EVALUATION OF DISPUTE RESOLUTION METHODS

Strengths of Mediation  Strengths 1) Mediation is often less expensive. Mediation avoids the costs of a trial, and is significantly less expensive for the parties than litigation. Parties do not require legal representation, and the fees involved for the services of mediators are lower than court fees. 2) Mediation is generally faster. Mediation is often quicker than going to trial, and a dispute may be resolved in a matter or days or weeks instead of months or years. 3) Win-win solution. Mediation can produce a win-win solution where both parties feel that they have got something out of the process. 4) Informal atmosphere. The informal atmosphere of mediation encourages compromise. Mediation encourages a joint problem-solving procedure in which the parties in conflict sit down and discuss the issues involved, consider options and reach an agreement through negotiation. It is a less intimidating method of dispute resolution compared to courts. 5) Parties are encouraged to resolve their own dispute. Mediation encourages parties in dispute to try to resolve their own conflict with the assistance of third parties who are experienced in mediation procedures, rather than leaving the resolution to the legal system.

Weaknesses of Mediation 1) Not binding decision. Any mediation agreement reached is not binding or enforceable so the dispute may need to be resolved by the courts anyway. 2) Mediation may not produce a solution. The mediation process may not produce a solution. If the dispute is not resolved through mediation, the parties may then have to face the usual and traditional costs, such as legal fees and expert fees.. 3) Informal atmosphere. There can be too much informality with mediation and a more powerful or confident party can take advantage. This may produce imbalance of bargaining power. 4) Mediation may not be appropriate. The process is inappropriate where the two parties are unequal in a power relationship; the more dominant party may force the other party to accept a solution which is unjust.

Strengths of Conciliation 1) Parties have their say. Conciliation allows parties to be able to have their say. The conciliator assists but does not make the decision, listens to the facts, makes suggestions and assists the parties to come to their own decision The conciliator assists by exploring solutions to the dispute and suggesting possible options. The decision made by the parties is not binding but is more likely to be followed because it has been made in front of a third party. 2) Expertise of conciliator. The conciliator usually has some expertise in the area of law. 3) Conciliation is an informal process. The informal surroundings and procedures of conciliation encourage cooperation. The conciliator will help everyone discuss the complaint and work towards resolving it. 4) Conciliation process is more cooperative and less competitive than court action. Participating in a conciliation process can enhance the relationship between the disputing parties. This is a key advantage in situations where the parties have an ongoing relationship, such as in child custody or workplace cases.

Weaknesses of Conciliation 1) Lack of finality. Although the conciliator may suggest a solution, the conciliator cannot impose one. As final decisions are not legally binding unless incorporated into an order of a court or tribunal, the agreement may be difficult to enforce. 2) Cannot always be enforced. Even if a solution is agreed to, it cannot be enforced 3) Conciliation relies on goodwill. Conciliation is a voluntary process and relies on the goodwill of either party. A conciliator attempts to resolve a dispute by talking through the issues with the parties in the hope that agreement can be reached. A conciliator, after having been involved in discussions, can generate options for settlement. However, one party may refuse to attend or may withdraw at any time. 4) Conciliation may prolong the case. If the case is not resolved, the use of conciliation may prolong the case and add to the cost of taking action

Strengths of Arbitration 1) Binding decision. Decisions reached are final and enforceable in the courts. 2) Usually faster. Arbitration is another dispute resolution method that is usually faster, is more informal and offers greater privacy to the disputants than the traditional court system. The decision reached through arbitration is usually final and binding on the parties. 3) The arbitrator has considerable expertise in the area. Arbitration usually involves taking the dispute to a qualified independent third party who has expertise in the area of the dispute. 4) Arbitration can offer processes and remedies that courts cannot. Parties looking for explanations or apologies rather than high levels of compensation may well feel greater satisfaction with a more personal and less rigid procedure. 5) Formal procedure. The formal procedure of arbitration emphasises the seriousness of the case. The arbitrator resolves the dispute by making an award or a decision in favour of one of the parties that is binding on both parties. 6) Limited costs. Arbitration allows individuals to recover debts or exercise their rights without facing significant costs

Weaknesses of Arbitration 1) Arbitration can be expensive. Arbitration often bears similarities to court proceedings and parties may choose to have legal representation, but it is not required. In addition to paying for legal representation, the parties have to bear some of the costs of engaging the arbitrator and of hiring a venue for the proceedings. 2) Win/lose scenario. An arbitrated decision is a decision in favour of one party. One party will feel less satisfied with the outcome of the arbitration. 3) Appeals are limited. The right of appeal from such decisions is very limited and successful appeals are uncommon. 4) Arbitration is not always a quick dispute resolution method. Arbitration is not always quick; in fact, arbitration can require a client to pass through many stages before a decision is reached..

Judicial Determination- Strengths and Weaknesses STRENGTH 1) Binding decision. The decision is enforceable by the courts. 2) Parties are treated equally. The process used to reach a judicial determination includes strict rules of evidence and procedure. This ensures that parties are treated equally and their rights as citizens are protected. The judge or magistrate must remain impartial. This provides both parties with an equal chance to put their case. 3) Allows for appeals. If a party is dissatisfied with the outcome of their case it can be reviewed by a higher court, provided that they can establish grounds for appeal. Weaknesses 1) Expensive. Court action, is time-consuming and expensive, and often requires the assistance of legal representation. Court action may take one or more years to resolve. 2) Extensive delays. Taking a case to court and having it heard before a judge or magistrate can lead to extensive delays, which causes problems for all of the parties involved. 3) Win/lose scenario. This could cause further animosity between the parties, and resentment towards the legal system. Whereas mediation and conciliation focus on a win/win resolution that has a more positive impact where there is an ongoing relationship between the parties. 4) Formality of the court room. The formality of the court room and the strict rules of evidence and procedure may be intimidating to some parties.

Question Time  Read the case file ‘Mediation—increasing access to dispute resolution’ on pages 231–33 and answer the following questions. 1) Distinguish between the following forms of dispute resolution methods:  ● conciliation  ● arbitration  ● judicial determination. 2) Explain the process of mediation. What factors are likely to limit the possible success of mediation in resolving a dispute? 3 Explain the role and function of the Dispute Settlement Centre of Victoria. 4 What is ‘court-annexed mediation’? Suggest reasons why the courts may refer cases to mediation. 5 Evaluate the strengths and weaknesses of mediation, conciliation, arbitration and judicial determination as dispute resolution methods.