Understanding Dispute Resolution Australia
First of all, what do we mean by dispute resolution in the legal and construction sense? or what is dispute resolution? Dispute resolution Australia is a term that refers to several processes that can be used to resolve a conflict, dispute, or claim between parties, including litigation, mediation, arbitration, and negotiation, or informal dispute resolution of family dispute resolution. Problems and differences in construction and business will occur; It’s how you handle them and how you protect yourself from the front that can make a world of difference! Through this article, we will be explaining in-depth all of your options for resolving potential conflicts and disputes, as well as how to address them in your construction contracts and subcontracts.
The first dispute resolution we will discuss is informal dispute resolution. This will usually be the easiest and least expensive option you can use to resolve your dispute or controversy.” Aylward Game Solicitors” has the best lawyers. They can help you to determine your disagreement with any of one.
Informal Dispute Resolution
Informal Dispute Resolution can be achieved through an attorney or between parties. This process generally occurs before a formal dispute resolution, such as litigation, arbitration, or mediation. If informal dispute resolution in Australia is successful, the parties can resolve their dispute without going through a formal dispute resolution process.
In the informal family dispute resolution process, there is usually written communication between the parties, both identifying their positions in the dispute and what they expect in return to resolve the disagreement fully. This can be as formal as a demand letter written by an attorney or as informal as an email exchange between the parties. Some individuals prefer to avoid the legal dispute resolution process entirely and choose to resolve the problem without paying the costs associated with these remedies. Once the parties reach an agreement between themselves or their attorneys, formal settlement documents are drawn up and executed. These documents generally include settlements and releases, disregard clauses, and even confidentiality agreements.
Informal dispute resolution has the potential to resolve disputes between parties faster than any other formal dispute resolution process. Although this process can be handled without an attorney, it is highly recommended that you seek an advisor’s advice throughout the entire process. A licensed attorney can ensure that proper releases and settlement agreements are obtained to provide the real finality of the situation. If you enter into a settlement agreement without getting the valid releases, there is the potential that you will again be liable for the same controversy that you thought had already been resolved.
Alternative Dispute Resolution Methods (MARCs): mediation, arbitration, and negotiation, in the face-to-face context
Alternative forms of dispute resolution have been available for a few years, although only recently have they been made legal. Many countries have passed laws that specifically regulate the presence of mediation and arbitration as approved methods for commercial, civil, or family dispute resolution.
Various factors have driven this development, the most important of which is the courts’ failure to function, burdened by the number of unsolved cases and their limited capacity to offer quick and inexpensive solutions to disputes between individuals. Justice reform movements have prevailed in Latin American countries in the last decade, opening the door to include so-called alternative conflict resolution methods in the laws.
Face to face Disputes Mediation:
Mediation is an Alternative Dispute Resolution (ADR) mechanism that helps to resolve different types of disputes peacefully. It is a voluntary body that aims to bring people who have a controversial position closer together. The mediator in charge of the process helps to clarify and identify those conflicting interests and to reach a satisfactory agreement without having to go to the Court of Justice.
Mediation is also defined as an assisted negotiation system. The parties involved in a conflict try to resolve it themselves, with the help of an impartial third party (the mediator), who acts as the session leader, helping the parties. People involved in mediation find a solution that is satisfactory for both parties.
Mediation preserves the relationship between the people involved in the dispute. In mediation, the parties’ decisions will be made by themselves and not by the mediator. This reaffirms the ability of mediation to return power to the parties so that they are themselves the protagonists of the decision and not the mediator.
Mediation helps people resolve disputes quickly and inexpensively, compared to legal proceedings in business matters, between neighbors, family members, within a community, or in disputes within organizations. It helps the parties to preserve their capacity for self-determination by inviting them to generate solutions with which they can better manage their relationships in the future.
The main characteristics of face-to-face mediation are:
It is an assisted negotiation. In Mediation, the parties act on their own; the parties act, negotiate and propose solutions.
