U3 AOS 2a lesson 4 Flashcards
mediation
One of the least formal methods for resolving civil disputes that can occur outside and within
the court system.
features of mediation
- Involves the parties willing to cooperate to reach a solution
- Through the assistance of an impartial 3rd party referred to as the mediator, the parties:
- discuss the issues + Consider options
- Try to reach an agreement through negotiation + compromise
- Legal representation is generally not used to promote a sense of informality
- There are no strict rules of evidence and procedure
- Any decision reached is not legally binding unless a deed of settlement is signed by both parties
term of deed settlement
a legally binding document that outlines the terms that the parties have agreed to after mediation which can be enforceable through courts if one party does not comply.
where is mediation used: before court
Mediation can be used by parties before engaging in the courts to resolve disputes, if it is important to maintain an ongoing relationship and cost may be an issue:
*Disagreements between neighbours
- Disputes between landlords and tenants
- Disputes among family members
where is mediation used: during court
- The Magistrate, County and Supreme Court can order parties to attend mediation once the case has been initiated in the court as part of a pre-trial procedures
This can be ordered without consent of the parties
- Cost for mediation usually split between the parties
- Associate judges can also mediate - referred to as judicial mediation
where is mediation used: as an alt to court
- VCAT (Victorian Civil and Administrative Tribunal) often refers claims to mediation prior to the final hearing
*Parties can also access private mediation through the Dispute Settlement Centre of Victoria
when is mediation appropriate: maintain relo
- A relationship needs to be maintained between the two parties, such as a manager and employee.
when is mediation appropriate: privacy
- Parties prefer privacy and confidentiality and therefore. want to resolve the dispute in a less formal and publicised manner
when is mediation appropriate: lower legal fees
*Both parties want lower legal fees, as the court process can often be more expensive than mediation.
when is mediation inappropriate: relationship
gross imbalance of between parties such as a CEO and entry- level employee
when is mediation inappropriate: unwilling party
where one party is unwilling to engage - perhaps as they are litigious and only want their day in court, and are refusing to compromise
when is mediation inappropriate: urgent intervention
- Urgent court intervention is needed, and mediation would slow the process down. This is relevant in situations where one party may not want to engage. Example: landlord-tenant disputes where a tenant may be soon to be evicted. Or personal injury claims where medical debt or lost income is severely impacting the plaintiff.
mediation fairness strength
- Mediation allows parties to control the outcome of their dispute, as a resolution is not reached until a compromise is achieved. This can ensure parties reach a fair outcome
- The mediator is impartial, meaning there is no bias towards or against a party.
mediation fairness weaknesses
A power imbalance between the parties may cause a forced and unfair resolution to be reached
- The decision reached through mediation is not legally binding, unless the parties sign a deed of settlement, meaning there is a risk that a party may not follow through with the agreement. This can limit the achievement of fairness for the other party involved.
mediation access strength
Mediation is accessible as it is less costly than the courts, making remedies easier to obtain for the parties. Furthermore, legal representation is often not required, minimising costs and enhancing. a party’s ability to seek justice.
The public nature of a trial can prevent parties from taking legal action if the subject of the dispute is sensitive. As mediation is more private, it promotes access to a resolution in such cases
mediation access weakness
In long-running and hostile disputes, mediation may be inappropriate as parties are unlikely 10 constructively communicate and reach a resolution thus limiting access to justice as the dispute may remain unresolved.
Given legal representation is often not used in mediation, parties may need to present their own cases. This may be intimidating for certain people and discourage them from pursuing mediation However, this limitation is usually insignificant. given the informal and open manner in which mediation is conducted
mediation equality weaknesses
if one party is more vulnerable or there is a power imbalance between the parties, a forced outcome may be reached that does not equally benefit both parties.
mediation equality strengths
As formal rules of evidence and procedure de not apply, each party in the dispute can feel supported to speak freely and present their perspective.
- Unrepresented parties are unlikely to be disadvantaged as the mediator guides the discussion and there are no formal rules of evidence and procedure to navigate
conciliation
Conciliation shares all the same elements as mediation except that:
- The conciliator will listen to the facts and evidence presented by both sides + make suggestions regarding ways and options to resolve the dispute.
- The conciliator will generally be an individual with specialist knowledge in that field pertaining to the legal dispute e.g., consumer law, family law, workplace relations
where is conciliation used: magistrate
can order parties to attend conciliation
where is conciliation used: county court
can order parties to attend conciliation
where is conciliation used: VCAT
can order parties to attend compulsory conference that uses conciliation
conciliation appropriate: will
• Parties are willing to discuss issues.
conciliation appropriate:privacy
•Parties prefer privacy and confidentiality.
conciliation appropriate: maintain relo
- A relationship needs to be maintained between parties, such as in the case of an employer and their employee.
conciliation inappropriate: history
- There is a history of violence or threats btwn parties
conciliation inappropriate: power
- There is a power imbalance btwn parties.
conciliation inappropriate: binding resol
parties want a binding resolution to their dispute or prefer the formalities associated with judicial determination
Conciliation fairness strengths
Conciliation offers parties the ability to control the outcome of their dispute, promoting the likelihood of a fair outcome.
- The conciliator acts as an unbiased, impartial opinion that favours neither party.
- Conciliation is faster than a trial, it reduces the courts workload, and minimises delays in cases, therefore promoting fairness.
Conciliation fairness limitation
There may be a power imbalance between parties that can cause a forced resolution to be reached limiting fairness
- The decision reached through conciliation is not always legally binding, meaning there is a risk that a party may fall back on the agreement.
Conciliation equality strengths
Unrepresented parties are not disadvantaged. as the conciliator guides the discussion and suggests solutions.
- In many cases, a conciliator will only permit legal representation if both parties have a lawyer. If one person does not have a lawyer, both parties will usually self-represent.
Conciliation equality weaknesses
- If one party is more vulnerable or there is a power imbalance between parties, especially if no legal representation is present, a ‘forced outcome may be reached that does not equally benefit both parties.
Conciliation access strengths
Paying a conciliator is much cheaper than the cost of paying a court to conduct a trial. Legal representation is also rarely required for conciliation and if it is required, this is usually for a shorter period of time, reducing costs. Thus, the process of conciliation is more accessible for parties than a trial.
- Conciliation is conducted in a more supportive, non-adversarial manner than a trial. The intimidating nature of a trial may discourage some individuals from pursuing a case through the courts. Therefore, conciliation’s supportive tone promotes access to justice by overcoming this issue.
Conciliation access limitations
In long-running, hostile disputes, conciliation may be inappropriate as parties are unlikely to constructively communicate and reach a resolution, thus limiting access.
- Given legal representation is often not used in conciliation,
parties may need to present their own cases. This may be intimidating for certain people, perhaps discouraging them from pursuing a remedy. However, this is a minor limitation, given conciliation is usually conducted in a suportive manner where both parties are unrepresented.
