7.9 Methods used to resolve civil disputes

Question 1

What is mediation?

Answer 1

Is a cooperative method of resolving disputes, in which parties in conflict sit down and discuss the issues involved, develop options, consider alternatives and try to reach an agreement through negotiation in the presence of a independent thrid party, the mediator.

Question 2

What do mediators do?

Answer 2

Facilitates discussion between parties and ensures all parties are being heard. They do not need to be experts in the field

Question 3

What are the key features of mediation?

Answer 3

• two disputing parties
• third party = mediator
• resolution is made by parties voluntarily
• resolution is enforceable if terms of settlement is entered into
• used extensively by courts and VCAT

Question 4

What is conciliation?

Answer 4

a process of dispute resolution involving the assistance of an independent third party, with the aim of enabling the parties to reach a decision.

the third party listens to the facts and makes suggestions and assists the parties to reach a mutually acceptable agreement

Question 5

What is the difference between mediation and conciliation?

Answer 5

the conciliator has more influence over the outcome, as they have specialist knowledge, so they suggest options and possible solutions

Question 6

When is conciliation or mediation appropriate?

Answer 6

• where the relationship between the parties will continue
• both parties are prepared to meet in a spirit of compromise
• defendant admits liability
• parties want privacy
• disputes that need a combination of remedies
• court has referred the parties to mediation or conciliation
• matter can be resolved

Question 7

When is mediation not appropriate?

Answer 7

• overwhelming emotions may interfere
• history of broken promises
• history of violent and threatening behaviour
• one/both parties are unwilling to try to reach an agreement
• gross imbalance of power
• the mental health of a party suggests that the process may be ineffective
• in which a debt is clearly owing by one party
• matter is urgent

Question 8

What are the strengths of mediation/conciliation?

Answer 8

• much less formal - less intimidating/promoting access
• may address needs better
• conducted in a safe/supported environment
• use an experience third party
• save time
• generally cheaper
• private and confidential
• voluntary
• there is more flexibility
• offer savings for the civil justice system

Question 9

What are the weaknesses of conciliation/mediation?

Answer 9

• the decision may not be enforceable
• one party may be compromised too much
• one party may be stronger/ more powerful
• one party may refuse
• matter may not resolve
• some parties may make claims on principle and want a hearing
• the decision will not form any precedent
• one party may feel compelled to reach a resolution
• may be conducted too early/late to be effective
• no ability to appeal the decision

Question 10

What is Arbitration?

Answer 10

A method of resolving disputes without a formal court process. The independent arbitrator will listen to both sides and make a decision that is binding on the parties

Question 11

What is an arbitrator?

Answer 11

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

Question 12

What is an arbitral award?

Answer 12

a legally binding decision made in arbitration by an arbitrator

Question 13

When is arbitration available?

Answer 13

• parties have agreed to settle their dispute by arbitration
• court orders parties to arbitration (must consent)
• claim has been filed in the magistrates’ court and the plaintiff is seeking 10.000 or less

Question 14

When are disputes suitable for arbitration?

Answer 14

• disputes in which parties have agreed to arbitrate the dispute
• disputes in which the parties what the benefit of a binding/enforceable award
• parties want evidence to be presented
• parties want to avoid publicity of a courtroom

Question 15

When are disputes unsuitable for arbitration?

Answer 15

• disputes where the parties have not agreed to arbitrate the dispute
• disputes where the parties wish to have greater control over the dispute resolution process and outcome
• parties wish to have their dispute heard in court
• the parties are more comfortable with formal rules of evidence and procedure

Question 16

What are the strengths of arbitration?

Answer 16

• a decision is binding and fully enforceable through the courts
• private and will be confidential
• parties have control over how arbitration is to be conducted, by determining how evidence is to be presented and when steps are to be undertaken
• arbitrator is generally an expert
• may be more timely, as there is more flexibility in the processes