Topic 4: Evaluating Methods of Dispute Resolution 15/04/2018 Legal Studies U4.AOS1 Evaluating ADR Methods

Topic 4: Evaluating Methods of Dispute Resolution 15/04/2018 Learning Intentions At the end of this topic, we will be able to: 4.1.5 Strengths and weaknesses of dispute resolution methods used by courts and VCAT 4.1.7 Define key legal terminology and use it appropriately 4.1.8 Discuss, interpret and analyse legal information and data 4.1.11 Compare and evaluate the strengths and weaknesses of dispute resolution methods and the way courts and VCAT operate to resolve disputes. SD 26

Reasons for court hierarchy Original and appellate jurisdictions Dispute Resolution Reasons for court hierarchy Original and appellate jurisdictions Role of VCAT Dispute resolution methods Evaluating dispute resolution methods Evaluating operation of the courts and VCAT

You need to know The four methods of Dispute Resolution: Mediation Conciliation Arbitration Judicial Determination For each of these methods: Aim Appropriate for what situations Process Degree of formality Role of the Parties Role of the Third party Outcome and degree of enforceability Use in the Courts Use in Tribunals Strengths Weaknesses

Strengths + Weakness of … - adr - judicial determination - mediation - conciliation - arbitration

What is ADR? ADR is a less formal method of dispute resolution than judicial determination, such as mediation, conciliation or arbitration, where a civil dispute is reconciled between the parties, with the help of an independent third party. It is also known as appropriate dispute resolution.

ADR STRENGTHS Mediation, conciliation and arbitration are much less formal than court processes, as strict rules of evidence and procedure are not followed, and are therefore less likely to be intimidating for parties. Conducted in a safe and supportive environment. Make use of a third party who has expertise in resolving matters via ADR. Time-saving mechanism. Generally cheaper than judicial determination. This is because the parties can avoid many of the pre-trial procedures that are expensive, such as discovery, preparing evidence for trial and attending directions hearings. WEAKNESSES Other than arbitration, the decision is not binding (although at the conclusion of mediation or conciliation a binding deed of settlement can be drawn up, which can be legally enforceable through the courts). This can result in one party not following through with what had been resolved at the mediation or conciliation. Mediation is less likely to be successful where there is a power imbalance between the parties, or in marital disputes where there has been violence. 
For example, one party may be more manipulative or stronger than the other party and the other party may feel intimidated into reaching a resolution. One party might not wish to resolve the conflict and might use ADR to waste time in order delay a resolution of the conflict, or to increase the expense for the other party.

What is Judicial Determination? Judicial determination is a method of dispute resolution which involves the parties to the case presenting arguments and evidence to a judicial officer who then makes a binding determination or decision about the outcome of the case.

JUDICIAL DETERMINATION STRENGTHS Decision is binding and can be enforced in the courts, although both VCAT and court orders can be appealed in some instances. This provides certainty in the outcome. Judicial officers are experienced legal professionals, with expertise in the law and its application. Appropriate for all types of disputes, including both criminal and civil. The decision may form a new or developed precedent which can be used in future cases. WEAKNESSES Expensive due to court fees, pre-trial procedures and legal representation fees. High degree of formality, such as strict rules of procedure in courts, causes some parties anxiety and intimidation, Time-consuming Lower courts bound by precedent that may be outdated. The final resolution will usually be a win for one party and a loss for the other – leaving parties feeling dissatisfied with the decision.

What is Mediation? Mediation is a method of dispute resolution for civil disputes using one or two third parties (mediators) to help the disputing parties reach a resolution. The mediators do not make suggestions, but help the parties feel able to negotiate for themselves. The decision made between the parties is not binding.

MEDIATION STRENGTHS Informal: Allows parties to have their say without formal rules of evidence and procedure. Reduces court burdens: if settled, the case avoids being dragged through the court system and therefore frees up the court and judges to hear other cases. Cheaper: mediation is normally conducted before court proceedings have commenced, or as a pre-trial procedure. It means, therefore, that parties will have spent less money by the time the matter goes to mediation rather than having a full trial. Provides parties with an opportunity to enter into voluntary agreement between themselves. If a dispute is not resolved the mediation process can help to clarify issues in a dispute. WEAKNESSES Not binding: unless the parties enter into a binding agreement or terms of settlement at the end of the mediation, the decision is not binding, thus risking one party reneging on their promise. Not suitable for some matters: there are some matters where mediation is not appropriate. This is particularly for long-running disputes and disputes where there is significant animosity between the parties, since parties may be uncooperative or not attend. Intimidation: One party may try to dominate proceedings. Limited public scrutiny of the outcomes of mediation

What is Conciliation? Conciliation is a method of dispute resolution for civil disputes using a third party to help disputing parties reach a resolution to their dispute. The third party can make suggestions, but the parties reach the decision between themselves. The decision is normally not binding.

