3.2.4 Methods used to resolve civil disputes Flashcards
(31 cards)
define mediation
Mediation a non-judicial dispute
resolution method involving an
independent third party, known as a
mediator, who facilitates conversations
between disputing groups.
when is mediation appropriate (5 reasons)
A relationship needs to be maintained
between the two parties, such
as a manager and employee.
Parties are willing to discuss issues.
Parties prefer privacy and
confidentiality and therefore, want
to resolve the dispute in a less formal
and publicised manner.
Both parties want lower legal fees,
as the court process can often
be more expensive than mediation.
A prompt resolution needs to be
reached.
when is mediation not appropriate (give 5 reasons)
Parties are highly emotional,
potentially making negotiations
more difficult.
Parties are unwilling to discuss
issues, potentially making an agreed
settlement unlikely.
There is a power imbalance that
creates a risk that one party will ‘give
up too much’ in reaching a settlement.
There is a history of violence or
threats between the parties. This may
cause one party to compromise out
of fear of what may happen to them
if they do not cooperate.
Parties want a binding result
to their disputes or prefer the
formalities associated with
judicial determination.
three strengths of mediation acheiving the POJ fairness
Mediation allows parties to control the outcome
of their dispute, as a resolution is not reached until
a compromise is achieved. This can ensure parties
reach a fair outcome.
The mediator is impartial, meaning there is no bias
towards or against a party.
Mediation can promote a fair outcome as it is faster
than a trial and minimises delays associated with
accessing a remedy.
three limitations in mediation in achieving the POJ of fairness
A power imbalance between the parties may cause
a forced and unfair resolution to be reached.
*
The decision reached through mediation is not
legally binding, unless the parties sign a deed
of settlement, meaning there is a risk that a party
may not follow through with the agreement.
This can limit the achievement of fairness for the
other party involved.
*
Disputing parties must compromise and resolve
the dispute without the opinion of the independent
third party, which can limit fairness if one party
is unwilling to negotiate.
three limitations of mediation not achieving equality
If one party is more vulnerable or there is a power
imbalance between the parties, a ‘forced’ outcome
may be reached that does not equally benefit
both parties.
Without legal assistance parties Amy struggle to assert their rights
three strengths of mediation achieving the POJ of equality
As formal rules of evidence and procedure do not
apply, each party in the dispute can feel supported
to speak freely and present their perspective.
Unrepresented parties are unlikely to be
disadvantaged as the mediator guides the
discussion and there are no formal rules
of evidence and procedure to navigate.
Legal representation is usually not required for
mediation and in many cases, a mediator will only
permit legal representation if both parties have
a lawyer. If one party cannot find a lawyer, it is
likely that both parties will need to self-represent,
promoting equality.
limitations of mediation in achieving access
In mediation, parties may not have legal representation or advice.(no informed basis)
Mediation relies on both parties willingly participating. (not engaging)
In long-running and hostile disputes, mediation
may be inappropriate as parties are unlikely to
constructively communicate and reach a resolution
strengths of mediation in achieving the POJ access
Mediation is accessible as it is less costly than the
courts, making remedies easier to obtain for the
parties. Furthermore, legal representation is often
not required, minimising costs and enhancing
a party’s ability to seek justice.
The public nature of a trial can prevent parties from
taking legal action if the subject of the dispute is
sensitive. As mediation is more private, it promotes
access to a resolution in such cases.
Mediation is conducted in a more supportive,
non-adversarial manner compared to a trial. The
intimidating nature of a trial may discourage some
individuals from pursuing a case through the courts.
Therefore, mediation’s informal nature promotes
access to justice.
define conciliation
Conciliation is a dispute resolution process in which an independent third party (the conciliator) assists the parties to reach a mutually acceptable agreement, often by offering suggestions and actively guiding discussions.
four reasons of when conciliation is appropriate
A relationship needs to be maintained
between parties, such as in the case
of an employer and their employee.
Parties are willing to discuss issues.
Parties prefer privacy and
confidentiality.
There is an admission of responsibility
by one of the parties, potentially
increasing the willingness of parties
to negotiate.
four reasons of when conciliation is not appropriate
Parties are highly emotional.
Parties are unwilling to discuss issues.
There is a history of violence
or threats between parties.
There is a power imbalance
between parties.
Parties want a binding result to their
dispute or prefer the formalities
associated with judicial determination.
strengths of conciliation’s ability to achieve the principle of justice fairness
Conciliation offers parties the ability to control the
outcome of their dispute, promoting the likelihood
of a fair outcome.
