Comparison of Dispute Resolution Methods Flashcards
5 similarities between all methods
Independent third party Attendance Consideration of the evidence Enforceable decision Legal representation
Independent third party
Each method makes use of an independent third party to resolve a dispute. Without an independent third party there is no need for a dispute resolution process as it could just be done outside of a dispute resolution system.
Attendance
Each method normally requires the attendance by the parties or their legal representatives to make arguments or submissions about the strength of their case. Without attendance of both parties the disputes could not be resolved fairly.
Consideration of the evidence
Each method may involve a consideration of the evidence or the claims being made for the dispute to be resolved. This helps to determine the nature of the dispute and what can be done to resolve it.
Enforceable decision
Each method may involve an enforceable decision being made. In mediation and conciliation, this may involve terms of settlement signed by the parties in arbitration, an arbitration award will be handed down in judicial determination, it will be a court order.
Legal representation
Each method can involve the use of a legal representative who appears on behalf of the parties. This can help in more complex cases and especially for more formal proceedings such as judicial determination where there are rules of evidence and procedure.
5 differences between the methods
Binding decision Fees and costs Types of disputes Role of the third party Private
Binding decision
A binding decision is only made in arbitration and judicial determination, whereas in mediation and conciliation no binding decision is made by a third party. However the parties can enter into terms of settlement, which can be legally enforceable.
Fees and costs
The fees and costs involved in judicial determination are much higher than in mediation and conciliation. This is because judicial determination is a much more thorough and complex process that usually requires legal representation.
Types of disputes
The types of disputes each method is used for are different. Conciliation, where the third party has more involvement, can be more appropriate for family matters than mediation, whereas judicial determination can be more appropriate where there is hostility between the parties.
Role of the third party.
The role of the third party is substantially different in each method. In mediation, the mediator makes no suggestions but is there to keep the parties on track and focused. In conciliation, the conciliator can offer solutions to the parties. In arbitration and judicial determination, the third party will listen to the arguments and make a binding decision.
Private
Mediation, conciliation and arbitration can be conducted privately and in confidence. This differs to judicial determination which is normally conducted in an open courtroom.
