ADR

[Colokid]

what are the differences between arbitration and judicial determination? as they both involve parties presenting their cases and arguments and then a binding decision is then made

[masonruc]

judicial determination is the process when a judge resolves the dispute, and arbitration is the process in which an independent official (not a judge) makes a decision to resolve an issue between two parties. I did legal last year and thats all i can remember, sorry

[Colokid]

thanks for that answer. also,  what would be the difference between courts resolving disputes and judicial determination

[masonruc]

the only difference I know is that lower courts a magistrate can make a decision if its in their jurisdiction, whereas in the higher courts the judge makes the decision. If not the courts can make a binding legal decision and so can the judge. Also the courts can refer the parties to alternative despite resolution methods

[meganrobyn]

Hi, the key difference between arbitration and judicial determination:

1. Arbitration is far less formal - negotiation, in a less adversarial manner, is facilitated. Strict rules of evidence and procedure are generally not adhered to in arbitration. There are also less complex pre-trial procedures, so costs are more likely to be reduced in arbitration.
2. A wrong conception is that arbitration only involve an independent official not a judge. In my opinion, don't write that. A Magistrate presides over arbitration hearings for civil claims of less than $10,000. Magistrates are considered judicial officers.

Yes, but they don't preside *as* a judicial officer - they take that hat off, in essence. The same as when Supreme Court judges conduct mediation; they don't do it *as* Supreme Court judges.

The primary difference between JD and arbitration IS that JD is presided over by a judicial officer (and this is the definition adopted by the Study Design) and arbitration is presided over by a private individual or executive officer. Then you also have the inquisitorial nature of arbitration versus the adversarial nature of JD; this leads to the relaxed rules and procedure, etc.

Just from some comments above:

- JD is used in hearings in the MC as well, because magistrates are judicial officers.

- We don't use the term 'ADR' anymore; they're all just "methods" of dispute resolution.

- There's no difference between courts resolving disputes and JD because they are in different topics. Courts are a venue. In that venue they use JD for hearings and trials, but they also use arbitration, conciliation and mediation depending on the dispute. JD, arb, con and med are *methods* that are used IN the venues of courts and VCAT.

[uprising]

So, in essence, Arbitration involves an impartial third party who listens to both sides and suggests ways in which the parties could resolve the dispute and, if the parties cannot agree, makes a final binding decision. The third person is known as the arbitrator. The same person may perform the roles of conciliator and arbitrator.

Judicial Determination is resolving a dispute through the courts by a magistrate or judge. This is a formal method of dispute resolution. Criminal matters are always resolved by judicial decision, however civil disputes consider this as a last resort and the parties may choose alternative methods. Features of judicial determination include impartiality and rules of evidence.

Some people find it easier to distinguish by using strengths and weaknesses, so I've posted them below.


Arbitration strengths

Binding decision. An arbitrator has the power to make an order that is binding on the parties. Decisions reached are enforceable by the courts.
Usually faster. Arbitration is another method that is usually faster, and offers better privacy to the parties than a court hearing does.
The arbitrator has considerable expertise in the area. A qualified independent third party who has expertise in the area of dispute will run the arbitration.
Formal procedure. Emphasizes seriousness of case. Still less formal than court proceedings.
Limited costs. This DRM allows individuals to recover debts or exercise rights without facing large costs.
Arbitration can offer processes and remedies that courts cannot. Parties looking for apologies rather than compensation may get a better result as arbitration is more personal and less rigid.

Arbitration weaknesses
Expensive. Can be as expensive as court action.
Win/lose scenario. An arbitrated decision is in favour of one party. One party will feel less satisfied with the result.
Appeals are limited. Decisions are legally binding and enforceable. Right of appeal is limited and successful appeals are uncommon
Can have delays. Can require a client to pass through many stages before a decision is reached.


Judicial determination strengths
Binding decision. Magistrate or judge has to make a decision in favour of one of the parties. Civil: decision based on balance of probabilities. Criminal: decision based beyond reasonable doubt.
Parties are treated equally. Judicial determination involves strict rules of evidence and procedure. Judge observes rules of natural justice to ensure parties are treated equally, and judges remain impartial.
Allows for appeals. If a party is unhappy with the outcome of their case it can be reviewed by a higher court (if they can establish grounds for the appeal). Inappropriate and incorrect decisions can be reversed through this process.

Judicial determination weaknesses
Expensive. Is used by courts. Court action is time-consuming and expensive. Court action may take longer than a year to resolve.
Extensive delays. Taking a case to court can lead to extensive delays. Increased use of appeals can also create delays and increase costs.
Win/lose scenario. Only one party is able to win a case. This can cause further angst between parties. Mediation and conciliation are more win/win scenarios.
Formality of the court room. This may intimidate some parties.


Hope this helps you!

[meganrobyn]

Just note also that JD is used in VCAT hearings when they are presided over by the President or one of the Vice-Presidents! Because they are judicial officers (kind of 'on loan' from the courts).