Activity 5x

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of mediation to achieve the principles of justice requires students to write about relevant strengths and weaknesses of mediation. Responses will vary according to the arguments selected.

        Arguments in support of mediation achieving the principles of justice include:

• Mediation is generally more cost effective than a method such as judicial determination, which aids in access.
• Mediations can be more logistically accessible than hearings, because they can more easily be conducted by telephone or in non-court buildings.
• Mediation will result in resolution in a shorter space of time than a court or VCAT hearing, if the parties are able to compromise – generally, mediation conferences last from a few hours to a few days and, at VCAT, hearings are scheduled for that same day if mediation is unsuccessful.
• Mediation has no complex or exclusionary rules of evidence because the process is not focused on proof, and the rules of procedure are supportive rather than intimidating; parties are encouraged to ‘tell their story’ rather than prove they’re right according to a set of rigid, pre-determined standards – this gives greater equality across parties who have experienced with the legal system and parties who haven’t.
• Mediation can maintain an ongoing relationship between the parties, because parties are encouraged to work together and are discouraged from laying blame – in methods such as judicial determination and arbitration, a central part of the argument is either why the other party is to blame or why allocations of blame are unfair.
• Mediation in general has a high level of party satisfaction.
• The attitude of many mediators is pro-flexibility, pro-creativity and pro-problem solving.
• Matters discussed at mediation conferences are not admissible in later proceedings, which encourages full participation and cooperation from parties in the knowledge that disclosures cannot be used against them in the future. Mediation conferences are also closed to the public, so they are private.
• Support services such as interpreters are sometimes included in the mediation at no additional charge – this is the situation at VCAT, for instance, and it increases access as well as equality for parties with differing English language proficiency.

        Arguments against mediation achieving the principles of justice include:

• Private mediators are still quite costly for the average person – mediators charge by the half-day, with fees commonly ranging from $5000-15,000 per party. This cost still prevents access.
• A decision made in pre-trial mediation is not binding unless the parties agree to a consent order – the dispute would progress to a hearing or trial, anyway, and the cost and time of the mediation would not contribute to the outcome. If no lawsuit has been filed with a court or VCAT, parties would need to sign a deed of settlement for the mediated agreement to be binding.
• Mediation is not compulsory to attend unless it is ordered by a court or VCAT – one party may refuse to attempt a private or voluntary mediation; also, even if parties are ordered to attend by court or VCAT, it is not compulsory for them to reach agreement.
• One party may compromise too much in an effort to resolve the dispute, because there is no requirement that the agreement be ‘legally fair’.
• One party may be better able to control proceedings and achieve a more favourable outcome, because the process relies on the interpersonal dynamic between parties – this is true when legal representation is unequal, as well as when there is no legal representation. The focus is on achieving agreement rather than being in the right.
• Because reaching agreement is in the hands of the parties, a failed mediation will result in a trial or hearing going ahead anyway – the time and money spent will not have achieved resolution.
• Mediations, even when ordered, are not always taken as seriously by the parties to the dispute, and judges do not always use their powers of case management to penalise non-compliant parties.
• Mediations usually involve legal representation, which makes costs higher than the scheduled fee might make it appear – even at VCAT parties are permitted to use lawyers unless the amount claimed is under $10,000 or the tribunal member believes it is not in the best interests of justice to allow representation.
• Mediations do not involve a lot of documentation, but there is still material that must be prepared – this prevents access for people who do not understand the documentation or have to pay for expert assistance.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against mediation, that it does achieve one principle of justice. Responses will vary according to the arguments selected.