Legal Unit 3 AOS2- Methods used to resolve civil disputes Flashcards
Methods of dispute resolution
- Mediation
- Conciliation
- Arbitration
Mediation- the third party
Name- mediator
Expert- does not need to be an expert
Role- independent third party who facilitates discussion between the 2 parties & ensures all parties are being heard
Mediation- the parties
Role- develop options, consider alternatives & try to reach an agreement through negotiation & cooperation
Mediation- the process
C or A- cooperative
Held- in private
Evidence & procedure- no strict rules
Mediation- final outcome
Who makes it- parties
How is it made- a final outcome is made by agreement
Legally binding?- yes if terms of settlement are formulated
Mediation- how is it used
Who- used extensively in Vic courts & VCAT
Conciliation- the third party
Name- conciliator
Expert- specialist knowledge in the area
Role- independent third party who facilitates discussion and suggests options and possible solutions
Conciliation- the parties
Role- discussions to develop options, consider alternatives, & try to reach agreement through negotiation & cooperation
Conciliation- the process
C or A- cooperative
Held- in private
Evidence & procedure- no strict rules
Conciliation- final outcome
Who makes it- parties
How is it made- a final outcome is made by agreement
Legally binding?- yes if terms of settlement are formulated into orders
Conciliation- how is it used
Who- primarily used by VCAT & CAV
Arbitration- the third party
Name- arbitrator
Expert- specialist knowledge in the area
Role- independent third party who listens to both sides and makes a binding decision on the parties
Arbitration- the parties
Role- present evidence & arguments to the arbitrator
Arbitration- the process
C or A- adversial
Held- in private
Evidence & procedure- decided by parties so can be as strict or formal as they want
Arbitration- final outcome
Who makes it- arbitrator
How is it made- arbitrator listens to both sides and then makes arbitral award (final order)
Legally binding?- yes
Arbitration- how is it used
Who- magistrate cases for >$10000
Mediation & Conciliation purposes
- To save time & resources of the system by encouraging an early settlement by the parties
- To ensure that parties who may find a court or VCAT hearing stressful or intimidating have access to cooperative & informal methods of resolving a dispute
- To provide flexibility for parties in terms of outcome which is one they both agree on & can compromise on
Arbitration purposes
- To provide a more cost effective & time efficient process for the determination of civil disputes for parties & system
- To give parties more control over rules of evidence & procedure applied & the level of formality of the proceedings
- To safeguard commercial relationships by ensuring privacy & confidentiality away from media
Mediation & Conciliation appropriateness
- Whether the parties are willing to meet in a spirit of compromise & stick to an agreement if reached
- Whether the relationship between the parties will continue as this will help to preserve the relationship
- Whether one or both parties want the dispute to be resolved privately or with a public record of what occurred if plaintiff wants to make a point against defendant’s conduct
Arbitration appropriateness
- Whether the parties have agreed to arbitrate the dispute or if the claim is >$10000 in Mag Court
- Whether the parties want the benefit of a binding decision made by independent third party or if they want more control
- Whether one or both parties want the dispute to be resolved privately or if they want a public record of what occurred
