Dispute Resolution

Front 1

Litigation-process of

Back 1

Plaintiff files statement of claim/notice of proceedings-Defendent files statement of defence-interlocutory proceedings including discovery/interrgatories-case set down for hearing-opeinging adresses-witness exmaination (examination in chief then cross examination)-closing adresses, verdict

Front 2

Litigation-When to be used

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When Parites both believe they are right, Involving a large amount of money (above $15,000), When there is no common ground between parties, power balances present, no interest for other methods, nature of dispute(law and previous cases unclear)

Front 3

Litigation-pros

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Power imbalances adresses, Public ennuciation of values, binding, priniciples and precedents created, procedural safeguards and security for legal system, restoritive justice for victim

Front 4

Litigation-cons

Back 4

Time, cost, Damage to realationships, limited scope of remedies, western approach

Front 5

Negotiation-facrots that influence the use of

Back 5

If using litigation would result in sever outcomes for losing party, In the interest of preserving realationships, deals with opposition parties in a dispute.

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Negotiation-approaches to

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Competitive (agressive, intimidation), Co-operative(May see one party accept less than they desrve), Transformative(focus on understanfing conflict), Interest based(What do the parties want to achieve).

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Negotiation-strengths

Back 7

Cost and time efficient (don't have to involve a paid third party) taxpayer too, preserves relationships, flexibility of outcomes (unlimited scope), privacy, Parties own outcome

Front 8

Negotiation-weaknesses

Back 8

no safeguards-may see power imbalances or place parties on unqual footing, inappropriate for some cases, no public ennuniciation of values or public pressure, no guarantee of an outcome

Front 9

Negotiation-process

Back 9

Preparation by parties-time and venue organised-process agreed upon, ground rules est.at beginning-working out issues-solving problems-agreement

Front 10

Mediation-why use?

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main competition of litigation-used to avoid time, expense and stress of litigation with the main aim of preserving relationships. Uses neutral third party to reach decision

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Mediation-methods

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interest based (looks at interests of parties rather than their positions), narrative(similar to transformative negotiation, focusses on understanding of issues and context of these for greater lasting benefits.)

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Mediation-advantages

Back 12

Cost and time efficient (can be slowed by exploration into issues), focus on realtionships (cultural feminism) mediators can be experts in specialised field, parties still repsonsible for outcome(Mediator guides to solution, does not direct or hand out)

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Mediaton-disadvantages

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Mediator bias (mediator a good check on parties, but not checked themselves-in effort of address power inbalance may favour one party-, might inappropriately impose own views on situation (former judges as mediators), procedural safeguards lacking result in unbinding decisions.

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Mediation-appropriate when?

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Family disputes, where relationships need to be continued e.g. custody disputes, Emplayment disputes e.g. salary reiview(have to try mediation as first attempt under employment relations act), inappropriate for criminal acts

Front 15

Mediation-process

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Mediator appointed-time and venue-introductions-mediator opening address-parties stories-framing issues-resolving issues-seperate meetings-agreement

Front 16

Arbitration-what?

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Quasi-judicial setting(plaintiff sets out nature of dispute and remedies sought), Parties able to choose arbitrator and location, have to agree on this method (e.g.contract), governed by Arbitration Act 1996, award final, but has 3 month opening to challenge process

Front 17

Arbitration- Advantages

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Arbitrators award same level as Court decision, yet with certain flexibility and control of parties (e.g. deadlines, timetable), specialised adjudicator, less cost (fewer interoggray steps involved)

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Arbitration-disadvantages

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Abitrator cannot act like mediator and step in, no precedents created, Connot force party to use arbitration