Alternative Dispute Resolution / Court Hierarchies Flashcards
What is a Court Hierarchy
The ranking of courts in descending order from superior courts to inferior courts in the same federal, state or territory jurisdiction.
What are the roles of a court hierarchy?
Accommodates the doctrine of precedent
Accommodates the appellate process (judicial review)
Specialisation and administrative efficiency
Democratic choice and flexibility
What is ADR?
Alternative Dispute Resolution - civil disputes being resolved without the court-based adversary system.
What type of matters can be resolved through ADR?
Civil matters
What are the two types of dispute resolution?
ADR without third party involvement (Direct)
ADR with third party involvement (Indirect)
What are forms of ADR without a third party?
Self-help
Abandoning the claim
Consensus
What is self help?
In this method the aggrieved party takes his or her own steps to bring about a conclusion that satisfies him or her. Despite being an inexpensive method, in which the aggrieved party is in total control, it can too easily involve criminal behaviour that could be subject to proceedings in criminal law.
What is abandoning a claim?
An aggrieved person could simply cease pursuing the action
Often because:
The matter is trivial
The wrongdoer is a ‘straw person’ and is not in a financial position to provide a remedy
The aggrieved party would prefer to maintain good relations with the defendant
What is consensus?
In this method the wrongdoer admits liability and settles, usually because that party knows he or she is in the wrong and would be unsuccessful if litigation ensured.
What are the types of third person ADR?
Mediation
Conciliation
Arbitration
What is Mediation?
Informal meting the parties are in control of the procedure
They agree on who the mediator will be and where and when the mediation conference will occur.
Attendance is voluntary and the parties are not legally bound by any agreement reached
What is conciliation?
More formal than mediation, often compulsory in some branches of law, before a matter can proceed to adjudication in a court or tribunal. Unenforcable.
What is arbitration?
Formal method of ADR in which the parties consent, by contractual agreement, to have a matter resolved by an independent arbitrator.
