Courts lawyers and judges (Civil)

Rule of law

Everyone being bound by the same rules (even the most powerful people)
All are equal before the Law
Everyone should be able to understand the law
Everyone should be able to access a court to enforce their legal rights
Law provides shelter and protection for the less powerful
(access to justice is key to upholding the rule of law)

Positive impacts of rule of law

Promotes democracy ensuring elections are conducted fairly and transparently, rights and freedoms, social harmony, economic growth and social progres

jurisdictions

Criminal and civil

Types of dispute resolutions:

litigation
Mediation
Negotiation

What is litigation?

Process where a judge or other decision maker decides the outcome of the case

Where do civil cases end up?

Heard in different courts depending on the amount claimed (quantum)

advantages of litigation

Public enunciation of community values

creates precedent

guarantees a binding decision

reduces power imbalances

stregthens other means of dispute resolution (casts the shadow of the law)

Cons about litigation

Costly (very expensive [thus tribunals don’t have lawyers])
Delay
Damage to relationships
Limited range of remedies

Why is litigation expensive?

Court filing fees
Daily rates for hearings (trying to make people think carefully about going to court however creates an issue with access to justice)
Legal fees (for lawyers - most cost) 

Family court approach

The family court mainly deal with areas relating to marriage/divorce, adoption, care of children etc
They place an emphasis on conciliation and consensus, use counselling and mediation at first then use litigation/adjudication as a last resort, closed to public.
In the case of children - it is guided by the best interests of the child, and the child is represented by lawyers for children’

things that require fixing in the family court

Cost barriers
Accessing lawyers (eg enough people doing the work)

significant delays in the system as it is overstretched and needs will change

employment jurisdiction approach and aims

• Statutory aim - speedy and low level resolution of disputes

• Tiers of resolution:

  • Mediation (can be done through zoom) - accessible and quick but not necessarily high quality

  • Employment Relations Authority

  • Employment Court

• People still feel the need to engage with representation to help them at mediation

This puts rational people off pursuing or defending their legal rights
More people settle before going so therefore it stumps the development of the law (makes unclear rules)
Acts as a silencing mechanism - repeated behaviour is hard to display

Dispute tribunal

Avoids the expense of lawyers by barring lawyers (are allowed to have lawyers help prepare) - raises questions about power imbalances
aims to be cheap and efficient
mediation → adjudication
Appeal rights are very limited - almost all decisions of the DT are final

Tenancy tribunal

lawyers barred (except very limited circumstance)

mediation via phone first
public
Access to the court is harder often for the tenant eg the tenant might be a solo parent.

Why is there a growing emphasis on alternative dispute resolutions?

• Cost

• Delay  - people have stuff they have to do or eg have kids

• Stress

• Control - sometimes (often?) people feel better about an outcome that hasn't been imposed on them by a judge

Negotiation

only 2 parties, outcome focuse

Advantages of Negotiation

Cheap and fast (usually)

Preserves relationships (if done well)
Simple and accessible?"
Remedies are unlimited in scope

disadvantages of negotiation

Power imbalances - weaker party might get steamrolled
sometimes you need to file proceedings to provide a backdrop for negotiation (can create tension/incentive to settle)
Lack of public ennunciation of community values
doesn’t set precedent

Types of negotiation

Competitive:  
- detrimental to relationships, as it involves aggressive negotiation tactics such as refusing to compromise, can lead to litigation. 
Cooperative: 
- Focus on preserving relationships, can lead to parties asking for too little and not being awarded what they deserve - resembles mediation w/out the 3rd party
Interest based: 

• Combines the best attributes of the other 2 (most effective), focus on the underlying interests of the parties, aim is resolution whilst retaining relationships and understanding (seperate the person and the problem)

Mediation

A third party is present to 'mediate' b/t the parties

Referees to help facilitate
Preserving relationships

Advantages to mediation

Private you can’t repeat what happens in mediation or use it in a court setting
Preserving and repairing relationships
(more neutral) - can be cost efficient but can also be expensive

flexible in time and outcomes

disadvantages on mediation

power imbalances can continue to play out (depends on mediator)
no safeguards and checks (hard to know if peoples rights are being upheld)
mediator bias - more active role in dispute resolution than a judge

Types of mediation

facilitative: Similar to interest based negotiation, concentrates on underlying interests of the parties rather than their position, mediator may help to solve problems but does not take an active role in suggesting outcomes, preserving relationships, mediator does not require much knowledge about the subject

Evaluative: Allows a mediator with expertise in the relevant subject, provides guidance to the parties, potentially lessens the parties autonomy

Transformative: Mediator provides minimum guidance (empowers parties to solve their own disputes), changing the parties perceptions and transforming relationships (not always solving the problem), increase understanding between the parties, critics say its vague and ineffective

what is is lawyers role in upholding the rule of law

lawyers role is to help people get the shelter and protection for the less powerful and ensuring equal justice for all

How do you access civil justice if you cannot pay?

Legal aid (state funded legal assistance)

• given in the form of a loan (with interest)

• people only qualify for legal aid if you fall under a certain income (take into account assets such as houses)

• hard to find civil legal aid providers, you have to sign up to be one and this has decreased because you can’t make a living off of legal aid

Pro Bono: ‘providing free legal service to low-income or otherwise disadvantaged individuals etc that serve the interests of low-income or otherwise disadvantaged individuals
- lawyers will be more willing to help if the case provides a marketing or career opportunity

• the most needy find it hard to find a pro bono lawyer (lack of social connections)

trying to fix this with Te Ara Ture - trying to capture and help the people who aren’t eligible for legal aid but can’t afford private aid

What is the justice gap?

Legal aid thresholds are low and there are few practitioners offering legal aid services and there is a very small amount of free community assistance. The justice gap is therefore anyone who is not eligible for legal aid funded by the state but is also unable to fund private aid.

Non-Lawyer Assistance (civil)

Employment advocates, McKenzie friend (support person), USA ‘Navigators’

what can an employments advocate do?

mediation (lowers cost), Advocates may also offer no win no pay agreements (Lawyers are not allowed to do this)

What can a Mckenzie friend do/not do?

Can:

• take/prepare notes and questions, offer suggestions in court

Can’t:

• Not a lawyer

• can’t sign or file documents on your behalf

• can’t speak to a judge

USA ‘Navigators’ information

Provides one on one assistance to unrepresented litigants, help them complete forms, assist with negotiation go into court and assist in court. Gives legal information

Benefits: cheaper, less training involved, may relate differently to the clients
Issues: reduced training and less regulation creates risks to the clients