ch13 Flashcards
What is mediation?
Mediation is an alternate method to a hearing where both parties can read an agreement themselves with an impartial mediator who guides them through reaching an agreement through negotiation but cannot offer advice or suggestions.
Mediation pros and cons
- They are good because they are less formal and so more is likely to get said, however there needs to a willingness from both parties to reach an agreeable solution for this to happen.
- Parties can make an agreement themselves however there is risk of animosity with less structure and authority.
Who decides, mediator vs conciliator
(The decision is ultimately up to the parties, the mediator is just there as an incentive for parties to listen to each other and hear each other’s honest thoughts whereas a conciliator provides guidance and suggestions about how to agree on a solution.)
Conciliation
- Conciliation is similar to mediation in that the parties are the ultimate decision makers and the impartial conciliator is just there to guide the dispute.
- Parties can live amiably with each other because of the less formal way of resolution, the outcome and process is likely to be more comfortable and so less tension will arise between parties.
Expertise conciliator vs mediation
Unlike a mediator, the conciliator has specialised knowledge in the subject matter and so is able to offer suggestions.
Arbitration
Arbitration is where an independent third-party listens to the disputing parties and helps them reach an agreement through a binding decision. instead of going to court they are choosing a private dispute resolution.
Arbitrators pros cons
The parties give up the ability to make a decisions themselves and have the chance to compromise in exchange for an expert making the decision for them which will be final.
Arbitrators vs mediators/conciliators
Unlike mediators and conciliators, arbitrators have legal as well as subject knowledge and so understand the applicable law. They are able to make a binding decision that the parties must follow through with.
Original jurisdiction?
Appellate jurisdiction?
Original jurisdiction?
The power of a court to hear a case for the first time
Appellate jurisdiction?
The power of a court to hear a case on appeal
Civil jurisdiction of Magistrates Court
Original jurisdiction = Claims up to $100 000
Appellate jurisdiction = No
Civil jurisdiction of County Court
Original jurisdiction = Unlimited
Appellate jurisdiction = No, unless given under specific Act of Parliament
Civil jurisdiction of Supreme Court (Trial division)
Original jurisdiction = Unlimited
Appellate jurisdiction = Appeals on a question of law from the Magistrates’ Court and VCAT
Civil jurisdiction of Supreme Court (Court of Appeal)
Original jurisdiction = N/A
Appellate jurisdiction = Appeals from the County Court, Supreme (Trial Division) or VCAT when constituted by the president or a vice president
Civil jurisdiction of High Court
Original jurisdiction = Cases which involve interpretation of the Constitution
Appellate jurisdiction = Certain appeals against the decisions from other courts (Supreme courts or Federal courts)
3 court strengths/weaknesses
- formalities = tension but control/fairness
- experienced judges = fairness but parties can be uneven in legal rep
- court processes = delays/expenses but consistency and fairness (doctrine and court hierarchy)
3 jury strengths/weaknesses
- independent jurors = equality and fairness but no need to give reason for decision is questionable
- ordinary people = may not be able to understand case but gets community involved.
- decision based on facts given = but they may do it themselves and be biased but overall fairness maintained.
The role of tribunals…
Tribunals are dispute resolution bodies that are given power by parliaments to resolve certain types of disputes. There purpose is to provide people with a lower cost, efficient and quick method of dispute resolution.
Tribunal example
VCAT is a tribunal that deals with a range of civil disputes and is made up of four divisions that section those claims such as Human Rights Division (discrimination claims) and Civil division (small civil claims). Its purpose is in line with that of all tribunals: provide a low cost, accessible and efficient method of dispute resolution.
The role of ombudsman is to…
Ombudsman are independent officials appointed by the government to investigate complaints made by individuals against certain bodies or institutions. Like tribunals they resolve disputes independently and impartially and give an alternative to using the courts.
But are different in that ombudsman are free, they closely specialize in certain areas and specifically hear complaints from individuals about industry providers.
Ombudsman example
- Public transport ombudsman hear complains about Public Transport Victoria. Things like sales of tickets and behaviour of staff, etc
Role of complaint bodies…
Complaint bodies deal with complaints to do with goods, services and industries and the decisions of certain bodies or authorities. They are free and their services are flexible and accessible to everyone.
Complain body example
- The Victorian Equal Opportunity and Human Rights Commission is an independent body that handles complaints about sexual harassment, victimisation, discrimination, etc.
They use conciliation to resolve disputes, and do not have the power to conduct a hearing, award compensation or make binding decisions.
Purpose of civil remedy
The purpose of civil remedies is to restore as much as possible the party who has suffered loss or injury, to the position they were in before the incident occurred. It usually in the form of damages, this being where the defendant is ordered to pay the plaintiff a decided sum of money to compensate for their loss. It can also be injunctions.
Example of civil remedy
For example, an injured person might claim a sum of money to compensate for pain and suffering as a result of the defendant’s civil wrong that caused the injury. This money would be referred to as general damages because it is awarded to the plaintiff for pain and suffering.
Do civil remedies achieve their purpose?
Civil remedies aim to persuade non- offending third parties to take responsibility and action to prevent or end criminal or nuisance behavior. Temperatures cannot restore someone to the original position if they suffered a loss more than purely economic.
General damages
compensate plaintiff for non-financial losses (i.e. pain, suffering, loss of consortium).
Specific damages
A type of compensatory damages- provides compensation for a measurable cost of the civil wrong (such as medical or legal costs)
What is fairness
In civil disputes, fairness means that there should be fair processes and a fair hearing or trial. Laws should be properly applied, the parties in dispute should know what claims are and should have opportunity to present their case. People who are deciding the dispute should be impartial and unbiased.
What is access
People should be able to use the procedures, methods and institutions that resolve a civil dispute. Should be able to get info on rights and when they have been infringed and the remedies available to them.
