DP4 Dispute resolution methods

Question 1

What is mediation?

Answer 1

A confidential process where parties try to resolve a dispute in a neutral, non-confrontational setting, with the help of an impartial third party.

Question 2

What is the mediator’s role?

Answer 2

Facilitating conversation and cooperation
- help parties reach mutually acceptable outcome to dispute
- decisions made voluntarily by parties

Question 3

When parties reach a mutually acceptable outcome to a dispute, what happens?

Answer 3

Not automatically legally binding but can enter into a contact to do so.
- deed of settlement is a binding agreement that sets out terms parties agreed to
- can be enforceable if a party does not comply.

Question 4

Can parties be referred to mediation?

Answer 4

Normally yes, by courts (consent is not required) by Magistrates’ court.
- county and supreme court can mediate disputes through judicial mediation, which enhances access and engagement
VCAT refers to mediation before final hearing

Question 5

What is conciliation?

Answer 5

Confidential process were parties resolve a dispute with the help of an independent third party
- cooperative method, resolved conflict through negotiation and compromise.

Question 6

What is the conciliator’s role?

Answer 6

Facilitate communication between parties, and offer suggestions or solutions.
- conciliator listens to facts and proposes solutions
- specialist knowledge
- helps reach mutually acceptable outcome.

Question 7

How does an agreement arise from conciliation?

Answer 7

Not automatically binding, but can enter a contract to make terms binding, called a deed of settlement.

Question 8

Do courts use concilliation?

Answer 8

Not generally, but can be used by CAV and sometimes VCAT

Question 9

What is arbitration?

Answer 9

A non-judicial method of resolving disputes, where an independent third party listens to evidence and makes a final determination.

Question 10

How is Arbitration conducted?

Answer 10

In private, less formal and more cost-effective than attending a court hearing or trial.

Question 11

How is a decision reached?

Answer 11

Decisions are binding, and decided by the arbitrator (arbitral award), and is enforeceable

Question 12

What is the procedure for arbitration?

Answer 12

Parties can agree how evidence is submitted or any procedures (access, engagement and fairness, participation)

Question 13

When is arbitration available?

Answer 13

When parties have agreed (access), court orders parties to arbitration (consent required), Claim filed in Magistrates’ court, plaintiff seeking $10k or less (access, less delays and more people can engage with the justice system, fairness - participation)

Question 14

When is conciliation and mediation not appropriate?

Answer 14

If history of broken promises, or not willing to cooperate
- history of violent or threatening behaviour, or imbalance of power
- want legally binding outcome
- want formality of courts/VCAT

Question 14

When is arbitration appropriate?

Answer 14

• Parties have agreed to settle through arbitration
• want third party to decide outcome, or want legally binding outcome
• less formal environment with less strict rules of evidence/procedure
• Want privacy (not always private)

Question 14

When is mediation and conciliation appropriate?

Answer 14

If parties want to decide on outcome to disputes themselves (saves cost/time/stress of trial), want control over outcome
- Good relationship between parties
- want less costly dispute resolution method
- Less formal and confidential

Question 15

When is arbitration not appropriate?

Answer 15

If claim is not in Mag court, more than $10,000
- parties want outcome that is easily changed, or nervous about binding decision (want control over outcome)
- formality
- publicity