solving a civil dispute methods of dispute resolution chapter 9.1

Solving a civil disputeMethods of dispute

resolutionChapter 9.1

Discuss; Have you ever?

• Fell over an uneven surface on a footpath?• Been injured by another person in a fight?• Been hurt at a party?• Spread rumours about someone?• Damaged someone’s goods?• Had a neighbourhood dispute?• Bought a faulty product?• Been hurt at school or school camp?Would you take legal action if you were the injured party? Why/why not?

Discuss

1. What would happen if every civil case went to court?2. What if every fence dispute, every anti-discrimination case, every breach of

contract and so on went to court? 3. How would this affect our courts? 4. How long might it take for your case to be heard, if you were involved in a civil

dispute? 5. What are some possible solutions to civil problems?6. Do you know anyone who has been involved in a civil dispute. How did that

person, or that group, exercise their civil rights? How was the dispute resolved?This leads us straight into the first topic in this chapter; alternative dispute resolution methods.

Chapter 5, The courts and the VCAT, pg. 143

These are the dispute resolution methods individuals can use to resolve criminal or civil disputes.

Negotiation

• Discussions held between the two sides of a dispute• Aim is to achieve an agreement both are happy with• Takes place between the 2 parties but professionals may get involved• Useful when ongoing relationships are important ie neighboursWhen have you negotiated an agreement in the past?Disadvantages?May take a whileNot bindingThe power of both parties may not be evenly balanced

Mediation• Uses an independent 3rd party known as a Mediator • Allows each party a chance to express their side of the issue and their

desired outcome• Mediator does not offer decisions but can discuss options• Trained to facilitate discussion and encourage co-operation to reach

their own solution• Legal representation is not needed

Mediation used in courts and VCAT

• Magistrates’, County, Supreme Courts (Civil cases)• Dispute Settlement Centre of Victoria (DSCV)• Family Mediation Centre

http://www.mediation.com.au/how-we-can-help/mediation-dispute-resolution/family-mediation/?gclid=CjwKEAjwovytBRCdxtyKqfL5nUISJACaugG1lE3RLwwFoRXcRNAKx2ZQbEv8UBCsxMTJuhe48-Dz8RoCxgfw_wcB• Family Court of Australia• In cases such as divorce, custody, separation, financial matters• VCAT

Benefits of Mediation

• Helps ongoing relationships between the parties who may have to deal with each other in the future (neighbours, colleagues)• Gives the opportunity to settle differences as early as possible to

avoid costs and delays• A mutual voluntary agreement can be achieved by working through

the issue themselves. No loser• Voluntary• Has no influence on any later court proceedings

Conciliation

• An unbiased 3rd party called a Conciliator who tries to resolve a civil dispute and acts like a go- between• Can make suggestions to the parties in order to reach an agreement (key

difference to Mediation)• Conciliator has specific knowledge and can advise them on likely legal

outcome in a court• Any agreement is not binding so parties can choose to not follow what was

agreed• Statistically however most parties observe any agreements made to avoid

further costs in court proceedings

Arbitration

• This is the next step after Mediation and Conciliation• The arbitrator is independent • Can order a resolution to a dispute – called an award• An award is a decision in favour of one of the parties• An award is legally binding and must be followed just like a court

order• There is a winner and loser

Judicial Determination (Court)

• This involves going to court or VCAT and having the judge, magistrate or VCAT member decide the outcome of the case and imposing a legally binding decision• Have to follow rules of evidence and procedure• Going to court is expensive and time consuming• There is a legally binding decision and someone is made a winner and

loser

You can cry over spilt milk.

Fill out the summary sheet Read article on page 223

Extension Tasks; Extend and apply cases and questions 228-229 (optional)

Your Turn

• Complete questions 1-4• Look up the VCAT website and the Dispute settlement centre of VictoriaWebsites on the following pages

Videos to watch

• The VCAT website (http://www.vcat.vic.gov.au/) has a series of videos explaining what VCAT is and the processes it uses to settle disputes. http://www.vcat.vic.gov.au/resources/video/mediation-working-it-out-through-mediation-1606• Students could watch some of the videos as a class, or at home

individually.• http://www.disputes.vic.gov.au/ this is the website for the dispute

settlement centre of Victoria