It is a voluntary act: The parties decide to participate or not in the mediation process and to end it at any time and are not obliged to reach an agreement.
It is a process that tends towards agreement or repair.
It is based on the win/win principle ( does not tend towards competition ).
The mediator uses an already established structure and specific techniques to achieve the objectives.
It is based on the principle of confidentiality. In other words, the mediator and the parties cannot reveal what happened in the sessions, except with the parties’ authorization.
Mediation is not subject to procedural rules. The procedure is informal and flexible.
The Mediation agreement starts with the interested parties themselves, thus protecting the interests of both.
Face to face Arbitration Despite:
This method is different from mediation. The third-party, be it a single individual or an arbitral tribunal, has the power to decide the dispute, and their decisions may have legal force.
The arbitration procedure involves the intervention of a third party to resolve the dispute. This person or persons hear both sides of the conflict and decide on the most appropriate way out. The process is called binding arbitration because the third party’s decision is the final decision, equivalent to a judge’s opinion. The third-party can also exercise sanctions if the parties refuse to accept the decision. When the third party does not have the power to exercise sanctions on the parties, it is non-binding arbitration. This type of arbitration is usually used in mediations where the parties ask the mediator to conclude the process through the solution provided by their own decision.
The face-to-face arbitration processes, although they are faster than the procedures of the courts of justice, have their own time, and can take from three months to a year from the beginning to the end, with the delivery of the decision of the arbitral tribunal, called an award.
The cyber revolution and dispute resolution methods:
Parallel to introducing CR methods in developing societies, the technological advancement produced by cybernetics has been transforming communication, commerce, work, and interaction systems across cultures. This has also created a renewed interest in the different possibilities that this medium offers for the dispute resolution methods used in cases where the disputants are from various regions and cultures. Some of the internet’s attributes to classic CR methods are speed, confidentiality, and low cost.
Traditionally, RC methods have been built around some structural criteria: neutrality, confidentiality, and impartiality, based on the parties’ right to self-determination. Online dispute resolution methods preserve these characteristics, giving equal representation to both parties to the dispute, consumers, and merchants, maintaining the confidentiality of communications between parties, and respecting the parties’ willingness to participate in the process.
It is important to note that in these automated methods, neutrality and impartiality are preserved by offering the procedure to both parties, in the same way, thus limiting the possibility of human error or favoritism.
An online conflict resolution process is, therefore, a documented process, which through the inclusion of a third party, acting at the request of a first participant, invites the counterpart to respond, registering the presence or absence of the half in the process, within fixed time limits. Once the process has started, the parties establish the parameters within which the possible solution is found. The final decision is set by the online mediator or by the system built to automatically resolve disputes, according to the merchant’s parameters offering the plan.
Another vital aspect to highlight is that, contrary to what is known about face-to-face intervention by a third party, where records are destroyed to preserve confidentiality, a description of the dispute and the intervention is necessarily built in the online medium. This opens up previously unknown possibilities for research by generating systematic files of data collection (anonymous, stripped of the participants’ identity) on the mediation processes.
But the most important thing is that, based on the technological possibilities, we now have from the transposition of traditional methods to the online medium, such as the development of totally new forms that are automated and dispense with the intervention of a human being in the process of resolution of the dispute.
Main differences between methods in the face-to-face and online context
The new online medium has characteristics that make the classic dispute resolution methods, either through judicial processes or through alternative face-to-face methods, less efficient.
The first aspect is the speed of online transactions, which requires an equally rapid response to the problems encountered.
The second aspect is the low cost of access to the cyber world. This cost invites online commerce and politics of small entities and individuals that could not otherwise have access to traditional markets or political arenas.
When the costs of the dispute resolution systems in time and money exceed the dispute’s value, this means that the victims will not be able to find an accessible solution to their conflicts. Then the actors will have to face litigation costs that cancel the disputes—advantages of your offers of goods and services in the electronic market.
