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 disputes
Most criminal cases are resolved through judicial determination where a judge or magistrate determines the outcome of the case
In 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. Mediation
Mediation is a cooperative method of resolving disputes and is widely used by the courts and tribunals
It 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. Mediation
Mediator
Parties negotiate with the help of trained mediators who are neutral and impartial
The mediator does not interfere but allows the parties to have control of the process
The role of the mediator is to facilitate discussion and ensure both parties are being heard
The mediator does not need to be an expert in the field in question
They will NOT make any decisions

5. MEDIATION
Purpose
The aim of mediation is to allow the parties to have their say without being restricted by the rules of evidence and procedure
It also allows parties to investigate the underlying reasons for the problem
It promotes a win-win solution where both parties are happy with the outcome

6. Use of mediation
Dispute Settlement Centre of Victoria individuals may contact this centre to attempt mediation at any time
VCAT
Encourages parties to resolve their disputes via mediation to reduce cost and disruption to parties.
Approx 70% of VCAT disputes are resolved through mediation
If 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 consent
Supreme 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 draining
Parties have control of the outcome
Promotes a win-win outcome
Suitable where parties will maintain an ongoing relationship
focuses on future actions rather than past faults
improves communication (even if does proceed to court)
Frees up the court system

9. Restrictions
Parties will only work when both parties are willing to negotiate
Mediation is unsuitable in situations where:
Parties have no ongoing relationship
The dispute is highly emotional or sensitive
The dispute involves violence or threatening behaviour
there is an imbalance of power between parties
The outcome is not legally binding ( unless a deed of settlement is drawn up and enforced by the courts)

10. conciliation
Conciliation 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 Conciliation
A magistrate or registrar may refer a civil proceeding for a pre-hearing conference and compulsory conferences (VCAT) which resolve the dispute using conciliation
These conferences provide an opportunity for the parties to discuss the settlement of claims and determine the issue in dispute prior to the court hearing stage
The conferences save costs and valuable court hearing time
If 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 costly
Party satisfaction through negotiation
Non-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. Arbitration
Arbitration is a method of resolving disputes without having to access the court system
An 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. arbitration
It 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 disputes
The 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 registrar
This avoids the formality of the courts and the strict rules of evidence and procedure
Avoids the need for legal representation

17. USE OF ARBITRATION
Arbitration is used in some VCAT lists, such as the Residential Tenancies List, which deals with disputes between tenants and landlords
The 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 resolution
Judicial officer= judge, magistrate, VCAT member

19. Judicial determination
During trials or hearings, parties are given the opportunity to present evidence, question witnesses and make submissions
Cases are bound by the strict rules of evidence and procedure
Burden and standard of proof required
Legal representation is advisable due to complex nature of court proceedings
Legal 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 hierarchy
VCAT in some instances

21. strengths The decision is binding
Judicial officers are experienced legal professionals
Parties may feel more satisfied with the outcome as a judge has decided the case for them
It is appropriate for all kinds of disputes (criminal and civil)

22. weaknesses
It is usually expensive (need to engage legal representation)
The formality of the court system can be intimidating
If parties are dissatisfied with the outcome they have to undertake an appeal which is time consuming and costly