Presentation on theme: "DISPUTE RESOLUTION METHODS"— Presentation transcript:
1 DISPUTE RESOLUTION METHODS MEDIATION, CONCILIATION, ARBITRATION AND JUDICIAL DETERMINATION
2 Dispute resolution methods Both the courts and VCAT use a variety of methods to resolve criminal and civil disputesMost criminal cases are resolved through judicial determination where a judge or magistrate determines the outcome of the caseIn 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*
3 MediationMediation is a cooperative method of resolving disputes and is widely used by the courts and tribunalsIt 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.
4 MediationMediatorParties negotiate with the help of trained mediators who are neutral and impartialThe mediator does not interfere but allows the parties to have control of the processThe role of the mediator is to facilitate discussion and ensure both parties are being heardThe mediator does not need to be an expert in the field in questionThey will NOT make any decisions
5 MEDIATIONPurposeThe aim of mediation is to allow the parties to have their say without being restricted by the rules of evidence and procedureIt also allows parties to investigate the underlying reasons for the problemIt promotes a win-win solution where both parties are happy with the outcome
6 Use of mediationDispute Settlement Centre of Victoria individuals may contact this centre to attempt mediation at any timeVCATEncourages parties to resolve their disputes via mediation to reduce cost and disruption to parties.Approx 70% of VCAT disputes are resolved through mediationIf a settlement is not reached, the matter will proceed to a hearing.
7 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 consentSupreme 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)
8 Advantages It costs less than court action It can be less emotionally drainingParties have control of the outcomePromotes a win-win outcomeSuitable where parties will maintain an ongoing relationshipfocuses on future actions rather than past faultsimproves communication (even if does proceed to court)Frees up the court system
9 RestrictionsParties will only work when both parties are willing to negotiateMediation is unsuitable in situations where:Parties have no ongoing relationshipThe dispute is highly emotional or sensitiveThe dispute involves violence or threatening behaviourthere is an imbalance of power between partiesThe outcome is not legally binding ( unless a deed of settlement is drawn up and enforced by the courts)
10 conciliationConciliation 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
11 Use of ConciliationA magistrate or registrar may refer a civil proceeding for a pre-hearing conference and compulsory conferences (VCAT) which resolve the dispute using conciliationThese conferences provide an opportunity for the parties to discuss the settlement of claims and determine the issue in dispute prior to the court hearing stageThe conferences save costs and valuable court hearing timeIf 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
12 strengths Less strict rules of evidence and procedure Less time consuming and costlyParty satisfaction through negotiationNon-confrontational--- promotes ongoing relationships
13 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)
14 ArbitrationArbitration is a method of resolving disputes without having to access the court systemAn 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
15 arbitrationIt 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 disputesThe decision made by the arbitrator is legally binding
16 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 registrarThis avoids the formality of the courts and the strict rules of evidence and procedureAvoids the need for legal representation
17 USE OF ARBITRATIONArbitration is used in some VCAT lists, such as the Residential Tenancies List, which deals with disputes between tenants and landlordsThe Victorian Bar Dispute Resolution Scheme has trained arbitrators available for use in private or commercial situations.
18 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 resolutionJudicial officer= judge, magistrate, VCAT member
19 Judicial determination During trials or hearings, parties are given the opportunity to present evidence, question witnesses and make submissionsCases are bound by the strict rules of evidence and procedureBurden and standard of proof requiredLegal representation is advisable due to complex nature of court proceedingsLegal 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
20 USE OF JUDICIAL DETERMINATION Victorian court hierarchyVCAT in some instances
21 strengths The decision is binding Judicial officers are experienced legal professionalsParties may feel more satisfied with the outcome as a judge has decided the case for themIt is appropriate for all kinds of disputes (criminal and civil)
22 weaknessesIt is usually expensive (need to engage legal representation)The formality of the court system can be intimidatingIf parties are dissatisfied with the outcome they have to undertake an appeal which is time consuming and costly