Mediation and Conciliation

Question 1

What is mediation?

Answer 1

• One of the least formal methods for resolving several disputes that can occur outside and within the court system
• Both the parties must be willing to cooperate to reach a solution
• Through the assistance of an impartial third party referred to as the mediator, the parties will sit down to discuss the issues involved, consider options, and try to reach an agreement through negotiation and compromise

Question 2

Features of mediation

Answer 2

• Legal representation is generally not used to ensure informality
• There are no strict rules of evidence and procedure
• Can be conducted in a private office in court or at the Dispute Resolution Centre of Victoria
• Any decision is not legally binding unless terms/deed of settlement is signed by both parties

Question 3

Mediation before courts

Answer 3

• Often used before courts if a relationship needs to be maintained/costs are an issue
• Examples:
  
  • Disagreement between neighbours
  • Disputes between landlords and tenants
  • Disputes among family members

Question 4

Mediation during court

Answer 4

• The Magistrate, County and Supreme Court can order parties to attend mediation once the case has been initiated as part of pre-trial procedures
• This can be ordered without the consent of the parties
• The cost is usually split between parties
• Associate judges can also mediate, which is referred to as judicial mediation

Question 5

Mediation as an alternative to court

Answer 5

• VCAT often refers claims to mediation prior to the final hearing
• Parties can also access private mediation through the Dispute Settlement Centre of Victoria

Question 6

When is mediation appropriate?

Answer 6

• A relationship needs to be maintained between the two parties, such as a manager and employee
• Parties are willing to discuss the issues
• Parties would prefer privacy and confidentiality
• Parties would like lower legal fees, and the court process is often more expensive than mediation
• A prompt resolution needs to be reached as significant wait times are often associated with court trials
• The parties are less informed and would therefore like to use a less formal method

Question 7

When is mediation inappropriate?

Answer 7

• When a relationship is already soured
• When a significant power imbalance exists
• When a party does not want to discuss the case, such as an abuse or trauma case
• The party wants to demonstrate the poor behaviour of the defendant, so therefore, wants the case to be public
• Where one party has significant resources, so they want to seek legal action no matter the cost
• When urgent court intervention is required and mediation leads to delays

Question 8

What is conciliation?

Answer 8

• Has all the same features as mediation, except:
  
  • The conciliator will listen to the facts and evidence presented by both sides and make suggestions regarding ways and options to resolve the dispute
  • The conciliator will generally be an individual with specialist knowledge in that field pertaining to the legal dispute

Question 9

Features of conciliation

Answer 9

• Two disputing parties, potentially with representation
• A third party who is a conciliator, whose role is to facilitate communication between parties and office suggestions and solutions
• The resolution is made by the parties voluntarily with advice from the conciliator
• Resolution may be enforceable if a terms of settlement is entered
• Primarily used by CAV and VCAT

Question 10

When is conciliation used?

Answer 10

• The Magistrates Court can order parties to attend conciliation
• The County Court can order parties to attend conciliation
• VCAT can order parties to attend compulsory conferences that use conciliation
• CAV utilises conciliation as their primary dispute resolution method
  MEDIATION IS MORE LIKELY TO BE ORDERED BY THE COURTS THAN CONCILIATION

Question 11

When is conciliation appropriate?

Answer 11

• When parties are willing to discuss issues and maintain a relationship
• When costs are an issue
• When privacy and confidentiality are required or desired
• When one party has admitted responsibility and therefore are open to discussing or negotiating

Question 12

When is conciliation inappropriate?

Answer 12

• Parties are highly emotional
• Parties are unwilling to discuss issues
• There is a history of violence or threats between parties
• There is a power imbalance between parties
• Parties would prefer a binding result or the formalities associated with judicial determination

Question 13

Strengths of M + C and fairness

Answer 13

• The parties are able to participate and control the outcome of their dispute
• The mediator and conciliator are both impartial
• Both methods are faster than trial and minimise delays, therefore ensuring participation

Question 14

Weaknesses of M + C and fairness

Answer 14

• A power imbalance can reduce the participation and impartiality of the final outcome
• In both cases, the outcome is not binding and therefore reduces the participation if one party chooses to not follow through
• Participation is fully eliminated if one party is unwilling to discuss

Question 15

Strengths of M + C and equality

Answer 15

• Both methods are highly informal and ensures both parties can engage equally
• The mediator and conciliatore are able to guide their conversation to ensure that both parties are able to provide their sides
• In both methods, the independent third party is unlikely to permit legal representation unless both parties have it

Question 16

Weaknesses of M + C and equality

Answer 16

• If one party is more vulnerable or there is a power imbalance between the parties, a forced outcome may be reached that does not equally benefit both parties

Question 17

Strengths of M + C and access

Answer 17

• Both methods are far cheaper than the courts, making remedies easier to obtain for each party
• Both methods often do not require legal representation, making it easier to engage with the system
• Privacy is ensured and therefore more sensitive matters may be able to be taken if the plaintiff doesn’t want the dispute publicised
• Due to its non adversarial nature, mediation and conciliation are unlikely to be intimidating and therefore promote encouragement of resolving the case

Question 18

Weaknesses of M + C and access

Answer 18

• In long running and hostile disputes, mediation and conciliation are unlikely to be appropriate as parties are unlikely to be constructive and therefore result in less engagement
• Parties will still need to present evidence and negotiate with each other, which can be difficult for those, especially if a power imbalance exists