::What is Dispute Resolution?

Dispute resolution represents a variety of methods through which potential litigants may resolve disputes. The most common forms are:

negotiation;
mediation;
conciliation;
expert appraisal ;
arbitration; and
litigation (also known as adjudication).

The first three focus on effective communication and negotiation, rather than using more combative processes. They avoid Court and are often less time consuming and costly. Such processes can help alleviate interpersonal disputes and conflicts within organizations, neighborhoods and businesses.

The dispute resolution processes offer parties varying degrees of control over in the outcome. At one end there is negotiation and mediation, in which the parties retain control and must voluntarily agree to the settlement. At the other end is arbitration and litigation in which the parties essentially give up control and request a third-person (the arbitrator or judge) to impose a decision to resolve the dispute. There also exist combinations of these methods.

Negotiation

Negotiation is one of the most common processes in the world. People negotiate almost constantly from the three year old children “sharing” their toys to neighbours discussing the erection of a dividing fence, to a consumer returning goods to a department store, to multi national corporations discussing trade obligations.

It is a process whereby parties to a dispute attempt to settle that dispute on their own and without the assistance or intervention of a third party. Parties may either be represented by professional negotiators or conduct the negotiation themselves.

There is no set process for this method of dispute resolution (although obviously some methods work better than others!) and parties’ approach can range from extremely combative to extremely facilitative depending on them and on the nature of the dispute.

Where no third party is involved there is no agreement or decision reached unless the parties reach it themselves.

Mediation

Mediation is a process whereby parties are assisted in their negotiations by a neutral third party (mediator) to identify the issues in dispute, generate options around these issues, consider alternatives and to attempt to reach agreement that will meet the underlying needs and interests of both or all parties to the dispute.

Mediators do not make decisions about who is right or wrong or what the best outcome should be. A key advantage to mediation is that the parties have significant control over the end result. Decision-making power stays in the parties' hands, and is not passed on to a judge or arbitrator. Instead, a mediator helps bring the parties together by establishing a framework for the negotiation within which all parties agree to participate.

The mediator has no determinative power (i.e cannot make a decision for the parties) and most commonly, mediators do not offer substantive advice during the mediation. The mediator however controls the process of the mediation, that is the steps and stages of the meeting, and the parties themselves reach any agreement that is made.

Mediation is not an appropriate method of dispute resolution in all cases. This is particularly so in cases of ongoing domestic violence, child abuse, or in certain other relationships of a serious and complex nature.

Conciliation

Conciliation is a term often used interchangeably with mediation. Many statutory or judicial bodies use conciliation conferences in an attempt to settle matters before their tribunal or court. For example the Family Court conducts Conciliation Conferences chaired by a Registrar of the Family Court as part of the court process. These conferences are very often described by the court as being mediations.

Conciliators are usually recognized experts in the field of the dispute and are empowered to suggest or give advice on likely settlement terms. It is not uncommon for the third party conciliator to be very persuasive and to recommend strongly certain outcomes that they believe are suitable.

Conciliators have no determinative powers.

Expert appraisal

Expert appraisal is a process where the parties nominate a mutually agreed third party, an expert in the field of their dispute, and request that person give his or her opinion of the probable outcome if the matter were to proceed to court.

The Expert has no determinative powers, but his or her opinion is often very persuasive as both or all parties have already acknowledged the expert's status in the subject area.

Arbitration

Arbitration is a process in which the parties to a dispute present the facts of their case to a neutral third party to make a determination on that dispute. The third party arbitrator is ordinarily a recognised expert in the specific field of the dispute.

Arbitration is a process very close to judicial determination and parties adopt an adversarial (“A” vs “B”) stance.

The main differences between arbitration and litigation are that arbitration proceedings and decisions are private, and the arbitrator is a third party expert specifically chosen by the parties.

Arbitral decisions (also known as awards) may be registered at a court to give them the effect of a court order for the purposes of enforcement.

Litigation

Litigation is the most common form of dispute resolution in Australia. Surprisingly however, most disputes are not settled by the court; indeed approximately 95% of civil cases commenced in court are settled out of court prior to trial. Very often the methods of settling cases before trial may involve negotiation, mediation or conciliation, expert appraisal, or a combination of these.

In the litigation process, parties submit their dispute to the relevant court and either a Magistrate or a Judge decides the outcome of the dispute on their behalf. It is often a very time consuming and costly process. For many people the process is confusing even with the assistance of lawyers.

The judicial officer (the Magistrate or the Judge) acts as an impartial "umpire" throughout the proceedings and ultimately makes a decision based on the facts and evidence placed before them. Their decision forms an order of the court and is enforceable in the event any of the parties breaches that order.

Although many disputes can and ought to be resolved outside of the court process there are a number of situations where a judicial decision is essential and where parties are not able to negotiate matters themselves. These include

Applications that require a judicial decree, eg dissolution of marriage, or a grant of probate with respect to Wills;
Where at least one of the parties is recalcitrant and unwilling to negotiate with the other party;
Where one of the parties holds religious or moral views about the dispute. In such instances people are unlikely to negotiate their way around such firmly held beliefs;
Most adult criminal matters where as a matter of public policy offenders are not allowed to negotiate with victims in respect of conviction or punishment;
Urgent applications where a third party or organization is required to act on your behalf. Eg orders requiring financial institutions to withhold payment, a corporation to perform a contract, or the federal police to prevent the removal of a child from the country;

This dispute resolution process is the one with the least amount of party control and the greatest determinative power of the third party neutral - in this case, the Judge or Magistrate.

The information you obtain at this site is not, nor is it intended to be, legal advice.
You should consult a lawyer for individual advice regarding your own situation.