AOS2 remedies (simplified)

Question 1

Fairness

Answer 1

Fairness means all people can participate in the justice system and its processes should be impartial and open.

Question 2

Impartial processes

Answer 2

-Courts and personnel, including judges, magistrates, jury members, mediators, and arbitrators, must be independent and impartial. They must not be biased toawrds or against either party, and the case must be decided based on facts and law not prejudice.
-There should be no apprehended bias (a situation in which a fair-minded lay observer might reasonably believe that the person hearing or deciding a case might not be impartial).

Question 3

Open processes

Answer 3

• Civil trials and hearings are generally open to the public and the court judgments are made available to the public.
• However, there are many instances where civil disputes may be resolved in private (e.g. mediation).

Question 4

Participation

Answer 4

People must be able to participate in the civil justice system, including:
- both parties should have the opportunity to know and understand the case that is put against them
- both parties should have the opportunity to present their version of the case
- there should be no delays.

Question 5

Equality

Answer 5

Equality means all people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage.

Question 6

Same treatment

Answer 6

• All parties in a civil dispute should be treated in the same way.
• This is referred to as ‘formal equality’.

Question 7

Different treatment

Answer 7

• If treating people in the same way could in fact cause disparity (a gap or difference between the way the two parties are treated) or disadvantage, then measures should be put in place to allow people to participate in the justice system without disparity or disadvantage.
• This is referred to as ‘substantive equality’.
• Some of the people who may need to be treated differently to achieve equality are:
• people who do not understand English
• young people
• people with religious or cultural differences
• people who do not have a lawyer.

Question 8

Access

Answer 8

Access means that all people should be able to engage with the justice system and its processes on an informed basis.

Question 9

Engagement

Answer 9

People need the means and ability to be able to use and participate in the justice system. This includes:
- providing a range of dispute resolution methods
- physical access
- technological access
- financial access
- no delays.

Question 10

Informed basis

Answer 10

People should be able to engage on an informed basis. This includes understanding their legal rights and processes involved in their case, and being able to obtain enough information to make reasoned decisions. This can be achieved by:
- education
- information
- legal representation.

Question 11

Mediation

Answer 11

• Mediation is a method of dispute resolution that uses an independent third party (i.e. a mediator) to help the disputing parties reach a resolution.
• It is a joint problem-solving process in which the parties in conflict sit down and (with the help of an independent mediator) discuss the issues they disagree on, present their side of the case, and try to reach an agreement through negotiation and compromise.
• Any decision reached is voluntarily made by the parties. They may sign a terms of settlement that can be enforceable through a court.

Question 12

Mediation can be used in the following ways:

Answer 12

• Parties can arrange a private mediation.
• Parties in a court case can be referred to mediation by a court before the final trial or hearing.
• Parties in a tribunal case are referred to mediation to try and resolve the dispute before the hearing.

Question 13

Conciliation

Answer 13

• Conciliation is a method of dispute resolution that uses an independent third party (i.e. a conciliator) to help the disputing parties reach a resolution.
• The process of conciliation is very similar to mediation; however, a conciliator has more influence over the outcome as they are usually someone with specialist knowledge and can suggest options and possible solutions to resolve the dispute.
• Any decision reached is voluntarily made by the parties. They may sign a terms of settlement that can be enforceable through a court.

Question 14

Conciliation can be used in the following ways:

Answer 14

• Many dispute resolution bodies use a form of conciliation to resolve disputes (e.g. CAV).
• Parties in a dispute at VCAT are often sent to a compulsory conference (which uses conciliation).
• Some of the more specialised courts use a form of conciliation (e.g. the Federal Circuit Court and Family Court of Australia).

Question 15

Strengths and weaknesses of mediation and conciliation

Answer 15

strengths- more likely to be acceptable, less formal, unbiased third party, confidentially without publicity, save time and money.
weaknesses- not binding, One party may dominate, Mediators and conciliators have no power, not appropriate for some disputes.

Question 16

Arbitration

Answer 16

• Arbitration is a method of dispute resolution in which an independent person (an arbitrator) is appointed to listen to both sides of a dispute and make a decision that is legally binding on the parties. The decision is known as an arbitral award.
• Arbitration can be expensive as professional arbitrators charge a fee, and legal representatives are usually allowed.
• Generally, arbitration is more formal than mediation and conciliation, but less formal than a court process. However, the parties can choose how evidence is presented, how formal the arbitration is, and what procedural rules will apply.

Question 17

Arbitration is usually used in two situations:

Answer 17

• Parties have previously agreed that any dispute between them will be resolved through arbitration.
• The Magistrates’ Court uses arbitration to resolve civil claims less than $10 000.

Question 18

Strengths and weaknesses of arbitration

Answer 18

strengths- flexibility in the way it can be conducted, less formal, can be cheaper then going to court.
weaknesses- not as flexible as mediation and conciliation, Arbitration is more expensive than mediation and conciliation