Activity 5y

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

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

• Conciliation is generally more cost effective than a method such as judicial determination, which aids in access.For example, conciliation at the Equal Opportunity and Human Rights Commission is free.
• Conciliations are more logistically accessible than hearings and trials, because they can more easily be conducted by telephone or in non-court buildings.
• Conciliation will result in resolution in a shorter space of time than a court or VCAT hearing, if the parties are able to work together – generally, conciliation conferences last from a few hours to a few days.
• Conciliation conferences are less formal than hearings – there are no rules of evidence, and the procedure is not as intimidating for parties because the conciliator will lead the discussion, ask questions and give advice. This gives greater equality across parties who have different levels of experience with the legal system.
• The conciliator is often an expert in the practical field of the dispute, and is able to offer suggestions to encourage resolution – parties may feel they are receiving the benefit of expert and independent knowledge.
• Conciliation has an improved chance of success and satisfaction, as parties contribute to the outcome by only making a decision they are happy with; also, the outcome is more likely to be legally fair, as the conciliator will give their opinion on appropriate outcomes.
• Matters discussed at conciliation 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 – conciliation conferences are also closed to the public, so they are private.
• Conciliation contributes another meaningful option for dispute resolution to the legal system.

        Arguments against conciliation achieving the principles of justice include:

• Conciliation is not used extensively by courts or VCAT. If parties want an independent expert third party conciliator, they will probably have to pay for a private one themselves, or engage the conciliation services of an organisation such as the CAV before the commencement of formal legal action – as long as the dispute is of an appropriate type.
• A decision made through a private conciliation is not binding unless the parties commit to putting the agreement into a formal contract – also, enforcing a contract is more difficult and expensive than asking a court to enforce an order, because a lawsuit for breach of contract must be filed. All of this can impair access rather than help it.
• Conciliation is not compulsory to attend unless it is ordered by a court or VCAT – one party may refuse to attempt a private or voluntary conciliation; also, even if parties are ordered to attend by court or VCAT, it is not compulsory for them to reach agreement.
• 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.
• Because reaching agreement is in the hands of the parties, a failed conciliation will result in a trial or hearing going ahead anyway – the time and money spent will therefore not have achieved resolution, and no matters discussed in conciliation will be admissible in later proceedings.
• Conciliations 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 conciliation, that it does achieve one principle of justice. Responses will vary according to the arguments selected.