Unit 2: Difference between arbitration and judicial determination

[MathsQuestIsBad]

Hey guys!

Just a quick question about the difference between the two methods of dispute resolution as they seem largely the same to me apart from judicial determination being more formal. Could someone help define, explain and/or evaluate the reasons to attend either method? Seeing as an arbitrator makes a legally binding decision on two parties at conflict, isn't this just the same role of a judicial officer? Thanks! 

[Glasses]

Hey guys!

Just a quick question about the difference between the two methods of dispute resolution as they seem largely the same to me apart from judicial determination being more formal. Could someone help define, explain and/or evaluate the reasons to attend either method? Seeing as an arbitrator makes a legally binding decision on two parties at conflict, isn't this just the same role of a judicial officer? Thanks! 

Hi there!

Whilst there are some similarities between judicial determination and arbitration, they are quite different.
A few differences include:
- Judicial determination generally occurs when there are rules of evidence and procedure present; whilst arbitration does not involve the same strict rules of evidence and procedure.
- Judicial determination is always performed by a judge, Magistrate and/or jury, whilst arbitration is not exclusively performed by judge and Magistrates.
- Judicial determination generally involves legal representation, whilst legal representation is not usually necessary for arbitration.

Whilst you shouldn't use these as examples in an exam (and they are not actually very accurate is depicting the operation of the Australian legal system): Judicial determination is the process generally used in crime/law TV shows, such as Law and Order (e.g. where there are lawyers, rules of evidence and people constantly shouting 'objection'); whilst arbitration is usually the process used in shows like Judge Judy (where there aren't the same rules of evidence and legal representation). - But again, I wouldn't recommend using these as examples in an assessment task!

Here is a quick rundown of some of the strengths/weaknesses of each:
Judicial determination:
Strengths
- Rules of evidence and procedure are applied in the same way to both parties - thus promoting a fair and unbiased hearing (whilst also ensuring that a) inadmissible/unreliable evidence is not presented, and b) ensuring that both parties get the opportunity to test the reliability of evidence).
- Judicial determination is conducted by judicial officers, who are experienced and qualified legal professionals with expert knowledge in the law.
- Judicial determination can result in the formation of, or development of precedent which can be used in future cases.
Weaknesses
- Judicial determination is usually very expensive.
- Judicial determination is usually very time-consuming.
- The increased formality of judicial determination and the use of strict rules of evidence and procedure can be quite intimidating.

Arbitration:
Strengths
- Arbitration is usually faster and less time-consuming than judicial determination.
- Arbitration is usually much cheaper than judicial determination.
- Arbitration, whilst still quite formal, is not as formal as judicial determination and does not involve strict rules of evidence and procedure - thus making the dispute resolution process less intimidating.
Weaknesses
- Having a matter resolved through arbitration commonly provides the parties with a limited right to appeal the decision of the arbitrator.
- Some matters are not appropriate or suitable for arbitration, such as criminal matters.
- There has been an increased use of legal representation in arbitration, which has lessened the extent to which arbitration is more cost-effective than judicial determination.

[MathsQuestIsBad]

Thank you for the amazing rundown! That really cleared everything up! Our textbooks and notes never went into so much detail and all of a sudden we were presented with a four mark question on the difference between the two so this is extremely helpful! Thank you once again.