VEA Bringing Learning to Life Program Support Notes Senior Secondary - TAFE Alternative Dispute Resolution 28 mins Teacher Notes by Samantha Eddy, B.Ed. (Social Science) Produced by VEA Pty Ltd Commissioning Editor Sven Shepherd B.Ed. Executive Producer Simon Garner B.Ed. Reproducing these teacher notes You may download and print one copy of these teacher notes from our website for your reference. Further copying or printing must be reported to CAL as per the Copyright Act 1968. Suitable for: Legal Studies To order or inquire please contact VEA: VEA Inc 10 Mitchell Place Suite 103 White Plains, NY 10601 Phone: 866 727 0840 Fax: 866 727 0839 E-mail vea@veavideo.com Website www.veavideo.com
Alternative Dispute Resolution For Teachers: Introduction Australia s legal system relies heavily on the judiciary and courts to deliver and uphold the countries laws and legislation. As a result the courts are congested; individuals involved are often left to feel frustrated, overwhelmed and disenchanted and the concept of justice delayed is justice denied becomes all too real for those caught in the expensive quagmire of the court system. Alternative dispute resolution mechanisms offer individuals access to the justice system without the time and cost associated with the traditional court system. Success is achieved as people have their cases heard in a non threatening environment in a designated time frame and for a fraction of the cost of the court system. The goal of the dispute resolution manager is to reach the best possible outcome for the parties involved. It attempts to reduce the adversarial winner and loser outcome and attempts to make all situations a win-win outcome. Program Timeline 00:00:00 Introduction 00:01:03 What is ADR and How Does It Work? 00:06:10 The ADR Process 00:12:30 Who Uses ADR and Why Part 1 00:17:02 Who Uses ADR and Why Part 2 00:22:18 Effectiveness 00:26:25 Conclusion 00:27:00 Credits 00:28:03 End Program Website References www.accc.gov.au www.lawlink.nsw.gov.au www.ausdispute.unisa.edu.au Please visit our website for more relevant programs www.vea.com.au VEA Bringing learning to life - 2 -
Student Worksheet: Before Viewing the Program Alternative Dispute Resolution 1. Mind map words and terms you associate with mediation. 2. Have you had to mediate an argument, or have someone mediate between you and another person? What was the outcome? 3. Copy the table below and write as many instances where a dispute may arise. (minimum 2-3 for each) Work place Property dispute Consumers Family - 3 -
While Viewing the Program Alternative Dispute Resolution 1. What is the purpose of Alternative Dispute Resolution Mechanisms? 2. Who is identified as being the 3 rd person? 3. List the two most commonly used ADR methods? 4. What is the main difference between an arbitrator and mediator? 5. At which stage is arbitration used? 6. Highlight or circle which of the following is used when groups are in dispute: Mediation Conciliation Arbitration Facilitation 7. A conciliator may hold a specialist position; briefly outline what this position is. 8. Highlight the word that makes the following sentence correct. Collaborative law gives the parties bringing their issues forth incentive to solve their differences by signing a contract to say if the matter proceeds to court then they do/do not retain their lawyers to represent them. - 4 -
Alternative Dispute Resolution 9. Complete the following order of the ADR procedures. The first one has been done for you a) Introduction b) of issues c) List of d) of issues e) f) Discuss to problems g) 10. What is the ADR practitioner s role? 11. How is the agreement made legally binding? 12. Fill in the missing words to explain why some cases fail to be resolved through an ADR process. One of the failed to the sessions Either or parties did not make a effort to resolve the dispute The dispute itself was not for the ADR process 13. Fill in the missing words for a summary of the ADR process. The ADR process involves a and the not in dealing with issues disputes. The agreement reached at of the ADR process, although binding is usually ADR processes have a high rate of usually about %, and those that can be moved to other areas for settlement such as or court. - 5 -
Alternative Dispute Resolution 14. List three examples of disputes not suitable for the ADR process. 15. Give an example where ADRs may be used in the following areas: Workplace Property Consumer Family 16. Do you think ADRs are effective when used in suitable situations? Explain your answer in detail. - 6 -
