DISPUTE RESOLUTION- A COMPARISON
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The legal system presents individuals with a range of
ways in which they can resolve disputes.
Taking a case to court is a costly process. Of course
there are some cases that must be heard by a court.
Only a court can make a decision about the guilt or
innocence of a defendant in a criminal case.
In a civil dispute the individual can make a number of
choices. In relatively minor matters an individual
may choose not to take action. Alternative dispute
settlement processes and tribunals can also be used to
resolve civil disputes.
Alternatively, in more complex cases the individual
may decide to take the case to court.
COURT ACTION & DRM
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Taking a civil dispute to court is usually seen as the last resort. The
court system uses an adversarial process to reach a judicial
determination. This includes strict rules of evidence and procedure.
Furthermore, the formality of the process means that legal
representation is required. Therefore, going to court to resolve a civil
dispute is costly and time-consuming.
However, the courts do have the power to make a final binding
decision.
Court may also refer parties to other forms of dispute resolution such
as mediation and arbitration. The Magistrates’ Court also uses
conciliation and compulsory arbitration in civil disputes involving less
than $10 000.
Dispute resolution methods and VCAT
The use of mediation, conciliation and arbitration in VCAT are usually
a more cost effective way to resolve a civil dispute. These methods are
generally less formal, less time-consuming, less costly and less
intimidating.
Dispute resolution methods used by VCAT can potentially provide a
more satisfactory resolution of a dispute. In many instances the parties
reach a mutual agreement. This is sometimes described as a ‘win/win’
situation. The parties are able to discuss issues,
explore possible solutions and reach a decision.
STRENGTHS OF COURTS
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Courts provide a binding resolution of disputes. Courts use
different dispute resolution methods to resolve disputes. They can use
mediation, arbitration and judicial determination. If the mediation
occurs as part of a court action, the agreement may be included in court
orders, which are legally enforceable. Courts can adjudicate on a range of
civil and criminal disputes and provide a binding resolution.
● Courts can adjudicate on a range of civil and criminal disputes.
The court hierarchy enables courts to specialise in hearing specific types
of cases such as family law, taxation and constitutional matters and so
develop appropriate procedures to effectively settle the dispute. For
instance, the Magistrates’ Court hears minor summary offences and civil
matters under $100 000. The High Court hears constitutional matters.
● Courts use legal representation to prepare and present the
case. The use of legal representation ensures that both parties are
treated equally and each party has the opportunity to present their side
of the facts in an objective, reasoned argument.
● Courts follow strict rules of evidence and procedure. Strict rules
of evidence maintain consistency in how our courts determine the truth.
● Courts are bound by the principles of natural justice. Natural
justice refers to every person entitled to a fair and unbiased hearing.
Courts must remain impartial at all times. Both parties are considered
equal before the law.
WEAKNESSES OF COURTS
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Courts are very expensive. Courts are very expensive due to the high
court costs and the need for legal representation for the preparation and
presentation of a case. The unsuccessful party in a civil matter has to
consider the possibility of paying large amounts in compensation, party–
party costs and court costs. Even the successful party will be out of pocket
as the award will not cover all their solicitor–client costs. This may prevent
or discourage some parties from pursuing a valid civil claim through the
courts.
Court cases are time-consuming. Preparation and pre-trial proceedings
take up a lot of time.
Individuals may not be able to afford legal representation.
Individuals who are unable to afford their own legal representative and are
ineligible for legal aid are at a huge disadvantage in the court system.
Applications for legal aid must pass both a means test (to assess their
ability to pay for their own private legal representation) and the merit and
reasonableness test (the likelihood of being successful in their case and
whether it is reasonable for them to fund the case) in order to be eligible
for legal aid.
Not always the most appropriate method. Judicial determination
creates a situation there is a ‘winner’ and a ‘loser’. This may not be
appropriate where there is an ongoing relationship between disputing
parties. For instance, if the dispute is between neighbours, the ‘winner’
and ‘loser’ outcome may in fact escalate the dispute in the future rather
than settle it.
STRENGTHS OF VCAT
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Less costly. VCAT provides an efficient, low-cost, informal and less
intimidating access to high-quality dispute resolution and decisionmaking of civil cases. The cost of applying for a dispute to be heard
before VCAT is far cheaper than taking a case to court. For instance,
the fee for a small claim (involving an amount of less than $10 000) is
$35.20. In small claim cases the parties must represent themselves
and so there is no need for representation..
Less intimidating. VCAT is a less intimidating form of dispute
resolution, compared to courts, due to the absence of strict rules of
evidence and procedure. Hearing of evidence and examination of
witnesses is less formal.
VCAT is faster. VCAT provides for a more timely resolution of
disputes. As the hearings are generally less formal there are fewer
pre-hearing requirements in preparing a dispute to go before VCAT. If
the parties cannot reach a decision, VCAT will make a decision.
VCAT hearings are conducted in a less formal manner. VCAT
does not use the strict rules of evidence and procedure used by courts.
The parties are given the opportunity to put their case in their own
words.
The parties are encouraged to reach an agreement themselves.
VCAT can use mediation or conciliation to encourage the parties to
reach an agreement. If the parties cannot, the matter will go to
arbitration and a binding decision will be handed down.
WEAKNESSES OF VCAT
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VCAT is usually suitable for minor disputes. Not used
in criminal matters. Larger civil disputes proceed through
the court system.
Escalating cost of VCAT hearings. The cost of VCAT
hearings has escalated in recent years. This is due to an
increase in the number of people using legal
representation. All VCAT lists, except civil claims, allow
the parties to be legally represented if they both agree or
where certain circumstances exist. As a result some costs of
taking a claim to VCAT have increased due to the use of
legal representation.
Parties cannot reach an agreement. Mediation and
conciliation decisions are not legally binding. An individual
may compromise too much to settle the dispute. They may
feel intimidated or manipulated by a stronger party.
Limited right of appeal An appeal can only be made on a
point of law. While this has the advantage of restricting
further costs, parties to a dispute decided in VCAT have
limited rights to have a decision reviewed.
EVALUATING THE STRENGTHS AND
WEAKNESSES
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There are a number of questions that an individual
should consider in deciding which method to use.
How formal is the process?
How long will it take?
How much will it cost?
Do I need a lawyer?
Who makes the decision?
Is the decision binding?
What impact will it have on my relationship with
the other party?
Will the other party attend?
Is there a right of appeal?
SUMMARY EVALUATION OF THE COURTS
AND VCAT
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Copy the table from 314 into your books.
STRENGTHS AND WEAKNESSES OF COURTS
AND VCAT
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Get ready for some writing, because we are going
to be answering this question on the board.
QUESTION TIME 
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Complete Questions 1-3 on page 315.
Complete the Practice Exam Questions on page
315.