unit 2 dispute resolutions Flashcards
Fairness
All people can participate in the justice system and its processes should be impartial and open
(Fairness) Impartial processes
*The parties have an independent and unbiased adjudicator preside over the dispute - e.g. judge,
magistrate, mediator
- No party is shown discrimination or favouritism
- The case is decided on facts and law rather than opinion and prejudice
(Fairness) Open processes
- Disputes that utilise the courts are open to the public including the court’s judgement. This promotes transparency over judicial decisions and accountability of legal professionals
- However, less than 5% of civil claims go to trial. Parties have some level of control over how civil
claims are resolved and this can be achieved in private (e.g. mediation, conciliation)
(Fairness) Participation-Parties can prepare a case through knowing the facts
- before trial, both the plaintiff and defendant must disclose their claims and defences, the basis for them and any relevant documents or evidence. There should be no ‘surprises’ at trial
(Fairness) Participation-There are several avenues of dispute resolution -
including courts, mediation, conciliation, arbitration, tribunals and complaints body depending on the nature of the dispute.
Some of these do not require legal representation which promotes the plaintiff ability to participate in the legal system more easily
(Fairness) Participation-Parties have the opportunity to present their version of the case
- both parties should have the opportunity make submissions to the adjudicator, present evidence and examine/cross-examine witnesses
(Fairness) Participation- A trial occurs without unreasonable delay
This is achieved through the Victorian Court hierarchy, methods of alternative dispute resolution and the existence of civil bodies such as VCAT and Consumer Affairs Victoria
to ensure evidence remains credible, plaintiffs can enjoy their remedy in a timely manner and defendants can move on from the threat of civil action.
Equality
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
same treatment (formal equality ) examples
4 points
- All parties can initiate a claim if they can demonstrate an infringement of their rights and loss
- All parties can and are encouraged to, negotiate prior and during trial and resolve their disputes without proceeding to a trial
- All parties having their matter heard in superior courts can request to have a jury if they can pay for a jury
- All parties can engage in legal representation to provide them with legal assistance
different treatment (substantive equality ) example
- If a party cannot afford legal representation and must self-represent, a judge or magistrate has an obligation to take steps to explain certain rights and processes e.g., what it means to cross examine witnesses
- Organisations such as VLA and CLCs provide extra support to individuals who do not have the resources to uphold their civil rights, leading to more equitable outcomes.
- Interpreters may be required for people with limited English to assist with translations
Access
All people should be able to enegage with the JS and its processes on an infromed basis.
Access- Engagement
- range of dispute resolution methods are available to the parties - e.g. ADRs, tribunals, CAV and courts - most of which are less complex than courts
- Legal representation is often not needed unless parties are engaging in the courts
- A range of dispute resolution avenues also means that courts are less likely to be clogged and experience delays
- Technological development has led to some disputes being resolved via online video-link or conferencing.
- Class actions allow for group members to share the costs when taking legal action against a large corporations
Access- Informed basis
- Being represented by a lawyer allows a person to be informed, as lawyers will explain the process involved, their rights, steps to take in a proceeding and chances of success.
- Specialist community legal centers can assist certain vulnerable groups.
- Online websites such as VCAT, Victorian Legal Aid and the Victorian Ombudsman provide information and guidance for parties on their rights in some civil matters and where to take their dispute to be resolved - most will recommend/require parties to engage in self-help first
- However, self-help requires that parties have a certain level of education and can articulate and communicate with the other party which may not always occur
what is mediation
Mediation is one of the least formal methods for resolving disputes.
It is a joint problem-solving process where parties willing cooperate to reach a solution through negotiation
access informed basis example of Specialist community legal centers
Informed basis ( Association for Employees with Disabilities)
assists individuals with disabilities regarding civil matters arising from unlawful termination, bullying, wages and working conditions
who facilitates the mediation process
Mediators are impartial third parties who are trained 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 parties engage with the courts, especially if it’s important to maintain an ongoing relationship and costs may be an issue (e.g. disputes between neighbours, family members or landlords and tenants).
During court proceedings as the Mag, CC and SC can order parties to attend mediation before setting a further date for trial
As an alternative to court as VCAT often refers claims to mediations prior to the final hearing
how does mediation work
With the help of the mediator parties discuss the issues involved, consider options and endeavor to reach an agreement through negotiation and compromise.
Legal representation is generally not used to promote a sense of informality; however, it can be used.
There are no strict rules of evidence or procedure.
what is conciliation
Conciliation shares all the same elements as mediation except that:
• The conciliator will listen to the facts and evidence presented by both sides and make suggestions regarding ways and options to resolve the dispute.
