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 is a remedy?

Answer 20

A court order that aims to enforce a right by preventing a civil breach or to correct a civil breach and return a plaintiff to the position they were in prior to the breach by the defendant.

Question 21

What are the purposes of remedies?

Answer 21

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 22

What are compensatory damages?

Answer 22

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 23

What are nominal damages?

Answer 23

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 24

What are exemplary damages?

Answer 24

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 25

What is an injunction?

Answer 25

A court order that forces a defendant to take on action or prevents them from taking on action. They aim to remedy a past breach or prevent a potential future breach from occurring.

Question 26

What is a mandatory injunction?

Answer 26

Forces a party to do something. e.g. write a public apology to the other party

Question 27

What is a restrictive injunction?

Answer 27

Prevents party from doing something. e.g. preventing a property from being sold

Question 28

What is an interlocutory injunction?

Answer 28

Only applies for a short time, and is often used in urgent circumstances. e.g. prevent the demolition of a house until court resolves dispute concerning said house

Question 29

What is a final injunction?

Answer 29

Permanent injunction that is ongoing. e.g. preventing a publisher from publishing a defamatory book

Question 30

What are the strengths of mediation in upholding the principle of fairness?

Answer 30

• Parties can control the outcome, which can result in fair, mutually agreed resolutions.
• The mediator is impartial, eliminating favouritism for one party.
• Mediation is faster than a trial, it reduces the courts’ workload, and minimises delays in cases, therefore promoting fairness.

Question 31

What are the limitations of mediation in upholding the principle of fairness?

Answer 31

• If there is a power imbalance between the parties it may enable the more powerful party to force a resolution that is not mutually agreed upon.
• The decision reached through mediation is not legally binding, resulting in risk of breach of the agreement. This may limit fairness for the non-breaching party.
• Disputing parties must compromise without the opinion of the mediator, which may limit fairness if one party is unwilling to negotiate.
• Mediation is generally conducted in private, which may be seen as undermining fairness as the processes are not open to the public.

Question 32

What are the strengths of mediation in upholding the principle of equality?

Answer 32

• As formal rules of evidence and procedure do not apply, each party has the same opportunity to speak freely and present their perspective.
• Legal representation is usually not required for mediation, removing disadvantage associated with unrepresented parties.
• The mediator is an independent third party who must treat parties equally, regardless of personal characteristics.

Question 33

What are the limitations of mediation in upholding the principle of equality?

Answer 33

• If one party is more vulnerable or there is a power imbalance, especially is no legal representation is present, a ‘forced’ outcome may result that does not equally benefit both parties.
• With no formal rules of evidence and procedure, both parties may not have equal opportunity to present their case, especially due to the mediator’s limited role.

Question 34

What are the strengths of mediation in upholding the principle of access?

Answer 34

• Mediation does not involve court proceedings and legal representation is not required, saving casts and enabling those with limited financial means to access civil dispute resolution.
• Mediation is confidential with disputes being resolved discretely with less media attention, therefore reducing intimidation associated with dispute resolution and improving access.
• There are no formal rules of evidence and procedure, and parties are supported by the mediator to speak freely, reducing the intimidation of defending a dispute.

Question 35

What are the limitations of mediation in upholding the principle of access?

Answer 35

• If one party does not wish to make or offer a reasonable resolution, mediation may be a waste of time and money, consequently limiting access for individuals with lower available finances or time.
• In long-running and hostile disputes, mediation may be inaccessible as parties are unlikely to constructively communicate and reach a resolution. If parties are ordered to attend mediation in this situation, it negatively adds to the time taken to reach a resolution.

Question 36

What are the strengths of conciliation in upholding the principle of fairness?

Answer 36

• Parties are in control of the final outcome enabling a fair negotiation process and a beneficial resolution.
• The conciliator acts as an unbiased, impartial third party. Their advice and experience may enable a fairer, more mutually beneficial resolution.
• Conciliation is faster than a trial, it reduces the court’s workload, and minimises delays in cases, therefore promoting fairness.

Question 37

What are the limitations of conciliation in upholding the principle of fairness?

Answer 37

• A power imbalance between parties can cause the more powerful party to force a resolution that is not mutually agreed.
• The decision reached through conciliation is not legally binding, meaning there is a risk that a party may breach the agreement, jeopardising a fair case outcome.
• Conciliation is generally conducted in private, which may be seen as undermining fairness as the processes are not open to the public.

Question 38

What are the strengths of conciliation in upholding the principle of equality?

Answer 38

• Legal representation is not required, therefore reducing costs and disadvantage associated with unrepresented parties.
• Formal rules of evidence and procedure do not apply, meaning each party has equal opportunity to present their perspective.
• The conciliator is an independent third party who must treat parties equally, regardless of personal characteristics.

