistrates’ court. All criminal trials in all courts in the Victorian Court Hierarchy use judicial determination.

Question 10

Mediation Used by VCAT:

Answer 10

VCAT uses Mediation to promote a settlement before a matter is heard in the tribunal.

Question 11

Conciliation Used by VCAT:

Answer 11

VCAT uses conciliation in compulsory pre-hearing conferences to promote a settlement before a matter is heard in the tribunal.

Question 12

Arbitration Used by VCAT:

Answer 12

In VCAT, Arbitration is the primary dispute resolution method used by a VCAT member at hearings. It is also used by VCAT when conciliation and mediation has been unsuccessful.

Question 13

Judicial Determination Used by VCAT:

Answer 13

Arbitration is used by VCAT members as the primary dispute resolution method, thus judicial determination is only used by VCAT when the matter is heard by the President or one of the Vice-Presidents.