Lesson 44: Avenues to Resolve Civil Disputes I

Question 1

Considerations when resolving a Civil Dispute

Answer 1

• Civil action is taken by one individual or party against another individual or party
  Factors:
• Is there another way to resolve the dispute w/o legal action?
• Is it likely the claim will be successful?
• What will the likely costs of taking legal action be?
• Is it affordable and is the value of the claim worth the expense of pursuing it?

Question 2

Mediation

Answer 2

Definition: Mediation is a method of resolving disputes that uses an independent third party (mediator) to help the disputing parties reach a resolution
Joint problem solving process in which parties in the dispute:
- Sit down and discuss the issues they disagreed upon
- Present their side of the case; and
- Try to reach an agreement through negotiation
Mediators:
- Neutral third party with formal training
- Guide discussions between the parties
- Negate power imbalances
- Don’t provide suggestions for resolution
- Usually not an expert in the area of law dispute concerns (ideal for less legally complex disputes)

Question 3

Conciliation

Answer 3

Definition: Conciliation is a method of dispute resolution that uses an independent third party (conciliator) to help the disputing parties reach a resolution
Same way operated as mediation but third party role differs
Conciliators:
- Guide discussions between parties
- Negate power imbalances
- Provide suggestions for resolution (h/w final decision determined by parties)
- Usually an expert in area of law dispute concerns (ideal for more legally complex disputes)

Question 4

Arbitration

Answer 4

Definition: Arbitration is a method of dispute resolution in which an independent person (Arbitrator) is appointed to listen to both sides of a dispute and make a decision that is legally binding on both parties
- Professional Arbitrators generally have knowledge of the subject matter of the dispute as well as expertise in the applicable law
- Legal representation is usually allowed in the process therefore arbitration can be expensive
- More formal than Mediation and Conciliation

Question 5

3 Strengths + 3 Weaknesses for Mediation/Conciliation

Answer 5

Strengths:
- Decision more likely to be followed (parties reached decision themselves)
- Parties assisted by impartial third party who facilitates discussion and assist parties to resolve dispute themselves
- Save time and money

Weaknesses:
- Unless parties enter Terms of Settlement, decisions are not binding or enforceable
- Mediators and Conciliators have no power to order parties to come to a decision
- Both parties must be willing to participate for it to be successful

Question 6

3 Strengths + 3 Weaknesses for Arbitration

Answer 6

Strengths:
- Can be cheaper than court (depended on how conducted)
- The decision made by arbitrator is legally binding = parties more likely to follow
- Private and confidential, attractive or parties who wish to avoid publicity

Weaknesses:
- More expensive than Mediation and Conciliation as evidence is gathered + legal representation is common
- The parties have no control over the outcome imposed by arbitrator
- Arbitration not always available