Unit 4: AOS 1- Dispute Resolution Methods

Question 1

Explain mediation

Answer 1

Mediation is a cooperative method of resolving disputes, and often used for disputes that involve an on-going relationship such as family matters. The method involves two parties in conflict that sit down and discuss the issues involved to reach an agreement through negotiation.
Mediation is presided over by an independent third party known as the mediator. The role of the mediator is purely to facilitate discussion and ensure both parties are being heard.
The outcome of mediation is not legally binding, however if an agreement is signed by both parties then it will be fully enforceable by the courts.

Question 2

Explain conciliation

Answer 2

Conciliation is a process of dispute resolution involving the assistance of an independent third party known as a conciliator. Conciliation is used for industrial disputes those being disputes of a commercial nature. The conciliator does not make the decision for the parties but instead listens to the facts and evidence presented, makes suggestions and assists the parties into coming to their own decisions.
The outcome of conciliation is not binding unless parties sign an agreement and therefore the outcome can be legally enforceable,

Question 3

Explain arbitration

Answer 3

Arbitration is calling a third party which the parties have previously agreed to follow, and to listen to the facts of the dispute and therefore make a decision on behalf of the parties. Arbitration can be used for civil disputes that would usually be heard in the magistrates court but the claim must be less than 10,000 dollars.
The decision that is made by the arbitrator is legally binding and fully enforceable by the courts.
In arbitration the outcome creates a “win/lose” scenario

Question 4

Explain judicial determination

Answer 4

Judicial determination is a dispute resolution method in which involves parties presenting arguments and evidence to a judicial officer. Judicial officers can be magistrates, judges, presidents or vice-presidents of VCAT.
Judicial determination involves both criminal and civil law. The judicial officer will then make a binding determination or decision about the outcome of the case. The judicial officer must also ensure that the strict rules of evidence and procedure that belong to the courts are adhered to.

Question 5

Compare Mediation and Conciliation

Answer 5

Differences:
-A difference is the role of the independent third parties. Mediation is presided over by an independent third party known as the mediator. The role of the mediator is purely to facilitate discussion and ensure both parties are being heard. Whereas conciliation s presided over by an independent third party known as the conciliator. The role of the conciliator is to listens to the facts and evidence, makes suggestions and assists the parties into coming to their own decisions. Therefore in conciliation the independent third party has more of an input then compared to mediation.
-Another difference is the types of disputes each are tailored towards. Mediation is used for disputes that require an on-going relationship such as families. Whereas conciliation is used for disputes of a commercial nature
Similarities:
-A similarity is the nature of the outcome as they both are not legally binding unless a contract is signed by both parties, only then is the agreement legally enforceable.
-Both also make use of an independent third party to settle the dispute.

Question 6

Compare Mediation and Arbitration

Answer 6

Differences:
-A difference is the role of the independent third parties. Mediation is presided over by an independent third party known as the mediator. The role of the mediator is purely to facilitate discussion and ensure both parties are being heard. Whereas arbitration presided over by an independent third party known as the arbitrator. The role of the arbitrator is to listen to the facts and evidence presented in the dispute and then make a legally binding decision and handing down an arbitration award. This decision is legally enforceable through the courts.
-Another difference is the nature of the outcome. In arbitration the nature of the outcome is legally binding and fully enforceable by the courts. Whereas the nature of the outcome in mediation is that the outcome is only legally binding if both of the parties sign an agreement.
Similarities
-Mediation and arbitration both involve the use of independent third parties and therefore they are unbiased.
-Both may have the opportunity to seek legal representation to utilize through the disputes.

Question 7

Compare Mediation and Judicial Determination

Answer 7

Differences:
-Another difference is the nature of the outcome. In judicial determination is the nature of the outcome is legally binding. Whereas the nature of the outcome in mediation is that the outcome is only legally binding if both of the parties sign an agreement.
-The types of disputes that can be heard Mediation is used for disputes that require an on-going relationship such as families. Whereas judicial determination can be more appropriate where there is hostility between the parties.
Similarities:
-Both involve the use of independent third parties and therefore they are unbiased.
-Both may have the opportunity to seek legal representation to utilize through the disputes, who appears on behalf of the parties

