#7371 - Topic Two Adr - Civil Procedure

Adjudication: Parties present arguments to dispute resolution practitioner, who then makes determination which is enforceable, Most common form is determination by state authorities empowered to enforce decisions by courts.

Arbitration: Parties present arguments & evidence to arbitrator and decisions is then usually binding and only reviewable on limited grounds. Similar to litigation.

• Impartial third party chosen by the parties in advance

• Compulsory under $10,000 in Magistrates Court

• Most commonly used in commercial, construction, labour and international trade disputes.

• Private, arbitrator may have superior technical skills that a lawyer may not have

Quasi-judicial: Less formal than litigation but determination and binding decision and legal regulation of process through International Arbitration Act1974 (Cth)and Commercial Arbitration Act 1984 (Vic)

Can be conducted: under a court-annexed scheme, under specific legislation, or pursuant to a private agreement between the parties.

Expert Determination: Independent expert appointed to make binding determination on some particular facts or issues

Private judging: Parties present arguments and evidence to a private judge who makes a determination based on what, in their opinion, the likely decision would be if the matter was referred to court

Fact finding: Arguments presented to a dispute resolution practitioner who makes a determination as to facts, but does not make recommendations as to outcomes

Early neutral evaluation: Merits of case assessed and issues identified at early stage to encourage settlement. Usually presented to a Queen’s Counsel or Senior Counsel.

Ombudsman: Impartial third party who investigates complaints against an institution by its constituents, clients or employees.

Conciliation: Parties identify disputed issues and endeavor to reach agreement with the assistance of neutral third party.

Facilitation: Parties identify problems to be solved, issues to be resolved or tasks to be completed with assistance of neutral third party. Facilitator from here may help parties develop opinions, consider alternatives and endeavor to reach an agreement

Expert appraisal: similar to expert determination except that the expert provides an advisory opinion rather than a determinative one

Mediation: Parties together with mediator identify issues in dispute, develop options, consider alternatives and try to reach an agreement

• No set procedure, mediator will not express opinions or offer advice

• Confidential, no resolution without consent

• Can be mandated by contract, by court, or voluntarily undertaken

• Unregulated, some will express opinions about strengths and weaknesses of cases, others wont

• Outcome is a settlement incorporated into a contract: parties can enforce agreement in court if it was drafted with sufficient certainty and in good faith – not easy!

• Not appropriate when there is a:

  • History of fraud or dishonesty

  • need to set a precedent

  • significant power imbalance between parties or one party has no incentive to settle

  • where it significantly affects persons or organisations who are not parties to the ADR processes

  • where there is need for public sanctioning of conduct

  • where parties are unable to negotiate without a law

  • in family matters where there is a history of family violence.

• Four feature of mediation: accessible, voluntary, confidential and facilitative.

• Mediators in the Family dispute resolution area are government by the Family Law Regulations 1984 (Cth) whilst others are governed by the National Mediator Accreditation System

• Power imbalance may lead to an unfair decision, but it is not always immediately apparent where the power lies. Could be formal authority, expert power, associational power, resource power, sanction power, personal power etc. Mediators must be able to recognize this imbalance.