Dispute resolution methods used by the courts and VCAT: Mediation, conciliation, arbitration, judicial determination

Key concept Both the courts and VCAT use a range of different methods to resolve criminal cases and civil disputes, including mediation, conciliation, arbitration and judicial determination.

Mediation In mediation, parties try to resolve their dispute themselves, with the help of independent and impartial third parties (mediators), whose role is to keep communication flowing between parties Mediators do not offer advice or interfere, but merely facilitate discussion and help each party to understand the other’s point of view Decision/settlement: made by parties Is decision legally binding? No but parties may enter into terms of settlement which is legally enforceable

Mediation is used at the magistrates', county and supreme courts in civil cases, and at other specialist courts, divisions and lists. For example, the various suburban and regional Magistrates' Courts have introduced court-annexed mediation, which requires all defended civil disputes under a specific amount (generally $10 000) to be referred to compulsory mediation, where skilled judicial registrars assist in the resolution of the claim. No formal rules of evidence and procedures are allowed Not suitable when there is a power imbalance between the parties

Definition Mediation involves an impartial third party (mediator) assisting the parties to discuss their dispute and determining a mutually acceptable resolution between themselves. Parties make the ultimate decision and It is not legally binding unless terms/deed of settlement are created.

Examples of use Used in Anti Discrimination list, Domestic Building List, Retail Tenancies List Magistrates Court, County Court and Supreme Court refer parties to mediation with or without their consent Court annexed mediation in selected Magistrates’ Courts where disputes are less than $10,000 (Sunshine, Werribee) Judge led mediation program in County and Supreme Courts with an ADR judge and ADR coordinator Where ongoing relationship is required eg employee/employer

Conciliation Parties attempt to resolve their dispute themselves, with the help of an independent and impartial third party (conciliator). The conciliator tries to help parties reach an agreement by listening to the evidence and arguments of each party and making suggestions on how to resolve the dispute Decision/settlement made by: parties Is decision legally binding? No but parties may enter into terms of settlement which is legally enforceable

Conciliator takes more active role in dispute resolution process than mediator. Conciliation is used at VCAT compulsory conferences (where parties are often encouraged to reach a mutually acceptable decision before judicial determination at a hearing) and at pre-hearing conferences in the Magistrates' Court (where parties try to reach an out-of-court settlement to avoid formal court procedures). The county and supreme courts also encourage the use of conciliation to resolve civil disputes before trial.

Definition Conciliation involves an impartial third party (conciliator) assisting the parties to discuss their dispute, and offering suggestions and advice to help the parties determine a mutually acceptable resolution between themselves. Parties make the ultimate decision and it is not legally binding, unless terms/deed of settlement are entered into.

Examples of use Magistrates’ court holds pre-hearing conferences using conciliation methods VCAT can order parties to compulsory conciliation used for larger claims (over$10 000) Consumer affairs Victoria

Arbitration An independent and impartial third party (arbitrator) listens to evidence and arguments of the parties and makes a decision on their behalf. Parties may have voluntarily previously agreed to follow the decision of an coniliator or may have redirected to arbitration Decision/settlement made by: arbitrator Legally binding? Yes Who uses it? Magistrates Court refers all civil claims of les than $10,000 to arbitration, Supreme Court Commercial Court set up an arbitration list in 2010, Some lists of VCAT (Residential Tenancies List) use it More formal than other methods of ADR, it is still less formal than courts Parties may choose to have legal rep. but it is not required

Definition Arbitration is where an independent and impartial third party (arbitrator) listens to evidence and arguments of the parties and makes a decision on their behalf which is legally binding as an arbitration award is implemented.

Examples of use Magistrates’ court refers all claims less than $10 000 to compulsory arbitration Supreme Court Commercial Court set up an arbitration list in February 2010

Definition Judicial determination involves parties presenting their case, generally according to rules of evidence and procedure, before an independent judicial officer (judge, magistrate or VCAT member) who makes a legally binding decision for the parties.

Examples of use All dispute resolution courts in the Victorian court hierarchy for those civil cases where ADR methods have been unsuccessful

Strengths of mediation and conciliation Weaknesses of mediation and conciliation These methods are informal as strict rules of evidence and procedure are not used, which may allow parties to feel more comfortable and confident to present their evidence and discuss key issues. The informality may also assist a faster resolution of the dispute. With no strict rules of evidence and procedure, a more confident or knowledgeable party may be able to take advantage of informality and dominate proceedings, or a less confident party may compromise too easily. Legal representatives are not necessary when these methods are used, which lowers costs. If successful, high costs of litigation can be avoided by using these methods. It is also made legally binding through deed of settlement Without the use of legal representatives parties may not be able to ensure their case is prepared and presented in the best possible manner. Parties compromise and resolve dispute themselves, they may feel more at ease to discuss dispute in an open manner, and be more satisfied with outcome as they have taken part in the decision. It has not been made by third party. This also maintiains a relatioship eg neighbors As mediation or conciliation is voluntary, parties may decide not to attend and the matter may end up going to court and being resolved in a more adversarial manner which is also more costly and time consuming

Evaluate two weaknesses of mediation as an alternative dispute resolution method (5 marks)

Strengths of arbitration and judicial determination Weaknesses of arbitration and judicial determination Strict rules of evidence and procedure, typically used in judicial determination and arbitration, ensure that both parties have an equal opportunity to present their case and prevent a more confident party from dominating proceedings. the use of strict rules of evidence and procedure necessitates the use of legal representation and increases costs. Complex rules also may alienate the parties from the resolution process and increase the time it takes to resolve a dispute. Generally parties involved in arbitration and judicial determination employ legal representatives who ensure their case is prepared and presented in the best possible The use of legal representatives increases costs and may disadvantage a party who is unable to afford legal representation. The decision made is legally binding and fully enforceable by the courts through an arbitration award, so both parties are obligated to follow this decision As the decision is imposed upon the parties, they may not feel as satisfied with the outcome compared to if the parties resolved the dispute themselves. The adversarial nature of proceedings may also make it difficult for parties to maintain an ongoing relationship.

Task In a group of 3-4, choose either conciliation, arbitration, mediation or judicial determination Your task is to present your knowledge of this method to the class You must include: A definition – what is the method about? In what situations would you use it? Either a case study or a hypothetical situation where this method has been used At least two strengths and two weaknesses of this method

Exam questions Distinguish between mediation and arbitration (4 marks) Dan and his neighbor, Ms Hawkins, are having a dispute over a fence. Dan feels Ms Hawkins should pay for more of the fence considering her beautiful cats, Mr Tiggie and Mr Pie, spend the most time on the fence. They decide to settle the matter using alternative dispute resolution. Explain the method most suited to these parties and justify your response. (4 marks) Evaluate two weaknesses of ____________ (fill in your chosen method) as an alternative dispute resolution method. (4 marks) 5.9 questions 1-3

Explain one strength and one weakness of arbitration as an alternative dispute resolution method

Keiran is being sued for $50,000 in damages Keiran is being sued for $50,000 in damages. Identify the court that would hear kieran’s dispute and outline its original civil jurisdiction (3 marks) Explain one strength and one weakness of arbitration as an alternative dispute resolution method (4 marks)

Arbitration is where an independent and impartial third party (arbitrator) listens to evidence and arguments of both parties and makes a decision which is legally binding through an arbitration award. Whereas mediation is where an impartial third party (mediator) facilitates discussion of the dispute but does not offer suggestions, in order to help parties reach a mutually acceptable resolution between themselves, this decision is not legally binding unless parties enter into a deed of settlement.