METHODS OF CIVIL DISPUTE RESOLUTION AOS 2 Flashcards
What is the first thing the parties try to do when a civil dispute arises
When a civil dispute arises, the parties will usually try to negotiate with each other to resolve the dispute without the assistance of a third party. If this is not successful, the parties will either decide to abandon the claim or use other methods of dispute resolution. In other situations, negotiation may not be desirable or possible, in which case one of the parties may use the court or tribunal system to resolve the dispute.
ADR
In civil disputes, there are methods of dispute resolution other than going to court that can help the parties to reach a settlement. These are known as alternative dispute resolution (ADR). ADR is also referred to as appropriate dispute resolution because the methods used in ADR are often more appropriate than taking a matter to court.
Why does the legal system encourage the use of alternative methods of dispute resolution
The legal system encourages the use of alternative methods of dispute resolution because they are less stressful and less expensive than court action. These methods include mediation, conciliation and arbitration.
Tribunal
Tribunals provide an informal, inexpensive and speedy way of dealing with legal disputes, particularly minor complaints or those of a specialist nature.
Judicial determination
Judicial determination refers to resolving disputes through the courts. Justices of the Supreme Court, judges of the County Court and magistrates in the Magistrates’ Court are known as judicial officers; when they make a decision in a hearing or trial, they are judicially determining a case. VCAT also uses judicial determination to resolve some disputes. When a VCAT hearing is presided over by the president or the vice- president of VCAT, who are Supreme Court justices, this is known as judicial determination.
Resolving a dispute through judicial determination is normally used as a last resort, as it is expensive and time-consuming.
Mediation
If individuals are unable to reach a decision between themselves, it may be appropriate to ask for the assistance of an independent third party (a mediator) who can mediate between the parties.
Mediators are trained to assist the parties to reach a decision between themselves. The mediator tries to ‘empower’ both parties. That is, the mediator helps the parties feel more in control of the situation and more confident during negotiations. The mediator discusses the issues with the parties and tries to even out any imbalance between the parties while providing them with support. The mediators do not need to be experts in the area under dispute but they do need to have good people skills. Their job is to help people come to a decision, not make the decision for them.
The mediators will not force a decision, make suggestions about the best way to resolve the matter or tell the parties what to do. Mediation agreements are not binding, but most people are happy to stand by the agreement made. If the parties resolve the case through mediation, they will normally enter into a legally binding contract known as terms of settlement, or a settlement agreement. This means that the parties will be bound by the promises they make at mediation. This deed of settlement or agreement is enforceable through the courts.
Parties to a court case are often referred to mediation before the trial to see if a resolution can be reached.
The Dispute Settlement Centre of Victoria and Family Relationship Centres offer free or low-cost mediation services to help resolve disputes.
Conciliation
The process of conciliation also requires the assistance of an independent third party. This third party conciliates between the parties. In other words, they listen to both sides of the dispute and make suggestions about appropriate ways of resolving the matter. The final decision is made by the parties, and is not binding. For example, if you have a problem relating to discrimination against you, you could contact the Victorian Equal Opportunity and Human Rights Commission. A conciliator from the commission will try to help you settle the problem with the other party through conciliation.
If a case of discrimination is not resolved by conciliation, the parties can take the matter to the Victorian Civil and Administrative Tribunal (the Human Rights List). The tribunal will hear both sides and make a binding decision.
The courts and VCAT are also able to refer matters to conciliation before a case goes to a final hearing or trial. VCAT uses a method known as a compulsory conference, which uses conciliation as the dispute resolution method. The Magistrates’ Court uses a process known as a pre-trial conference, which again uses conciliation to try and help the parties resolve the dispute.
Arbitration
During an arbitration session, a third party listens to the parties and tries to help them reach an agreement. If this is not possible, the third party makes a decision.
In taking their case to arbitration, the parties are agreeing to abide by the arbitrator’s decision. For example, in a commercial contract a clause may be included stating that the parties agree to take any dispute between the parties to an arbitrator, and to be bound by the decision of the arbitrator.
There are professional arbitrators who will charge the parties a fee for acting as an arbitrator in a dispute. Arbitration is often used in commercial situations. Legal representation is usually allowed during the arbitration process. It can therefore be an expensive process.
The Magistrates’ Court uses arbitration to resolve civil claims of less than $10000. The court attempts to facilitate an agreement between the parties. If unsuccessful, a magistrate or registrar can make a binding decision. VCAT is also able to refer parties to arbitration.
2 advantages of judicial determination
– Decisions made through judicial determination are binding, meaning that they are made by
a third party and more easily enforceable than resolutions reached during mediation and
conciliation.
– A court is able to make precedent, particularly when the court is deciding an area of
common law that requires reform. Decisions made in mediation, conciliation and arbitration
do not form precedent.
2 advantages of mediation and conciliation
– A decision made by the parties through mediation or conciliation is more likely to be
acceptable to the parties, as they have reached the decision themselves rather than it being imposed by a third party.
– Mediation and conciliation are held in an informal atmosphere, which can help alleviate the stress and intimidation of the parties that may be felt in a courtroom.
2 advantages of Arbitration
– Arbitration is binding.
– Arbitration is more informal than judicial determination.
2 disadvantages of judicial determination
– It is more expensive than mediation and conciliation.
– It can be stressful, inconvenient and traumatic for some parties.
2 disadvantages of mediation and conciliation
– Mediation and conciliation require the participation and willingness of the parties to
attend and explore options.
– Unless the parties enter into terms of settlement, decisions reached during mediation and
conciliation are not binding.
2 disadvantages of arbitration
– Arbitration is more expensive than mediation and conciliation because the parties normally
use legal representatives.
– There can be delays before a matter is brought before an arbitrator.