*
The conciliator acts as an unbiased, impartial
opinion that favours neither party.
*
Conciliation is faster than a trial, it reduces the
courts’ workload, and minimises delays in cases,
therefore promoting fairness.
limitations of conciliation’s ability to achieve the principle of justice fairness
There may be a power imbalance between parties
that can cause a forced resolution to be reached,
limiting fairness.
*
The decision reached through conciliation is not
always legally binding, meaning there is a risk that
a party may fall back on the agreement.
*
There is no obligation for parties to reach
a resolution through conciliation, meaning more
time and money is wasted if the matter ends
up proceeding to a trial or hearing.
strengths of conciliation’s ability to achieve the principle of justice equality
Unrepresented parties are not disadvantaged,
as the conciliator guides the discussion and
suggests solutions.
*
As formal rules of evidence and procedure do not
apply, each party in the dispute can feel equally
supported to speak freely and present their
perspective.
*
In many cases, a conciliator will only permit legal
representation if both parties have a lawyer. If one
person does not have a lawyer, both parties will
usually self-represent.
limitations of conciliation’s ability to achieve the principle of justice equality
Without legal support, disadvantaged individuals may accept unfair settlements or fail to argue their case confidently, reinforcing inequality in the process.
Conciliation relies heavily on parties being able to express their views and negotiate. This puts disadvantaged individuals at a further disadvantage if they lack assertiveness, confidence, or support
If one party is more vulnerable or there is a power
imbalance between parties, especially if no legal
representation is present,
strengths of conciliation’s ability to achieve the principle of justice access
💰 Lower cost: Conciliation is more affordable than going to trial, with cheaper fees and less need for legal representation, making it more accessible.
🔒 Privacy: The private nature of conciliation encourages parties to resolve sensitive matters without the fear of public exposure.
🤝 Supportive process: Conciliation is less intimidating than a court trial, which helps individuals feel more comfortable and willing to pursue justice.
limitations of conciliation’s ability to achieve the principle of justice access
❌ Not suitable for hostile disputes: In highly emotional or long-standing conflicts, parties may be unwilling to cooperate, making conciliation ineffective and limiting access.
😟 Self-representation may discourage participation: Some individuals may feel intimidated presenting their own case, which can discourage them from seeking resolution — though this is lessened by conciliation’s supportive environment.
📋 Outcomes aren’t automatically binding: Unless both parties agree and formalise the outcome, there’s no guarantee of enforcement, which can reduce confidence in the process.
define arbitration
Arbitration a non-judicial resolution
method involving an independent third
party, known as the arbitrator, who
listens to parties present evidence
and makes a binding decision.
three circumstances in which arbitration is appropriate
Parties agree to participate in
arbitration. This may include
the parties having a contractual
arrangement to arbitrate disputes that
arise during a commercial transaction.
The dispute involves civil damages
of less than $10,000, which was
issued in the Magistrates’ Court.
The case requires a binding and
enforceable decision.
three circumstances in which arbitration is not appropriate
Parties do not agree to arbitrate.
Parties are comfortable navigating
complex court rules of evidence
and procedure.
Parties would like greater control
over the outcome of their dispute
resolution and do not want the result
decided on their behalf.
imitations of arbitration in achieving the principle of justice: fairness?
Relaxed rules of evidence may lead to consideration of material that wouldn’t be allowed in court, possibly disadvantaging one party.
Limited appeal rights can prevent correction of unfair decisions.
Power imbalance may arise if one party has legal representation and the other does not, affecting the fairness of the outcome.
strengths of arbitration in achieving the principle of justice: fairness?
Fewer delays than courts allow for a timely resolution, reducing stress and procedural disadvantage.
Parties can choose the arbitrator, helping ensure impartiality and mutual confidence in the decision-maker.
Independent arbitrator ensures decisions are made fairly based on law and facts, without bias or association with either party.
Strengths in arbitration achieving equality:
⚖️ Flexible procedure – Parties can agree on the process (e.g. timing, speaking order), which allows adjustments for individual needs and promotes equal opportunity to participate.
🙋♀️ Support for self-represented parties – Arbitrators often assist unrepresented parties to understand the process and issues, helping to reduce disadvantage.
🧍 Less formality than courts – The relaxed structure reduces intimidation and makes it easier for disadvantaged or less experienced parties to engage on a more equal footing.
