Evaluate Dispute Resolution Flashcards
4 strengths of judicial determination (courts in civil cases)
Doctrine of precedent
Legal representation
Rules of evidence
Juries
Doctrine of precedent
Judicial determination Strength
The doctrine of precedent is the process by which judges follow the reasons for their decisions – given by courts higher in the court hierarchy – when deciding on similar future cases. This brings predictability, certainty and consistency to the way in which disputes are resolved
Legal representation
Judicial determination strength
In civil cases both parties have access to legal representation. Legal representation ensures both parties are on an equal footing as they both have expert representatives who understand the legal system as their advocates in court.
Rules of evidence
Judicial determination strength
There are strict rules of evidence and procedure in court cases. This results in both parties being treated equally and fairly with the absence of hearsay.
Juries
Judicial determination strength
Juries are optional for some civil matters. If juries are used they can reflect community opinion on disputes and the appropriateness of outcomes.
4 weaknesses of judicial determination (courts in civil cases)
Win lose situation
Time consuming
Costly
Intimidating
Win lose situation
Judicial determination Weakness
The adversarial nature of our trial system results in win/lose scenario, with only one party able to win the case. This could cause further animosity between the parties and resentment toward the legal system.
Time consuming
Judicial determination Weakness
This is a time-consuming method of dispute resolution, as delays are common. This can result in stress and worry for the parties and time away for their personal lives causing resentment towards the legal system.
Costly
Judicial determination Weakness
High costs are common. This is partly due to the need for legal representation, which is generally expensive, and partly due to high court fees especially when taking cases to the Court of Appeal.
Intimidating
Judicial determination Weakness
The formality of the courtroom and judicial determination may be intimidating to some parties. This can cause resentment towards the legal system.
4 strengths of ADR
Informal
Cheap
Fast
Flexibility
Informal
ADR strength
Less formal method of dispute resolution compared to the courts, due to the absence of strict rules of evidence and procedure in. This may benefit both parties who find formality intimidating.
Cheap
ADR strength
They are generally cheaper than judicial determination. This is because the parties can avoid many of the pre-trial procedures that are expensive, such as discovery, preparing evidence for trial and attending directions hearings.
Fast
ADR strength
Faster and more effective dispute. They are able to save time in having the dispute resolved rather than waiting for the pre-trial procedures to be completed, and for a hearing or trial date to be obtained. The processes used at ADR encourage compromise rather than competition between the parties.
Flexibility
ADR strength
There is flexibility in how proceedings are conducted, which can be modified to suit the needs of the parties. For example, one party may wish to speak first and the parties and the third party may agree to this. The rules of evidence and procedure in judicial determination generally do not allow much flexibility in the procedure used.
4 ADR weaknesses
Skills and awareness
Attendance
Bindingness
Animosity
Skills and awareness
ADR WEAKNESS
ADR relies on parties having good oral skills and an awareness of law and legal process. Where legal representation is not allowed, a party that is not articulate and is daunted by legal process is disadvantaged.
Attendance
ADR Weakness
One party to the dispute may refuse to attend the resolution process. This is because ADR is voluntary. This therefore will make it a waste of time for the party that attends.
Bindingness
ADR Weakness
Other than arbitration, the decision is not binding (although at the conclusion of mediation or conciliation a binding deed of settlement can be drawn up, which can be legally enforceable through the courts). This can result in one party not following through with what had been resolved at the mediation or conciliation.
4 similarities between VCAT and the courts
Similarity
Fee
Independence
ADR
Representation
Fee
Similarity
Both ADR and the courts charge a fee for most types of cases. The fee is charged at the time the application is made at VCAT, or at the time the complaint in the Magistrates’ Court and the writ in the County Court and Supreme Court are filed.
Independence
Similarity
Both use an independent third party to resolve a dispute. Courts use magistrates and judges, while VCAT use members, the vice-presidents or the president.
DR used
Similarity
Both make use of dispute resolution methods such as mediation, conciliation and arbitration. Both bodies have the power to refer parties to these methods before finally resolving the dispute.
Representation
Similarity
One similarity is the representation that is allowed. Both VCAT and the courts can use legal representation.
4 differences between VCAT and the courts.
Hierarchy
Juries
Representation
Rules of evidence
Hierarchy
Diff
One difference is the presence of a hierarchy system. VCAT is a ‘one-stop shop’ for the resolution of disputes whereas courts are separated into a hierarchy of courts that hear different cases depending on its jurisdiction.
Juries
Diff
One difference is the use of juries. Juries are not available for use by VCAT in civil cases
whereas an optional jury of six is available in the
courts.
Representation
Diff
Another difference is the use of legal representation. Legal representation is generally not used in VCAT
whereas in the courts legal representation is usually
necessary.
Rules of evidence
Diff
VCAT generally does not use rules of evidence and
procedure whereas the courts do. This is because VCAT is less formal than the courts.
Animosity ADR weakness
The methods used in ADR may not be appropriate if there is animosity between the parties as the parties are unlikely to attend them in a spirit of cooperation. If a decision cannot be reached between the parties the matter may need to be taken to court
anyway, delaying the time of final resolution.
