1. METHODS OF ALTERNATIVE DISUTE RESOLUTION
Chapter 6 Adjudication Bodies
METHODS OF ALTERNATIVE DISUTE RESOLUTION

2. METHOD ONE: NEGOTIATION
Process used by two or more parties
Parties try to negotiate a settlement by providing each other’s point of view try to reach a compromise
Any decision reached is not binding
Usually carried out without legal representation – could be taken along to assist with process

3. When is negotiation used?
Consumers and traders
Neighbourhood disputes
It can occur during pre-trial – to achieve out of court settlement.
Ombudsman – assists in negotiation when a dispute involves a government department or government authority

4. What is the role of the Ombudsman
Commonwealth Ombudsman appointed by the Governor general in council
The Victorian Ombudsman appointed by the governor in council
The role is to investigate complaints by citizens reached by a government body, a refusal to act, or a proposal.

5. All complains should be written down and sent to the relevant ombudsman.
The ombudsman will investigate the matter and try to negotiate a resolution.
They communicate by letter, telephone, interviews and attending the scene of a complaint.
Ombudsman has no power to compel a government body to act but is influential as they can refer the matter to the government.

6. METHOD TWO: MEDIATION Joint problem solving method
Parties to dispute sit and discuss issues involved
Develop options
Consider alternatives and reach an agreement through negotiation
They do this through the help of one or two trained mediators.

7. What is a mediator?
Trained professionals – can be social worker or even solicitor
Someone parties can relate to. E.g. If parties are male or female usually the same sex. This helps parties feel comfortable and less threatened.
Does not have to be a professional but possess a high level of conflict resolution skills

8. Role Not interfere. Allows parties to have control of the dispute
Explores the options.
Facilitates discussion – ensures both parties are being heard.

9. Why might parties prefer mediation?
Not restricted by rules of evidence and procedure
No need to prove fault
Enables parties to explore underlying reasons for the problem
Parties can reach agreement without high cost of court hearing
The focus is on the relationship of the parties and on future behaviour.

10. STEPS IN MEDIATION Introduction and explanation of rules
Each party uninterrupted statement about their side
Main issues listed on a board
Issues and concerns are discussed
Each arty speaks to mediator in private mediation takes place – options discussed
Voluntary agreement made by both parties
Agreement put into writing

11. Advantages
Talk directly with other party and listen to other parties reply
Focus on future rather than past
Agreement suits everyone’s needs
Understand why they have experienced difficulty in reaching an agreement in the past
Cheaper and quicker than the courts
Confidential – whereas courts are open to public
Parties more committed to the agreement – more likely to uphold it.

12. Disadvantages Agreements have no legal status
Not enforceable – like the courts
Evidence of anything said or admitted in mediation is not admisable in court
Risks of parties not cooperating
One party may be more dominant etc.
Unsuitable for all disputes See page 291

13. Homework QUESTIONS Why is confidentiality an advantage?
Provide three examples where mediation is used as an ADR.
What are the fees for mediation?
Provide one example of how the courts can direct parties to resolve a dispute.
Why do Magistrates’ court, County court and Supreme Court refer civil matters to mediation?
Explain why the ‘Diversion to mediation scheme was introduced by the Magistrates court in How has this assisted with intervention order applications?