*The conciliator will generally be an individual with specialist knowledge in that field pertaining to the legal dispute - e.g., consumer law, family law, workplace relations
when is conciliation used
Many dispute resolution bodies (e.g. Consumer Affairs Victoria) use a form of conciliation
Parties at VCAT are often sent to a compulsory conterence which uses conciliation
Some of the more specialised courts (e.g. Family Court) order conciliation conferences to reach agreements about financial or parenting issues.
conciliation tends to be the main method used in tribunals (VCAT) and complaints bodies (CAV)
mediation+ conciliation- fairness strengths
impartial= independent 3rd party tf no favoritism
participate=both parties actively communicate and encourage to work through problem in civil matter
participate=several avenues of dispute resolution—> x require lawyer —> increase participation
mediation+ conciliation-fairness weakness
x open because M/C can be held privately—>harder to hold mediator to account and some may be more impartial than others
if there is history of violence/malice btwn parties. the more vulnerable party may be unable to participate completely + express their side
mediation+ conciliation- equality strength
formal equality: issue discussed confidentially—>no matter what decision is+ what has been said in M/C cant be used against them in the future
mediation+ conciliation-equality weakness
mediator cannot actively involve themselves in solution,
—->power imbalance between parties+ not having same right to negotiate—> disparity
mediation+ conciliation- access strength
low cost compared to court- enhance financial engagement
mediation and conciliation save time and money.
This is because they avoid the need for the dispute to
be determined at a final hearing or trial, which can
cost a lot of money
mediation+ conciliation-access weakness
one party could have lawyer—>other party unable to engage on informed basis
unable to engage if party unwilling to co operate
what is arbitration
Arbitration is one of the most formal ‘alternate’ methods of dispute resolution outside of courts
how does arbitration work
- The arbitrator listens to both parties and makes a legally binding and enforceable decision = arbitral award
- Arbitration is not bound by strict rules of evidence - parties can agree on how evidence is presented, the level of formality and what procedural rules will apply.
*Parties can self-represent however most parties will have legal representation considering the binding nature of the award
who facilitates arbitration
- Arbitrators are impartial third parties who generally have knowledge about the subject matter of the dispute and expertise in the relevant law.
when is arbitration used - Privately
parties previously agree (in contract) that disputes will be settled via arbitration.
Parties hire an arbitrator and agree in advance to abide by the award.
Occurs at Dispute Resolution Centre / Melbourne Commercial Mediation and Arbitration Centre
when is arbitration used -Courts.
The Mag Court to use arbitration to resolve claims of less than $10,000. The court initially attempts to facilitate an agreement between the parties but a Magistrate or registrar can step in to make a binding decision if this is unsuccessful.
- The Magistrates, County and Supreme Court can also request parties attend arbitration for claims above $10,000 if they consent
when is arbitration used -Tribunals
(VCAT) can refer parties to arbitration before the final hearing however does not conduct the arbitration process itself
strengths of arbitration
Because arbitration is often conducted privately, there is flexibility in the way it can be conducted, allowing parties to decide the best way to resolve the dispute
Arbitration is less formal than court processes, which allows the parties to feel more at ease
The arbitral award is legally binding on the parties, which ensures that the parties will most likely follow it The arbitrator will have expertise in the subject matter of the dispute and will use that expertise when
making a binding decision
Arbitration is private and confidential, so it is attractive for parties who wish to avoid the publicity of a trial
*weakness if arbitration
Arbitration is not as flexible as M/C; this means the parties are normally limited to particular remedies or outcomes
Arbitration can be as formal as a court process, depending
on how the parties have agreed to conduct the arbitration
Arbitration is more expensive than mediation and conciliation because evidence is often gathered and put before the arbitrator, and legal representation is normally used; using arbitration can be as expensive as going to court,
depending on how the arbitration is conducted
The parties have no control over the outcome imposed on
them by the arbitrator
tribunal
- Tribunals are dispute resolution bodies that obtain their power to resolve certain types of disputes from parliament via statute law.
- Tribunals develop experience in particular types of disputes and can make binding decisions.
However, tribunals cannot hear every type of dispute (e.g. class actions). - Tribunals have similar characteristics to courts (e.g. impartial third parties who make binding decisions)
however, differences (e.g. much lower costs)
purpose of tribunal
Purpose of tribunals is to deliver offer a low-cost, efficient, and accessible alternative to the courts.
example of commonwealth tribunals
National Sports Tribunals, Native Title Tribunal
Victorian civil and administrative tribunal (VCAT)
- VCAT is the largest tribunal in Victoria, with the power to hear a wide range of civil and administrative disputes.
