U3 AOS 2a lesson 4 Flashcards
mediation
One of the least formal methods for resolving civil disputes that can occur outside and within the court system.
features of mediation
- Involves the parties willing to cooperate to reach a solution
- Through the assistance of an impartial 3rd party referred to as the mediator, the parties:
- discuss the issues + Consider options, try to reach an agreement through negotiation + compromise
- Legal representation is generally not used to promote a sense of informality
- There are no strict rules of evidence and procedure
- Any decision reached is not legally binding unless a deed of settlement is signed by both parties
term of deed settlement
a legally binding document that outlines the terms that the parties have agreed to after mediation which can be enforceable through courts if one party does not comply.
where is mediation used: before court
Mediation can be used by parties before engaging in the courts to resolve disputes, if it is important to maintain an ongoing relationship and cost may be an issue:
- Disagreements between neighbours
- Disputes between landlords and tenants
- Disputes among family members
where is mediation used: during court
- The Magistrate, County and Supreme Court can order parties to attend mediation once the case has been initiated in the court as part of a pre-trial procedures
- This can be ordered without consent of the parties
- Cost for mediation usually split between the parties
- Associate judges can also mediate - referred to as judicial mediation
where is mediation used: as an alt to court
- VCAT (Victorian Civil and Administrative Tribunal) often refers claims to mediation prior to the final hearing
*Parties can also access private mediation through the Dispute Settlement Centre of Victoria
when is mediation appropriate: maintain relo
- A relationship needs to be maintained between the two parties, such as a manager and employee.
when is mediation appropriate: privacy
- Parties prefer privacy and confidentiality and therefore. want to resolve the dispute in a less formal and publicised manner
when is mediation appropriate: lower legal fees
*Both parties want lower legal fees, as the court process can often be more expensive than mediation.
when is mediation inappropriate: relationship
gross imbalance of between parties such as a CEO and entry- level employee
when is mediation inappropriate: unwilling party
where one party is unwilling to engage - perhaps as they are litigious and only want their day in court, and are refusing to compromise
when is mediation inappropriate: urgent intervention
- Urgent court intervention is needed, and mediation would slow the process down. This is relevant in situations where one party may not want to engage.
- Example: landlord-tenant disputes where a tenant may be soon to be evicted.
mediation fairness strength
- 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 fairness weaknesses
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.
mediation access strength
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 access weakness
In long-running and hostile disputes, mediation may be inappropriate as parties are unlikely to constructively communicate and reach a resolution thus limiting access to justice as the dispute may remain unresolved.
Given legal representation is often not used in mediation, parties may need to present their own cases. This may be intimidating for certain people and discourage them from pursuing mediation However, this limitation is usually insignificant. given the informal and open manner in which mediation is conducted
mediation equality weaknesses
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.
mediation equality strengths
- As formal rules of evidence and procedure de 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
conciliation
Conciliation shares all the same elements as mediation except that:
- The conciliator will listen to the facts and evidence presented by both sides + make suggestions regarding ways and options to resolve the dispute.
- The conciliator will generally be an individual with specialist knowledge in that field pertaining to the legal dispute e.g., consumer law, family law, workplace relations
where is conciliation used: magistrate
can order parties to attend conciliation
where is conciliation used: county court
can order parties to attend conciliation
where is conciliation used: VCAT
can order parties to attend compulsory conference that uses conciliation
conciliation appropriate: will
• Parties are willing to discuss issues.
conciliation appropriate:privacy
•Parties prefer privacy and confidentiality.
