Ehsan Kabir Solicitor is explaining here about some Strengths and Weaknesses of Judicial Determination. Ehsan Kabir is a respected lawyer in London.

1. Strengths and Weaknesses of Judicial
Determination
EHSAN KABIR SOLICITOR

2. Dispute resolution methods
 Both the courts and VCAT use a variety of methods to resolve criminal and
civil disputes
 Most criminal cases are resolved through judicial determination where a
judge or magistrate determines the outcome of the case
 In civil cases, it is often cheaper, quicker and more suitable to attempt to
resolve a case through mediation, arbitration and conciliation
(alternative dispute resolution)
*ADR is now a compulsory step in most state courts before civil matters
reach a hearing before a court or VCAT*

3. Mediation
 Mediation is a cooperative method of resolving disputes
and is widely used by the courts and tribunals
 It is a tightly structured, joint problem solving process
in which the parties sit down and discuss the issues
involved, develop options, consider alternatives and
reach an agreement through negotiation.

4. Mediation
Mediator
 Parties negotiate with the help of trained mediators who are neutral and
impartial
 The mediator does not interfere but allows the parties to have control of
the process
 The role of the mediator is to facilitate discussion and ensure both parties
are being heard
 The mediator does not need to be an expert in the field in question
 They will NOT make any decisions

5. MEDIATION
 Purpose
 The aim of mediation is to allow the parties to have
their say without being restricted by the rules of
evidence and procedure
 It also allows parties to investigate the underlying
reasons for the problem
 It promotes a win-win solution where both parties are
happy with the outcome

6. Use of mediation
 Dispute Settlement Centre of Victoria individuals may contact this
centre to attempt mediation at any time
 VCAT
 Encourages parties to resolve their disputes via mediation to
reduce cost and disruption to parties.
 Approx 70% of VCAT disputes are resolved through mediation
 If a settlement is not reached, the matter will proceed to a
hearing.

7. Use of mediation
COURTS
 Magistrates’, County and Supreme Court often refer civil matters to
compulsory mediation before the matter proceeds further through the
court system.
 Courts may refer parties to mediation with/without their consent
 Supreme Court has reported a 79% settlement rate through mediation
(saving $30 million in legal fees)
 Judge-led mediation set up in the County and Supreme Court in 2010 (2
year pilot program)

8. Advantages
 It costs less than court action
 It can be less emotionally draining
 Parties have control of the outcome
 Promotes a win-win outcome
 Suitable where parties will maintain an ongoing
relationship
 focuses on future actions rather than past faults
 improves communication (even if does proceed to
court)
 Frees up the court system

9. Restrictions
 Parties will only work when both parties are willing to
negotiate
 Mediation is unsuitable in situations where:
 Parties have no ongoing relationship
 The dispute is highly emotional or sensitive
 The dispute involves violence or threatening behaviour
 there is an imbalance of power between parties
 The outcome is not legally binding ( unless
a deed of settlement is drawn up and
enforced by the courts)

10. conciliation
 Conciliation is a process of dispute resolution where a
third party assists the parties in reaching a resolution.
 Conciliation differs from mediation in that the
conciliator exercises a greater influence over the
outcome. The conciliator, who is someone with
specialist knowledge, suggests options and possible
solutions and is more directive than a mediator.
 The decisions made by the parties is not binding, but is
more likely to be followed because it has been made
with the assistance of a third party

11. Use of Conciliation
 A magistrate or registrar may refer a civil proceeding for a pre-hearing
conference and compulsory conferences (VCAT) which resolve the dispute using
conciliation
 These conferences provide an opportunity for the parties to discuss the
settlement of claims and determine the issue in dispute prior to the court
hearing stage
 The conferences save costs and valuable court hearing time
 If a settlement cannot be reached, the matter can be referred back to court.
 It is likely that some of the issues will have been clarified before the court
hearing

12. strengths
 Less strict rules of evidence and procedure
 Less time consuming and costly
 Party satisfaction through negotiation
 Non-confrontational--- promotes ongoing relationships

13. Weaknesses
 Not legally binding
 Voluntary (if they do not attend, the matter will have to
be pursued through the courts)
 Legal representation is not essential (may mean that
parties do not feel represented)

14. Arbitration
 Arbitration is a method of resolving disputes without
having to access the court system
 An independent arbitrator will listen to both sides and
make a decision that is binding on the parties.
 This may be compulsory arbitration (such as in the
Magistrates’ court) or parties may have previously
agreed to settle their dispute via arbitration

15. arbitration
 It is more formal than mediation and conciliation but
not as formal as a court hearing.
 Apart from the Magistrates’ court, it is mainly used in
commercial disputes
 The decision made by the arbitrator is legally binding

16. Use of arbitration
 Magistrates’ Court
 in civil matters before the Magistrates’ Court where the
claim is less than $10,000, the parties must settle their
dispute before an arbitrator, usually a magistrate or a
court registrar
 This avoids the formality of the courts and the strict
rules of evidence and procedure
 Avoids the need for legal representation

17. USE OF ARBITRATION
 Arbitration is used in some VCAT lists, such as the
Residential Tenancies List, which deals with disputes
between tenants and landlords
 The Victorian Bar Dispute Resolution Scheme has
trained arbitrators available for use in private or
commercial situations.

18. Judicial determination
 Judicial determination refers to dispute resolution processes which involve the
parties to the case presenting arguments and evidence to a judicial officer who
then make a binding determination about the outcome of the case (court
system)
 Judicial determination is not a form of alternative dispute resolution
 Judicial officer= judge, magistrate, VCAT member

19. Judicial determination
 During trials or hearings, parties are given the opportunity to present
evidence, question witnesses and make submissions
 Cases are bound by the strict rules of evidence and procedure
 Burden and standard of proof required
 Legal representation is advisable due to complex nature of court
proceedings
 Legal representation should present their case in the nest possible light.
 At the end of the case, the judicial officer will make a legally binding
decision

20. USE OF JUDICIAL
DETERMINATION
 Victorian court hierarchy
 VCAT in some instances

21. strengths
 The decision is binding
 Judicial officers are experienced legal professionals
 Parties may feel more satisfied with the outcome as a
judge has decided the case for them
 It is appropriate for all kinds of disputes (criminal and
civil)

22. weaknesses
 It is usually expensive (need to engage legal
representation)
 The formality of the court system can be intimidating
 If parties are dissatisfied with the outcome they have to
undertake an appeal which is time consuming and costly

23. Thanks