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METHODS OF ALTERNATIVE DISUTE RESOLUTION

Chapter 6 Adjudication Bodies. METHODS OF ALTERNATIVE DISUTE RESOLUTION. METHOD ONE: NEGOTIATION. Process used by two or more parties Parties try to negotiate a settlement by providing each other’s point of view try to reach a compromise Any decision reached is not binding

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METHODS OF ALTERNATIVE DISUTE RESOLUTION

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  1. Chapter 6 Adjudication Bodies METHODS OF ALTERNATIVE DISUTE RESOLUTION

  2. METHOD ONE: NEGOTIATION • Process used by two or more parties • Parties try to negotiate a settlement by providing each other’s point of view try to reach a compromise • Any decision reached is not binding • Usually carried out without legal representation – could be taken along to assist with process

  3. When is negotiation used? • Consumers and traders • Neighbourhood disputes • It can occur during pre-trial – to achieve out of court settlement. • Ombudsman – assists in negotiation when a dispute involves a government department or government authority

  4. What is the role of the Ombudsman • Commonwealth Ombudsman appointed by the Governor general in council • The Victorian Ombudsman appointed by the governor in council • The role is to investigate complaints by citizens reached by a government body, a refusal to act, or a proposal.

  5. All complains should be written down and sent to the relevant ombudsman. • The ombudsman will investigate the matter and try to negotiate a resolution. • They communicate by letter, telephone, interviews and attending the scene of a complaint. • Ombudsman has no power to compel a government body to act but is influential as they can refer the matter to the government.

  6. METHOD TWO: MEDIATION • Joint problem solving method • Parties to dispute sit and discuss issues involved • Develop options • Consider alternatives and reach an agreement through negotiation • They do this through the help of one or two trained mediators.

  7. What is a mediator? • Trained professionals – can be social worker or even solicitor • Someone parties can relate to. E.g. If parties are male or female usually the same sex. This helps parties feel comfortable and less threatened. • Does not have to be a professional but possess a high level of conflict resolution skills

  8. Role • Not interfere. • Allows parties to have control of the dispute • Explores the options. • Facilitates discussion – ensures both parties are being heard.

  9. Why might parties prefer mediation? • Not restricted by rules of evidence and procedure • No need to prove fault • Enables parties to explore underlying reasons for the problem • Parties can reach agreement without high cost of court hearing • The focus is on the relationship of the parties and on future behaviour.

  10. STEPS IN MEDIATION • Introduction and explanation of rules • Each party uninterrupted statement about their side • Main issues listed on a board • Issues and concerns are discussed • Each arty speaks to mediator in private mediation takes place – options discussed • Voluntary agreement made by both parties • Agreement put into writing

  11. Advantages • Talk directly with other party and listen to other parties reply • Focus on future rather than past • Agreement suits everyone’s needs • Understand why they have experienced difficulty in reaching an agreement in the past • Cheaper and quicker than the courts • Confidential – whereas courts are open to public • Parties more committed to the agreement – more likely to uphold it.

  12. Disadvantages • Agreements have no legal status • Not enforceable – like the courts • Evidence of anything said or admitted in mediation is not admisable in court • Risks of parties not cooperating • One party may be more dominant etc. • Unsuitable for all disputes See page 291

  13. Homework QUESTIONS • Why is confidentiality an advantage? • Provide three examples where mediation is used as an ADR. • What are the fees for mediation? • Provide one example of how the courts can direct parties to resolve a dispute. • Why do Magistrates’ court, County court and Supreme Court refer civil matters to mediation? • Explain why the ‘Diversion to mediation scheme was introduced by the Magistrates court in 2002. How has this assisted with intervention order applications?

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