The highly accessible entry into the cyber market produces a massive increase in low-value transactions, with their corresponding disputes, which could never be the subject of traditional mediation or arbitration.
To ensure the potential participation of the most significant number of agents in the electronic market, it is necessary to design CR methods offered at low or no cost
Also, globalization makes people enter into commercial transactions with entities located outside their geographical and cultural areas, which makes it necessary to provide the offer of methods that respect this characteristic of the online medium, do not demand the face-to-face meeting of the parts, and are culturally adaptable to be accepted in different cultures.
The most significant differences that CR online processes offer, in summary:
They are easily accessible, fast, and inexpensive;
There may or may not be a human mediator;
If either party fails to comply with the agreement, this is recorded in public evaluations of the merchant’s conduct. Publicity (negative or positive) determines the image of the merchant and is a powerful incentive towards the fulfillment of the agreements that solve the dispute;
They generate records of the entire process, from the initial claim to the solution.
They provide an efficient mechanism for resolving international disputes without the need for the intervention of the courts of justice.
Jurisdiction and costs of online CR methods
Given that the internet is essentially a borderless medium, global, the offers of goods from a business or company based in a given country will be seen by someone from any other; once language barriers are overcome. This raises the exciting problem of determining jurisdiction if there is any conflict between the parties. It is challenging to locate the conduct that causes harm, or the damage itself, in online marketplaces.
Transactions take place from one stranger to another, across miles and cultures. This happens, simultaneously, in an environment where the necessary instruments to generate the trust that face-to-face interactions allow between sellers and buyers, or suppliers and customers, are lacking. Offering a remedy if the transaction presents problems helps to compensate for the issue of non-existent trust between the parties.
Other methods of mediation and arbitration methods
One of the problems with mediation and arbitration methods, face-to-face or online, is that the parties after the agreement depend on its compliance to close the dispute. The degree of non-compliance with arbitration tribunals’ decisions is excessively high. It reduces confidence in the procedure itself since at the end of the process, there are no guarantees that the agreed sums will be paid. Its enforced compliance is again up to the courts.
The same happens in mediations, where it depends exclusively on the good faith of the parties to finalize the agreement in real terms. The best solution for this type of commercial conflict is developing a series of devices that control the process and reduce the possibility of fraud or non-compliance before it appears.
What are these new alternatives generated by the use of the online medium? Apart from negotiation, arbitration, and mediation through the Internet, there are other devices to solve commercial disputes arising in online transactions, such as withdrawals of money for credit cards, agreements to deposit cash in the deposit (escrow), complaint forums, the evaluations of the providers of goods and services, and the regulatory entities that can add the complaints expressed about a particular provider or business in the complaint forums and turn them into mandates for intervention.
Deposit or escrow:
This international trade device is handy to produce confidence in the transaction and consists of the amount’s deposit in an intermediary site. This device ensures that the consensual decision through the dispute resolution method will be implemented immediately and safely.Money is only released to the seller after the buyer confirms that the transaction has been completed to their satisfaction.
In the event of problems with the product received, the money is returned to the buyer. Therefore, it is in the best interest of the seller to strictly comply with the terms of the exchange.
Re-deposit of charges on credit cards (chargeback):
This is the most common form of dispute resolution between consumers and merchants, whereby the customer receives a credit for the disputed sum. If there is no other mechanism in place, and in the event of a dispute over the purchase of goods or services, customers have the recourse to cancel the transaction and receive their money back. The merchant has the right to prove that the goods or services have been delivered as agreed, in which case the position is reinstated. This procedure is valid only for end consumers and not for transactions between merchants.
Most of the large credit card companies have extended this protection to international purchases and have adopted special rules so that this procedure can be applied to purchases made online. The proof that this system works is that there are very few cases in which the dispute, despite the chargeback, has reached the courts.
Why does it work so well? Because it gives the customers a lever against the merchants, and thus balances the power between the two; manages to draw the merchant’s attention to customer dissatisfaction; and in some extreme cases, if there are many procedures of this type, the merchant will be excluded from the system of accepting card payments, which forces him to attend to the customer’s claims.
