Alternative Dispute Resolution Methods:
After examining the court system and their jurisdiction, we will now look at other ways in which disputes can be resolved. Remember that ADRs can only be used for civil disputes. If you commit a criminal offence (murder, robbery, rape, culpable driving), alternative methods of dispute resolution is not available to you. In this case, you have to go to court and more than likely prison! So please don't say that ADRs can be used for criminal offences; only civil ones.
Mediation:
How does mediation work?
Mediation is an alternate method used to resolve civil disputes when parties do not want to engage the formal judicial system. Mediation, as a method, should not be considered as a "stand alone" option. Rather, it should be recognised as being part of and used in conjunction with the court system and tribunals.
The process of mediation involves the disputing parties facing each other across a table in the presence of an independent and neutral 3rd party (the mediator). The role of the mediator in this situation is to try and facilitate discussing and encourage communication between both parties in order to resolve the dispute. Here, issues being disputed are identify, alternatives and other options are also considered. The overall aim of mediation is to reach a final agreement that both parties agree to leading to a win/win situation.
Binding:
In most cases mediation is not binding and relies on the "good faith" of parties to follow through with the agreement. In some cases however, when mediation is used as part of a pre hearing process in courts and tribunal then it is binding.
Where can it occur?
Within the court system, VCAT and Dispute Settlement Centres
When would mediation be most suitable?
Mediation is most suitable and appropriate when:
One strength of using mediation as a method to resolve disputes is the ability to reach a win/win outcome. As the method relies on both parties discussing, having input and coming to an agreement that they both find acceptable, it is more likely to lead to a situation where both parties can benefit or feel that they have 'won'. Unlike the judicial system whereby the outcome is usually a win/lose scenario, mediation encourages beneficial outcomes for both sides.
Another strength of mediation is its lack of formality. Unlike a trial or hearing, mediation does not require strict rules of evidence and procedure to be followed. Parties often don't have to feel intimidated or worry about meeting certain standards that they would be held up to if they were in court.
Another strength of mediation is that it is less costly and time consuming compared to courts. Due to the lack of formality and legal processes involved, legal representation is usually not required. Parties can generally represent themselves during mediation. Also fees for mediation are less than courts. This provides a method that is affordable and not financially taxing on individuals as oppose to courts.
Weaknesses of Mediation
One weakness of mediation is that it is often not binding. Due to the way mediation operates, it relies on
"good faith" of parties to follow through with what they have agreed upon during the mediation process. Later, if one party chooses not to follow through, there is not much action that the opposing party can take other than going to court since decisions made in mediation are often not legally binding.
Another weakness of mediation is its lack of formal atmosphere. As mediation is not bound by strict rules of evidence and procedure such as courts, this can lead to an imbalance of power. If one party is more confident or 'powerful', they may dominate the discussion and pressure the opposing side into agreeing to an outcome which can cause unfairness.
Lastly, mediation may not produce a decision. As the mediator can only facilitate the discussion and therefore not suggest or even decide on an outcome, parties may walk away from mediation with their dispute unresolved. This lack of finality can mean that the dispute may continue or parties will have to seek other means to resolve their issues causing more timely delays and costs.
Conciliation:
How does it work?
In many ways, conciliation is similar to mediation with some key differences. The process of conciliation involves the opposing parties meeting with a neutral 3rd party (the conciliator) to resolve a dispute. The conciliator, unlike the mediator, listens to evidence and arguments presented by each party and tries to suggest a fair resolution. The conciliator will generally have expertise regarding the matter at hand (an area of law e.g. family, contracts, commercial) and although they can suggest outcomes, they cannot force parties to accept a decision.
Is conciliation binding?
Conciliation is generally not binding unless the decision has been formalised by a court order.
Where can it be used?
Conciliation can be used within the court system and VCAT
What disputes are suitable for conciliation?
One strength of conciliation is that parties can become involved with the decision making process regarding how the outcome of the dispute will be resolved. It is the role of the conciliator to listen to the facts from both sides and assists them to come to a decision. This process allows for a win/win situation.
