Principles of justice Unit 2 AOS 2

Question 1

What are the strengths of mediation in upholding the principle of fairness?

Answer 1

• Parties can control the outcome, which can result in fair, mutually agreed resolutions.
• The mediator is impartial, eliminating favouritism for one party.
• Mediation is faster than a trial, it reduces the courts’ workload, and minimises delays in cases, therefore promoting fairness.

Question 2

What are the limitations of mediation in upholding the principle of fairness?

Answer 2

• If there is a power imbalance between the parties it may enable the more powerful party to force a resolution that is not mutually agreed upon.
• The decision reached through mediation is not legally binding, resulting in risk of breach of the agreement. This may limit fairness for the non-breaching party.
• Disputing parties must compromise without the opinion of the mediator, which may limit fairness if one party is unwilling to negotiate.
• Mediation is generally conducted in private, which may be seen as undermining fairness as the processes are not open to the public.

Question 3

What are the strengths of mediation in upholding the principle of equality?

Answer 3

• As formal rules of evidence and procedure do not apply, each party has the same opportunity to speak freely and present their perspective.
• Legal representation is usually not required for mediation, removing disadvantage associated with unrepresented parties.
• The mediator is an independent third party who must treat parties equally, regardless of personal characteristics.

Question 4

What are the limitations of mediation in upholding the principle of equality?

Answer 4

• If one party is more vulnerable or there is a power imbalance, especially is no legal representation is present, a ‘forced’ outcome may result that does not equally benefit both parties.
• With no formal rules of evidence and procedure, both parties may not have equal opportunity to present their case, especially due to the mediator’s limited role.

Question 5

What are the strengths of mediation in upholding the principle of access?

Answer 5

• Mediation does not involve court proceedings and legal representation is not required, saving casts and enabling those with limited financial means to access civil dispute resolution.
• Mediation is confidential with disputes being resolved discretely with less media attention, therefore reducing intimidation associated with dispute resolution and improving access.
• There are no formal rules of evidence and procedure, and parties are supported by the mediator to speak freely, reducing the intimidation of defending a dispute.

Question 6

What are the limitations of mediation in upholding the principle of access?

Answer 6

• If one party does not wish to make or offer a reasonable resolution, mediation may be a waste of time and money, consequently limiting access for individuals with lower available finances or time.
• In long-running and hostile disputes, mediation may be inaccessible as parties are unlikely to constructively communicate and reach a resolution. If parties are ordered to attend mediation in this situation, it negatively adds to the time taken to reach a resolution.

Question 7

What are the strengths of conciliation in upholding the principle of fairness?

Answer 7

• Parties are in control of the final outcome enabling a fair negotiation process and a beneficial resolution.
• The conciliator acts as an unbiased, impartial third party. Their advice and experience may enable a fairer, more mutually beneficial resolution.
• Conciliation is faster than a trial, it reduces the court’s workload, and minimises delays in cases, therefore promoting fairness.

Question 8

What are the limitations of conciliation in upholding the principle of fairness?

Answer 8

• A power imbalance between parties can cause the more powerful party to force a resolution that is not mutually agreed.
• The decision reached through conciliation is not legally binding, meaning there is a risk that a party may breach the agreement, jeopardising a fair case outcome.
• Conciliation is generally conducted in private, which may be seen as undermining fairness as the processes are not open to the public.

Question 9

What are the strengths of conciliation in upholding the principle of equality?

Answer 9

• Legal representation is not required, therefore reducing costs and disadvantage associated with unrepresented parties.
• Formal rules of evidence and procedure do not apply, meaning each party has equal opportunity to present their perspective.
• The conciliator is an independent third party who must treat parties equally, regardless of personal characteristics.

Question 10

What are the limitations of conciliation in upholding the principle of equality?

Answer 10

• If one party is more vulnerable or there is a power imbalance between parties, especially if no legal representation is present, a ‘forced’ outcome may be reacher that does not equally benefit both parties.

Question 11

What are the strengths of conciliation in upholding the principle of access?

Answer 11

• Conciliation does not involve any court proceedings and legal representation is not required, therefore saving costs, enabling those with limited financial means to access civil dispute resolution.
• Conciliation is confidential and attracts less media attention, therefore reducing the intimidation associated with dispute resolution and improving access.
• There are no formal rules of evidence and procedure in conciliation and parties are supported by the conciliator to peak freely, therefore reducing the intimidation of defending a dispute.

