Remedies Flashcards
Fairness
All people can participate in the justice system and its processes should be impartial and open
Equality
All people engaging in the justice system should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented.
Access
All people should be able to engage with the justice system and its processes in an informed basis
Access
All people should be able to engage with the justice system and its processes in an informed basis
Mediation
What is mediation?
Mediation is one of the least formal methods for resolving disputes. It is a joint problem-solving process where parties willing cooperate to reach a solution through negotiation.
Who facilitates the mediation process?
Mediators are impartial third parties who are trained in conflict resolution.
Mediators facilitate the discussion by empowering both parties, helping them feel confident to negotiate and evening out any power imbalances.
Mediators support parties to reach a decision for themselves. Mediators do not make determinations about whether there has been a breach of civil law or offer the parties legal advice.
When is mediation used?
Before parties engage with the courts, especially if it’s important to maintain an ongoing relationship and costs may be an issue (e.g. disputes between neighbours, family members or landlords and tenants). Parties can organise a private mediation (e.g. access a mediator through the Victorian Bar or Dispute Settlement Centre of Victoria)
During court proceedings as the Magistrate, County and Supreme Courts can order parties to attend mediation before setting a further date for trial
As an alternative to court as VCAT (Victorian Civil and Administrative Tribunal) often refers claims to mediations prior to the final hearing
How does mediation work?
With the help of the mediator, parties sit down to discuss the issues involved, consider options and endeavor to reach an agreement through negotiation and compromise.
Legal representation is generally not used to promote a sense of informality; however, it can be used. There are also
There are no strict rules of evidence or procedure.
Discussions are normally ‘without prejudice’. This means parties can candidly discuss the strengths and weaknesses of their case without fear as these discussions cannot be used against them at a later date
Any agreement reached is not legally binding unless a deed of settlement is signed by both parties
Terms of settlement = a legally binding document outlining the agreement which is enforceable through courts. The terms are usually confidential to the parties and cannot be disclosed to the public.
Conciliation
Conciliation shares all the same elements as mediation except that:
The conciliator will listen to the facts and evidence presented by both sides and make suggestions regarding ways and options to resolve the dispute.
The conciliator will generally be an individual with specialist knowledge in that field pertaining to the legal dispute - e.g., consumer law, family law, workplace relations
When is conciliation used?
Many dispute resolution bodies (e.g. Victorian Equal Opportunity and Human Rights Commission and Consumer Affairs Victoria) use a form of conciliation
Parties at VCAT are often sent to a compulsory conference which uses conciliation
Some of the more specialised courts (e.g. Family Court) order conciliation conferences to reach agreements about financial or parenting issues.
Note: although courts can order conciliation, mediation is much more common in the courts and conciliation tends to be the main method used in tribunals (VCAT) and complaints bodies (CAV)
Conciliation
Conciliation shares all the same elements as mediation except that:
The conciliator will listen to the facts and evidence presented by both sides and make suggestions regarding ways and options to resolve the dispute.
The conciliator will generally be an individual with specialist knowledge in that field pertaining to the legal dispute - e.g., consumer law, family law, workplace relations
When is conciliation used?
Many dispute resolution bodies (e.g. Victorian Equal Opportunity and Human Rights Commission and Consumer Affairs Victoria) use a form of conciliation
Parties at VCAT are often sent to a compulsory conference which uses conciliation
Some of the more specialised courts (e.g. Family Court) order conciliation conferences to reach agreements about financial or parenting issues.
Note: although courts can order conciliation, mediation is much more common in the courts and conciliation tends to be the main method used in tribunals (VCAT) and complaints bodies (CAV)
Juries in civil trial
Jury = a group of randomly selected people who are required to deliver a verdict in a trial based on the evidence presented to them in court.
Unlike criminal law, there is no automatic right to a trial by jury in a civil trial.
Ο No jury is used in the Magistrates Court or in appeal cases
A jury is optional in the County and Supreme Court (Trial Division). The party who has
requested a jury trial must pay the associated fees (note - the judge can deny a request).
A judge may order that a jury is required in a civil trial. In this case, the state pays for the jury.
Due to the complexity of legal issues and high fees, it is rare for a party to request a jury in a civil trial
Jury composition
Governed by the Juries Act 2000 (Vic).
