EVALUATION OF DISPUTE
RESOLUTION METHODS
Strengths of Mediation
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1)
2)
3)
4)
5)
Strengths
Mediation is often less expensive. Mediation avoids the costs of a trial, and is
significantly less expensive for the parties than litigation. Parties do not require
legal representation, and the fees involved for the services of mediators are lower
than court fees.
Mediation is generally faster. Mediation is often quicker than going to trial, and
a dispute may be resolved in a matter or days or weeks instead of months or
years.
Win-win solution. Mediation can produce a win-win solution where both
parties feel that they have got something out of the process.
Informal atmosphere. The informal atmosphere of mediation encourages
compromise. Mediation encourages a joint problem-solving procedure in which the
parties in conflict sit down and discuss the issues involved, consider options and
reach an agreement through negotiation. It is a less intimidating method of dispute
resolution compared to courts.
Parties are encouraged to resolve their own dispute. Mediation encourages
parties in dispute to try to resolve their own conflict with the assistance of third
parties who are experienced in mediation procedures, rather than leaving the
resolution to the legal system.
Weaknesses of Mediation
1)
2)
3)
4)
Not binding decision. Any mediation agreement reached is not
binding or enforceable so the dispute may need to be resolved by
the courts anyway.
Mediation may not produce a solution. The mediation process
may not produce a solution. If the dispute is not resolved through
mediation, the parties may then have to face the usual and
traditional costs, such as legal fees and expert fees..
Informal atmosphere. There can be too much informality with
mediation and a more powerful or confident party can take
advantage. This may produce imbalance of bargaining power.
Mediation may not be appropriate. The process is inappropriate
where the two parties are unequal in a power relationship; the
more dominant party may force the other party to accept a
solution which is unjust.
Strengths of Conciliation
1)
2)
3)
4)
Parties have their say. Conciliation allows parties to be able to
have their say. The conciliator assists but does not make the decision,
listens to the facts, makes suggestions and assists the parties to come
to their own decision The conciliator assists by exploring solutions to
the dispute and suggesting possible options. The decision made by
the parties is not binding but is more likely to be followed because it
has been made in front of a third party.
Expertise of conciliator. The conciliator usually has some expertise
in the area of law.
Conciliation is an informal process. The informal surroundings and
procedures of conciliation encourage cooperation. The conciliator will
help everyone discuss the complaint and work towards resolving it.
Conciliation process is more cooperative and less competitive
than court action. Participating in a conciliation process can enhance
the relationship between the disputing parties. This is a key
advantage in situations where the parties have an ongoing
relationship, such as in child custody or workplace cases.
Weaknesses of Conciliation
1)
2)
3)
4)
Lack of finality. Although the conciliator may suggest a solution,
the conciliator cannot impose one. As final decisions are not legally
binding unless incorporated into an order of a court or tribunal, the
agreement may be difficult to enforce.
Cannot always be enforced. Even if a solution is agreed to, it cannot
be enforced
Conciliation relies on goodwill. Conciliation is a voluntary process
and relies on the goodwill of either party. A conciliator attempts to
resolve a dispute by talking through the issues with the parties in the
hope that agreement can be reached. A conciliator, after having
been involved in discussions, can generate options for settlement.
However, one party may refuse to attend or may withdraw at any
time.
Conciliation may prolong the case. If the case is not resolved, the
use of conciliation may prolong the case and add to the cost of
taking action
Strengths of Arbitration
1)
2)
3)
4)
5)
6)
Binding decision. Decisions reached are final and enforceable in the courts.
Usually faster. Arbitration is another dispute resolution method that is usually
faster, is more informal and offers greater privacy to the disputants than the
traditional court system. The decision reached through arbitration is usually final
and binding on the parties.
The arbitrator has considerable expertise in the area. Arbitration usually involves
taking the dispute to a qualified independent third party who has expertise in the
area of the dispute.
Arbitration can offer processes and remedies that courts cannot. Parties looking
for explanations or apologies rather than high levels of compensation may well
feel greater satisfaction with a more personal and less rigid procedure.
Formal procedure. The formal procedure of arbitration emphasises the seriousness
of the case. The arbitrator resolves the dispute by making an award or a decision
in favour of one of the parties that is binding on both parties.
Limited costs. Arbitration allows individuals to recover debts or exercise their rights
without facing significant costs
Weaknesses of Arbitration
1)
2)
3)
4)
Arbitration can be expensive. Arbitration often bears similarities to
court proceedings and parties may choose to have legal
representation, but it is not required. In addition to paying for legal
representation, the parties have to bear some of the costs of
engaging the arbitrator and of hiring a venue for the proceedings.
Win/lose scenario. An arbitrated decision is a decision in favour of
one party. One party will feel less satisfied with the outcome of the
arbitration.
Appeals are limited. The right of appeal from such decisions is very
limited and successful appeals are uncommon.
Arbitration is not always a quick dispute resolution method.
Arbitration is not always quick; in fact, arbitration can require a
client to pass through many stages before a decision is reached..
Judicial Determination- Strengths and
Weaknesses
STRENGTH
1)
Binding decision. The decision is enforceable by the courts.
2)
Parties are treated equally. The process used to reach a judicial determination includes strict
rules of evidence and procedure. This ensures that parties are treated equally and their rights
as citizens are protected. The judge or magistrate must remain impartial. This provides both
parties with an equal chance to put their case.
3)
Allows for appeals. If a party is dissatisfied with the outcome of their case it can be reviewed
by a higher court, provided that they can establish grounds for appeal.
Weaknesses
1)
Expensive. Court action, is time-consuming and expensive, and often requires the assistance of
legal representation. Court action may take one or more years to resolve.
2)
Extensive delays. Taking a case to court and having it heard before a judge or magistrate
can lead to extensive delays, which causes problems for all of the parties involved.
3)
Win/lose scenario. This could cause further animosity between the parties, and resentment
towards the legal system. Whereas mediation and conciliation focus on a win/win resolution
that has a more positive impact where there is an ongoing relationship between the parties.
4)
Formality of the court room. The formality of the court room and the strict rules of evidence
and procedure may be intimidating to some parties.
Question Time 
Read the case file ‘Mediation—increasing access to dispute resolution’
on pages 231–33 and answer the following questions.
1) Distinguish between the following forms of dispute resolution methods:
 ● conciliation
 ● arbitration
 ● judicial determination.
2) Explain the process of mediation. What factors are likely to limit the
possible success of mediation in resolving a dispute?
3 Explain the role and function of the Dispute Settlement Centre of
Victoria.
4 What is ‘court-annexed mediation’? Suggest reasons why the courts
may refer cases to mediation.
5 Evaluate the strengths and weaknesses of mediation, conciliation,
arbitration and judicial determination as dispute resolution methods.
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