Question 12

What are the limitations of conciliation in upholding the principle of access?

Answer 12

• In long-running and hostile disputes, conciliation may be inappropriate as parties are unlikely to constructively communicate and reach a resolution, thus limiting access.
• There is no obligation for parties to reach a resolution through conciliation, meaning more time and money is wasted if the matter proceeds to trial, reducing access to justice.

Question 13

What are the strengths of arbitration in upholding the principle of fairness?

Answer 13

• Parties can decide on an arbitrator panel or request a person to take the responsibility for appointing the arbitrator, enabling them to participate in the selection process.
• Arbitration produces a legally binding decision both parties must follow.
• The arbitrator is an independent third party that has no association with either disputing party, therefore ensuring the decision is solely based on the law and the facts.

Question 14

What are the strengths of arbitration in upholding the principle of equality?

Answer 14

• Arbitration is not bound by formal court procedures, meaning parties can agree on the procedure and consequently achieve a more flexible process that supports each party to freely represent themselves.
• The arbitrator is an independent third party who must treat the parties the same, regardless of personal characteristics.

Question 15

What are the limitations of arbitration in upholding the principle of fairness?

Answer 15

• If one or both parties are unhappy with the final legally binding decision, they have limited rights to appeal.
• Legally represented parties may be able to present a stronger case, creating a power imbalance that could result in an unfair outcome if the other party is unrepresented.
• Arbitration is generally conducted in private, which may be seen as undermining fairness as the processes are not open to the public.

Question 16

What are the limitations of arbitration in upholding the principle of equality?

Answer 16

• If one party has legal representation and the other does not, this can create a power imbalance and the unrepresented party may not fully understand the proceedings, creating inequality between the parties.
• The lack of publicity of the arbitration process means the outcomes of previous arbitrated disputes are difficult to access or unknown which may limit consistency and equality across similar arbitration cases.

Question 17

What are the strengths of arbitration in upholding the principle of access?

Answer 17

• Arbitration is not bound by formal court procedures, meaning parties can agree on the procedure and consequently achieve a more flexible, efficient, and less intimidating process than a trial.
• The arbitration process cannot be viewed publicly and those invovled cannot disclose information, therefore encouraging use of arbitration in sensitive cases.

Question 18

What are the limitations of arbitration in upholding the principle of access?

Answer 18

• Arbitration is often more expensive than mediation and conciliation as there is an increased need for legal representation, potentially preventing individuals with limited financial means from pursuing arbitration as a viable dispute resolution method.
• Arbitration is conducted in private and is therefore not accessible for public viewing.

Question 19

What are the strengths of civil juries in upholding the principle of fairness?

Answer 19

• A jury consists of a random cross-section of the community, therefore, fairness is promoted as the parties have their case determined by the general public.
• Jurors must disregard prior knowledge and cannot seek additional information about a dispute, making them as close to impartial as possible, which promotes fairness.
• Jurors can be excused if they are in any way connected to either party or believe they hold certain biases due to personal beliefs or values, therefore upholding fairness.

Question 20

What are the limitations of civil juries in upholding the principle of fairness?

Answer 20

• Jurors must undertake the complex task of determining the verdict of a civil trial with minimal, or no legal training, meaning there is risk of an unfair, and uninformed verdict.
• As jurors do not provide a reason for their verdict there is no guarantee the law as been correctly applied to the facts of the case.

Question 21

What are the strengths of civil juries in upholding the principle of equality?

Answer 21

• Both the plaintiff and defendant have the right to request a jury trial in a civil dispute regardless of personal characteristics, therefore upholding equality.
• Jurors must be impartial when determining their verdict and treat all parties equally, regardless of personal characteristics.

Question 22

What are the limitations of civil juries in upholding the principle of equality?

Answer 22

• As the civil parties must bear the costs of a jury, equality may be limited for individuals of low socioeconomic status as they may be less likely to utilise a jury.
• A jury may not be a true representation of society as individuals who are ineligible or disqualified from jury duty are not accounted for, potentially undermining equality to a trial by one’s peers for the parties.
• Although jurors are instructed to remain impartial, they may hold subconscious biases that may limit their ability to treat both parties equally.