After Viewing the Program Alternative Dispute Resolution 1. Divide into groups of three (minimum). Each group chooses a scenario and must use an ADR when attempting to resolve the issue. Students perform their role play to the rest of the class: Child custody Working arrangement A rental dispute A dispute between neighbours It cannot be of a serious criminal nature. As a group report back whether a resolution was met, what problems arose and would it be successful in a real life situation? 2. Extended response: Justice delayed is justice denied Evaluate the ADR process and discuss its effectiveness for individuals and society. 3. Research one of the ADR processes and present a summary giving clear details relating to the purpose, process and success of the method. 4. Divide the class into two groups and give each group one of the following statements: ADRs are the best method of solving all issues of society The Court system is the best method of solving all the issues of society Give the group five to ten minutes to prepare an argument. Each student from both groups pairs up with a member from the other group. Allow each student five minutes uninterrupted to present their point of view. Students reform into the two original groups and discuss the other teams point of view. Students re-form into their pairs and write a report outlining which statement is the most correct. - 7 -
Suggested Student Responses Alternative Dispute Resolution 1. What is the purpose of Alternative Dispute Resolution Mechanisms? To keep people out of court 2. Who is identified as being the 3 rd person? The dispute resolution practitioner 3. List the two most commonly used ADR methods? Mediation and arbitration 4. What is the main difference between an arbitrator and mediator? An arbitrator s decision is legally binding. 5. At which stage is arbitration used? When all other resolution mechanisms have been exhausted 6. Highlight or circle which of the following is used when groups are in dispute: Mediation Conciliation Arbitration Facilitation 7. A conciliator may hold a specialist position; briefly outline what this position is. A conciliator may be legally trained or has experience or technical expertise in the subject of the dispute. 8. Highlight the word that makes the following sentence correct. Collaborative law gives the parties bringing their issues forth incentive to solve their differences by signing a contract to say if the matter proceeds to court then they do/do not retain their lawyers to represent them. 9. Complete the following order of the ADR procedures. The first one has been done for you Introduction Description of issues List of issues Exploration of issues Private session Discuss options to resolve problems Agreement 10. What is the ADR practitioners role? Not to advise or suggest solutions but to maintain the focus on the issues and identify points of agreement. 11. How is the agreement made legally binding? The agreement is made legally binding by directing lawyers to formalise the agreement. Essentially both parties sign and agree on the outcome and getting a lawyer to formalise it. 12. Fill in the missing words to explain why some cases fail to be resolved through an ADR process. One of the parties failed to attend the sessions Either or both parties did not make a genuine effort to resolve the dispute The dispute itself was not appropriate for the ADR process - 8 -
Alternative Dispute Resolution 13. Fill in the missing words for a summary of the ADR process. The ADR process involves a structured approach in dealing with issues and resolving disputes. The agreement reached at the end of the ADR process, although not legally binding is usually sufficient. ADR processes have a high rate of success usually about 80%, and those that fail can be moved to other areas for settlement such as arbitration or court. 14. List three examples of the disputes not suitable for the ADR process. where there is a fear of violence when there is a significant public interest in the outcome of the dispute a party is under constraints or instructions that prevent them from coming to an agreement when a party lacks the power or ability to negotiate on their own behalf 15. Give an example where ADR s may be used in the following areas: Workplace termination, bullying, employment terms, discrimination, interpersonal conflict Property lease and tenancy dispute, rent and insurance, mortgages and contracts Consumer defective goods, bad service, charges and fees, conditions of purchase, warranty claims Family parenting, childcare support, financial, property issues 16. Do you think that ADRs are effective when used in suitable situations? Explain your answer in detail. Student s response should include the following information: Reduced cost More time efficient Less formal and intimidating format allows people to have their issues heard fairly - 9 -