Remedies Flashcards
- The plaintiff is
- The plaintiff is the person who commences a civil action
- The defendant is
- The defendant is the person who is being sued.
Principle of Fairness
The principle of fairness states that disputes must be delt with fairly, and any outcome reached must be fair. Hence, there should be a fair process and a fair hearing or trial.
Principle of equality
- The principle of Equality means that all people should be treated equally before the law. This principle is upheld when no person or group is discriminated before the law because of a personal attribute.
Prinicple of Access
- The principle of access is upheld when people are able to use the procedures, methods and institutions that resolve a civil dispute. People should also be able to get information about their rights, about when those rights may have been infringed, and about what remedies may be available to them.
- Distinguish between the principles of fairness and equality.
The principle of fairness is upholds when both parties are dealing with a fair hearing or trial process. On contrary, the principle of equality is upholds when no person or group is discriminated before the law.
Identify two ways in which the principles of justice are upheld when resolving a civil dispute.
- The principle of Justice are upheld when the people who are deciding the dispute are impartial and unbiased and when people are able to understand their legal rights.
Define the term ‘arbitration’
Arbitration is dispute resolution process that involves a third party (the arbtrator) listening to the parties and tries to help them reach an agreement. If its not possible, the third party makes a binding decision on the parties.
Describe two main differences between conciliation and mediation.
One of the differences between conciliation and mediation is that conciliators usually have specialise knowledge about the subject matter of the dispute. However, the mediator does not necessarily need to be experts in the area of law that is the subject of dispute.
A mediator does not make decisions about whether there has been a break of law or offer legal advice. Although, conciliators can make comments on the law and offer legal advice.
When is mediation used?
Mediation can be used in the early stages of disputes, when parties fail to reach a resolution on their own
What are the benefits of mediation?
Enhanced support — Mediation involves using a trained, neutral mediator to engage with the conflicting parties and to help them work towards finding a solution that is acceptable to both sides. The Mediator listens to all views, talks to the parties privately and sometimes together, and guides each party through the process.
Greater control — Mediation does not guarantee an outcome, as no binding decision is made. Instead, the mediator works with the parties to try to find a solution, but with no guarantee that the issue will be resolved. This can mean that both parties have more control over the solution, and are not forced to accept an outcome with which they are not happy.
Who can act as a mediator?
Mediators don’t have to be specialized in the subject of the dispute, although they do have to have good people skills and impartial during mediation.
Who pays for mediation?
The parties in dispute will initially bear the costs of the mediator in equal proportions. This position may be modified by a prior agreement between the parties, such as a dispute resolution clause contained in a contract.
Compare mediation and arbitration as methods of dispute resolution.
Mediations is concerned with giving both parties a opportunity to resolve their dispute in a formal environment with the help of a mediator whose job is to be impartial and empower both parties as an acting third party in the case. Although, this method of dispute resolution is not guaranteed that both parties will enter into a legally binding contract known as a statement of settlement. On the contrary, arbitration is most likely going to end with a terms of settlement contract being imposed on the parties, by the parties or arbitrator.
How do each of the dispute resolution methods achieve each of the principles of justice?
- Mediation upholds the Principle of justice because the dispute is heard by an impartial third party, the meeting location is in a fair place where both parties feel like they are discussing on equal grounds, and the resolution method is accessible to the society.
- Conciliation upholds the principle of justice by ensure that the parties are aware of their legal rights by a conciliator who is usually specialised in the subject of dispute, the dispute is heard by an impartial third party, and the resolution method is accessible to the society.
Dispute resolution methods
- Are a way to obtain an outcome in a civil dispute that does not involve a court or tribunal making a binding decision on the parties.
- These methods include: Mediation, Conciliation, Arbitration
What are the disput resolutions used for?
- Mediation, Conciliation, Arbitration are ways to resolve a civil dispute without a court or a tribunal making a binding decision on the parties.
Mediation
The process of negation through a mediator
- Mediation is a cooperative method of resolving disputes.
- It is a joint problem- solving process in which the parties in dispute sit down and discuss the issues they disagree on, put their side of the case and try to reach an agreement through negotiation.
- They do this with the help of a mediator, who is neutral and impartial.
- A mediator is an independent third party who does not interfere or persuades but helps the parties in a mediation as they try reach a settlement of the matter.
- The mediators do not necessarily need to be experts in the area of law that is the subject of the dispute, but they do need to have good people skills and a high level of conflict resolution skills.
- If the parties resolve the case through mediation, they will normally enter into a legally binding contract known as terms of settlement
- The mediator helps come to a decision not make a decsion
Terms of settlement
- a document that sets out the terms on which the parties agree to resolve their dispute
- This deed of settlement or agreement may be enforceable through the courts.
How is Mediation available to the parties in a civil dispute
- parties in a court case are often referred to mediation by a court before the final trial or hearing to see if a resolution can be reached.
- parties in a tribunal case are also often referred to mediation to try and resolve the dispute before the hearing.
Conciliation.
- The final decision is made by the parties and is not binding.
- Like mediation, any discussions during conciliation are on a ‘without prejudice’ basis, meaning that those discussions cannot be used against either party if the matter does not settle at conciliation.
