LEGAL U2 AOS2

Provide a defintion for fairness

• One of the principles of justice; fairness means that all people can participate in the justice system and its processes should be open and impartial

Provide a defintion for equality

• One of the principles of justice, equality means that all should receive the same treatment, but if the same treatment causes disparity or disadvantage, adequate measures should be implemented to allow all to engage in the justice system without disparity or disadvantage.

Provide a definition for access

• One of the principles of justice, access means all should be able to engage in the justice system and its processes on an informed basis.

List features of Impartial Processes

• All judges, magistrates, and court personnel should not be biased

• Means they make decisions based in law and fact, not their own opinion or prejudice.

• Not favour either party

• No apprehended bias

• Court personnel may dismiss themselves from a case if they need to

List features of Open Processes

• Open to the public

• Allows media scrutinization, allows ppl to ensure law and justice is upheld correctly

• Some civil cases cannot be open

List features of Participation

• Ensures parties are involved in the case

• Includes the following;

  • Opportunity to know the case (each party discloses arguments, claims, evidence, etc prior to court)

  • Opportunity to present their case

  • No unreasonable delays (delays reduce evidence reliability, cause stress for def and stops plain from seeking a remedy)

List features of Engagement [Access]

• Both parties should be able to engage in the civil justice system. Involves the following;

  • Range of dispute resolution bodies

  • Physcial access - courts outside of Melbourne

  • Financial access

  • Technological access

List features of Informed Basis [Access]

• People need to have the knoweleg/iformationto to be able to pursue their case

  • Education

  • Information abt civil justice system (can be done through VLA, courts, tribunals, community legal centres, etc)

  • Legal Representation - lawyers can inform of processes involved, steps they should take, etc, rights.

Provide a defintion for ‘mediator‘

• an independent third

  party who does not

  interfere or persuade

  but helps the parties in

  a mediation as they try

  to reach a settlement of

  the matter

Provide a defintion for ‘councilator’

• the independent third party in a conciliation, who helps the parties reach an agreement that ends the dispute between them. The councilator can make suggestions and offer advice to assist in finding a mutually acceptable resolution, but the parties reach the decions themselves

Provide a definition for ‘arbitrator’

• The independent third party appointed to settle a dispute during arbitration. Arbitrators have specialised expertise in particular kinds of disputes and make decisions that are legally binding. This decision is known as an arbitral award.

Provide a definition for ‘counciliation’

• a method of dispute resolution that uses an independent third party (i.e. a conciliator) to help the disputing parties reach a resolution

Provide a definition for ‘arbitration’

• a method of dispute resolution in which an independent person [an arbitrator] is appointed to listen to both sides of a dispute and to make a decision that is legally binding on the parties. The decision is known as an arbitral award.

What are the three methods of ADR?

• Mediation

• Conciliation

• Arbitration

Recall as much as you can: Mediation

• A method of ADR

• A joint problem-solving process in which parties sit down and try to reach an agreement through negotiation

• Do this with the help of a mediator

• [Mediator Definition]

• Discussions that occur during mediation are ‘without prejudice’. This means parties are free to openly discuss their dispute, as well of weaknesses of their own case and these discussions cannot be used against them at a later date.

Mediation: Does a mediator have expertise?

• No, a mediator doesn’t have to have expertise in the area of law.

Mediation: What happens if the parties resolve the case through mediation?

• Parties enter into a terms of settlement (also known as a deed of settlement).

• Parties are bound by a terms of settlement, they are enforceable by courts

• Contract terms of a terms of settlement are usually confidential.

When may mediation be available to parties?/ When might mediation occur?

• Parties organise mediation between themselves

• Parties are referred to mediation prior to a first trial to hearing [court cases]

• Parties in cases heard by tribunals are referred to mediation prior to the trial [tribunal cases]

Recall as much as you can: Conciliation

• Another ADR method

• [Conciliation Definition]

• If dispute is resolved through counciliation, parties enter into terms of settlement

• ‘Without prejudice’

• 
  

Differentiate between the roles of a mediator and a councillor

• Conciliator can make suggestions, Mediator doesn’t

• Conciliator is generally well-versed/have expertise in that area of law, Mediator doesn’t.

