By Paramita Khisa

Dispute resolution methods used by

the courts and VCAT

VCAT and court use a range of methods to resolve criminal and civil disputes.

Criminal cases are solved by the judge in courts. Most civil cases proceed through one ore more

methods of alternative dispute resolution (ADR) in am attempt for parties to resolve their dispute themselves.

Alternative Dispute Resolution (ADR) included processes other than judicial determination, in which an impartial third party assist in resolving the dispute between the parties.

ADR include mediation, conciliation and arbitration ADR is now compulsory step in most state courts

before civil matters reach a hearing before court or VCAT

DISPUTE RESOLUTION METHOODS

In mediation parties try to resolve their disputes themselves with the help of an independent and impartial third parties whose role is to keep communication flowing between the parties. The third party in mediation is called the mediator.

Mediator do not offer advice or interfere, but they facilitate the discussion and help each party to understand the others point of view.

The end result of mediation is not legally binding so parties may not choose to follow through

Mediation allows parties to have their say with out being restricted with strict rules and procedure.

It promotes an win-win solution where both parties are satisfied with the out come.

MEDIATION

Strengths Weaknesses

• More cost efficient than courts

• Parties have control over the discussion

• Promotes a win-win out come

• Promotes an on going relationship between the parties

• Frees up the court system

• Will only work if both parties are willing to negotiate

• The outcome is not legally binding, (only if deed of settlement is signed); so it can be a waste of money and time.

• More confident party can overtake the discussion

EVALUATION OF MEDIATION

Parties attempt to resolve their dispute themselves with the help of an impartial and independent third party; the conciliator who tries to help the parties reach an agreement by listening to the evidence and arguments of each party and making suggestion on how to resolve the dispute

The difference between conciliation and mediation is that the third party exercises a greater responsibility over the outcome.

The outcome of conciliation is not legally binding but the parties are more likely to follow through because is was made with an help of a third party.

CONCILIATION

Strengths Weaknesses

• Less strict rules of evidence and procedure

• Less time consuming and costly

• Party satisfaction • Non- confrontational,

which promotes an ongoing relationship

• Not legally binding• Voluntary; if they do

not attend, the matter will have to be pursued through courts

• Legal representation is essential which may cause some parties to feel unrepresented

EVALUATION OF CONCILIATION

An independent and impartial third party; the arbitrator listens to the evidence and arguments of the parties and makes the decision on their behalf.

The parties may have voluntarily agreed to follow the decision of the arbitrator or may be directed to arbitration.

Arbitration is more formal than mediation and conciliation but now as formal as court hearing.

The final outcome in arbitration is legally binding

ARBITRATION

EVALUATION OF ARBITRATION

Strengths Weaknesses

• The outcome is legally binding

• Less formal than court • More cos efficient

than court • Less time consuming • Legal representative is

not necessary.• Less strict rules of

evidence and procedure

• Parties may be dissatisfied with outcome.

• Difficult to appeal • Doesn’t promote on

going relationship • Parties may not feel

represented since legal representative is not necessary.

Judicial determination involves resolving dispute by representing their argument and evidence to a judicial officer; such as a judge, magistrate or a VCAT officer) who makes an binding decision about the outcome.

Judicial determination is not a form of ADR. The cases are to follow by the strict rules of evidence

and procedure. Burden and standard of proof is required .

Legal representative is requires due to the complex nature of court proceeding. They are to present their clients case in the best possible manner.

JUDICIAL DETERMINATION

Strengths Weaknesses

• The decision is binding • Judicial officers are

experienced legal professionals.

• Parties may feel more satisfied with the outcome as a judge has decided the case for them

• It is appropriate for civil and criminal disputes

• It is usually expensive because there is a need to engage with legal representatives

• The formality of the court system can be intimidating and confusing .

• If parties are dissatisfied with the outcome they have to undertake and appeal which is time consuming and costly

• Can be inappropriate where relationship between the parties need to be maintained

EVALUATION OF JUDICIAL

DETERMINATION