Remedies Flashcards
1
Q
Principles of justice
A
- Fairness
- Equality
- Access
2
Q
Fairness
A
- Fair legal processes, hearings or trials
- People deciding the dispute should be impartial and unbiased
Parties: - Know the claims, defences and evidence that will be used
- Opportunity to present their case and rebut the other person’s case
3
Q
Equality
A
- All people should be treated equally before the law and have an equal opportunity to present their case.
- No person or group should be treated better or worse because of a personal characteristic.
- Processes should be free from bias.
4
Q
Access
A
People should be able to:
- Understand their legal rights
- Pursue their case
- Use the procedures, methods and institutions that resolve a civil dispute.
5
Q
Methods used to resolve a civil dispute
A
- Mediation
- Conciliation
- Arbitration
6
Q
Mediation
A
- Mediator, an impartial 3rd party helps the disputing parties reach a resolution
- Mediator tries to empower the parties, even out imbalances and help people make a decision
- Mediator does not need to be an expert in the relevant area of law
- Parties can arrange a private mediation, court can refer parties in a court case to mediation before the final trial or hearing, parties in a tribunal case are referred to mediation to resolve the dispute before the hearing
7
Q
Conciliation
A
- Conciliator, the third party, makes suggestions about appropriate ways of resolving the matter
- Parties make the final decision but it is not binding
- Conciliator has specialist knowledge about the subject matter of the dispute
- Parties in a dispute at VCAT are often sent to a compulsory conference which uses conciliation
- The Family court of Australia often organises conciliation conferences between parties
8
Q
Arbitration
A
- Arbitrator, the third party, listens to the parties and tries to help them reach an agreement
- Arbitrator makes a binding decision on the parties if they cannot reach an agreement themselves
- Arbitrator has knowledge of the subject matter of the dispute and the applicable law
- Magistrates’ Court can use arbitration to resolve civil claims less that $10,000
9
Q
Mediation and conciliation: Strengths
A
- Less formal setting and confrontational than a courtroom which alleviates stress
- Matters are discussed confidentially and without publicity
- Can achieve a ‘win-win’ solution where both parties feel satisfied, as opposed to a court making a decision where one party is successful and the other is not
- Conciliator has specialised knowledge in the subject matter of the dispute
10
Q
Mediation and conciliation: Weaknesses
A
- Both parties must be willing to participate in mediation or conciliation for it to be successful
- Unless parties enter into terms of settlement, decisions reached are not binding on the parties
- Mediators and conciliators have no power to order parties to come to a decision or attend
- Mediation only: Mediator cannot give advice or offer suggestions
11
Q
Arbitration: Strengths
A
- Decisions are binding on all of the parties, ensuring the parties are required to follow it
- More informal than court processes which alleviates stress
- Arbitrator has expertise in resolving these types of matters and making a binding decision
- Often conducted privately so parties have flexibility in the way it is conducted
- Cheaper than resolving the dispute through court
12
Q
Arbitration: Weaknesses
A
- Available only where parties have agreed on arbitration or for small claims in the Magistrates’ Court
- Parties have no control over the outcome, which will be imposed on them by a third party
- Can be as formal and expensive as a court process as evidence is often gathered and legal representation is used
13
Q
Institutions that resolve civil disputes
A
- Tribunals
- Ombudsman
- Complaints bodies
14
Q
Tribunals
A
- Provide low-cost and efficient methods of dispute resolution
- Obtain their power from parliament
- Can make binding decisions on parties
- Develop expertise in particular types of disputes
- Cannot hear every type of dispute
15
Q
Example of a tribunal: VCAT
Victorian Civil and Administrative Tribunal
A
- Provides low-cost, accessible, efficient and independent dispute resolution services
- Enables cases to be heard and determined by an independent third party (mediator or conciliator)
- Variety of locations in Victoria and online access
16
Q
Ombudsman
A
- Independent, timely and accessible dispute resolution services to individuals in particular industries.
- Limited ability to hear complaints.
- Free
- Resolves complaints by working with the two parties.
- Every ombudsman is appointed by the government, though they act independently of the government
17
Q
Complaints bodies
A
- Free complaint and dispute resolution service so ordinary Australians have access
- Obtained power through parliament
- Focus on disputes about products or services sold by companies, not on individuals
- No power to make a binding decision or conduct a hearing
- Can take legal action against an entity that broke the law
18
Q
Institutions that resolve civil disputes: Strengths
A
Access:
- Provides alternative methods of making complaints or resolving disputes other than through courts.
- Ombudsman and complaints bodies are free and tribunals costs are lower than courts
Equality
- Provides an avenue for individuals to resolve disputes with larger service providers and government agencies without fear of intimidation
- Ensures procedural fairness by giving parties the opportunity to present their case
Fairness
- Person assisting parties is independent and impartial
- Often specialised in a particular industry or area of law
