Essentially litigation in the private sector disputes

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What is Arbitration? essentially litigation in the private sector. Disputes resolved by an impartial third party who is chosen by the parties who agree in advance to abide by the decision (award) of the arbitrator. tor .
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Arbitration Traditionally used to resolve dispute between states or state entities, as well as commercial disputes Now quasi-judicial process; adversarial in nature Takes place outside formal court structures Confidential 28
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Arbitration is quasi-judicial Less formal than litigation Rules of evidence relaxed Arbitrator makes determination Outcome is binding on the parties Some legislative regulation International Arbitration Act 1974 (Cth) Commercial Arbitration Act 1984 (Vic) Ø Uniform State Acts
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Advantages of Arbitration It is private, unlike the courts which are generally open to the public & the press. Appoint arbitrator of parties choice rather than have a judge imposed upon you by the court. Arbitrator need not be a lawyer, and may have superior technical skills that can assist in deciding a case that is more technical than legal.
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Mediation Most widely used ADR mechanism Identify issues in dispute and find solutions based on interest and needs Facilitated negotiation Flexible, no set procedure-can be adapted top dispute/parties Mainly non evidentiary Mediator - directs process Parties - decide issues and outcome No resolution without parties’ consent Like arbitration, it can be mandated by contract, by court, or voluntarily undertaken by the parties 31
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Defining Mediation Mediation Decisions made by parties. Process and outcome are private. Outcome is based on interests. 3rd party’s role is to facilitate negotiation Litigation Decisions made by third party Process and outcome are usually public Outcome is based on (legal) rights Third party’s role is to decide who is right/wrong
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Features of Mediation Confidentiality Central to successful mediation Express agreement between parties and mediator Confidentiality not absolute 33
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Features of Mediation Accessibility Available to resolve dispute Meet needs of parties Not all disputes suitable for mediation Voluntary Consent of parties optimal Likely to lead to greater success: outcome & compliance What about court-mandated mediation? 34
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Mediator Accreditation Recognition of need for objective standards in work Need to adhere to ethical codes National Mediator Accreditation System 35
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Mediation Process Unregulated profession but NADRAC has voluntary national accreditation standards. Vast discrepancy in how mediations conducted. Some mediators will express opinions about the strengths and weaknesses of a party’s case, others won’t.
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When NOT to use Mediation History of fraud or dishonesty.
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