Question 8

Compare Conciliation and Arbitration

Answer 8

Differences-
-A difference is the role of the independent third parties. The role of the conciliator is to listens to the facts and evidence, makes suggestions and assists the parties into coming to their own decisions. Whereas arbitration presided over by an independent third party known as the arbitrator. The role of the arbitrator is to listen to the facts and evidence presented in the dispute and then make a legally binding decision and handing down an arbitration award. This decision is legally enforceable through the courts.
-Another difference is the nature of the outcome as conciliation is not legally binding unless a contract is signed by both parties, only then is the agreement legally enforceable. Whereas in arbitration the nature of the outcome is legally binding and fully enforceable by the courts.
Similarities:
-Both involve the use of independent third parties and therefore they are unbiased.
-Both may have the opportunity to seek legal representation to utilize through the disputes, who appears on behalf of the parties

Question 9

Compare Conciliation and Judicial Determination

Answer 9

Differences:
- Another difference is the nature of the outcome. In judicial determination is the nature of the outcome is legally binding. Whereas the nature of the outcome in conciliation is that the outcome is only legally binding if both of the parties sign an agreement.
–The types of disputes that can be heard conciliation is used for disputes that are industrial meaning they are of a commercial nature. Whereas judicial determination can be more appropriate where there is hostility between the parties.
Similarities:
-Both involve the use of independent third parties and therefore they are unbiased.
-Both may have the opportunity to seek legal representation to utilize through the disputes, who appears on behalf of the parties

Question 10

Compare Judicial Determination and Arbitration

Answer 10

Differences:
-Formality, judicial determination is much more formal due to the strict rules of evidence and procedure that the court has.
-Cost
-Amount that can be awarded.
Similarity:
-The nature of the outcome, they are both legally binding and fully enforceable through the courts.
-Both outcomes create a win/lose scenario
-Legal representation

Question 11

Evaluate Mediation

Answer 11

Strengths:

• Allows the parties to have control over the procedure and therefore outcome. This is due to in mediation there is no strict rules of evidence and procedure.
• Mediation is a much more timely alternative dispute resolution then in comparison to the courts. As courts will have to go through pre-trial procedures etc.

Weaknesses:

• One party may dominate proceedings such as being loud and dominating and therefore the other party may feel intimidated into reaching a resolution. Mediation will also not be effective if there is a power imbalance such as employer and employee relationship.
• If mediation is not successful or a decision cannot be reached between the parties then the matter may need to be taken to court anyway, delaying the time of final resolution.m

Question 12

Evaluate Conciliation

Answer 12

Strengths:

• Allows the parties to have control over the procedure and therefore outcome. This is due to in conciliation there is no strict rules of evidence and procedure.
• Conciliation is a much more timely alternative dispute resolution then in comparison to the courts. As courts will have to go through pre-trial procedures etc.

Weaknesses:

• The outcome is not legally binding unless both parties sign an agreement. If an agreement is not signed then neither party is legally obliged to follow the agreement and therefore conciliation could be a waste of time.
• If conciliation is not successful or a decision cannot be reached between the parties then the matter may need to be taken to court anyway, delaying the time of final resolution.

Question 13

Evaluate Arbitration

Answer 13

Strengths:
-Result is binding decisions reached are final and therefore are enforceable by the courts
-Formal procedure. The formal procedure of arbitration emphasises the seriousness of the case.
Weaknesses:
-Win/lose scenario. An arbitrated decision is a decision in favour of one party. One party will feel less satisfied with the outcome of the arbitration.
-. Arbitration often bears similarities to court proceedings and parties may choose to have legal representation, but it is not required. Due to the formal nature.

Question 14

Evaluate Judicial Determination

Answer 14

Strengths:
-The decision is binding and therefore enforceable through the courts.
-Judicial officers are experienced professionals with expertise in the law and its application. This also ensures that the outcome is being decided by someone who understands the law.
-Parties may feel more satisfied with the formality of having a judge deciding a case for them.
-Creates precedent
Weaknesses:
-Usually expensive due to the court fees (pre-trial & legal rep)
-Time taken for case to be ready for hearing or trial (judicial officer to reach a decision on the outcome)
-Bound by formality such as the strict rules of evidence and procedure of the courts. can be intimidating.
-Bound by precedent (could be outdated)

Question 15

Explain the role of VCAT

Answer 15

The role of VCAT is to provide an avenue of civil dispute resolution that is cost effective, timely, specialized and informal.

