alternative dispute resolution Flashcards
what is self help?
the aggrieved party attempts to resolve the dispute without involving the other party.
what is abandoning a claim? / civil trial
in a civil case, the plaintiff may abandon the claim because of the expense of court, may not be able to pay damages or it is not worth the emotional trauma.
what is abandoning a claim? / criminal trial
the prosecution may abandon the claim because the offence is minor or there is not enough admissible evidence.
what does nolle prosequi mean?
the trial is abandoned before the verdict is given, avoids the principle of double jeopardy.
what is conceding a claim? / civil trial
a civil dispute can be resolved quickly by the defendant admitting liability and compensating the plaintiff.
what is conceding a claim? / criminal trial
a defendant could admit guilt and the case would go directly to a sentencing hearing. An early guilty plea can result in a 40% sentence reduction.
What does consensus mean?
it involves the active participation of both parties agreeing on a compromise through mutual agreement. In a criminal trial it often involves plea bargaining and it often occurs in the pre-trial conference stage of civil trials.
what is mediation?
involves the process by which two parties reach a mutually satisfactory settlement of their dispute through the use of a mediator. The outcome is not legally binding and is instead a good faith agreement.
what is the role of the mediator?
a mediator tries to manage the process by helping the parties listen to one another. they do not take sides, give legal advice or propose a solution
what is conciliation?
the process by which two parties, with the assistance of a conciliator, identify the issues in the dispute, develop solutions and assist in endeavouring to reach an agreement. Typically, they make an order which reflects the term of the settlement.
what is arbitration?
arbitration is the process where disputing parties present evidence and legal arguments to an arbitrator and any legal decision is formalised in writing.
what is the role of the arbitrator?
the arbitrator takes a very active role in the proceedings. They can question the parties, call witnesses and examine evidence.