CLOSING: Looking to the future:
There are several ways to promote the development of MARCs:
Encouraging the development of appropriate criteria for online commerce, which respect cultural differences;
Providing funds for the development of the technological infrastructure that will be necessary to ensure that the dispute resolution mechanisms are low-cost or are provided at low cost to customers,
Ensuring that there are opportunities that promote practical cooperation between consumer associations from different countries, entities that offer CR and regulatory agencies, and
We are generating funds from the private sector for new programs.
The globalization of commerce through the Internet will continue to create today unprecedented forms of alternative methods of conflict resolution. Despite their variety, these methods must meet specific criteria to ensure their international validity. A table attached to the foot comparing these criteria is offered below.
Frequently Asked Question
I understand that all agencies must have an Alternative Dispute Resolution (ADR) program in the Equal Employment Opportunity (EEO) process. Does this mean that an agency must offer ADR in all cases?
No. Agencies are not required to offer ADR in all cases. There may be cases where ADR is not appropriate or feasible.
When should an agency offer ADR?
Agencies must be flexible in designing their ADR programs to fit their environment and workforce. The offer can be made in the pre-complaint phase of the processor after submitting the formal complaint. In that sense, agencies have the power to determine whether a particular dispute is appropriate for ADR. Agencies may decide to offer ADR on a case-by-case, issue, or geographic location. However, agencies cannot refuse to provide ADR because of the grounds involved in a particular case (i.e., race, color, religion, sex [including pregnancy], national origin, age [40 years or older], disability, genetic information, or retaliation).
Can an employee file a complaint against an agency if it refuses to offer ADR in a particular case?
No. An agency’s decision not to offer ADR for a particular case cannot be the subject of an EEO complaint.
Can an employee who was chosen for ADR withdraw from the process?
Yes. The ADR process is voluntary, and the aggrieved party can withdraw at any time.
Is it possible for the EEO advisor to be a “neutral party” in the ADR program?
The Equal Employment Opportunity Commission (EEOC) advises against but does not prohibit EEO counselors from acting as neutral parties in ADR programs. This is due, in part, to EEOC’s concern that a complainant may be confused as to the role played by the counselor (i.e., is the counselor / neutral party involved in informal resolution, or is this an of ADR in which a strict confidentiality rule will be applied?). If an agency decides to have its EEO advisers act as neutral parties, the EEOC clearly states that EEO advisers cannot act as neutral parties in a dispute in which they have provided advice.
If ADR fails, what is the role of the EEO advisor?
If ADR cannot resolve the matter, the case is referred to the EEO advisor for a final interview notice. The EEO Advisor should not make any other informal resolution efforts.
I understand that ADR is a confidential process. What exactly does this mean?
If a party tells the neutral party something in private and asks them to keep the matter confidential, the neutral party is required by law not to disclose the information voluntarily. There are certain exceptions to this rule. For example, if one of the parties confesses that they committed a criminal offense or an act of fraud, waste, or abuse, or plan to save a violent physical action, the neutral party may be compelled to share this information with the appropriate authorities. If a judge determines that disclosure of private, confidential conversations is necessary to prevent gross injustice, establish a violation of the law, or prevent harm to public health or safety, a court may require the neutral party to disclose the private conversations.
Are settlement agreements confidential?
No, neither the Administrative Dispute Resolution Act (ADRA) nor Management Directive 110 (MD-110) require that resolution agreement be confidential. Even if the parties expressly agree to keep their resolution agreement confidential, the details of the resolution should be sent to specific offices that require that information, such as the offices that will implement the deal.
What role does the responsible management officer play in an ADR?
Once the agency determines that an issue is appropriate for ADR, it can decide who should represent the agency and can ask the Responsible Management Official (RMO), or the agency official directly involved in the case, to cooperate in the ADR process.
By Aylward Game - Jan 1, 2021 Dispute Resolution