M E D I A T I O N , C O N C I L I A T I O N , A R B I T R A T I O N A N D J U D I C I A L D E T E R M I N A T I O N

DISPUTE RESOLUTION METHODS

DISPUTE RESOLUTION METHODS

• Both the courts and VCAT use a variety of methods to resolve criminal and civil disputes

• Most criminal cases are resolved through judicial determination where a judge or magistrate determines the outcome of the case

• In civil cases, it is often cheaper, quicker and more suitable to attempt to resolve a case through mediation, arbitration and conciliation (alternative dispute resolution)

*ADR is now a compulsory step in most state courts before civil matters reach a hearing before a court or VCAT*

MEDIATION

• Mediation is a cooperative method of resolving disputes and is widely used by the courts and tribunals

• It is a tightly structured, joint problem solving process in which the parties sit down and discuss the issues involved, develop options, consider alternatives and reach an agreement through negotiation.

MEDIATION

Mediator• Parties negotiate with the help of trained mediators who

are neutral and impartial

• The mediator does not interfere but allows the parties to have control of the process

• The role of the mediator is to facilitate discussion and ensure both parties are being heard

• The mediator does not need to be an expert in the field in question

• They will NOT make any decisions

MEDIATION

• Purpose• The aim of mediation is to allow the parties to

have their say without being restricted by the rules of evidence and procedure

• It also allows parties to investigate the underlying reasons for the problem

• It promotes a win-win solution where both parties are happy with the outcome

USE OF MEDIATION

• Dispute Settlement Centre of Victoria individuals may contact this centre to attempt mediation at any time

• VCAT• Encourages parties to resolve their disputes via

mediation to reduce cost and disruption to parties. • Approx 70% of VCAT disputes are resolved through

mediation• If a settlement is not reached, the matter will proceed

to a hearing.

USE OF MEDIATION

COURTS

• Magistrates’, County and Supreme Court often refer civil matters to compulsory mediation before the matter proceeds further through the court system.

• Courts may refer parties to mediation with/without their consent

• Supreme Court has reported a 79% settlement rate through mediation (saving $30 million in legal fees)

• Judge-led mediation set up in the County and Supreme Court in 2010 (2 year pilot program)

ADVANTAGES

• It costs less than court action• It can be less emotionally draining• Parties have control of the outcome • Promotes a win-win outcome• Suitable where parties will maintain an ongoing

relationship• focuses on future actions rather than past faults• improves communication (even if does proceed

to court)• Frees up the court system

RESTRICTIONS

• Parties will only work when both parties are willing to negotiate

• Mediation is unsuitable in situations where:• Parties have no ongoing relationship• The dispute is highly emotional or sensitive• The dispute involves violence or threatening behaviour• there is an imbalance of power between parties

• The outcome is not legally binding ( unless a deed of settlement is drawn up and enforced by the courts)

CONCILIATION

• Conciliation is a process of dispute resolution where a third party assists the parties in reaching a resolution.

• Conciliation differs from mediation in that the conciliator exercises a greater influence over the outcome. The conciliator, who is someone with specialist knowledge, suggests options and possible solutions and is more directive than a mediator.

• The decisions made by the parties is not binding, but is more likely to be followed because it has been made with the assistance of a third party

USE OF CONCILIATION

• A magistrate or registrar may refer a civil proceeding for a pre-hearing conference and compulsory conferences (VCAT) which resolve the dispute using conciliation

• These conferences provide an opportunity for the parties to discuss the settlement of claims and determine the issue in dispute prior to the court hearing stage

• The conferences save costs and valuable court hearing time

• If a settlement cannot be reached, the matter can be referred back to court.

• It is likely that some of the issues will have been clarified before the court hearing

STRENGTHS

• Less strict rules of evidence and procedure

• Less time consuming and costly

• Party satisfaction through negotiation

• Non-confrontational--- promotes ongoing relationships

WEAKNESSES

• Not legally binding

• Voluntary (if they do not attend, the matter will have to be pursued through the courts)

• Legal representation is not essential (may mean that parties do not feel represented)

ARBITRATION

• Arbitration is a method of resolving disputes without having to access the court system

• An independent arbitrator will listen to both sides and make a decision that is binding on the parties.

• This may be compulsory arbitration (such as in the Magistrates’ court) or parties may have previously agreed to settle their dispute via arbitration

ARBITRATION

• It is more formal than mediation and conciliation but not as formal as a court hearing.

• Apart from the Magistrates’ court, it is mainly used in commercial disputes

• The decision made by the arbitrator is legally binding

USE OF ARBITRATION

• Magistrates’ Court• in civil matters before the Magistrates’ Court

where the claim is less than $10,000, the parties must settle their dispute before an arbitrator, usually a magistrate or a court registrar

• This avoids the formality of the courts and the strict rules of evidence and procedure

• Avoids the need for legal representation

USE OF ARBITRATION

• Arbitration is used in some VCAT lists, such as the Residential Tenancies List, which deals with disputes between tenants and landlords

• The Victorian Bar Dispute Resolution Scheme has trained arbitrators available for use in private or commercial situations.

JUDICIAL DETERMINATION

• Judicial determination refers to dispute resolution processes which involve the parties to the case presenting arguments and evidence to a judicial officer who then make a binding determination about the outcome of the case (court system)

• Judicial determination is not a form of alternative dispute resolution

• Judicial officer= judge, magistrate, VCAT member

JUDICIAL DETERMINATION

• During trials or hearings, parties are given the opportunity to present evidence, question witnesses and make submissions

• Cases are bound by the strict rules of evidence and procedure

• Burden and standard of proof required

• Legal representation is advisable due to complex nature of court proceedings

• Legal representation should present their case in the nest possible light.

• At the end of the case, the judicial officer will make a legally binding decision

USE OF JUDICIAL DETERMINATION

• Victorian court hierarchy

• VCAT in some instances

STRENGTHS

• The decision is binding

• Judicial officers are experienced legal professionals

• Parties may feel more satisfied with the outcome as a judge has decided the case for them

• It is appropriate for all kinds of disputes (criminal and civil)

WEAKNESSES

• It is usually expensive (need to engage legal representation)

• The formality of the court system can be intimidating

• If parties are dissatisfied with the outcome they have to undertake an appeal which is time consuming and costly