U3AOS2Topic 4: Mediation, conciliation and arbitration

Note:

1. This dot point falls under the "principles of justice during a civil case" heading in the study design. As outlined in the key skills section, you may be asked how the use of mediation, conciliation, and arbitration can achieve the principles of justice. This is a common high-mark question because it requires you to link everything back to the principles of justice (POJs)!

The alternative dispute resolution methods (ADRs) include:

1. Mediation.
2. Arbitration.
3. Conciliation.

Mediation:

1. Is a voluntary process whereby both parties to a civil dispute willingly come together to try and reach a resolution with the assistance of a third-party individual, known as the mediator, whose only job is to facilitate conversation between the parties. The mediator does NOT make suggestions about what the parties should do. They only help to foster a productive discussion between the parties, so the decision made is made voluntarily by the parties alone.
2. Any decision made is not legally binding by default UNLESS the parties sign a terms of settlement (also known as a deed of settlement), which then makes the agreed outcome legally enforceable through the courts (in the situation where either party does not follow through with the promises they made in resolving the dispute).
3. Is used extensively by the Victorian Civil and Administrative Tribunal (it is one of the processes they use as part of their way of also resolving civil disputes) and the courts.

Conciliation:

1. Is a co-operative method of dispute resolution whereby both parties willingly come together to try and reach a resolution with the assistance of a third-party individual, known as the the conciliator, who helps the parties reach an agreement by offering suggestions and advice to help assist the parties in coming to a resolution on their own.
2. Differs from mediation in that the third-party individual has has more influence over the outcome (although the parties themselves come to the decision of their own accord).
3. Involves the use of a conciliator who has expert knowledge (they possess specialist knowledge) on the subject matter of the dispute.
4. Similarly to mediation, any decision made is not legally binding by default UNLESS the parties sign a terms of settlement (also known as a deed of settlement), which then makes the agreed outcome legally enforceable through the courts (in the situation where either party does not follow through with the promises they made in resolving the dispute).

Note:

1. When describing the features of mediation or conciliation, ensure that your response clearly demonstrates your understanding that it is a VOLUNTARY process where both parties MUST be willing to come together to work things out. Also, make sure your response reflects an understanding of the nature of the outcome – specifically, whether it is legally binding by DEFAULT or if an additional step (such as signing a terms of settlement) is required to make it legally binding.

Arbitration:

1. Is a non-judicial dispute resolution method that involves an appointed independent third-party, known as the arbitrator, who listens to both sides of a dispute and makes a decision (known as the arbitral award) for the parties that is legally binding by default.
2. Differs from mediation and conciliation in that the parties do not come to a decision of their own accord (unlike mediation and conciliation, where the parties themselves come to the decision together). Rather, it is the arbitrator in arbitration who makes the decision that they believe is the most appropriate for the parties in a dispute.
3. Is often conducted in private and can be less formal and more cost-effective than going to the courts.
4. Is used in the Magistrates' Court for claims of less than $10,000, and in private and commercial disputes. For these types of claims, the Magistrates' Court has the authority to refer the parties to mediation (the consent of the parties is required in order for this to happen).
5. Arbitration is the most formal dispute resolution method out of the others mentioned in this dot point.

Note:

1. If you get a question related to comparing or distinguishing between the different alternative dispute resolution methods, make sure to clearly outline their features throughout your response. Be very explicit about how each one operates when addressing the task. Avoid being vague, please.
2. In addition to knowing what the alternative dispute resolution methods are, you also need to know when they are and aren't appropriate in a civil dispute.

Circumstances where mediation and conciliation is appropriate:

1. Parties are willing to come together to discuss the issues present.
2. Parties are concerned with the costs of their case. Mediation can often be a lot cheaper than the use of the courts in resolving a civil dispute.
3. Parties are concerned with the time it will take to resolve their case. Mediation can offer the parties a more prompt resolution in comparison to the courts, which take a significant amount of time.
4. Parties prefer resolving their dispute in a private, confidential manner.
5. Parties prefer the less formal atmosphere of mediation or conciliation. Specifically as mediation or conciliation lacks the strict rules of evidence that the courts use, in addition to legal representation not being used often.

Circumstances where mediation and conciliation is not appropriate:

1. The parties are not willing to come together to discuss the issues at hand. Mediation requires both parties to voluntarily come together to resolve the dispute, so if one party is not willing to participate, it makes an greed settlement potentially unlikely.
2. The parties prefer a legally binding decision by default. Mediation does not offer a legally binding decision by default as the parties must take the additional step of agreeing together to sign a terms of settlement (or deed of settlement) in order to have a legally binding decision that is enforceable through the courts.
3. Where a power imbalance exists between the parties, as this creates the risk that one party may 'give up too much' out of fear when reaching a settlement.
4. Where a history of violence or threats exists between the parties, as this creates the risk that one party may simply compromise on the matters at present out of fear of their wellbeing if they do not cooperate.

Note:

1. Please make sure to use the most relevant and appropriate points from above if you are asked to discuss the appropriateness of mediation or conciliation in relation to a case study. The factors mentioned above will likely be present in the case study, so be very careful when reading and analysing the information.

Circumstances where arbitration is appropriate:

1. The parties prefer a legally binding outcome by default. No extra step is required after the arbitrator imposes the decision onto the parties. The decision is legally enforceable through the courts by default.
2. If the parties prefer giving control of the decision to a third party (the arbitrator) and thus would prefer to present evidence to that third-party member so that they can come to a decision to impose upon the parties.
3. If the claim is less than $10,000 and has been issued in the Magistrates' Court, arbitration may then be appropriate.
4. If the parties agree to participate in the arbitration process.