- VCAT has exclusive jurisdiction over some types of disputes
- However, VCAT is not suitable for complex claims
- The VCAT president is a current Supreme Court judge and the VCAT Vice Presidents are County Court judges
Purpose of VCAT- provide low cost dispute resolution service
- Parties do not require legal representation (in some disputes, representation is not permitted)
- VCAT fees are low compared to courts. Some VCAT lists have no application fee and fees can also be waived or postponed for those in financial hardship
Purpose of VCAT- Provide efficient
dispute resolution services
- Hearings are less time consuming as VCAT is not bound by same rules of evidence and procedure as the courts
- Many cases are referred to mediation or compulsory conciliation
- VCAT hearings involve fewer pre-hearing procedures so there is less time between application and receiving a resolution
Purpose of VCAT- Provide accessible
dispute resolution services
- VCAT’s low costs ensure more people have access to dispute resolution bodies and remedies
- VCAT uses phone and video conference’s for some hearings, mediations and compulsory conferences so that parties don’t have to travel long distances
- VCAT uses informal procedures compared to court which is easier to understand by the parties
example of Tribunals obtaining their power from parliament via statute law.
- E.g. Mental Health Act 2014 (Vic) established the Mental Health Tribunal and empowers it to make determinations about whether a person should be compulsorily treated in a mental health service
example of state tribunals
Victorian Civil and Administrative Tribunal, Mental Health Tribunal
VCAT divisions
VCAT is divided into five divisions and within each division, cases are grouped together in what VCAT refers to as a list.
residential tenancies
administrative
planning and environment
civil
human rights
how is VCAT is given its powers
VCAT is given its powers through the Victorian Civil and Administrative Tribunal Act 1998 (Vic)
VCAT exclusive jurisdiction example
- domestic building disputes must be determined by VCAT rather than the courts
What is VCAT not suitable for example ?
*VCAT is not suitable for complex claims such as class actions, defamation cases, personal injury claims or disputes involve large monetary damages
party names in VCAT-applicant.
The person who is applying to have their dispute resolved (generally the aggrieved party)
party names in VCAT-respondent.
The person who is responding to a claim made against them
what is an ombudsman
An ombudsman is an official (independent person) appointed by the government to investigate complaints made by individuals and small businesses against a company or organisation, particularly public authorities.
power of The Victorian Ombudsman
- The Victorian Ombudsman, which has the power to inquire into or investigate administrative decisions made by Victorian Government Departments, public statutory authorities, and officers of municipal councils.
Key features of ombudsman
- The services of ombudsman are free
- Ombudsman only hear complaints from individuals against organisations (not visa versa)
- In many instances, ombudsmen will not accept a complaint unless the individual has tried to resolve it directly themselves
- An ombudsman will first try to resolve the complaint by working with the parties. If agreement cannot be reached the ombudsman may (not always) have the power to make a binding decision
(this depends on the nature of the complaint and the specified powers of the ombudsman - Ombudsmen ensure procedural fairness by giving organisations an opportunity to respond to a complaint and by providing reasons for any decision that is made
how does an ombudsman obtain its power
- An ombudsman obtains the power to hear and determine complaints through parliament via statute law - e.g. Ombudsman Act 1973 (Vic)
types of ombudsmen-government ombudsmen
which handle complaints about government institutions. In Victoria, this is the Victorian Ombudsman.
types of ombudsmen- industry-based ombudsmen
which handle complaints regarding specific categories of the private sector, such as the Telecommunications Industry Ombudsman.
Some examples of ombudsmen in Victoria include: The Energy and Water Ombudsman Victoria
- hears complaints from Victorians about energy or water companies (e.g. excessive or erroneous bills, energy disconnections)
Some examples of ombudsmen in Victoria include: The Public Transport Ombudsmen
- The Public Transport Ombudsmen, which investigates and resolves complaints about public transport operators such as Public Transport Victoria, Metro Trains Melbourne, V/Line and Yarra Trams (e.g. ticketing, penalties, customer service, conduct of staff)
complaint bodies
Complaints bodies deal with complaints about the provision of goods and services, or the decisions made by certain bodies or authorities
complain bodies key features
- They are intended to provide a free complaints and dispute resolution services.
- Similar to ombudsmen, complaints bodies accept complaints from individuals or small businesses against organisations (not visa versa)
- Complaints bodies are more informal than tribunals and ombudsmen - they are limited to offering dispute resolution services as opposed to conducting hearings or making binding decisions
- Some complaints bodies can investigate complaints and take enforcement action against individuals or companies that do not comply with certain laws
examples of complaint bodies in vic-Health Complaints Commissioner (HCC) -
- hears disputes about health services or concerns about health information privacy.
examples of complaint bodies in vic-* Victorian Legal Services Commissioner (VLSC)
- hears and investigates complaints about lawyers.
