U2 AOS2 - Mediation and Conciliation Flashcards
1
Q
What is mediation?
A
- least formal method for resolving disputes
- joint problem-solving process where willing parties cooperate to reach a solution through negotiation
2
Q
Who facilitates the mediation process?
A
- Mediators are impartial third parties who are trained in conflict resolution
- Facilitate discussion by empowering both parties and preventing power imbalances
- Support parties to come to a decision themselves
3
Q
When is mediation used?
A
- Before parties engage with the courts, especially if the relationship is important or costs are an issue
- During court proceedings, parties can be ordered to attend mediation before setting a further date for trial
- VCAT may refer claims to mediation before final hearing
4
Q
How does mediation work?
A
- Parties sit down to discuss issue involved, consider options and endeavour to reach an agreement
- Legal representation is often not used to maintain informality
- No strict rules of evidence and procedure
- Discussions are ‘without prejudice’, meaning they can’t be used at a later date as ‘evidence’ of a promise
- Any agreement signed is not legally binding unless a deed of settlement is signed
5
Q
Terms of Settlement
A
- A legally binding document outlining the agreement which is enforceable through courts. Terms are usually confidential to parties and can’t be disclosed to the public
6
Q
What is conciliation?
A
- Almost all the same as mediation
- However, the conciliator will listen to the facts and make suggestions
- They are also usually an individual with specialist knowledge in the field of the dispute
7
Q
When is conciliation used?
A
- Many dispute resolution bodies use conciliation (Human Rights Commission, Consumer Affairs Victoria)
- VCAT parties often sent to compulsory conference which includes conciliation
- Some specialist courts (Family Court) include conciliation conferences to reach agreements about parenting or financial issues
