1. Methods of dispute resolution

2.   A person may become involved in a civil dispute in a number of ways. You may have been involved in a fight that resulted in personal injury, made a statement that damaged the good name of another person, broken the terms of a contract, or you simply slipped on a wet floor in a shopping centre. If you are the injured party you must decide whether or not to exercise your legal rights and resolve the dispute.  In deciding to take legal action you should consider the likelihood of success, the cost in terms of time and money, the various methods of and venues for dispute resolution, and the type of compensation you will be seeking. All of these factors must be weighed up carefully before beginning the process of resolution.

3.  KEY KNOWLEDGE: what you need to know

4.   Court action is considered the last resort these days. There are many ways to settle disputes and they are now becoming more widely used to save time and cost.  When a dispute occurs, many people automatically think of a court room and a judge as the logical means of resolving the dispute. However, a variety of methods of dispute resolution can be employed to resolve the dispute without the need for formal resolution using the traditional adversarial method.  These methods of dispute resolution rely less on the formality of both parties submitting evidence and presenting arguments to a judicial officer who makes a binding decision on the outcome of the case. Table 9.1 outlines these methods of dispute resolution. Methods of dispute resolution

5.  There are many ways to solve a dispute but solving a dispute with violence will lead to even more problems and most likely criminal action in the courts

6.  Dispute resolution method Features of this method ExampleTypes of disputes that can be solved by this method and their effectiveness Negotiatio n Discussion s held between people in dispute with the aim of achieving a mutually agreeable solution Negotiation occurs directly between the two people in dispute, but lawyers or advocates may be used to assist the process. Communication may be written or spoken. It may take some time to negotiate a suitable solution. In many disputes, negotiation is considered a good first step before graduating to other dispute resolution methods. Leo talks to his neighbour Walter about his barking dog. Every time Leo walks out his back door, Walter's dog barks. Walter said it was a free country and he could not help it if his dog barked. Leo agreed Walter had a right to own a pet but suggested the dog be fenced off in another part of the garden. Leo agreed to pay for the construction of the makeshift fence. Walter agreed and this reduced the frequency of the barking to Leo's satisfaction. Any dispute such as a family, neighbourhoo d, commercial or consumer dispute. Useful where an ongoing relationship is involved. However, decisions are not binding.

7.  Dispute resolution method Features of this methodExampleTypes of disputes that can be solved by this method and their effectiveness Mediation A neutral person called a mediator helps people in dispute to negotiate with each other in order to resolve the dispute. Those involved in a dispute must meet face- to-face. Issues and possible options may be identified by the mediator. A decision is not imposed by the mediator whose role is to run the meeting and help parties reach a solution, although the mediator cannot suggest solutions. All people involved in the dispute must be prepared to work towards solving the dispute. Jane wanted a new fence. She told her neighbour, Sam, the fence was developing a lean. It would only take a strong wind to blow the fence over and she feared her garden would be ruined. Sam said he did not have the funds to pay for half a new fence and Jane was just neurotic about her garden. After mediation, it was agreed both Sam and Jane would pay for repair of the fence in order to correct the lean and make it stronger. The dispute has developed into a conflict between the parties (it is no longer just an annoying problem both parties put up with). Mediation is used to solve neighbourhood, family and business disputes. It is a cost effective method because legal representation is not crucial and disputes can be resolved quickly without going to court. Decisions, however, are not legally binding.

8.  Dispute resolution method Features of this method ExampleTypes of disputes that can be solved by this method and their effectiveness Conciliation Those in dispute endeavour to reach an agreement with the advice and assistance of an impartial person called a conciliator. Both people in dispute must want to work towards finding a solution. The conciliator does not impose a decision, but works as a ‘go-between’, discussing offers that may have been made by the people in dispute. Often the conciliator has some specific knowledge of the law and can advise people in dispute on their legal rights and responsibilities and possible outcomes. Sally, who was in a wheelchair, claimed that a local theme park did not adequately provide disability access to rides and attractions, and that staff at the park had treated her poorly because of her impairment. Through conciliation, both Sally and the owners of the theme park agreed that the park would seek advice on how to improve disability access and Sally would speak to staff about her experiences in a wheelchair in order to foster better awareness of disability issues. Conciliation is used in disputes where one person may be trying to uphold his or her rights and guidance is sought from a conciliator. Conciliation is sometimes used in the Family Court to help avoid a court trial. As both parties work towards a mutually acceptable resolution there is a strong likelihood that the parties will adhere to the agreement.

