unit 2 AOS2 Flashcards
Impartial
The parties have an independent and unbiased adjudicator preside over the dispute
fairness
All people can Participate in the legal system and its processes should be impartial and open
Open
Disputes that utilise the court are open to the public including the courts judgement this promotes transparency of a judicial decisions and accountability of legal professionals
Participation
Parties can prepare a 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
All people engaging in the legal system Should be treated the same. If the same treatment creates disparity adequate measures should be taken to allow all to equally engage without disparity
access
All people should be able to engage with the justice system and its processes on an informed basis
Mediation
Mediation is one of the least formal methods for resolving disputes it is a joint problem solving process where parties willingly cooperate to reach a solution through negotiation
Who facilitates mediation processes
Mediators are impartial 3rd parties who facilitate the discussion and support parties To reach a decision themselves
When is mediation used
Usually occurs before people engage with the courts especially if it’s important to maintain a ongoing relationship
How does mediation work
Party sit down and discuss the issues involved legal representation is generally not used there are no strict rules and it is usually without prejudice these decisions are not legally binding unless a deed of settlement is signed
Conciliation
The conciliator will listen on the facts and evidence presented by both sides and make suggestions how to resolve the dispute they will usually have specialised knowledge
When is conciliation used
Many dispute bodies use a form of conciliation
Parties such as vcat Are often sent to compulsory conference to use it
Arbitration
Arbitration is one of the most formal alternative methods of dispute resolution outside of courts
Who facilitates the arbitration process
Arbitrators are impartial third parties who generally have knowledge about the subject matter of the dispute and expertise in the relevant law
how does arbitration work
The arbitrator listens to both parties and makes a legally binding and enforceable decision.
Arbitration is not bound by strict rules of evidence parties can agree on how evidence is presented.
Parties can self represent however most parties will have legal representation due to the legally binding nature
When is arbitration used
Privately- Parties previously agree the disputes will be settled by arbitration.
court- The Magistrates Court to use arbitration to resolve claims less than ten thousand dollars
to resolve claims less than ten thousand dollars
tribunals- Victorian civil administrative tribunal can refer parties to arbitration before the final hearing however it does not conduct the arbitration process itself
What is a tribunal
Tribunals are dispute resolution bodies that obtain power to resolve certain types of dispute from parliament by statute force
Victorian civil and administrative tribunal
The cat is given power through the Victorian civil administrative tribunal act 1998 Vic it is the largest tribunal in Victoria and hears of civil and administrative disputes wide range
Purposes of Vcat
Provide low cost dispute resolution services
Provide efficient dispute Resolution services
Provide accessible Dispute resolution services
ombudsman
A ombudsman Is an official independent person appointed by the government to investigate complaints made by individuals and small businesses against a company or organization particularly public authorities
Types of Ombudsman
Government Ombudsman which handle complaints about government institutions in Victoria this is the Victorian ombudsman
Industry based ombudsman which handle complaints regarding specific categories of private sector such as the telecommunication industry ombudsman
Key features
It is free
Only here complaints from individuals
Will not accept the complaint Independently
They will try and resolve it by working with the parties if not able to they will make a binding decision
the roles of Victorian courts in dispute resolution
Deciding a remedy and determining liability
Civil jurisdiction of Victorian courts
The Magistrate’s court has original jurisdiction of minor civil claims up to one hundred thousand dollars and no appellate jurisdiction
The county court has unlimited original jurisdiction and has no appellate jurisdiction unless granted
The Supreme Court trial division has unlimited original jurisdiction and can here appeals from the Magistrate Court and VCAT
The Supreme Court of Appeal has no original jurisdiction and his appeals from the county in Supreme Court trial division and the chief magistrate or VCAt president
Strength of court
Judges are impartial and courts aim to reduce delays and costs also because of the hierarchy it make judge specialised Play with the hierarchy it allows for parties to appeal
Weaknesses of court
without legal representation it can be expensive the right to appeal is not automatic the formalities of the court process can result in parties feeling stressed despite reforms to civil procedure in relation to case management there is still delays and courts are too expensive
juries in civil trial
No jury is used in the Magistrates Court or in appeal case
A jury is optional in the county and Supreme Court the party who requested it must pay the fee
I judge my order that the jury is required in this case the state pays
Jury composition
Potential jurors are randomly selected off the Victorian electoral these guys have to fill out an Eligibility form if selected they attend the courts and be put in a pool then walk through and sit on a jury only six can
juries role
Objectively listen to the evidence and consider the facts then follow the directions of the judge and then decide who is more likely in the wrong and assess the amount of damages
