Unit 2 legal topic Flashcards
Tort law
it creates a legal binding relationship between two or more people in which each person usually makes a promise which he or she intends to keep.
Criminal negligence
A person has been so reckless to the point of almost knowingly causing harm to the victim of the accident in the eyes of the law.
Civil law
it attempts to protect the rights and responsibilities of individuals in their behaviour and interactions with others. If this freedom is infringed by another party, the aggrieved person has the right to request compensation for the suffering, injury and/or financial loss incurred.
Criminal law
It is the attempt to balance the right of individuals to freedom from interference with person or property and societies need for order
Different ways of resolving disputes:
ADR
Lumping grievances, Exit and avoidance, Redirecting, Naming, blaming and claiming, Negotiation , Mediation, mediation court, Expert determination/case appraisal, Arbitration, Adjudication
Lumping Grievances
Annoying things that you accept but time and time again it happens and “lump your grievances together”
Exit and avoidance
avoid the place that is annoying you
Redirecting
Redirect your annoyance to the person before you
Naming, blaming and claiming
Name the grievance and tell everyone by blaming and you sort a remedy (claiming)
Negotiation
Setter to compromise, come up with an alternative solution
Mediation
Utilising a third party to try and assist both parties
Mediation cont.
conciliation can occur as a form of mediation e.g family law
Expert determination
expert opinion is enlisted e.g specialised association or bank ombudsman
Case appraisal
The courts may require this - there are 2 forms of arbitration and adjudication by courts.tribunal
Arbitration
Mediator makes a decision as a third party which becomes binding
Adjudication
Matter goes to a formal hearing and testing of evidence in a court before a judge. Decisions are binding QCAT
ADR
This is the settling of disputes by other means than going to arbitration (court). This is an inexpensive, informal, lenghty, and non threatening or alienating process.
Mediation process
Participation is voluntary
A limited number of procedural rules
No rules of evidence
An open table discussion - nothing used against you
Informal discussion - a place for emotions to be vented, this can’t happen in court
Divorce → allow room for emotions
Business → showing their irritation without being used against?
The mediator’s power is restricted to control of the process
Assist in directing when to stop and start
Parties decide the content to be discussed
Parties decide the outcome
Process in confidential
Flexibility of possible solutions
Benefits of Mediation
Empowering to those in dispute as control is given to parties for the outcome
Cheaper process than going to court
Private and confidential for all parties
The end result is a to be “win/win” outcome
Disadvantages of mediation
Mediators do not impose a solution
The power imbalance between parties can be evident
Due to private mediation no clear nor consistent historical decisions to be drawn on
Mediation is not legally binding
When is mediation compulsory
Mediation has to occur in the following scenario:
Family courts - custody/parenting matter
Federal court matter
QCAT - if the matter has first gone to QCAT, the courts may instruct mediation to occur first before a decision is made by QCAT
QCAT
When a family member needs to be appointed for a financial affair over an ageing family member the dispute is taken to QCAT
Taking civil matter to court requires the following:
Letters of demand
Court action commences
Pleading
Interlocutory steps (disclosure of documents and seeking particulars and delivering interrogatories - responses in writing under oath )
Pre-trial conference - negotiation or mediation thought the magistrate or judge has the power to order parties to comply with demands.
Court hearing
Judgement - under The Uniform Civil Procedure Rules 1999 (QLD) allows judges to be consistent based on the balance of probabilities when bringing their judgement in civil matters