CONCILIATION STRENGTHS Informal: Allows parties to have their say without formal rules of evidence and procedure. Cheaper: conciliation is normally conducted before court proceedings. Expertise of the conciliator: The conciliator usually has expertise in the area of law. E.g. conciliation conferences held by the Family Court are usually compulsory and conducted by a registrar of the court who is an experienced family lawyer. Conciliation process is more cooperative and less competitive than court action. For this reason, the conciliation process tends to generate less ill will between parties. This is a key advantage in situations where the parties have an ongoing relationship, such as in parenting a child or workplace cases. WEAKNESSES Conciliation may prolong the case. If the case is not resolved, the use of conciliation may add to the delays in getting a case in court and therefore to the cost of taking action. Conciliation relies on goodwill. A conciliator attempts to resolve a dispute by talking through the issues with the parties in the hope that agreement can be reached. Lack of finality. Although the conciliator may suggest a solution, the conciliator cannot impose one. Conciliation agreements depend on both parties being willing to compromise. Decision may not be binding. The final decision made using conciliation is not necessarily be binding. However, a decision made in conciliation through VCAT or pre-hearing court procedures may be binding. VCAT/courts can recognise the terms agreed to in conciliation in tribunal/court orders.

What is Arbitration? Arbitration is a method of dispute resolution for civil disputes, where a third party (arbitrator) is appointed to listen to both sides of the dispute and make a decision that is binding on the parties.

ARBITRATION STRENGTHS Binding decision. The arbitrator has the power to make an order that is binding on the parties. Decisions reached are final and enforceable in the courts. More informal and faster. Arbitration is usually faster, more informal and offers greater privacy to the disputants than the traditional court process. While arbitration is more formal than other dispute resolution methods, it is still less formal than court proceedings. 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. Limited costs. Arbitration allows individuals to recover debts or exercise their rights without facing significant costs. Therefore, parties are more likely to exercise their rights. WEAKNESSES Win/lose scenario. An arbitrated decision is a decision in favour of one party. In this scenario one party wins and the other party loses. One party will feel less satisfied with the outcome of the arbitration. Arbitration is not always a quick dispute resolution method. Appeals are limited. Arbitration decisions are legally binding and enforceable but the right of appeal from such decisions is very limited and successful appeals are uncommon. Arbitration can be expensive. Arbitration as a form of dispute resolution method is not always cheap and can be as expensive as court action. In addition to paying for legal representation, the parties have to bear some of the costs of engaging the arbitrator.

Processes for each type of ADR (revision of previous topic)

Process for Mediation Introduction Introduction by mediator and explanation of rules Statement Each party makes uninterrupted statement re their side of dispute Agenda Main issues listed by mediator Exploration All of the issues are discussed Private sessions Each party speaks with the mediatory privately and confidentially in turn Negotiation Offers and solutions are passed between the parties through the mediator Agreement If an agreement is reached, a voluntary agreement, usually by way of a ‘deed of settlement’ is drawn up and executed by the parties.

Process for Conciliation Meeting Two disputing parties, with possible representatives, meet with a conciliator. Statement Each party presents their side of the dispute with arguments and evidence. Suggestion The conciliator may make a suggestion for a resolution to the dispute, but does not force the parties to reach an agreement. Agreement Agreement not binding unless incorporated into an order made by a court or tribunal. Because parties reached a mutually acceptable agreement, parties are more likely to keep to its terms.

Process for Arbitration Introduction Introduction by arbitrator and explanation of rules Statements Each party makes statements including arguments and evidence re their side of dispute Decision Arbitrator makes a decision in favour of one of the parties Binding The arbitrator’s decision is legally binding and there are limited rights of appeal against the decision