When may counciliation be available to parties?/ When might counciliation occur?

• Parties organize counciliation between themselves

• Many dispute resolution bodies use counciliation to resolve disputes

• More specialized courts use counciliation

• Cases relating to family disputes generally use counciliation

List strengths and weaknesses of mediation and councilation.

Strengths

• A decision made during med. or coun. is more likely to be accepted by parties bc the parties have reached the decision themselves, rather than having it imposed upon them by a third party

• Med and coun. are a less formal process —> less intimidating

• Includes an impartial third party, will assist in reaching a decision

• Issues can be discussed confidentially

• Saves time and money

Weaknesses

• Unless parties enter into a terms of settlement, decisions made are not legally binding

• One party may dominate the other or influence the other, specifically if one doesn’t have legal representation

• Mediators and counciliators cannot order parties to come to an agreement

• Med. and coun. are not appropriate for all disputes (e.g. need of an injunction)

• Both parties must be willing to cooperate.

Recall as much as you can: Arbitration

• A method of ADR

• [Arbitration Definition]

• Includes an arbitrator

• Arbitrator listens and makes a binding decision

• Deciison made by an arbitrator = arbitral award

• Arbitartion usually used to commercial disputes

• Legal representation allowed

• More formal than med. and coun. but less formal than court procedures.

For each of the roles, does the third person need to have expertise in the area of law:

• Mediator

• Councilator

• Arbitrator

Mediator = doesn’t need to have expertise

Councillor = well versed in the subject matter of the dispute

Arbitrator = well versed in the subject matter of the dispute

For each of the roles, can the third person make a binding decision:

• Mediator

• Councilator

• Arbitrator

Mediator: no

Counciliator: no

Abritrator: yes

When is arbitration appropriate as a method of ADR?

• When the parties agree that their dispute will be heard through arbitration. [In this case, the parties decide on the arbitrator, rules of arbitration degree of formality, etc]

• In civil claims in the Magistrates’ Court of less than $10,000, they are often referred to arbitration.

List the strengths of arbitration

• Due to the fact that arbitration is conducted privately, parties can agree to the conditions (e.g. level of formality)

• Less formal process —> lets parties feel more at ease (degree of formality depends on what has been agreed to by the parties)

• Cheaper than court (can depend on the conditions agreed to by the parties)

• Arbitrator has expertise and uses that expertise when making a decision

• Arbitral award is legally binding —> parties have to comply with it

List the weaknesses of arbitration

• Arbitration is generally more expensive that med. and coun. because evidence is gathered and presented to an arbitrator. Furthermore, conditioned decided upon by the parties can make arbitration as expensive as court processes

• Can be as formal as court processes (depending on the conditions agreed to by the parties)

• Parties have no control over the decision reached by an arbitrator

• Can be more timely that med. and coun.

Provide a definition for ‘Jurisdiction’.

• The lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal cases.

Provide a definition for ‘Counterclaim’.

• A separate claim made by the defendant in response to the plaintiff’s claim (usually heard at the same time by the court)

Provide a definition for ‘Case Management’.

• a method used by courts and tribunals to control the progress of legal cases more effectively and efficiently. Case Management generally involves the person presiding over the case (e.g. the judge) making orders and directions in the proceeding (e.g. an order that the parties attend mediation).

2 roles of courts in civil dispuets

• Determining liability

• Determining a remedy

The role of court in determining liability

• Determining whether or not def. is reposible for plain.’s loss or harm

• Judge, magistatte or jury considers evidence

• The court determines:

  • Whether or not the def. caused plain.’s injury, loss, harm

  • The extent of def’s liability

  • Whether multiples defs share libaility and how liability is shared

  • Whether a counterclaim against the plain is successful.

Other roles of a court in determining libaility

• Providing expertise by hearing cases suited to their jurisdiction

  • E.g. Supreme Court hears complex matters, Mag hears minor matters

• Manages cases by;

  • giving directions

  • ordering the discovery of documents

  • requiring mediation as a form of ADR

• Hearing appeals

What are the two types of jurisdiction?

• Original jurisdiction – the court hears a case for the first time. 

• Appellate jurisdiction – the court hears an appeal from a lower court's decision.