methods used to resolve civil disputes

Question 1

what are alternative dispute resolution methods?

Answer 1

ways of resolving or settling civil disputes that do not involve a court or tribunal hearing
- mediation
- conciliation
- arbitration

Question 2

terms of settlement

Answer 2

a document that sets out the terms on which the parties agree to resolve their dispute
- parties are bound by the promises they make

Question 3

compulsory conference

Answer 3

a confidential meeting between the parties involved in a dispute (in the presence of an independent third party) to discuss ways to resolve their dispute

Question 4

mediation definition

Answer 4

a method of dispute resolution that uses an independent third party (mediator) to help the disputing parties reach a resolution
- cooperative process between parties which is overseen by a neutral and impartial mediator.

Question 5

what is a mediator?

Answer 5

a mediator is an independent third party who does not interfere or persuade but helps the parties in a mediation as they try to reach a settlement of matter

Question 6

mediators role

Answer 6

mediators are not experts in particular types of disputes
- they do not make the decision
- they help the parties compromise

Question 7

mediation - terms of settlement

Answer 7

if the parties agree to a solution they normally enter a binding written contract called terms of settlement

Question 8

conciliation definition

Answer 8

a cooperative process between parties that is overseen by a neutral and impartial conciliator.

Question 9

what is a conciliator?

Answer 9

the independent third party in a conciliation who helps the parties reach an agreement that ends the dispute between them
- can make suggestions and offer advice to assist in finding a mutually acceptable resolution, but the parties reach the decision themselves

Question 10

conciliators role

Answer 10

a conciliator listens to both parties and makes suggestions about how to resolve the matter
- they normally have expertise in the subject of the dispute
- the suggestions are not binding

Question 11

conciliation - terms of settlement

Answer 11

if the parties accept the suggestion they usually enter into terms of settlement

Question 12

strengths of mediation and conciliation

Answer 12

• more likely to be acceptable to the parties
• held in a less formal setting than a court room
• far less confrontational than a court room
• matters can be discussed confidentially, without publicity
• more flexibility for parties in resolving the dispute
• more effectively achieve a ‘win-win’ solution where both parties feel satisfied
• conciliation: has specialised knowledge in the subject and can guide the parties in reaching a solution

Question 13

weaknesses of mediation and conciliation

Answer 13

• both parties must be willing to participate
• not binding on the parties or enforceable
• have no power to order parties to come to a decision
• not appropriate for some disputes when 1 party has an advantage
• 1 party may dominate, influence the 3rd party
• not useful for civil disputes where urgent injection is required
• mediation only: mediator cannot give advice or offer suggestions

Question 14

arbitration definition

Answer 14

• more formal than mediation and conciliation
• witnesses can be called to answer questions and evidence can be tabled

Question 15

what is an arbitrator?

Answer 15

the independent third party appointed to settle a dispute during arbitration
- have specialised expertise in particular kinds of disputes between parties and make decisions that are legally binding on the parties

Question 16

arbitrators role

Answer 16

• listens to both sides of the dispute and issues a binding decision called an award
• often experts in the subject of dispute, they are used in commercial or corporate disputes

Question 17

arbitration - arbitral award

Answer 17

a legally binding decision made in arbitration by an arbitrator

Question 18

strengths of arbitration

Answer 18

• flexibility in the way it can be conducted
• less formal than court processes (parties feel at ease)
• can be cheaper than going to court
• is legally binding on the parties (ensures they will most likely agree)
• 3rd party has expertise in the subject matter
• private and confidential, attracts parties who wish to avoid publicity of a trial

Question 19

weaknesses of arbitration

Answer 19

• not as flexible as m + c
• can be as formal as a court process
• more expensive than m + c
• not always available to parties in dispute
• can take a long time for a decision to be reached
• parties have no control over the outcome imposed on them