the methods used to resolve civil disputes (mediation, conciliation, arbitration, tribunals, courts)

What this dot point is asking

VCAA wants you to know what methods are available to resolve a civil dispute in Victoria, how each works, and when each is appropriate. Expect a 5-7 mark medium response or comparison question.

The answer

Mediation

A non-adversarial process in which a neutral third party (the mediator) facilitates a discussion between the parties to help them reach a mutually acceptable resolution. The mediator does not impose a decision.

• Strengths. Cheap relative to litigation. Confidential. Preserves the relationship between the parties. The parties retain control of the outcome.
• Weaknesses. Non-binding unless the parties sign a deed of settlement. Requires both parties to negotiate in good faith. Power imbalances (e.g. between a tenant and a corporate landlord) can affect outcomes.
• Use in Victoria. The Civil Procedure Act 2010 (Vic) s 22 requires parties to use reasonable endeavours to resolve disputes by agreement. Most Victorian courts now require mediation as a stage in the litigation process.

Conciliation

Similar to mediation, but the conciliator may also offer expert advice and recommendations on a resolution. Often used in employment and discrimination matters.

• Strengths. The conciliator's expertise (e.g. industrial relations conciliators at the Fair Work Commission) adds value. Faster than litigation.
• Weaknesses. The conciliator's advice is non-binding. Outcomes can lack the public airing of issues that litigation provides.
• Use in Victoria. The Equal Opportunity Act 2010 (Vic) s 124 provides for conciliation of complaints to the Victorian Equal Opportunity and Human Rights Commission.

Arbitration

A binding process in which the parties appoint an arbitrator (or a panel) to hear evidence and make a decision. The arbitrator's decision is binding and enforceable as a judgement (Commercial Arbitration Act 2011 (Vic) s 35).

• Strengths. Binding outcome. Private. Often faster than court. The parties can choose an arbitrator with relevant expertise.
• Weaknesses. Costly (the arbitrator must be paid). Limited rights of appeal. Less procedural protection than a court.
• Use in Victoria. Common in commercial and construction disputes. Many commercial contracts include arbitration clauses. International commercial arbitration is governed by the International Arbitration Act 1974 (Cth).

Tribunals

Tribunals are administrative bodies that decide disputes on specific subject matter. They are less formal than courts.

Victorian Civil and Administrative Tribunal (VCAT). Established under the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Hears matters across civil claims (residential tenancies, consumer matters under the Australian Consumer Law and Fair Trading Act 2012 (Vic)), human rights complaints under the Equal Opportunity Act 2010 (Vic), and administrative review of government decisions. VCAT determinations are binding (subject to appeal to the Supreme Court on a question of law).

• Strengths. Cheaper than court. Faster than court. Tribunal members have subject-matter expertise. Parties often represent themselves.
• Weaknesses. Limited jurisdiction (only the subject matter conferred). VCAT cannot make orders enforceable as court judgements without registration in the Magistrates' Court. The 2023 VCAT Annual Report flagged ongoing delays in residential tenancy and human rights lists.

Courts

Courts hear civil disputes formally under court rules. The Victorian civil court hierarchy:

• Magistrates' Court of Victoria. Claims up to $100,000.

• County Court of Victoria. Unlimited jurisdiction (in practice, claims between $100,000 and several million).

• Supreme Court of Victoria. Unlimited jurisdiction; complex commercial matters; class actions; judicial review.

• Strengths. Binding decisions enforceable as judgements. Formal rules of evidence and procedure protect fair process. Right of appeal.

• Weaknesses. Slow and expensive. Adversarial process can damage commercial relationships. Procedural complexity can disadvantage self-represented litigants.

Choosing a method

The Civil Procedure Act 2010 (Vic) requires parties and lawyers to act in good faith to facilitate the just, efficient, timely and cost-effective resolution of disputes (overarching obligations). The court will encourage and often require alternative dispute resolution before trial.

The factors influencing choice include:

• the value of the claim (small claims to VCAT or mediation; high-value commercial to arbitration or the Supreme Court);
• the relationship between the parties (mediation preserves; litigation strains);
• the need for a binding outcome (court or arbitration; not mediation);
• urgency (interim injunctions only available from a court);
• complexity (specialist tribunal members can help in narrow subject matter).