5.9 - Alternative Dispute Resolution Methods (ADR)

1. 5.9 - Alternative Dispute Resolution Methods (ADR) http://www.youtube.com/watch?v=cpLzDQOZiXI

2. Methods of dispute reolution

3. Judicial Determination • 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 • There are strict rules of evidence and procedure

4. ADR’s • It is recommended for parties to first go to VCAT which uses ADR’s • Court action therefore can be left as a last resort • Courts are increasingly using them • Out-of-court settlements is when parties agree on an outcome without going to a formal court case

5. 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 • Does not offer suggestions • Trained to facilitate discussion and encourage co-operation to reach their own solution

6. Benefits of Mediation • Helps ongoing relationships between the parties who may have to deal with each other in the future (neighbours) • 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 issue themselves. No loser • Voluntary • Has no influence on any later court proceedings

7. Disadvantages of Mediation • Voluntary so one party may not agree • Mutual decision may be reached but party/ies may choose not to follow the decision • Not legally binding • Becomes a waste of time if parties do not follow what they agreed on • Difficult to mediate in cases where there is an imbalance of power

8. Mediation used in courts and VCAT • Magistrates’ ,County, Supreme Courts (Civil cases) • Dispute Settlement Centre of Victoria (DSCV) • Family Mediation Centre • Family Court of Australia • In cases such as divorce, custody, separation, financial matters • Mediation was found so successful after a pilot program due to the speed of hearing cases and the cost effectiveness it was extended to other Magistrates’ Courts • VCAT

9. Conciliation • An unbiased 3rd party called a Conciliator who tries to resolve a civil dispute. • Can make suggestions to the parties in order to reach an agreement (key difference to Mediation) • 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 procedings

10. Conciliation used in Courts and VCAT • Pre-hearing conferences in Magistrates’ Court in order to reach an out-of-court settlement • Supreme Court encourages it in Commercial disputes • VCAT uses it before they next stage to avoid going to the arbitration stage