Methods Of Dispute Resolution

Question 1

6 methods of dispute resolution

Answer 1

Negotiation
  Mediation
  Conciliation
  Arbitration
  Collaborative law
  Judicial determination

Question 2

Negotiation

Answer 2

A process used by parties when they attempt to reach an agreement. When a dispute arises, step 1 should be to try to negotiate a settlement with the other party. In this way both parties can give their point of view and try and reach a compromise. It is often used in disputes between consumers and trader and neighbours. Negotiation is usually carried out without legal representation.

Question 3

Mediation

Answer 3

Mediation is a cooperative method of resolving disputes and is widely used in our legal system. The parties in conflict sit down and discuss the issues involved, develop options, consider alternatives and reach an agreement through negotiation.

Question 4

Mediators

Answer 4

This is done through the help of one or two trained a mediators.
Mediators are usually people the parties can relate to, e.g. if the parties to the dispute are a man and a woman, the mediators may be the same. This helps the parties feel more comfortable and less threatened. The parties may require professional mediators such as social workers or solicitors.

Question 5

Role of the mediator

Answer 5

A mediator does not interfere but allows the parties to have control of their dispute, explore the options and attempt to resolve the dispute by reaching an agreement that satisfies the needs of both parties. The role of the mediator is to facilitate discussion between the disputing parties and to ensure that both parties are being heard.

Question 6

Appropriateness and inappropriateness of mediation

Answer 6

Mediation is not appropriate when there is a gross imbalance between the parties in terms of power and resources, e.g. an employer and employee. Mediation is more appropriate when a continuing relationship is required and is most successful with neighbour and family matters. It focuses on feelings and values of the parties as well as the facts involved. Mediation will only work when both parties decide to are willing to abide by any agreement reached

Question 7

Mediation successful outcome

Answer 7

A successful outcome in mediation will have occurred if the parties reach a fair compromise, make an agreement that is workable and take responsibility for keeping the agreement. Agreements made through mediation have no legal status (not legally binding or enforceable)

Question 8

4 disputes unsuitable for mediation

Answer 8

Disputes where there is no continuing relationship between the parties. RELATIONSHIP

Circumstances where both parties are unwilling to attend mediation.UNWILLING

Where there is overwhelming emotions involved. EMOTIONS

Serious criminal matters. SERIOUS CRIMES

Question 9

4 places that use mediation

Answer 9

Family Court

Family Relationship Centres

Dispute Settlement Centre of Victoria

Magistrates’ Court, County Court and Supreme Court refer civil cases to mediation to speed up their resolution.

Question 10

Conciliation

Answer 10

Conciliation is the process of dispute resolution with the assistance of a third party. The third party does not make the decision but listens to the facts, makes suggestions and assists the parties to reach their own decision. The conciliator assists by exploring solutions to lel the dispute and suggesting possible options.

Question 11

How does conciliation differ from mediation

Answer 11

Conciliation differs from mediation in that the conciliator exercises a greater influence over the outcome than is done in mediation. The decision made by the parties is not binding unless the parties enter into terms of settlement, but is more likely to be followed as it has been made in front of a third party.

Question 12

3 places where conciliation is used

Answer 12

Victorian Equal Opportunity and Human Rights Commission

VCAT

Pre-hearing conferences in the Magistrates Court.

Question 13

Arbitration

Answer 13

Arbitration is calling a third party, which the parties have previously agreed to follow, to listen to the facts of the dispute and make a decision on behalf of the parties. The decision made by the arbitrator is legally enforceable. Arbitration is used in commercial disputes and in the Magistrates’ Court for disputes of less than $10 000.

Question 14

Collaborative law

Answer 14

Collaborative Law is a people friendly approach to dispute settlement and uses problem solving and negotiation and empowers the parties to help them reach a satisfactory resolution to the dispute. In collaborative law, the client and lawyers agree in writing to reach a settlement without going to court.

Question 15

Collaborative law process will only be successful if the parties: x5

Answer 15

Are non-aggressive AGGRESSION
Wish to reach an agreement AGREEMENT
Want to keep costs down COSTS
Value retaining control CONTROL
Want the dispute and any terms kept confidential CONFIDENTIALITY

Question 16

Judicial determination

Answer 16

Judicial determination refers to a dispute resolution process which involves the parties to the dispute presenting arguments and evidence to a judicial officer, such as a judge, magistrate or member of VCAT, who then makes a binding determination or decision about the outcome of the case.

Question 17

Features of judicial determination

Answer 17

Impartiality:- judge or magistrate is an impartial adjudicator.

They hear the evidence presented by both parties.

Are independent of the government (separation of powers)and are not subject to political pressures when making decisions.

Question 18

Rules of evidence in judicial determination

Answer 18

the judge or magistrate is to hear and determine cases based on evidence presented. the judge or magistrate may also need to determine the admissibility of evidence.

Question 19

Strict rules of procedure in judicial determination

Answer 19

The court has strict rules of procedure and evidence and the judge or magistrate must ensure that theses are adhered to.

Question 20

Decide questions of fact and law judicial determination

Answer 20

The judge or magistrate is responsible for determining both the facts and the applicable legal principles. In cases hear by judge and jury, it is the role of the judge to determines questions of law and that of the jury to decide questions of fact.

Question 21

Reaching a binding decision in mediation

Answer 21

the judge or magistrate is required to reach a decision in favour of one of the parties to the dispute. In a civil case, the decision is based on the balance of probabilities and in a criminal case the magistrate or jury (in the County or Supreme Court) must decide beyond a reasonable doubt that the accused committed the alleged offence.

Question 22

ADR

Answer 22

Mediation, conciliation and arbitration are alternative dispute resolution (ADR) methods, or appropriate dispute resolution methods, and can be used by the parties without going to VCAT or the courts. However, these methods are also used by the courts and VCAT to resolve disputes, before, or as an alternative to, judicially determining the case.