Legal studies Unit 2 AOS 2

fairness

all people can participate in the justice system and it’s process must be impartial and open e.g. judges and juries acting impartially

equality

all people engaging with the justice system and it process should be treated in the same way, if the same treatment causes disparity or disadvantages adequate measures should be taken e.g. use of legal aid

access

all people should be able to engage with the justice system and it’s process on a informed basis e.g use of legal aid

Mediation

a dispute resolution method where an independent third party mediator who encourages communication between the parties helping them reach a voluntary resolution

Features of mediation

• Mediator facilitates conversation but does not provide advice, opinions or recommendations

• Decision is not legally binding unless parties sign a terms of settlement or contract  Less formal than other methods e.g. the courts

• Legal representation is not always necessary

• Process is private and takes less time and money

when mediation is appropriate

• Parties willing to negotiate and participate

• Process is understood

• Parties want to maintain their relationship

• Privacy and confidentiality need to be maintained

• Parties are aiming to save time and money

Conciliation

an independent third party, known as the conciliator who facilitates communication by providing them with opinions, perspectives and possible solutions to help them reach a voluntary resolution.

Conciliation features

• The conciliator typically has expertise in the particular area of law.

• The conciliator assists in communication between the parties but also provides suggestions and propose solutions to help reach a voluntary resolution.

• The conciliator's involvement typically includes attempting to understand the issues from each party's perspective, identifying common grounds, and then suggesting possible outcomes.

• Not legally binding unless a terms of settlement or contract is signed.

• less formal than the courts and arbitration and legal representation is not always necessary.

when conciliation is appropriate

• Parties willing to negotiate and participate

• Process is understood

• Parties want to maintain their relationship

• Privacy and confidentiality need to be maintained

• Parties require a third party with knowledge and expertise

• Parties are aiming to save time and money

when conciliation is not appropriate

• Vulnerable party is involved

• Parties unwilling to discuss issues

• Disputing parties are highly emotional or hostile

• Mediation has failed in the past

• Power imbalance between disputing parties

• Legally binding agreement needs to be established

when mediation is not appropriate

• Vulnerable party is involved

• Parties unwilling to discuss issues

• Disputing parties are highly emotional or hostile

• Mediation has failed in the past

• Power imbalance between disputing parties

• Legally binding agreement needs to be established

Arbitration

an independent, third-party arbitration who hears arguments from disputing parties and makes a final, legally binding decision.

Arbitration features

• The arbitrator typically has expertise in the particular area of law.

• Arbitrator listens to parties issues and offers suggestions/solutions.

• If parties cannot reach a voluntary resolution the arbitrator will impose a legally binding decision known as an arbitral award.

• Less formal, parties have some control over how the arbitration is conducted e.g. how evidence is presented, how formal etc…

• Parties are able to self-represent themselves but most parties have external legal representation

• Proceedings are often private and occur in a court-like setting.

• No right of appeal.

when arbitration is appropriate

• Parties need to agree

• Requires a binding and enforceable decision

• Parties require a cheaper and quicker resolution than courts

• Parties want the matter to be heard in private rather than in the courtroom.

when arbitration is not appropriate

• Clarification is needed by a judge due to the complexity of the issues.

• Parties are comfortable navigating rules of evidence and procedure

• Parties would prefer matters to be resolve by a jury

• Parties do not want to arbitrate

• Parties prefer to resolve agreement themselves

• Parties want the case heard in court

VCAT purposes

The main purposes of VCAT are to provide civil dispute resolution that is low cost, efficient and accessible as the hear cases though mediation and conciliation

VCAT when it is appropriate

• The dispute falls within VCAT’s jurisdiction.

• Parties prefer an informal dispute resolution process.

• Parties want to resolve the dispute themselves and have some control over the outcome.

• Wish to have a legally binding decision (VCAT hearings allow this)

• Both parties are willing to comply with the agreement reached

• Parties want a low-cost and time-efficient resolution to their dispute.

VCAT when it is not appropriate

• The case does not fall within VCAT’s jurisdiction.

• If parties are unwilling to negotiate or have failed to negotiate their dispute

• Case is a class action

• Parties want to appeal the final outcome

• The claim is for a large amount of damages

• Involves complex legal issues and would be better resolve through more formal court procedures

• There is a better way to resolve the dispute, such as through an alternate organisation that is better suited to deal with the matter.

CAV

provides advice in civil disputes regarding goods and services.

CAV purposes

• provide information about consumer laws to the public

• conciliate disputes arising under consumer laws

• advise the government about consumer affairs legislation

• conduct legal action against businesses who breach consumer protection laws in Victoria

• investigate complaints about unsafe products being sold in Victoria and, if needed, remove such items from sale.

when CAV is appropriate

• The dispute falls within CAV’s jurisdiction.

• Parties have attempted to resolve the dispute themselves.

• Parties willing to participate

• Parties want to avoid costs and delays

• Parties are willing to settle the dispute

• Parties are willing to comply with the agreement during conciliation

when CAV is not appropriate

• The dispute does not fall under CAV’s jurisdiction.

• Parties have not attempted to resolve the dispute themselves.

• Parties not willing to cooperate