Dispute Resolution Methods

1. Dispute Resolution Methods

2. Dispute Resolution Methods • Dispute resolution methods include: mediation conciliation arbitration judicial determination

3. 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.

4. 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

5. 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

6. Mediation • The basic characteristics of a mediation process are: • voluntary nature—all parties to the dispute must agree to participate in mediation • 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 • impartial—the mediators are neutral, independent and impartial • cooperative—the parties are willing to discuss the issues. When not to use mediation • the parties are not willing to attend the mediation and meet with the people with whom they are in dispute • the parties are not willing to negotiate in good faith • the parties are not willing to settle the dispute and reach an agreement • there is a history of broken agreements between the parties

7. Advantages of Mediation • Mediation offers a number of significant advantages over litigation, including: • it costs less than court action • it is less emotionally draining than a legal battle • you make your own decisions • if you have a continuing relationship you can still work together • it focuses on future actions rather than past faults • it improves communication.

8. 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.

9. 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.

10. 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.

11. 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.

12. Question Time  • Read the article ‘Mediation streamlines justice’ and answer the following questions. • Outline the role of the mediator. • Describe the process of mediation and explain one way in which it differs from a formal court hearing. • Critically evaluate the effectiveness of using mediation as a means of resolving civil disputes. • Briefly explain the reasons why the Supreme Court introduced judge-led mediation. • Describe the role played by legal representatives if they are present in mediation sessions. • What is the role of the support people in mediation? • Explain the term ‘judicial determination’. • Describe the roles played by the magistrate or judge in a court. • Describe the difference between conciliation and arbitration as a dispute resolution method. Discuss the effectiveness of one of these methods. • Describe the role of mediation, and explain one way in which mediation differs from a formal court hearing.

13. Questions from text Page 306 • LA 6.9 – Q 2, 4, 5 Page 310 • LA 6.10 – Q 1, 3, & 6