Question 16

Explain the structure of VCAT:

Answer 16

VCAT has four divisions

• Administrative
• Civil
• Residential Tenancies
• Human Rights

VCAT has a president whom is a supreme court judge, It also has vice-presidents whom are County Court judges. VCAT has four divisions each led by a deputy president. VCAT also consists of senior members. Both the senior members and deputy presidents are not judges but in fact experts in their fields.

Question 17

Explain the reason for VCAT: Cost

Answer 17

Provides for a lower cost alternative for the parties in comparison to other dispute resolution methods such as judicial determination. The cost of lodging a dispute with VCAT is sixty dollars, this is a nominal fee in comparison to lodging a case through the courts.

Question 18

Explain the reason for VCAT: Time

Answer 18

A matter before VCAT can be heard in a shorter time than taking a matter to a court, the average time from application to resolution of disputes in some lists is about five weeks.

Question 19

Explain the reason for VCAT: Formality

Answer 19

An informal atmosphere ensures that parties can put their case forward in their own way, rather than be subject to strict rules of evidence and procedure.

Question 20

Explain the reason for VCAT: Specialization

Answer 20

Each list operates in it’s own specialized jurisdiction, resulting in the tribunal personnel developing expertise in resolving disputes in that area.

Question 21

Evaluate VCAT

Answer 21

Strengths:
-More cost effective over the courts. VCAT has a low application fee approx sixty dollars. VCAT is also more cost effective as the parties are more likely to represent themselves. Whereas in the courts legal representation is essential because of the strict rules of evidence and procedure.
-More timely. The average time from application to resolution of disputes in some lists is about 5 weeks compared to the courts,
- An informal atmosphere ensures that parties can put their case forward in their own way, rather than be subject to strict rules of evidence and procedure.
-Each list operates in it’s own specialized jurisdiction between, resulting in the tribunal personnel developing expertise in resolving disputes in that area.
Weaknesses:
-VCAT is only about to resolve civil disputes, not criminal disputes, therefore it is limiting in its ability to hear all matters.
-Increased use of legal representation, costs of taking a matter to VCAT then sometimes can be as high as the courts cost.
-Too informal some parties may feel uncomfortable.
-VCAT members are normally non-judicial officers meaning they may be casual and have not much experience.

Question 22

Evaluate Courts

Answer 22

Strengths
-The courts can hear all types of cases both criminal and civil.
-Legal rep ensures the parties are equally represented and able to argue their cases.
-Rules of evidence and procedure ensure that parties are treated in a fair manner.
-The decision is binding and ensuring certainty in the outcome and allowing winning party to enforce decision if not complied with.
Weaknesses:
-High Court fees and the need for legal rep make it expensive
-Delays and backlog are common
-Formality could be intimidating to parties due to strict rules of evidence and procedure.

Question 23

Compare ADR and Judicial Determination

Answer 23

Similarites
-Both make use of an independent third party
-Can involve the use of a legal representative
-May involve an enforceable decision
-Consideration of the evidence or the claims being made for the dispute to be resolved.
Differences
-A binding decision
-Fees and costs
-Formality
-Types of disputes

Question 24

Appeals from VCAT

Answer 24

VCAT decisions can only be appealed on points of low and that it will be trials division of the Supreme Court where the appeal is heard unless the VCAT case was heard by a president or Vice President in which case the appeal would be heard in the court of appeal

Question 25

Compare VCAT and Courts

Answer 25

Similarites:

• Both charge a fee, fee is charged at the time of application made at VCAT or at the time complaint (Magistrates) or writ (county or supreme) is lodged.
• Both the courts and VCAT make use of alternative dispute resolution methods. Both have the power to refer to these before making a final decision
• Both make use of an independent third party
• Depending on who hears the case in VCAT both can use judicial determination.

Differences:

• Fee structure: some VCAT cases there isn’t even an application fee. Also with VCAT there is no hearing fee for the first day of hearing, but courts there is a fee on filing a claim and for each hearing day.
• A jury is not avalvible in VCAT wheere as in courts optional jury of 6 for civil cases
• VCAT more informal
• VCAT is not avalible for criminal cases
• More timely