Another strength of conciliation as that parties can utilise the expertise of the conciliator. A key difference between mediation and conciliation is that the conciliator usually has expertise and knowledge in a particular area of law. This will assist parties that have not been able to reach an agreement because they are unsure of their legal obligations or what their rights are in relation to a particular legal aspect. The conciliator can provide this insight and move towards reaching an agreement.
Lastly, the informal atmosphere of conciliation generally means that both parties do not require legal representation and fees are less than that of courts. The role of the conciliator is to ask questions and explain certain aspects of the law so that parties can gain a sense of clarification. From this, they can provide options of resolution for parties as oppose to generating a win/lose scenario like the courts where parties feel they need legal representation in order to 'win'.
Weaknesses of conciliation:
One weakness of conciliation is that it is not binding. In order to follow through with outcomes, this relies on the good will of both parties and there is generally no action that can be taken by parties if the other side chooses not to complete what they agreed to do. The only recourse is to take the dispute further.
Another weakness of conciliation is that it can lack finality. The informal and 'voluntarily' nature of conciliation relies on the good faith of both parties wanting to resolve the dispute using this method. In saying that, both sides can walk away from conciliation without reaching an agreement if none can be reached or if one party chooses to withdraw, they can do that at any time meaning that no resolution was reached.
Lastly, conciliation can add further delays for parties. If parties do not agree and don't find a solution through this process, they have no other option but to drop the dispute or engage in the judicial system. Unlike courts whereby a final and binding decision is made by the judicial officer, conciliation doesn't provide this final resolution and therefore parties may have to resort to courts anyway.
Arbitration:
How does it work?
Arbitration involves parties referring their dispute to a neutral 3rd party to make a decision. The arbitrator listens to arguments and statements made by both sides and from there, makes an order (generally in favour of one party) than is binding on both parties.
Is it binding?
Yes
Where can it be used?
Arbitration can be used by the courts (The Magistrates court uses arbitration for disputes less than $10,000) and VCAT within their Residential Tenancies list.
When is arbitration most suitable?
Strengths of Arbitration:
One strength of arbitration is that the decision is binding. The arbitrator in making their decision, has the power to grant an order that is binding on both parties. This provides finality for both parties that the dispute has finished.
Another strength of arbitration is that compared to mediation, the arbitrator is an individual that usually has more expertise and knowledge in the area of law. This ensures parties that the decision being made is from an individual that is informed within that area of law.
Lastly, arbitration is generally faster and more efficient that engaging in the courts. Unlike courts, arbitration doesn't have such formal and strict rules of evidence and procedure. This means that parties may not feel like they need legal representation in order to 'win' the dispute. However, arbitration is still more formal than mediation in that it provides a degree of finality.
Weaknesses of Arbitration:
One weakness of arbitration is that like the courts, it can provide a win/lose scenario. Having an arbitrator determine the outcome of a dispute takes the decision out of the parties hands. This generally means that the outcome will be more favourable for one side than the other. This means that parties may be left dissatisfied.
Another weakness of arbitration is that this method may not be the most cost efficient way to resolve disputes. Because of the win/lose structure, parties may still choose to engage in legal representation in order to present the best possible case on their behalf. As such, although there aren't as many pre-trial procedures and strict rules of evidence as found in courts, the final decision can mean added costs for parties.
Lastly, a weakness of arbitration is that there is limited grounds for appeals. Unlike the court hierarchy whereby parties have a clear hierarchy and leave to appeal, the avenues available to parties involved in arbitration are limited. Successful appeals are uncommon which means that those that believe an incorrect decision was reach can feel dissatisfied that they don't have the opportunity to seek a second and more superior opinion.
After examining the court system and their jurisdiction, we will now look at other ways in which disputes can be resolved. Remember that ADRs can only be used for civil disputes. If you commit a criminal offence (murder, robbery, rape, culpable driving), alternative methods of dispute resolution is not available to you. In this case, you have to go to court and more than likely prison! So please don't say that ADRs can be used for criminal offences; only civil ones.