9.  Dispute resolution method Features of this method ExampleTypes of disputes that can be solved by this method and their effectiveness Arbitration People in dispute use a formal process whereby they present their case to an arbitrator who is an independent third person. The arbitrator decides the outcome of the case. People in dispute are bound by the decision made by the arbitrator. Usually, a person applies to have the matter arbitrated and the other person must participate. Sometimes, however, people in the dispute do not agree to arbitration or the choice of arbitrator. A small country hotel wished to install gaming machines but the council opposed the application, saying it was not in the community's best interest. A decision is made to allow gaming machines. A contract might specify that arbitration is the method of dispute resolution to be used in the event of a dispute. It is used in industrial relations disputes and tenancy disputes. The outcome is legally binding, so this method is effective for smaller contract disputes.

10.  Dispute resolution method Features of this method ExampleTypes of disputes that can be solved by this method and their effectiveness Judicial determination People who wish to resolve a dispute via a hearing may elect to have their dispute settled in the first instance by an independent third party who makes a binding decision. Generally occurs at VCAT at a hearing and is the traditional method employed by the courts. People who utilise this method are bound by the decision. One party makes an application for a hearing at VCAT rather than seek resolution through one of the other alternative methods. A person is slightly injured and a car damaged as a result of an accident. The other party denies responsibility. The third party will listen to the evidence and make a ruling on liability and remedies (if applicable). Often used for smaller personal injury claims or claims for property damage. At VCAT this method is effective and quick as the matter is dealt with at a hearing where the decision is legally binding. However, the decision can be appealed so avoiding court may not occur as intended. When used in a court room the decision is also legally binding and can also be appealed. However, legal representatives are usually required so the cost involved is higher.

11.   The Dispute Settlement Centre allows parties to solve disputes in a speedy, cost-efficient way. The centre receives approximately 17 000 inquiries each year. A range of disputes can be dealt with, for example, disputes over wills, workplace disputes, family matters and cultural differences. The centre provides advice on dispute resolution, mediation and facilitation services, as well as community education. Dispute Settlement Centre of Victoria

12.   http://www.vcat.vic.gov.au/resources/video/taking-it- vcat-chapter-1-introduction-220 http://www.vcat.vic.gov.au/resources/video/taking-it- vcat-chapter-1-introduction-220  The Victorian Civil and Administrative Tribunal (VCAT) deals with a range of disputes involving areas such as discrimination, the purchase and supply of goods, consumer credit, domestic building works, and residential and retail tenancies. How a case is resolved depends on the nature of the case. Mediation may take place first; however, many cases proceed to a hearing so they are arbitrated. At the end of the hearing, a member of VCAT gives a decision on the spot. Decisions are binding but can be appealed to the Supreme Court of Victoria on questions of law. Victorian Civil and Administrative Tribunal

13.   I started working for Grand Designs in 2008 as an interior designer. At my performance appraisal, my manager Mr Rick Renwick said that he would love to give me more responsibility but my ‘family situation’ did not fit well with a higher level position with an important client. He said there would be after- hours work and said that I really needed to be devoting more time to my son.  I first contacted the Victorian Equal Opportunity and Human Rights Commission but after my attempts to talk to my manager failed, I was referred to VCAT. I wanted a resolution to my problem without going to a full hearing, so mediation seemed the best approach.  I arrived at VCAT on the day of mediation with my sister beside me for support. John the mediator arrived and explained the process and I was asked to make an opening statement about how I saw the dispute. I made my statement saying that I felt that I had been discriminated against on the basis of my parental status and that it had been outlined in my performance appraisal that I would have been promoted if I had had a different ‘family situation’. Rick Renwick gave his opening statement saying that I had not been promoted because I just did not have the necessary skills and knowledge for a more senior position. He said that he had simply made those statements to ‘boost my confidence’. Case study: MEDIATION IN AN ANTI-DISCRIMINATION DISPUTE

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15.   1.) Distinguish between negotiation and mediation.  2.) Distinguish between arbitration and conciliation.  3.) \If I have a dispute with my neighbour over a fencing issue and negotiation has failed, where can I go to have the matter resolved? TEST your understanding

16.   John helped both Rick and I identify the issues. The issue at stake was not whether I was competent enough for promotion, but whether I had been discriminated against on the basis of my parental status. John spoke to Rick and  I separately. When we came together again, we were asked to clarify points regarding what was said and recorded at my performance review. We were asked also to come up with possible solutions. I said that I would like an assurance that I be considered for a position in future on the basis of my ability and not my parental status. Rick said that he would consider me for a promotion in line with other applicants and parental status would not be considered. I decided not to go ahead with a formal hearing. I had brought Rick to account for his statements and hoped that I would be considered for promotion in future.