Question 39

What are the limitations of conciliation in upholding the principle of equality?

Answer 39

• If one party is more vulnerable or there is a power imbalance between parties, especially if no legal representation is present, a ‘forced’ outcome may be reacher that does not equally benefit both parties.

Question 40

What are the strengths of conciliation in upholding the principle of access?

Answer 40

• Conciliation does not involve any court proceedings and legal representation is not required, therefore saving costs, enabling those with limited financial means to access civil dispute resolution.
• Conciliation is confidential and attracts less media attention, therefore reducing the intimidation associated with dispute resolution and improving access.
• There are no formal rules of evidence and procedure in conciliation and parties are supported by the conciliator to peak freely, therefore reducing the intimidation of defending a dispute.

Question 41

What are the limitations of conciliation in upholding the principle of access?

Answer 41

• In long-running and hostile disputes, conciliation may be inappropriate as parties are unlikely to constructively communicate and reach a resolution, thus limiting access.
• There is no obligation for parties to reach a resolution through conciliation, meaning more time and money is wasted if the matter proceeds to trial, reducing access to justice.

Question 42

What are the strengths of arbitration in upholding the principle of fairness?

Answer 42

• Parties can decide on an arbitrator panel or request a person to take the responsibility for appointing the arbitrator, enabling them to participate in the selection process.
• Arbitration produces a legally binding decision both parties must follow.
• The arbitrator is an independent third party that has no association with either disputing party, therefore ensuring the decision is solely based on the law and the facts.

Question 43

What are the strengths of arbitration in upholding the principle of equality?

Answer 43

• Arbitration is not bound by formal court procedures, meaning parties can agree on the procedure and consequently achieve a more flexible process that supports each party to freely represent themselves.
• The arbitrator is an independent third party who must treat the parties the same, regardless of personal characteristics.

Question 43

What are the limitations of arbitration in upholding the principle of fairness?

Answer 43

• If one or both parties are unhappy with the final legally binding decision, they have limited rights to appeal.
• Legally represented parties may be able to present a stronger case, creating a power imbalance that could result in an unfair outcome if the other party is unrepresented.
• Arbitration is generally conducted in private, which may be seen as undermining fairness as the processes are not open to the public.

Question 44

What are the limitations of arbitration in upholding the principle of equality?

Answer 44

• If one party has legal representation and the other does not, this can create a power imbalance and the unrepresented party may not fully understand the proceedings, creating inequality between the parties.
• The lack of publicity of the arbitration process means the outcomes of previous arbitrated disputes are difficult to access or unknown which may limit consistency and equality across similar arbitration cases.

Question 45

What are the strengths of arbitration in upholding the principle of access?

Answer 45

• Arbitration is not bound by formal court procedures, meaning parties can agree on the procedure and consequently achieve a more flexible, efficient, and less intimidating process than a trial.
• The arbitration process cannot be viewed publicly and those invovled cannot disclose information, therefore encouraging use of arbitration in sensitive cases.

Question 46

What are the limitations of arbitration in upholding the principle of access?

Answer 46

• Arbitration is often more expensive than mediation and conciliation as there is an increased need for legal representation, potentially preventing individuals with limited financial means from pursuing arbitration as a viable dispute resolution method.
• Arbitration is conducted in private and is therefore not accessible for public viewing.

Question 47

What are the strengths of civil juries in upholding the principle of fairness?

Answer 47

• A jury consists of a random cross-section of the community, therefore, fairness is promoted as the parties have their case determined by the general public.
• Jurors must disregard prior knowledge and cannot seek additional information about a dispute, making them as close to impartial as possible, which promotes fairness.
• Jurors can be excused if they are in any way connected to either party or believe they hold certain biases due to personal beliefs or values, therefore upholding fairness.

Question 48

What are the limitations of civil juries in upholding the principle of fairness?

Answer 48

• Jurors must undertake the complex task of determining the verdict of a civil trial with minimal, or no legal training, meaning there is risk of an unfair, and uninformed verdict.
• As jurors do not provide a reason for their verdict there is no guarantee the law as been correctly applied to the facts of the case.

Question 49

What are the strengths of civil juries in upholding the principle of equality?

Answer 49

• Both the plaintiff and defendant have the right to request a jury trial in a civil dispute regardless of personal characteristics, therefore upholding equality.
• Jurors must be impartial when determining their verdict and treat all parties equally, regardless of personal characteristics.

Question 50

What are the limitations of civil juries in upholding the principle of equality?

