Dispute Resolution Flashcards
Solicitors
People who sit in an office and draft papers
Barristers
People who appear in court during litigation.
Alternative forms of DR that have recently increased
Negotiation
Mediation
Litigation
The most high profile form of dispute resolution.
Used mostly by lawyers
Vital, but occupies a relatively small part of time spent by legal practitioners.
Encompasses the concepts of adversarial justice and adjudication
Court trials are a competition
Where does most legal work occur in reality?
Outside of the court room
Strengths of Litigation
Public enunciation of community values; transparency
Principles and precedent
- Some cases are fought on principle, not just economic values
- Sets precedent for future cases.
Binding Decisions
- Principles can be upheld in court
- Final decisions are binding
Reduction of power imbalance
- Despite lawyers costing different amounts of money
Security for the legal system
- Litigation strengthens other forms of dispute resolution
- Here litigation acts as a safety net.
What does a judge reduce in the courtroom setting?
Bullying on the part of the lawyers
Litigation and Relationships
Litigation does not aim to preserve relationships; there is a clear winner and loser.
Weaknesses of Litigation
High Cost Takes time Damage to relationships Limited range of remedies - Injunction - Damage costs - Specific Performance
Process of Litigation
Plaintiff files statement of claim Defendant files statement of defence Interlocutory proceeding including discovery/interrogations Case set down for hearing Opening address Witness examination Closing address Verdict
Differences between civil and criminal cases
Standard of proof required;
Civil trial the plaintiff mus proves that the defendant is liable on the balance of probabilities
Criminal: must prove beyond a reasonable doubt.
Restorative Justice
Focuses on including the victim in the criminal cases, and makes the offender take responsibility
A community approach to offending
- Appreciate the harm to the victim and provide compensation to the victim.
Negotiation
The most common form of dispute resolution used in NZ legal system.
Competitive Negotiation
Can be risky and detrimental to the relationships
Could cause aggresion
Could result in a stalemate
Cooperative Negotiation
Focuses more on maintaining relationships
