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Evaluate mediation as a dispute resolution method. - VCE - SSCE Legal Studies - Question 9 - 2012 - Paper 1
Question 9
Evaluate mediation as a dispute resolution method.
Worked Solution & Example Answer:Evaluate mediation as a dispute resolution method. - VCE - SSCE Legal Studies - Question 9 - 2012 - Paper 1
Step 1
Strengths of Mediation
Answer
Mediation has several notable strengths that make it a valued form of dispute resolution:
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Cost-effective: Mediation is generally less expensive than going through the court system, as it reduces legal fees and other costs associated with lengthy litigation. By addressing disputes earlier, parties avoid the high costs that can accumulate during a trial.
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Time-saving: Mediation can be scheduled and concluded more quickly than court trials, allowing parties to resolve their issues without the lengthy wait times often associated with the judicial process.
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Flexibility: The mediation process is typically more flexible than court proceedings. Parties can tailor the process to their needs, allowing for creative solutions that might not be available through a court ruling.
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Confidentiality: Mediation is a private process, which helps protect the parties' interests and maintain their reputations, unlike public court proceedings where outcomes and details are matters of public record.
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Autonomy and Control: Parties retain control over the outcome of mediation, as they work collaboratively towards a mutually satisfactory agreement, rather than having a decision imposed by a judge.
Step 2
Weaknesses of Mediation
Answer
Despite its strengths, mediation also has some weaknesses that should be considered:
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Non-binding nature: Mediation does not result in a binding decision unless the parties enter into a written agreement at the end of the process. This means there is no guarantee that an agreement will be reached.
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Not suitable for all disputes: Mediation may not be effective for disputes where there is a significant power imbalance between the parties or in cases involving serious allegations such as abuse, as one party may be at a disadvantage when negotiating.
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Potential for coercion: In some instances, there may be a risk of one party pressuring the other into an agreement that may not be in their best interest, particularly when one party is more experienced or confident in negotiation.
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Dependence on cooperation: Mediation requires that both parties are willing to engage constructively. If one party is unwilling to negotiate in good faith, the process is likely to fail.
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Limited enforceability: Even if a mediated agreement is reached, enforcing the terms can sometimes be challenging, as mediation results in a contractual agreement rather than a judicial ruling.
Step 3
Overall Evaluation of Mediation
Answer
In summary, while mediation presents both advantages and disadvantages, its strengths often outweigh weaknesses, especially when parties seek to maintain control over the resolution of their dispute. It serves as a practical alternative, particularly in disputes where a quick and cost-effective solution is desired. However, careful consideration must be given to the circumstances of each particular case to determine whether mediation is the appropriate method for resolution.