Mediation:
How does mediation work?
Mediation is an alternate method used to resolve civil disputes when parties do not want to engage the formal judicial system. Mediation, as a method, should not be considered as a "stand alone" option. Rather, it should be recognised as being part of and used in conjunction with the court system and tribunals.
The process of mediation involves the disputing parties facing each other across a table in the presence of an independent and neutral 3rd party (the mediator). The role of the mediator in this situation is to try and facilitate discussing and encourage communication between both parties in order to resolve the dispute. Here, issues being disputed are identify, alternatives and other options are also considered. The overall aim of mediation is to reach a final agreement that both parties agree to leading to a win/win situation.
Binding:
In most cases mediation is not binding and relies on the "good faith" of parties to follow through with the agreement. In some cases however, when mediation is used as part of a pre hearing process in courts and tribunal then it is binding.
Where can it occur?
Within the court system, VCAT and Dispute Settlement Centres
When would mediation be most suitable?
Mediation is most suitable and appropriate when:
- Parties would like to maintain an on going relationship
- Parties would like to become involved or have control of the outcome regarding their dispute
- Parties that would prefer a less formal and intimidating atmosphere
- Parties would like a more cost effective and timely manner to resolve disputes
One strength of using mediation as a method to resolve disputes is the ability to reach a win/win outcome. As the method relies on both parties discussing, having input and coming to an agreement that they both find acceptable, it is more likely to lead to a situation where both parties can benefit or feel that they have 'won'. Unlike the judicial system whereby the outcome is usually a win/lose scenario, mediation encourages beneficial outcomes for both sides.
Another strength of mediation is its lack of formality. Unlike a trial or hearing, mediation does not require strict rules of evidence and procedure to be followed. Parties often don't have to feel intimidated or worry about meeting certain standards that they would be held up to if they were in court.
Another strength of mediation is that it is less costly and time consuming compared to courts. Due to the lack of formality and legal processes involved, legal representation is usually not required. Parties can generally represent themselves during mediation. Also fees for mediation are less than courts. This provides a method that is affordable and not financially taxing on individuals as oppose to courts.
Weaknesses of Mediation
One weakness of mediation is that it is often not binding. Due to the way mediation operates, it relies on
"good faith" of parties to follow through with what they have agreed upon during the mediation process. Later, if one party chooses not to follow through, there is not much action that the opposing party can take other than going to court since decisions made in mediation are often not legally binding.
Another weakness of mediation is its lack of formal atmosphere. As mediation is not bound by strict rules of evidence and procedure such as courts, this can lead to an imbalance of power. If one party is more confident or 'powerful', they may dominate the discussion and pressure the opposing side into agreeing to an outcome which can cause unfairness.
Lastly, mediation may not produce a decision. As the mediator can only facilitate the discussion and therefore not suggest or even decide on an outcome, parties may walk away from mediation with their dispute unresolved. This lack of finality can mean that the dispute may continue or parties will have to seek other means to resolve their issues causing more timely delays and costs.
Conciliation:
How does it work?
In many ways, conciliation is similar to mediation with some key differences. The process of conciliation involves the opposing parties meeting with a neutral 3rd party (the conciliator) to resolve a dispute. The conciliator, unlike the mediator, listens to evidence and arguments presented by each party and tries to suggest a fair resolution. The conciliator will generally have expertise regarding the matter at hand (an area of law e.g. family, contracts, commercial) and although they can suggest outcomes, they cannot force parties to accept a decision.
Is conciliation binding?
Conciliation is generally not binding unless the decision has been formalised by a court order.
Where can it be used?
Conciliation can be used within the court system and VCAT
What disputes are suitable for conciliation?
- When parties require the expertise and advice of a conciliator
- When parties want to maintain an on going relationship
- When parties want to save time and costs
One strength of conciliation is that parties can become involved with the decision making process regarding how the outcome of the dispute will be resolved. It is the role of the conciliator to listen to the facts from both sides and assists them to come to a decision. This process allows for a win/win situation.
