Law Flashcards
What are the (9) ways to resolve disputes?
- “Lumping” the grievance.
- Exit and avoidance.
- Redirecting.
- Naming, blaming and claiming.
- Negotiation.
- Mediation.
- Expert determination/ case appraisal.
- Arbitration.
- Adjudication by a court or tribunal.
What is a dispute?
A dispute begins when the aggrieved party believes that he or she has been wronged in someway by another person (the wrong doer).
- The dispute could be one sided or both parties could have conflicting claims.
- A dispute occurs when there is communication of the perceived wrong to the other party and disagreement or conflict results.
What is “lumping”?
Define “lumping”.
Simply being annoyed but not mentioning of doing anything about the grievance.
What is ‘exit and avoidance’?
Choosing not to have future contact with the person with whom you are in dispute - i.e. avoiding future conflict by exiting from it.
Define redirecting.
Where one reduces the cause of the problem by deciding it was not the fault the person with whom you are in dispute, but the the fault of someone else.
Define naming, blaming and claiming.
This is naming or identifying the grievance or problem. Blaming the person responsible. And claiming some sort of compensation or remedy.
Define negotiation.
Both sides decide to negotiate by discussing alternatives, with some compromised solutions. The dispute has then been delved by negotiation. Sometimes, another person may assist the negotiation process, for example a family member, or if it is a serious dispute, a lawyer or community leader, this is an assisted negotiation.
Define mediation.
Mediation is when a third party tries to assist the involved parties in reaching a favourable outcome for both parties - without imposing a legally binding solution.
What is conciliation?
Conciliation is a form of mediation that takes place under an Act of Parliament. Different pieces if Legislation provide the process for a conciliation to resolve disputes between different people. The conciliator has no power to enforce an agreement. Rather, the conciliator tries to provide an opportunity for both parties to speak freely, exchange view points and find an agreeable solution. If conciliation settles the dispute, both parties sign an agreement which will be enforced as a legal contract.
What is expert determination?
Parties may seek the opinion of an expert and have that expert advise on the best possible outcome. Both parties could agree to then accept the outcome proposed by the expert.
What’s case appraisal?
Case appraisal is a form of expert determination where the decision or solution is advisory or provisional, and is not binding on the parties. It is hoped that, when the parties hear what a neutral, independent expert has to say, it will assist in the resolution of the dispute. In QLD, the court can order the parties to have a case appraisal as well as mediation. This differs from mediation because the case appraiser can provide a solution. A case appraiser is generally appointed by the court from a list of approved appraises (usually a lawyer).
What is arbitration?
Arbitration occurs when both parties consent and agree to a nominated person making a decision for them. That third party has the consent of the parties to impose a decision which will be binding upon them. It is a more formal process than mediation or conciliation and is governed by relevant Arbitration Acts. *Commonly used to resolve sports industry disputes and disputes involving international contracts. Arbitration hearings are usually confidential. The settlement agreed upon between the parties is known as an award. That award will be recognised and enforced by the court.
What is adjudication by the court or a tribunal?
The parties may take the matter to a court or tribunal for a formal hearing and testing of the evidence. The judge will then impose a decision on both parties who will usually be legally required to abide by the decision.
What are the three main benefits of ADR (Alternative Dispute Resolution)?
- Expense- taking cases to court is very expensive. It is cheaper to engage in other methods of ADR.
- Time - the court process is very lengthy and often parties wait for years to have their dispute resolved. ADR is much faster.
- Less alienating - court can be a very alienating process for many people, especially for women and people of different ethnic backgrounds.
What is ADR (Alternative Dispute Resolution)?
The term ADR means the settling of disputes other than by taking the case to court. As the number of cases taken to court is minimal, the majority of disputes are settled by methods of ADR.
What are the benefits of Mediation?
- Empowering - it gives control of the outcome back to the parties.
- Less expensive - cheaper than going to court.
- Less stressful - than going to court.
- Private and confidential - members of the public are not aware of the outcome or the settlement details.
- The outcome involves compromise by both parties rather than having a winner or loser.
What are the disadvantages of Mediation?
- Power imbalance - when one party has significantly more power in the relationship that the other party, mediation can be ineffective.
- Clear legal right - if a party would clearly be entitled to an outcome if they to the matter to court, mediation may mean they end up with a lower or lesser result.
- Does not allow a clear and consistent history of the decision (precedent) to develop.
- Enforcement may be more difficult - mediation are voluntary, so where a party doe snot adhere to the agreement, the matter may have to be taken to court.
What are the usual characteristics of the mediation process?
- Participation is voluntary.
- Few procedural rules.
- No rules of evidence.
- Can vent emotions through informal discussion.
- Mediators power restricted to control the process.
- Parties decide what is discussed.
- Parties decide what is the outcome.
- Private and confidential process.
- Flexibility of possible solutions.
What is a tribunal?
Tribunals are set up to deal with legal disputes that arise in specific areas. They are not courts and they are not bound by many of the formalities of the court system.
What are the differences between courts and tribunals?
Courts cases are usually conducted by lawyers. Tribunal hearings may not be. Courts allow and encourage legal representation. Tribunals are less insistent, sometimes refusing the use of legal counsel. Formal procedures and protocols agree required in court. Tribunals are more relaxed and informal. Courts apply strict rules of evidence but tribunals may not. Courts have a permanent place in the legal system, but tribunals may be established for a specific purpose and then cease to exist. Courts follow the doctrine of precedent, but tribunals may disregard previous decisions.
What is an Ombudsman?
The role of Ombudsman is to investigate and report on any complaints by members of the public about government administration where that citizen has already complained to the relevant government officials and had no success.
How many Ombudsmans are there?
The Commonwealth and all States have an Ombudsman established by an Act of Parliament.
Can the Ombudsman impose penalties?
No, however, the Ombudsman can have a report tabled in Parliament which draws unfavorable publicity to the government minister or authority referred to in the report.
What powers of investigation does the Ombudsman have?
The Ombudsman may:
- enter any place of government activity,
- inspect any document,
- issue written questions for answer,
- and require any person to appear and answer questions under oath.
