Chapter Eight Flashcards
Define Civil dispute
A dispute between two individual parties within a society that can be remedied with the help of a court.
Define Criminal dispute
A dispute between and individual and the state, the prosecution is led through the publicly funded police force and the Office of the director of prosecutions
Define Self Help
Self-help is an alternative way of solving a dispute between two members in a community. It involves the individuals deciding to ‘sort it out’ by themselves, since any court process often damages the business or social relationship between two people. Often one party will agree to abandon their claim even though it may be legitimate, either because the other party cannot afford to pay the remedy or they court process would be too long and costly.
Define Negotiation
Negotiation is when two individuals choose to negotiate without the use of the courts. Negotiation can involve the use of lawyers or specialists that can represent either party. Both parties communicate directly with one and other.
Define Mediation
Mediation is much like negotiation although all communication between parties goes through a third party mediator. The aim of the mediator is to reach a resolution which satisfies both parties, in the end it is up to both parties to reach agreeable terms. A settlement completed through mediation has the legality of a contract and is legally binding. Mediation is very cheap, and often it is more attractive then courts because it is not an adversarial process, it does not damage the relationship between two individuals as much.
Define Arbitration
Separate from other forms of ADR, arbitration puts the power of the case directly into the hands of a third party like a real court. A third party is selected by both parties to hear both arguments and after this has occurred, the arbitrator makes a decision which is legally binding. The decision made by the arbitrator is legally binding and has the full power of the court system. Arbitration is much quicker and cheaper than a real court, but more expensive then mediation.
Define Specialist court or Tribunal
A specialised court that aims to deal with specific disputes, such as the Family court dealing with family matters and the Native Title Tribunal dealing with all native title disputes.
Define Golden Thread of British Justice
The concept that someone is innocent until proven guilty.
Define Adversarial system
The approach to legal trials most common in Australia, the United Kingdom and the United States. It involves a judge hearing two sides of a case and then making a decision.
Define Inquisitorial system
The approach to legal trials most common in mainland Europe such as France or Germany. It involves the judge investigating the case themselves then arriving on a decision.
List some advantages that using specialist courts and Tribunals can offer to parties involved in a legal dispute
If a dispute is extremely personal such as a dispute over the custody of children, then sometimes both parties might want a more private area to resolve the dispute. The Family Court provides this kind of measure; the Family Court often includes mediation as a way of solving its disputes. The judge controls all proceedings however and can have the final say in any dispute, which provides a quick resolution that ensures minimal risk to either party. Specialist courts and tribunals also have the advantage that specialists in that area of law or knowledge can preside over their specific cases, such as in the Native Title Tribunal that looks after all Indigenous land rights. The judges in this tribunal are all familiar with aboriginal law and tradition and can therefore process cases a lot quicker and provide a better judgment.
List the key features of the Adversarial and Inquisitorial system of law
The adversarial system splits cases into two groups, civil cases in which two members in a community have a dispute between them and criminal cases in which the state prosecutes a member of the community. There is a clear pre-stage trial, the plaintiff issues a writ and then both parties prepare their necessary legal documents. It is up to each party to prepare their case or argument, and then both arguments are heard by an independent judge or jury who make a decision based on the evidence given. Witnesses cannot give hearsay or opinionative evidence; they must be firsthand accounts or based on their professional expertise.
In the inquisitorial system, there is no distinction between criminal and civil cases, all cases are prosecuted by the state and the laws are outlined all through statutes. When a dispute arises, it is up to a third party adjudicator to investigate the dispute and then question witnesses. The inquisitor can direct the police. The number of cases that receive a formal trial are greatly reduced as the inquisitor will often determine questions of guilt or innocence or whether the case needs to process further. Rules on evidence are less tough, relevance is the only factor that directs the role of evidence in court. Hearsay evidence may be accepted although it will be considered less reliable then other evidence, and the defendant does not have the right to remain silent.
Define Writ
A document that is issued by the plaintiff to the defendant detailing how the plaintiff thinks they have been wronged and what remedies they seek.
Define Plaintiff
The party that brings forward a dispute into the judicial system and the party that is seeking remedies from the other party.
Define Legal Counsel
A person who gives advice to people within areas of the law, also known as a lawyer.
Define Defendant
The party who is defending the claim brought against them by the plaintiff.
Define Magistrate
A judge or legal official usually part of the lower court systems.
Define Judge
A legal official in the higher court systems
Define Counsel-led Trial
The system of trial process within the adversarial system, concerning how the parties make their own cases that are led by their legal counsel.
Define Court-led Trial
The system of trial process within the inquisitorial system, concerning how the judge and inquisitor lead the trial to find the truth.
Define Standard of Proof
The standard to which the plaintiff has to prove the defendant wrong, in civil cases it is based on the balance of probabilities but in criminal trials it is based on beyond reasonable doubt.