Another strength of conciliation as that parties can utilise the expertise of the conciliator. A key difference between mediation and conciliation is that the conciliator usually has expertise and knowledge in a particular area of law. This will assist parties that have not been able to reach an agreement because they are unsure of their legal obligations or what their rights are in relation to a particular legal aspect. The conciliator can provide this insight and move towards reaching an agreement.
Lastly, the informal atmosphere of conciliation generally means that both parties do not require legal representation and fees are less than that of courts. The role of the conciliator is to ask questions and explain certain aspects of the law so that parties can gain a sense of clarification. From this, they can provide options of resolution for parties as oppose to generating a win/lose scenario like the courts where parties feel they need legal representation in order to 'win'.
Weaknesses of conciliation:
One weakness of conciliation is that it is not binding. In order to follow through with outcomes, this relies on the good will of both parties and there is generally no action that can be taken by parties if the other side chooses not to complete what they agreed to do. The only recourse is to take the dispute further.
Another weakness of conciliation is that it can lack finality. The informal and 'voluntarily' nature of conciliation relies on the good faith of both parties wanting to resolve the dispute using this method. In saying that, both sides can walk away from conciliation without reaching an agreement if none can be reached or if one party chooses to withdraw, they can do that at any time meaning that no resolution was reached.
Lastly, conciliation can add further delays for parties. If parties do not agree and don't find a solution through this process, they have no other option but to drop the dispute or engage in the judicial system. Unlike courts whereby a final and binding decision is made by the judicial officer, conciliation doesn't provide this final resolution and therefore parties may have to resort to courts anyway.
Arbitration:
How does it work?
Arbitration involves parties referring their dispute to a neutral 3rd party to make a decision. The arbitrator listens to arguments and statements made by both sides and from there, makes an order (generally in favour of one party) than is binding on both parties.
Is it binding?
Yes
Where can it be used?
Arbitration can be used by the courts (The Magistrates court uses arbitration for disputes less than $10,000) and VCAT within their Residential Tenancies list.
When is arbitration most suitable?
- Parties that want finality regarding their dispute
- Parties that would like the expertise and informed judgement from an expert 3rd party
- A more efficient method than resolving to judicial determination
Strengths of Arbitration:
One strength of arbitration is that the decision is binding. The arbitrator in making their decision, has the power to grant an order that is binding on both parties. This provides finality for both parties that the dispute has finished.
Another strength of arbitration is that compared to mediation, the arbitrator is an individual that usually has more expertise and knowledge in the area of law. This ensures parties that the decision being made is from an individual that is informed within that area of law.
Lastly, arbitration is generally faster and more efficient that engaging in the courts. Unlike courts, arbitration doesn't have such formal and strict rules of evidence and procedure. This means that parties may not feel like they need legal representation in order to 'win' the dispute. However, arbitration is still more formal than mediation in that it provides a degree of finality.
Weaknesses of Arbitration:
One weakness of arbitration is that like the courts, it can provide a win/lose scenario. Having an arbitrator determine the outcome of a dispute takes the decision out of the parties hands. This generally means that the outcome will be more favourable for one side than the other. This means that parties may be left dissatisfied.
Another weakness of arbitration is that this method may not be the most cost efficient way to resolve disputes. Because of the win/lose structure, parties may still choose to engage in legal representation in order to present the best possible case on their behalf. As such, although there aren't as many pre-trial procedures and strict rules of evidence as found in courts, the final decision can mean added costs for parties.
Lastly, a weakness of arbitration is that there is limited grounds for appeals. Unlike the court hierarchy whereby parties have a clear hierarchy and leave to appeal, the avenues available to parties involved in arbitration are limited. Successful appeals are uncommon which means that those that believe an incorrect decision was reach can feel dissatisfied that they don't have the opportunity to seek a second and more superior opinion.