Unit 2 AOS 2

Question 1

What is mediation?

Answer 1

A non-judicial dispute resolution method involving an independent, impartial third party called a mediator who facilitates conversations between parties.

Question 2

When is mediation appropriate?

Answer 2

• Parties are willing to participate and negotiate
• Parties understand process
• Parties want to maintain relationship
• Privacy and confidentiality is maintained
• Saves money and time

Question 3

When is mediation not appropriate?

Answer 3

• Vulnerable party is involved
• Parties are unwilling to discuss ideas
• Parties are highly emotional and hostile
• Power imbalance between parties
• Parties want a legally binding decision

Question 4

What is conciliation?

Answer 4

A non-judicial dispute resolution method involving an independent, impartial third party called a conciliator who possess specialist knowledge about the dispute and assists parties when making a decision.

Question 5

When is conciliation appropriate?

Answer 5

• Parties are willing to participate and negotiate
• Parties understand process
• Parties want to maintain relationship
• Privacy and confidentiality is maintained
• Saves money and time
• Parties require expert knowledge

Question 6

When is conciliation not appropriate?

Answer 6

• Vulnerable party is involved
• Parties are unwilling to discuss ideas
• Parties are highly emotional and hostile
• Parties want a legally binding decision

Question 7

What is arbitration?

Answer 7

A non-judicial dispute resolution method involving an independent, impartial third party called a arbitrator who listens to parties and hands down a legally binding decisions.

Question 8

When is arbitration appropriate?

Answer 8

• Parties agree to arbitration
• Parties require a legally binding decision
• Privacy and confidentiality is maintained
• Saves money and time

Question 9

When is arbitration not appropriate?

Answer 9

• Complex issue is being resolved
• Parties prefer a judge or jury
• Parties prefer case heard in court
• Parties don’t want a legally binding outcome

Question 10

What is a tribunal?

Answer 10

A tribunal is an institution with the authority to hear and adjudicate an a claim or dispute. They provide a low-cost avenue and a timelier resolution, which improves access.

Question 11

What is an example of a tribunal?

Answer 11

VCAT, established in 1998
- low-cost, accessible, efficient, independent
- less formal , doesn’t require legal representation
- administrative, human rights, civil, and residential tenancies

Question 12

What is an ombudsman?

Answer 12

An independent authority that operates on a state and federal level, and is created to investigate complaints against a company or organisation. It provides a way to complain about services provided by big companies, therefore helping to overcome the power imbalance between employees and employers.

Question 13

What is an example of an ombudsman?

Answer 13

Fair Work Ombudsman
- provides free information about workplace issues
- investigates complaints

Question 14

What is a complaint body?

Answer 14

An organisation that can deal with dissatisfaction and assist with dispute resolution in relation to the provision of goods and services or decisions made by authorities. They are free to access, so all members of the community can seek rectification of an issue.

Question 15

What is an example of a complaints body?

Answer 15

Consumer Affairs Victoria
- provides information and helps resolve disputes between landlords and tenants, and consumers and businesses to create a fair and competitive marketplace.

Question 16

What are the roles of Victorian Courts?

Answer 16

1. Determining liability: the court will determine on the balance of probabilities whether it is established that the defendant caused the harm or loss suffered by the plaintiff.
   - specialisation and expertise
   - manages case
   - hears appeals
2. Decide on a remedy: the court must decide on a remedy to right the wrong that has occurred to the party who suffered loss.
   - may include assessing damages

Question 17

What are the courts’ jurisdictions?

Answer 17

Magistrates’
- up to $100,000
County
- above $100,000
- trial by judge or jury
Supreme (trial division)
- same as County but more complex cases
Supreme Court of Appeals
- just appeals

Question 18

What is a civil jury?

Answer 18

A jury is an impartial decision-making body, representing a cross-section of the community that listens to the facts of a case and determines on the balance of probabilities if the defendant is liable for the plaintiff’s loss or harm. Both parties have the right to make the request for a jury, and the cost is covered by the parties.

Question 19

What is the role of the jury in a civil trial?

Answer 19

• provide an impartial decision making body
• listen to the evidence and submissions made by the parties
• listen to and follow the directions of the judge
• determine liability for the plaintiff’s injury/loss on the balance of probabilities
• decide on a remedy where required

Question 20

What are the purposes of remedies?

Answer 20

1. Restore the plaintiff to their original position prior to the court wrong occurring.
2. Upholding the plaintiff’s rights by awarding a remedy, and therefore acknowledging the plaintiff has been wronged and their rights violated.
3. Civil remedies serve as a warning to others in society that certain behaviours will not be tolerated and will result in consequence. This deters others from civil breaches.

Question 21

What are compensatory damages?

Answer 21

Damages that aim to reimburse the plaintiff for loss suffered.
- specific: accurately assessed e.g. medical fees
- general: estimate monetary value of suffering e.g. emotional suffering
- aggravated: plaintiff’s feelings are injured through humiliation and insult e.g. continuing to post defamatory content

Question 22

What are nominal damages?

Answer 22

A small sum of money awarded to recognise that the plaintiff’s rights have been breached and to reflect that they are legally right, even though they may not have suffered any loss or harm.

Question 23

What are exemplary damages?

Answer 23

Damages awarded when the court intends to make an example of the defendant to the rest of the community, thus punishing them and achieving the purpose of deterrence.

Question 24

What are the 4 types of injunctions?

Answer 24

• mandatory
• restrictive
• interlocutory
• final

Question 25

What are the strengths and limitations of damages in restoring the plaintiff?

Answer 25

Strengths
- compensatory damages for actual losses
- general and aggravated for non-quantifiable loss

Limitations
- not fully restore non-monetary loss
- quantifying pain and suffering can be difficult
- harm suffered by plaintiff may be irreversible
- defendant may not have sufficient assets to pay damages

Question 26

What are the strengths and limitations of damages in upholding rights?

Answer 26

Strengths
- court’s decision to award compensation acknowledges the plaintiff’s right to a legal remedy and uphold their right to seek justice for a violation of their civil right

Limitations
- harm suffered is too significant to be restored by damages e.g. right to life
- jurors do not have legal expertise to award damages to uphold rights

Question 27

What are the strengths and limitations of damages in deterring others?

Answer 27

Strengths
- damages deter similar behaviour in the future
- exemplary damages deter community

Limitations
- others could perceive potential risks to be outweighed by potential benefits
- if defendant cannot pay the damages, damages cannot deter them effectively

Question 28

What are the strengths and limitations of injunctions in restoring the plaintiff?

Answer 28

Strengths
- forces defendant to take action to prevent harm, or further harm, to the plaintiff.
- prevent future breach from occuring

Limitations
- interlocutory injunctions are temporary, therefore does not achieve this purpose continually

Question 29

What are the strengths and limitations of injunctions in upholding the plaintiff’s rights?

Answer 29

Strengths
- by granting an injunction, the legal system demonstrates its commitment to protecting and upholding the rights of individuals in civil matters

Limitations
- high socioeconomic can readily protect rights
- low socioeconomic may not be able to seek out remedy

Question 30

What are the strengths and limitations of injunctions in deterring others?

Answer 30

Strengths
- injunction can swiftly halt or restrict the actions of the defendant. This prompt and decisive action can serve as a powerful deterrent to others who might consider engaging in similar civil breaches.

Limitations
- limited ability to monitor injunctions, therefore undermining the deterrent effect of injunctions.