Advantages and disadvantages of dispute resolution processes

Chapter 18 Advantages and disadvantages of dispute resolution processes

The advantages and disadvantages of the major dispute resolution processes may be summarised as follows:

Advantages	Disadvantages
It is private – there is no public record of any proceedings, although not necessarily confidential Comparative informality, or at least the opportunity to decide levels of formality within the arbitration agreement Speed, although this depends very much on the manner in which the arbitrator conducts the arbitration The parties can agree on an arbitrator with relevant expertise in the matter The arbitrator’s award can be enforced as a judgment of the court	The parties must bear the costs of both the arbitrator and the venue, in addition to the usual costs of litigation Sometimes arbitration simply mimics court processes and so you do not get the advantage of informality and speed Limited powers of compulsion or sanction if one party fails to comply with directions of the arbitrator, which can significantly slow down the process The arbitrator has no power to make interim measures, such as for the preservation of property Limited appeal rights

Advantages

Disadvantages

It is private – there is no public record of any proceedings, although not necessarily confidential
Comparative informality, or at least the opportunity to decide levels of formality within the arbitration agreement
Speed, although this depends very much on the manner in which the arbitrator conducts the arbitration
The parties can agree on an arbitrator with relevant expertise in the matter
The arbitrator’s award can be enforced as a judgment of the court

The parties must bear the costs of both the arbitrator and the venue, in addition to the usual costs of litigation
Sometimes arbitration simply mimics court processes and so you do not get the advantage of informality and speed
Limited powers of compulsion or sanction if one party fails to comply with directions of the arbitrator, which can significantly slow down the process
The arbitrator has no power to make interim measures, such as for the preservation of property
Limited appeal rights

Advantages	Disadvantages
Generally regarded as the highest quality decision making Judges can compel the parties to comply with timeframes and have powers of sanction for non-compliance Judges have the power to make orders to provide interim relief to protect a party’s position pending the final judgment here are well defined rights of appeal in cases where errors of fact or law are made Judgments are enforceable within Australia	Potentially greater costs if the dispute is not well managed or the other party seeks to delay the proceedings Potentially longer time period to obtain a judgement Proceedings are generally conducted in public Judgment will be subject to appeal

Advantages

Disadvantages

Generally regarded as the highest quality decision making
Judges can compel the parties to comply with timeframes and have powers of sanction for non-compliance
Judges have the power to make orders to provide interim relief to protect a party’s position pending the final judgment
here are well defined rights of appeal in cases where errors of fact or law are made
Judgments are enforceable within Australia

Potentially greater costs if the dispute is not well managed or the other party seeks to delay the proceedings
Potentially longer time period to obtain a judgement
Proceedings are generally conducted in public
Judgment will be subject to appeal

Advantages	Disadvantages
Informal process Can be initiated at any time as agreed between the parties Allows commercial relationships to be maintained during and after the dispute Parties can reach agreement incorporating flexible approach to outcomes	If the parties do not agree, there is no outcome and the mediation has failed The mediator has no power to order the parties to do anything or refrain from doing anything Information may be ‘given away’ in the process