Alternative dispute resolution in Victoria is a way of resolving disagreements without having to bring it before a court.
Many times, such as in civil cases in the Magistrates Court, or in family matters involving disputes over the care and custody of a child, before a court will hear your case, you will have first had to try to resolve the issue using an alternative dispute resolution process.
Alternative dispute resolution in Victoria can involve one or more different processes, such as negotiation, mediation or arbitration.
Negotiation is often the first step in resolving most disputes. It involves the people in the dispute discussing the problem, either orally or through the exchange of written documents, and presenting options for resolution in an effort to come to an agreement about how to settle it. It is a good place to start in attempting to resolve a dispute through alternative dispute resolution in Victoria.
Mediation is a process whereby an independent party is engaged to help the parties involved in the dispute to resolve it. The mediator does not express a view about the merits of the matter, nor do they give legal advice or make a decision on the matter.
The dispute is settled when the parties reach their own agreement. If there is no settlement, the parties’ legal rights are not affected. Neither party can make any reference to anything said in mediation if the matter isn’t settled and it proceeds to court. Many contracts require that mediation is attempted before the litigation or arbitration of any dispute.
Facilitation is essentially the same as mediation, but involves groups of people who have been unable to resolve a dispute. It is often utilised in disputes involving bodies corporate or arguments over planning.
The process of conciliation involves an impartial person (a conciliator) who can provide the parties with assistance and advice to attempt to find a non-litigious means by which to settle the dispute. The conciliator is generally experienced or well-trained in the subject area that is in dispute and are thus able to advise the parties as to what their rights are and where their obligations lie.
Conciliation is useful where parties are concerned to protect their rights, or one or more of the parties are not certain as to their rights and obligations. It is often utilised for disputes over equal opportunity.
Arbitration is one of the more formal processes for alternative dispute resolution in Victoria.
The parties to the disagreement are invited to argue their case before an independent person who then makes a decision as to how best to resolve the issue. The parties must comply with the decision of the arbitrator.
The parties may come to an agreement to try arbitration, but any one of them can apply and the others must participate. Parties often engage in this process where other forms of alternative dispute resolution have not worked. It is common for the settling of industrial relations matters.
Commercial arbitration arises when the parties have agreed to settle their disputes in this way. It is generally contained as a term or condition of a business or commercial contract. Sometimes it is in the original contract, but an agreement to resolve a dispute in this way may be entered into after a dispute has arisen. The decision of the arbitrator or arbitral tribunal is final and binding like a court decision. The process in Victoria is governed by the Commercial Arbitration Act 2011.
Alternative dispute resolution processes directed at the resolution of family matters such as the division of property or care and custody arrangements for children is known as family dispute resolution.
The aim is to find a workable solution to the problems – a solution that is practical, suits everyone involved, and is in the best interests of any children.
In most cases, when you apply to the court for, for example, a parenting order, you will have to attach to the application a certificate from a recognised practitioner indicating your attendance at and compliance with the family dispute resolution process.
The Victorian Dispute Settlement Centre (DSC) offers a free service for alternative dispute resolution via telephone. Centre staff will talk to you about your problem, discuss the available options, help you to develop strategies for negotiation, and, if necessary, they can arrange mediation for you.
While it can offer assistance to older persons who wish to transfer assets, the DSC does not cater for disputes relating to family law.
A form of alternative dispute resolution in Victoria that generally arises from a contract between the parties is expert determination. It is often the most effective way of resolving disputes which are technical in nature. The parties in dispute simply refer the matter to an expert who is independent of both parties. The expert will consider all of the evidence before making a decision.
Unlike arbitration, expert determination is not covered by legislation regarding how it is to be conducted and declaring the determination enforceable. Instead, it relies on general principles of contract law.
VCAT currently offers processes for alternative dispute resolution in Victoria such as mediation, compulsory conferences, and short mediation and hearing (SMAH) for all matters before them.
The Accident Compensation Conciliation Service utilises the principles of alternative dispute resolution to adjudicate workers compensation disputes in Victoria.
In the Supreme Court, judicial mediation is conducted by judicial registrars or associate judges, if referred by a Judge or a solicitor.
This article reflects the state of the law as at 4 May 2016. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.com.au.