Potential jurors are randomly selected from Victorian electoral roll.
Those selected must first fill out an eligibility form.
If eligible, potential jurors attend court on a particular day and form part of the jury pool.
In the County and Supreme Court (Trial Division), six people are chosen to officially sit on a jury.
On the day of selection, jurors’ names and occupations are announced. As a juror approaches the jury box, each party can ‘challenge’ the prospective juror.
Both parties have two peremptory challenges - no reason provided.
Both parties have an unlimited number of challenges for a cause - reason must be provided.
Reasons for expulsion
Disqualified-Unable to serve due to background-Convicted of indictable offence and sentenced to 3+ years imprisonment
Ineligible-Unable to serve due to occupation or characteristic-Unable to communicate, insufficient English
Excused-Unable to serve due to difficult circumstances-
Sentenced to 3+ months imprisonment within the last 10 years.
Currently on bail or remand
Undischarged bankrupts
Judges, magistrates, lawyers, police officers, members of parliament
, physical disability that renders them incapable of performing jury service
Poor health, live more than 50km away, advanced age, financial hardship, carers with dependents, unable to be impartial
Role of the jury
Jury’s role
Objectively listen to evidence and consider the facts of the case
Follow the directions of the judge regarding the relevant law
Decide who is more likely in the wrong on the balance of probabilities (deliver verdict)
Possibly assess the amount of damages (except defamation)
Not part of the jury’s role
Jury members are disallowed from obtaining external information about the trial (e.g. internet research)
Jury members are not required to provide reasons for their decision (unlike judges and magistrates)
People of low socioeconomic status
Socio-economic status (‘SES’) refers to the social and economic position of a given individual, or group of individuals, within the larger society. Common measures of socio-economic status are associated with material markers such as income, consumption, wealth, education and employment.
A person may considered to be of low socioeconomic status if they experience conditions such as:
low income or wealth
unstable living arrangements
minimal education
They may include homeless people, long-term prisoners, unemployed people, young people and people with long-term health conditions or disabilities who are unable to work.
Cost barriers
People of low SES may be unable to pursue or defend a civil claim due to the high associated costs
The primary cost barrier is related to obtaining legal representation. This restricts an individual’s ability to obtain strategic legal advice and individuals may ultimately need to represent themselves.
Victoria Legal Aid (VLA) and community legal centres (CLCs) provide free legal advice, information and representation to people of low SES. However, their resources are stretched and most of their funding is used for people involved in criminal and family law matters as opposed to civil law.
Lack of understanding
The justice system is daunting and complex to navigate for most Australians. This is exacerbated for people of low SES, especially if they have been denied the opportunity to develop literacy skills or have long-term intellectual disabilities.
The Australian Institute of Judicial Administration (2018) found that people with lower education levels, who are unemployed and do not speak English as their primary language, are less likely to seek advice when initiating legal action.
Having inadequate legal literacy may make it difficult for a party to a civil dispute to understand proceedings or legal principles, therefore making it challenging for these individuals to self- represent and, in turn, access justice.
In civil matters, Victorian courts do not arrange for an interpreter to attend proceedings and are not responsible for paying for a translator. Further, Court interpreters must be accredited, therefore hiring a professional interpreter may incur a significant cost for a civil party.
Addressing difficulties
Pro bono legal services - numerous organisations offer free legal services to help ‘bridge the gap’ and assist people who cannot afford a lawyer but are also ineligible for legal aid.
E.g. Justice Connect - connects people of low SES with firms and barristers who offer pro bono services
Assistance to self-represented parties- courts and tribunals offer self-represented parties assistance
with understanding processes and procedures
E.g. Self-represented litigant coordinator in the Supreme Court to guide people
E.g. County and Supreme Court have ‘self-represented litigant section on their websites with videos
Fee waivers - in all courts and tribunals, parties can apply for a fee waiver for hearings or filing if they are experiencing financial hardship
Class actions - assist plaintiffs of low SES to group together to seek compensation from the defendant. Often, the lead plaintiff, which may be a law firm, will incur costs if class actions fails. If the class actions succeeds, the money is shared between the plaintiffs
