Australia's Use of Mediation in Dispute Resolution
Australia is one of the top countries in the world that uses mediation in court cases; in fact, it is second only to the United States. A neutral third party facilitates mediation, an alternative method of resolving disputes that assists the parties in reaching a settlement. Australia encourages meditation so much that the judges sometimes make it a requirement. During the procedure, one of four mediation models—Facilitative mediation, Settlement mediation, Transformative mediation, and Evaluative mediation—can be used. Meditation has benefits and disadvantages and is frequently used as an alternative to laborious court procedures. This paper shall look at the use of mediation in dispute resolution, a type of mediation currently used in the Australian system, the strengths of this mediation and its weaknesses. The paper is organized into an introductory section that outlines the key parts of the paper, discussion section that contains the main content, a conclusion that summarizes the paper and gives a stand, and finally a references section that lists the sources used for researching the paper's content thus lending the paper credibility.
Use of Mediation in the Legal Process
In Australia, mediation is viewed as a facilitative process, where the mediator assumes no advisory or determinative role regarding the content or outcome of the dispute. The mediator offers a “process by which solution is attempted” (process-content distinction). The process underscores the philosophical fundamentals of facilitative mediation, which is party empowerment (self-determination). The distinguishing character of facilitative mediation is the fact that facilitative mediation is party-led and the outcomes are more palatable to the involved parties. Facilitative mediation seeks dispute resolution through problem-solving. The dispute is analyzed in terms of the needs and interests of the parties. Parties are encouraged to move from positional bargaining, as in the settlement model, towards a joint problem-solving approach which satisfies the interest of both parties.
One of the most prominent facilitative mediation practices in Australia is the Melbourne’s Victorian Civil and Administrative Tribunal (VCAT)
VCAT, established in 1998, is the largest administrative tribunal and exercises jurisdiction over almost every administrative and civil issues in Victoria. For instance, in 2013-2014, the court handled numerous residential tenancies and civil claims. The aim of VCAT is to “serve the community by resolving disputes in a timely, cost-effective and efficient way.” VCAT uses facilitative mediation as its three models of alternative dispute resolution mechanisms (the other two are compulsory conferences and short mediation and hearings). In 2014, VCAT used mediation to resolve matters off domestic building, civil claims, and real property. Parties may voluntarily or compulsorily attend mediations at VCAT.
Strengths of Facilitative Mediation
Mediation has been favored strongly in Australia over the traditional litigation methods due to the fact that it is flexible, effective, cheap, empowering the parties involved, fast, and confidential . These are the benefits of mediation, particularly when viewed in contrast to the traditional litigation system. The flexibility aspect comes in the form of schedules and timetables that must be agreed upon by both parties. The effectiveness of mediation lies in the fact that it has been found to solve numerous cases successfully out of court. Additionally, it is cheap because the participants often have control over the entire process and as such can choose venues and times that are less expensive for them. Mediation is fast due to the fact that the bureaucratic court structure is omitted. And last but not least, mediation offers confidentiality, which is critical when several people and parties are involved. These are the strengths of meditation that make it preferable to many, including businesses and private citizens. As a matter of fact, some court systems actually mandate mediation for litigants due to these factors .
Weaknesses of Facilitative Mediation
One of the main criticisms of facilitative mediation is that it fails to provide for the same level of rights protection as the common adversarial legal system. The mediation process is also criticized on the private nature of the resolution process, which is viewed as to have the possibility of concealed coercion. The privacy associated with facilitative model as ADR method is associated with potential exploitation of imbalances, particularly from the stronger parties.
Mediation has certain shortcomings that largely stem from its free and flexible nature. For one, mediation often lacks evidence that is available to the court. The mediators may not have the authority that courts have to demand evidence beyond reasonable doubt and thus some evidence could be overlooked. Secondly, in cases of domestic violence, victims may feel intimidated outside the protection that the court offers thus making the mediation process unfair to them. Last but not least, mediation can be time wasting, especially where it is unsuccessful . In this case, the parties would have to go back to the arduous legal process that is expensive after having spent time in mediation . From this perspective, it is important to assign cases to mediation when the circumstances are such that it has been shown to be effective in solving those cases. It would be pointless to seek mediation for cases that have shown a poor rate of success in mediation .
Conclusion
Mediation is a process that is based on the fact that people can reach an agreement on almost every issue when they have a neutral element among them that can clear their view of the subject matter. As a matter of fact, it has proven relevant and effective in the legal system of several countries. Cases that can be talked out and negotiated have been done so, often successfully. In my opinion, more countries must embrace mediation as a peaceful means of dispute resolution.
Works Cited
Douglas Kathy and Batagol becky. “The Role of lawyers in mediation: insights from mediators at Victoria’s civil and administrative tribunal.”
Klaus J Hopt and Felix Steffek, “Mediation: Principles and Regulation in Comparative Perspective” (OUP, 2013) Ch 17.
National Alternative Dispute Resolution Advisory Council, Teaching Alternative Dispute Resolution in Australian Law Schools (November 2012), 7–8.
Victorian Civil and Administrative Tribunal, Practice Note No PNVCAT4 of 2013 Alternative Dispute Resolution, 1 January 2013, 5.
