Dispute Resolution Methods

Dispute Resolution Methods

•Dispute resolution methods include:mediationconciliationarbitration judicial determination

Mediation•Many people choose to use mediation to

settle a dispute.• In a mediation session, disputing parties

face each other across a table and, with the help of a neutral third person (the mediator), resolve the dispute in a way that is fair and acceptable to all concerned.

•During mediation the parties identify the disputed issues, develop options and consider alternatives.

•The parties to the dispute determine the final agreement.

Role of the Mediator

•The role of the mediator is to facilitate the discussion and to help the parties to identify the issues.

•The mediators do not give advice or make suggestions as to what should be done.

•The mediators do not make a decision for the parties.

•Mediation does not try to discover truth or establish fault.

•http://www.youtube.com/watch?v=C85tJflYb4s&feature=related

How mediation works• The aim of the mediation process is

to assist people in creating a ‘win/win’ solution.

• This means that the solution satisfies the needs and interests of all parties.

• The process aims to establish effective communication between the parties so that they can discuss the issues together and arrive at an agreement.

• Mediation focuses on the ongoing relationship between the parties and emphasises cooperation.

• It allows the parties to make decisions about what best suits them.

• It is based on the principle that people are most likely to be satisfied by agreements that they have developed and agreed to. As the parties have reached a mutually acceptable agreement

Mediation

• The basic characteristics of a mediation process are:1) voluntary nature—all parties to the dispute must agree to participate

in mediation2) confidential—all discussions during the mediation process are

treated as strictly confidential; information received from one party to the dispute is not released to other parties without permission

3) impartial—the mediators are neutral, independent and impartial4) cooperative—the parties are willing to discuss the issues.

When not to use mediation5) the parties are not willing to attend the mediation and meet with the

people with whom they are in dispute6) the parties are not willing to negotiate in good faith7) the parties are not willing to settle the dispute and reach an

agreement8) there is a history of broken agreements between the parties

Advantages of Mediation•Mediation offers a number of significant

advantages over litigation, including:1) it costs less than court action2) it is less emotionally draining than a

legal battle3) you make your own decisions4) if you have a continuing relationship you

can still work together5) it focuses on future actions rather than

past faults6) it improves communication.

Conciliation

• Conciliation is a method of dispute settlement in which an impartial third party tries to get the disputing parties to reach an agreement.

• The third party is known as a conciliator.• The conciliator listens carefully to all the evidence

and the arguments of each party.• The conciliator may suggest a resolution to the

dispute but does not force the parties to reach an agreement.

• The decision reached by the parties is not binding.• However, because they have reached a mutually

acceptable agreement, the parties are more likely to keep to its terms.

Arbitration

• Arbitration is a method in which the parties refer the dispute to a third person to make a decision.

• The third person is known as the arbitrator. • The arbitrator resolves the dispute by listening to the

views of both parties and making a decision in favour of one of the parties.

• Alternative dispute-settlement bodies often use both conciliation and arbitration.

• Often VCAT will attempt to resolve disputes through the processes of conciliation,

• The arbitrator has the power to make an order that is binding on the parties.

• There are limited rights of appeal against the decision.

Judicial Determination• Judicial determination is the legal process of resolving

disputes by a magistrate or judge and is a formal means of dispute resolution used by courts.

• All criminal disputes are resolved by judicial decision.• Parties to a civil case, however, may choose from a

range of dispute resolution methods, with court action used as the last resort.

• Magistrates and judges have the power and responsibility to settle an issue or dispute in a judicial manner, by listening to the evidence, determining the facts and applying the appropriate law, so that a decision may be handed down in favour of one of the disputing parties.

Features of Judicial Determination

• Impartiality• An essential feature of a decision reached by judicial determination is that the judge or

magistrate is an impartial adjudicator.. Judges and magistrates are not subject to political pressures when making a decision.

• Rules of evidence• The role of the judge or magistrate is to hear and determine cases based on the evidence

presented. The role of the magistrate or judge when reaching a decision is to hear all the evidence submitted by the parties.

• Decide questions of fact and law• It is the role of the magistrate or judge (and jury) to decide questions of fact and

questions of law. The distinction between a question of fact and a question of law can be illustrated in the following example. A woman arrives home to find her husband in a loving embrace with another woman. A heated verbal argument follows. During the argument the husband raises his fists. The wife reaches into her pocket, produces a handgun and shoots her husband. She is charged with murder and at her trial pleads a defence of self-defence.

• The behaviour of the deceased during the verbal argument and the action of the wife are questions of fact. The law provides that self-defence or defensive homicide can be accepted as a defence in certain circumstances. It is a question of law as to whether or not the wife’s behaviour is sufficient to amount to self-defence or defensive homicide.

• Reach a binding decision• The magistrate or judge will be required to reach a decision in favour of one of the parties

to the dispute. In a civil case, the magistrate or judge must decide, on the balance of probabilities, whether the plaintiff’s version of the facts is more probable than the defendant’s version. In a criminal dispute, the magistrate or a jury (in a County or Supreme Court) must decide beyond a reasonable doubt that the accused committed the alleged offence.

Question Time • Read the article ‘Mediation streamlines justice’ and answer the following

questions.1) Outline the role of the mediator.2) Describe the process of mediation and explain one way in which it

differs from a formal court hearing.3) Critically evaluate the effectiveness of using mediation as a means of

resolving civil disputes.4) Briefly explain the reasons why the Supreme Court introduced judge-

led mediation.5) Describe the role played by legal representatives if they are present in

mediation sessions.6) What is the role of the support people in mediation?7) Explain the term ‘judicial determination’.8) Describe the roles played by the magistrate or judge in a court.9) Describe the difference between conciliation and arbitration as a

dispute resolution method. Discuss the effectiveness of one of these methods.

10) Describe the role of mediation, and explain one way in which mediation differs from a formal court hearing.

Questions from text

Page 306•LA 6.9 – Q 2, 4, 5Page 310•LA 6.10 – Q 1, 3, & 6