Question 23

What are the strengths of civil juries in upholding the principle of access?

Answer 23

• When a jury is present, the use of plain English is increased, making a trial more understandable and accessible to jurors, plaintiffs, and defendants. This can ensure all participants in the civil dispute understand the courts’ processes and rules of evidence being used in the determination of the case, promoting access to justice.

Question 24

What are the limitations of civil juries in upholding the principle of access?

Answer 24

• It may not be financially viable for parties to request a trial by jury as additional fees are required for jury trials. This financial constraint means a trial by jury as a form of justice may be inaccessible for some parties.
• In the case of a hung jury or mistrial due to juror misconduct, the resolution to the divil dispute is likely to be delayed, hindering access to a timely and efficient justice system fr parties.

Question 25

What are the strengths of Victorian courts in upholding the principle of fairness?

Answer 25

• Judges and magistrates have specialised knowledge and skills enabling them to deliver consistent, impartial outcomes in civil cases.
• Parties have the same right to apply for leave to appeal the outcome of their case if they have legal grounds to ensure errors made by lower courts are corrected.
• Administrative convenience through the court hierarchy and case management powers of judges helps minimise delays backlogs meaning evidence is less likely to deteriorate over time to protect the impartiality of decision.
• When courts set precedent greater consistency and fairness is provided in future cases, and the reasons for court decisions are more open.

Question 26

What are the limitations of Victorian courts in upholding the principle of fairness?

Answer 26

• The expense of appealing to a superior court may be unrealistic for financially disadvantaged parties, unable to afford court fees and legal representation. This may prohibit an appeal and negatively impact fair outcomes.
• Backlogs may still occur which may disproportionately impact vulnerable parties and limit fairness because physical evidence can deteriorate, and events may be forgotten.
• If unfair precedent is established in a superior court, a lower court is still obliged to follow the legal principles of that case when handing down a decision related to similar facts in future cases. Consequently, courts may have to deliver an unjust outcome to parties in a dispute.

Question 27

What are the strengths of Victorian courts in upholding the principle of equality?

Answer 27

• Court rules and procedures are enforced by judges and magistrates, who ensure these rules apply equally to all parties.
• Provided an individual has appropriate grounds, all parties have the right to apply for permission to appeal the decision made in relation to their case regardless of personal characteristics. This ensures all people involved in a civil case can engage in the appeals process the same way.
• The Victorian court hierarchy ensures civil disputes are heard by the appropriate court, enabling consistent outcomes for similar disputes.

Question 28

What are the limitations of Victorian courts in upholding the principle of equality?

Answer 28

• The high cost of appeals means they are not equally accessible to all parties. Individuals with greater financial capacity may be more capable of pursuing an appeal compared to those of lower socioeconomic status. Resultantly, equality may not be achieve as the capacity of a party to appeal the outcome of their dispute is limited for some parties on the basis of their wealth.
• The formality of the courts and their procedures may cause parties in a civil dispute to feel overwhelmed and stressed. This may prevent them from presenting evidence in a confident manner, therefore providing them with unequal footing in the dispute.

Question 29

What are the strengths of Victorian courts in upholding the principle of access?

Answer 29

• The appeal process allows parties to have a court’s decision reviewed by a superior court, therefore ensuring any mistakes are corrected and all parties have access to just outcomes.
• As various Victorian courts publish the outcomes of disputes on their website, parties have access to previous civil matters heard in court, making them more informed about their rights and the process of legal proceedings.
• Victorian courts have their own websites that can provide information to parties in a civil trial, informing them about judicial processes, court procedures, and other relevant information.

Question 30

What are the limitations of Victorian courts in upholding the principle of access?

Answer 30

• Some cases may be ineligible for a review by a superior court if the grounds for an appeal do not exist, which can limit access to appeals.
• Expenses associated with an appeal may make the process of appealing inaccessible for some parties, due to their financial position. Consequently, a party’s access to a civil remedy may be limited.
• Decisions made in the Magistrates’ Court are not publicly available and, therefore, are inaccessible to parties in future cases. This may make parties involved in a civil dispute heard in the Magistrates’ Court less informed about their rights and the proceedings that will occur.
• A party may struggle to understand the civil processes and procedures of the courts if they have no prior knowledge, therefore limiting access to justice.