Term 2 (Resolving Disputes) Flashcards
What are Alternative Dispute Resolutions?
Methods of resolving disputes without going to court. This includes:
- Negotiation
- Mediation
- Conciliation
- Arbitration
What is negotiation and what are its adv and dis adv?
Any dialogue intended to resolve disputes and/or produce an agreement or further courses of action between all parties.
Advantages:
- Suitable where parties want to resolve dispute by making decisions themselves.
- Maintains best possible relationship between parties
- Confidentiality.
Disadvantages:
- Negotiating skills may not be sufficient to reach agreement
What is mediation and what are its adv and dis adv?
A form of alternative dispute resolution designed to help two (or more) parties, in the presence of a neutral third party, to reach an agreement.
Adv:
- Successful method if each of parties want third party to assist with discussions
- Parties can resolve dispute by making decisions themselves
- Preserves cordial relationships between participants
Dis adv:
Mediator has no power to resolve dispute
Does not work where communication between parties is poor
What is conciliation and what are its adv and dis adv?
A form of alternative dispute resolution in which the disputing parties use the services of a conciliator, who takes an active role advising the parties, suggesting alternatives and encouraging the parties to reach agreement. The conciliator does not make the decisions for them.
Adv:
- Parties have opportunity to access expert advice on facts in dispute
- Conciliation is advantageous if parties want to reach agreement on technical and legal issues
Dis adv:
Conciliator has no power to resolve dispute
What is arbitration and what are its adv and dis adv?
A form of alternative dispute resolution in which the disputing parties present their cases before an arbitrator who makes a decision that is binding on the parties.
Adv:
- Dispute will be resolved because arbitrator will make a binding decision
- There is appeal mechanism available
- Less costly than taking matter to court and outcome and evidence can remain confidential
Dis adv:
Arbitration is usually process of last resort in ADR
What are tribunals?
Established mainly to deal with specific area of law. Most tribunals deal only with matter involving disputes between individuals and the state, but some exist to resolve disputes between individuals. Example of tribunal dealing with the latter is NSW Civil and Administrative Tribunal (NCAT). NCAT established to assist people who have disputes on a range of matters such as with traders (businesses) or disputes about residential property
What are courts different to tribunals?
- Courts are more formal than tribunals
- Services of lawyers are usually required
- Judges play a more passive role in proceedings
- Rules of evidence apply.
- Expensive
- Slow to resolve disputes.
What are the similarities between courts and tribunals?
Similarities :
- Independent part of judicial arm of government
- Open to the public
- Parties to dispute have right of appeal in certain circumstances
- Must be open and transparent with written reasons for decisions
Differences:
What are some non-legal methods of resolving disputes with the state?
- Media
- MP’s
- Trade Unions
- Interest groups, including NGO’s
How can the media challenge state power?
People contact radio station and televisions citations letting them know if they think a particular decision is unjust.
The internet - through common interest sites where people can discuss issues online e.g. Whistle blowers Australia.
How can MP’s help resolve disputes with the state?
All citizens within an electorate are able to contact the office of the representative and speak to their MP about an issue that may trouble them. The MP may take the issue back to Parliament House in Canberra and discuss it with other MP’s or the party that is in power.
Members of the public can also contact their local state member or local councillor if they feel they have been wronged by a government department or agency in that jurisdiction
What is a trade union?
Unions help to negotiate a workplace agreement containing important provisions about workplace safety, wages, and conditions. They will also take action when an employer proposes to change the conditions of work in a way that is detrimental to employees.
What are interest groups including non-government organisations?
People can join particular interest groups or donate money to a cause they believe in. For example, Greenpeace has been involved in protest and the prevention of Japanese whaling, and Amnesty International is involved with the protection of human rights.
What is lobbying?
The Lobbying Code of Conduct (the code) defines lobbying activities as communications with Australian Government representatives in an effort to influence federal government decision-making.
What are the two legal methods of challenging state power?
Internal and External Reviews:
- In NSW, government departments can review their own decisions, procedure or behaviour.
- Reviews can also be internally or externally.
