Outcome 2- Civil Disputes Flashcards
Where can parties resolve a dispute through?
Judical determination either through;
- Courts
- VCAT
Three different alternate dispute resolutions (ADR)
- Meditation
- Conciliation
- Arbitration
Mediation
Where a party comes to an agreement. The agreement itself is not binding until the parties enter into a contract. The third party has the least control and wont offer suggestions. Mediation is more likely to be acceptable to the parties as they have made the decision themselves.
Meditator
A mediator seeks to empower both parties to negotiate and agree to a resolution. They try to even out any imbalance between the parties
Advantages of Mediation
- They are held in an informal atmosphere which helps decrease stress.
- They are less confrontal
- Matters can be discussed openly and without fear of publicity.
Conciliation (Conciliator)
They will offer independant advice and suggestions to assist parties to resolve a dispute.
Conciliation
The final decision is not binding until a contract is entered into by parties
Advantages of Conciliation
- There is more flexibility for the parties, as they are free to explore options to resolve the dispute
- The third party can give assistance
- A conciliator can give advice
Arbitration
Arbitration occurs when there is a civil dispute settling less for $100,000. An arbitrator helps parties negotiate. They make a final decision and they are binding
Advantages of arbitration
- Arbitration is binding
- Arbitration is more informal than judicial determination
- Advice can be given about how to resolve the dispute.
Judicial determination
A hearing is held and presided over by a magistrate, judge or judicial officers.
The decisions are binding meaning that they are made by a third party and more easily enforceable than resolutions reached during mediation and conciliation
Advantages of Judicial determination
- A court is able to make a precedent, particularly when the court is deciding an area of common law that requires reform
- Decisions made in ADR do not form precedent
Disadvantages of Judicial Determination
- It is more expensive than mediation and conciliation
- It can be stressful and traumatic for some parties
- It can involve long delays
Disadvantages of Meditation and conciliation
- Requires the participation and willingness of the parties to attend.
- Unless the parties enter terms of settlement, decisions reached are not binding
- One party may be more dominant
Disadvantages of Arbitration
- This is more expensive than mediation and conciliation because the parties normally use legal rep
- There can be delays before a matter is brought before an arbitrate.
QUESTION Compare and evaluate meditation and arbitration.
- Define Mediation and Arbitration
- Explain what is different with the two
- Strengths of Mediation
- Weakness of Arbitration
- Strength of Arbitration
- Weakness of Mediation
- Conclusion
Conclusion of Mediation and arbitration
Whether mediation is a better form of dispute resolution than with arbitration will depend on the nature of the dispute. Arbitration tends to be used in commercial
disputes, whereas mediation is more commonly used for consumer disputes.
