Unit 2 AOS 2 Remedies Flashcards
Principles of Justice in civil law
there’s no universal definition
h/w there are fundamental principles justice system should always strive to achieve:
-Fairness
-Equality
-Access
Fairness + principles
Def: All people can participate in the justice system and its processes should be impartial and open.
impartial:
-parties have independent/ unbiased adjudicator preside over dispute e.g judge, magistrate, mediator
Open:
-disputes that utilise courts are open to the public, promotes transparency over decisions and accountability
-less than 5% of civil claims go to trial (bad),so can be done in private
Participation:
-parties can prepare case through knowing the facts
-there are several avenues of dispute resolution
-parties have the opportunity to present their version of the case
-a trial occurs without unreasonable delay
equality + principles
Def: 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, to allow all to engage with the justice system without disparity or disadvantage.
Formal equality= same treatment:
all parties can initiate claims, can request a jury if they can pay, and engage in legal rep to provide them w assistance + etc.
Substantive equality=diff treatment:
-if party x afford legal rep and self represents, judge/magistrate has obligation to explain rights and processes
Access + principles
Def: All people should be able to engage with the justice system and its processes on an informed basis
Engagement:
-range of ADR’s available
-legal rep often x needed unless in courts
Informed Basis:
-being rep’d by lawyer allows explanation of process, rights etc.
-specialist community legal centres assist vulnerable groups e.g association for employees with disabilities
What is Mediation?
Mediation is one of the least formal methods for resolving disputes, its 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 train 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 engagement with the courts, esp if important to maintain ongoing relationship
-during court proceedings as the magistrate/County/Supreme court can order parties to attend mediation before setting a further date for trial
-as alternative to court as VCAT (vic civil & admin tribunal) often refers claims to mediations prior to the final hearing
How does mediation work?