Answer 50

• As the civil parties must bear the costs of a jury, equality may be limited for individuals of low socioeconomic status as they may be less likely to utilise a jury.
• A jury may not be a true representation of society as individuals who are ineligible or disqualified from jury duty are not accounted for, potentially undermining equality to a trial by one’s peers for the parties.
• Although jurors are instructed to remain impartial, they may hold subconscious biases that may limit their ability to treat both parties equally.

Question 51

What are the strengths of civil juries in upholding the principle of access?

Answer 51

• When a jury is present, the use of plain English is increased, making a trial more understandable and accessible to jurors, plaintiffs, and defendants. This can ensure all participants in the civil dispute understand the courts’ processes and rules of evidence being used in the determination of the case, promoting access to justice.

Question 52

What are the limitations of civil juries in upholding the principle of access?

Answer 52

• It may not be financially viable for parties to request a trial by jury as additional fees are required for jury trials. This financial constraint means a trial by jury as a form of justice may be inaccessible for some parties.
• In the case of a hung jury or mistrial due to juror misconduct, the resolution to the divil dispute is likely to be delayed, hindering access to a timely and efficient justice system fr parties.

Question 53

What are the strengths of Victorian courts in upholding the principle of fairness?

Answer 53

• Judges and magistrates have specialised knowledge and skills enabling them to deliver consistent, impartial outcomes in civil cases.
• Parties have the same right to apply for leave to appeal the outcome of their case if they have legal grounds to ensure errors made by lower courts are corrected.
• Administrative convenience through the court hierarchy and case management powers of judges helps minimise delays backlogs meaning evidence is less likely to deteriorate over time to protect the impartiality of decision.
• When courts set precedent greater consistency and fairness is provided in future cases, and the reasons for court decisions are more open.

Question 54

What are the limitations of Victorian courts in upholding the principle of fairness?

Answer 54

• The expense of appealing to a superior court may be unrealistic for financially disadvantaged parties, unable to afford court fees and legal representation. This may prohibit an appeal and negatively impact fair outcomes.
• Backlogs may still occur which may disproportionately impact vulnerable parties and limit fairness because physical evidence can deteriorate, and events may be forgotten.
• If unfair precedent is established in a superior court, a lower court is still obliged to follow the legal principles of that case when handing down a decision related to similar facts in future cases. Consequently, courts may have to deliver an unjust outcome to parties in a dispute.

Question 55

What are the strengths of Victorian courts in upholding the principle of equality?

Answer 55

• Court rules and procedures are enforced by judges and magistrates, who ensure these rules apply equally to all parties.
• Provided an individual has appropriate grounds, all parties have the right to apply for permission to appeal the decision made in relation to their case regardless of personal characteristics. This ensures all people involved in a civil case can engage in the appeals process the same way.
• The Victorian court hierarchy ensures civil disputes are heard by the appropriate court, enabling consistent outcomes for similar disputes.

Question 56

What are the limitations of Victorian courts in upholding the principle of equality?

Answer 56

• The high cost of appeals means they are not equally accessible to all parties. Individuals with greater financial capacity may be more capable of pursuing an appeal compared to those of lower socioeconomic status. Resultantly, equality may not be achieve as the capacity of a party to appeal the outcome of their dispute is limited for some parties on the basis of their wealth.
• The formality of the courts and their procedures may cause parties in a civil dispute to feel overwhelmed and stressed. This may prevent them from presenting evidence in a confident manner, therefore providing them with unequal footing in the dispute.

Question 57

What are the strengths of Victorian courts in upholding the principle of access?

Answer 57

• The appeal process allows parties to have a court’s decision reviewed by a superior court, therefore ensuring any mistakes are corrected and all parties have access to just outcomes.
• As various Victorian courts publish the outcomes of disputes on their website, parties have access to previous civil matters heard in court, making them more informed about their rights and the process of legal proceedings.
• Victorian courts have their own websites that can provide information to parties in a civil trial, informing them about judicial processes, court procedures, and other relevant information.

Question 58

What are the limitations of Victorian courts in upholding the principle of access?

Answer 58

• Some cases may be ineligible for a review by a superior court if the grounds for an appeal do not exist, which can limit access to appeals.
• Expenses associated with an appeal may make the process of appealing inaccessible for some parties, due to their financial position. Consequently, a party’s access to a civil remedy may be limited.
• Decisions made in the Magistrates’ Court are not publicly available and, therefore, are inaccessible to parties in future cases. This may make parties involved in a civil dispute heard in the Magistrates’ Court less informed about their rights and the proceedings that will occur.
• A party may struggle to understand the civil processes and procedures of the courts if they have no prior knowledge, therefore limiting access to justice.