ADR Exam

Question 1

Mediation overview

Answer 1

independent third party - mediator
mediator cannot suggest a solution, only ensures procedure is followed
based on idea that parties will be satisfied by an agreement developed themselves

Question 2

Strengths of mediation

Answer 2

used when maintenance of a relationship is required e.g. parents, neighbours
parties resolve their own issue, win win
less expensive than a trial, legal advice not necessary
faster than trial, may take days or weeks

Question 3

Weaknesses of mediation

Answer 3

unsuitable when cases need interpretation of the law
may not bear a solution and precede necessary court or other ADR
Generally mediation is confidential so there is minimal public scrutiny, individuals may not be treated fairly especially in a power imbalance

Question 4

Conciliation + arbitration overview

Answer 4

-Impartial conciliator who can suggest resolution
- used in workplace disputes
- conciliator has legal knowledge
-beneficial for maintaining relationships between families or workplaces

Used when parties require a legally binding order
More formal than other ADR, most similar to court
Can be expensive if parties opt for a formal hearing (lawyers etc)
Win-lose situation for parties, not recommended for saving relationships between people

Question 5

Strengths of Conciliation + arbitration

Answer 5

• may prolong a court hearing
  -conciliator cannot impose a solution
• informal environment, inexpensive
  -mutually accepted agreement, more likely to keep to terms (win win)
  Used when parties require a legally binding order
  More formal than other ADR, most similar to court
  Costs are lower than Court

Question 6

Weaknesses of Conciliation + arbitration

Answer 6

Can be expensive if parties opt for a formal hearing (lawyers etc)
Win-lose situation for parties, not recommended for saving relationships between people

Question 7

Example of mediation

Answer 7

Rowe v AusNet Electricity Services Pty Ltd [2015] VSC 232
Murrindindi class action after Black Saturday Bushfires

Question 8

Example of conciliation + arbitration

Answer 8

Unfair dismissals claims will involve a conciliation meeting, if this fails arbitration will follow in the Fair Work Commision - per SDA