Legal Studies Unit 3

Area of study 3: Civil Law

7.9 Methods used to resolve civil disputes

Practice questions
1. Compare mediation and conciliation as methods used to resolve civil disputes.
4 marks
Mediation is a cooperative method of resolving disputes that is widely used by courts tribunals and
other dispute resolution bodies. Mediation involves a mediator whose role is to facilitate
communication between the parties and the resolution is made by the parties voluntarily. Mediation
can be used in resolving disputes in the courts, VCAT, CAV and Private use. Conciliation is a process
of dispute resolution involving the assistance of a third party with the aim of enabling the parties to
reach a decision between them. The third party is a conciliator whose role is to facilitate
communication between parties and offer suggestions and solutions. Like Mediation, Conciliation can
also be used to resolve civil disputes in courts, VCAT, CAV and private use. Another similarity
between Mediation and conciliation is that individuals may attempt either conciliation or mediation
any time before or after initiating a claim. However, when used in courts, the county court and
supreme court do not usually use conciliation as a method of dispute resolution and rather prefer
mediation. Another difference is that mediation is generally not used in CAV as its primary dispute
resolution method is conciliation not mediation.
2. Distinguish between the legal authority of an outcome reached in arbitration and mediation.
2 marks
The legal authority of a decision reached in mediation is that it is not legally binding whereas, an
outcome reached in arbitration is legally binding.
3. The Family Court in Bob and Mary’s dispute about property division has ordered the couple
attend mediation. They have a long and protracted history of arguing through their lawyers
about how to split the family home and Mary is concerned as Bob has sent her abusive
messages.

Discuss the factors the parties will need to consider before attending mediation, and comment
on whether this method would be suitable in their situation.
5 marks

Mediation is a cooperative method of resolving disputes that is widely used by courts

tribunals and other dispute resolution bodies. Mediation involves a mediator whose role is to
facilitate communication between the parties and the resolution is made by the parties
voluntarily. In Bob and Marys case mediation would not be a suitable as factors such as
arguing through lawyers and the use of abusive messages must be considered. Mediation is nit
suitable when there are overwhelming emotions involved that interfere with the negotiation
process. In this case the emotions that arise from the consistent arguing through their lawyers
such as anger, resentment and annoyance may interfere with the negotiation process as they
cause a drift between the two parties which are bob and Mary. Through this, it can also be
possible that one or both of the parties may not be willing to reach a mutual agreement ,
which again, shows that mediation is not suitable. The abusive messages that Mary receives
shows a history of violent/ threatening behaviour which in this case, is verbal abuse. The text
 messages also introduce a power imbalance within bob and Mary as Mary is now frightened
of bob. Thus, it can be concluded that mediation is not suitable in Bob and Mary’s case and a
more appropriate dispute resolution method should be considered.

4. The Magistrates Court can refer civil disputes under $10,000 to arbitration. Evaluate the use
of arbitration to resolve such disputes. In your response, refer to at least one principle of
justice. 6 marks

Arbitration is a method of resolving disputes without a formal court process. An independent

third party which is a arbitrator will listen to both sides and make a decision that is binding on the
parties and the final decision will be made by the arbitrator not the parties. The use of Arbitration in
resolving disputes is sufficient as the use of an arbitrator provides fairness as the arbitrator is usually
an expert on the subject matter which ensures a fair resolution as the expertise of the arbitrator ensures
proper facilitation of the process of arbitration. The decision is also fully enforceable and binding
through the courts which also ensures fairness as the terms of a settlement can be enforced and both
parties cannot breach this settlement ensuring that the purpose of the process of arbitration was
achieved and in doing so, ensuring fairness. However, arbitration limits Access as CAV does not use
arbitration, this limits certain individuals to access this dispute resolution method who may need it. It
limits access a arbitration can also be costly and take a long time depending on the nature of the
dispute which can limit access as this means individuals may not resolve their case in a timely manner
and the costs involved may limit certain individuals to use arbitration which may disadvantage them
as it may have suited them the best.