- ## The third party, known as the conciliator, listens to both sides of the dispute and makes suggestions about appropriate ways of resolving the matter. The conciliator assists the parties by exploring solutions to the dispute, and is usually someone with specialist knowledge about the subject matter of the dispute
How is Conciliation available to the parties in a civil dispute
- some of the more specialised courts use a form of conciliation. For example, in the Family Court of Australia, which has power to hear family disputes, a conciliation conference is organised between the parties to try and reach an agreement about financial or parenting issues.
- parties in a dispute at the Victorian Civil and Administrative Tribunal (VCAT) are also often sent to what is called a compulsory conference. The compulsory conference uses conciliation as a way to help the parties come to a resolution
Conciliation Strengths
- decision themselves
- alleviate stress
- less confrontational
- discussed openly without
- flexibility
- parties can avoid publicity
- specialised knowledge
- A decision made by the parties is more likely to be acceptable to the parties, as they have reached a decision themselves rather than it being imposed on them by a third party.
- Mediation and conciliation are held in a more informal atmosphere than a courtroom, which can help alleviate stress that the parties might otherwise feel.
- Mediation and conciliation are far less confrontational than a courtroom, without any examination of witnesses, and can be better for continuing relationships and to alleviate the stress of the parties
- Matters can be discussed openly without publicity or the discussions being held against a party if the matter doesn’t settle
- There is more flexibility for the parties in resolving the dispute, as the parties are free to explore options to resolve the dispute that the court or tribunal might not have the flexibility to
- Due to the confidential nature of conciliation and mediation, parties can avoid publicity that comes with an open court or tribunal hearing
- Conciliation only: The conciliator will have specialised knowledge in the field and will be able to guide the parties in reaching a solution
- unfair bargaining power
- willingness of the parties
- Unless the parties enter
- have no power to
- dominate
- court’s involvement
- Conciliation and mediation are not appropriate for some disputes, such as where there is an unfair bargaining power or advantage that one party has
- The participation and willingness of the parties is required for a mediation or conciliation to be successful. If one or both parties are unwilling to cooperate, it will be a waste of time and money
- Unless the parties enter into terms of settlement, decisions reached during conciliation and mediation are not binding on the parties
- Both the mediator and the conciliator have no power to order the parties to come to a decision
- One party may dominate the other and may influence either the third party or the other party, particularly if the other party does not have legal representation
- It is not useful for civil disputes where an urgent injunction is required, or where the court’s involvement is necessary
- Mediation only: The mediator is generally not able to give advice or offer suggestions
- Arbitration
- If this is not possible, the third party makes a binding decision on the parties.
- The arbitration decision is known as an arbitral award, and is fully enforceable if the party does not comply with it.
- Professional arbitrators charge the parties a fee for acting as an arbitrator in a dispute. The arbitrator will generally have knowledge of the subject matter, and will also have an understanding of the applicable law.
How is Arbitration available to the parties in a civil dispute
- The Magistrates’ Court uses arbitration to resolve civil claims of less than $10 000.
- where the parties have previously agreed (normally in a contract) that any dispute that arises will be resolved by arbitration
Arbitration Strengths.
- binding
- more informal
- expertise
- cheaper
- private and confidential
- Arbitration decisions are binding on all of the parties, ensuring certainty that the parties are required to follow it
- Arbitration is more informal than court processes (though for private arbitrations it depends on what the parties have agreed on in terms of how it is to be conducted), thus allowing the parties to feel more at ease
- The third party will have expertise in resolving these types of matters and will bring that expertise when making a binding decision
- Private arbitration is private and confidential, so it is attractive for parties who wish to avoid the publicity of a trial
- It can be cheaper than resolving the dispute through court (though for private arbitrations this will depend on how the parties have agreed to conduct the mediation)
Arbitration Weaknesses
- more expensive than
- not always available
- take a long time
- no control
- can be as formal
- It is more expensive than mediation and conciliation because evidence is often gathered and put before the arbitrator, and legal representation is normally used. It can also be as expensive as courts, depending on how it is conducted
- It is not always available to the parties in dispute, and is generally only available where the parties have agreed on arbitration, or for small claims in the Magistrates’ Court
- It can take a long time for a decision to be reached if the parties go through several stages such as producing evidence
- The parties have no control over the outcome, which will be imposed on them by a third party
- It can be as formal as a court process, depending on how the parties have agreed for the arbitration to run
- Identify four types of dispute resolution bodies.
Tribunals
The office of Ombudsmen
complaint bodies
Courts
- What are tribunals?
- Tribunals are dispute resolution bodies which obtain their power from parliament to resolve certain types of disputes.
- What is the purpose of VCAT?
VCAT purpose is to provide Victorians with low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution processes.
- Suggest two reasons why tribunals are an important means by which people can resolve their disputes.
Tribunals provide individuals with a low cost, efficient and speedy method of dispute resolution process.
It provides Australians with an alternative option two resolving disputes to that of courts, which can often be seen as stressful and costly.
- Explain one way that VCAT aims to be accessible to all Victorians.
VCAT has a number of venues across the state, many of which are in rural areas
Roles of Tribunals.
- Tribunals are dispute resolution bodies which obtain their power from parliament to resolve certain types of disputes.
- Tribunals develop expertise in particular types of disputes and are able to make binding decisions on the parties.
- The purpose of tribunals is to provide individuals with a low- cost, efficient and speedy method of dispute resolution process.
- Tribunals are not able to hear every type of dispute. For example, tribunals have no power to hear representative proceedings (also known as class actions)
