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25 Cards in this Set
- Front
- Back
dispute resolution methods |
- mediation - conciliation - arbitration - judicial determination |
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mediation |
- parties aim to resolve the dispute themselves with the help of an impartial third party. (a mediator) - the mediator does not give advise or suggestions, only encourage to cooperate. - parties must come to a mutual decision themselves and the outcome in not legally binding. |
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advantages and disadvantages |
advantages: - no formal rules of evidence or procedure - confidential and private - faster and cheaper than court process - flexible in terms of possible outcomes (more likely to be satisfied.) - work together rather than against each other. - preserve relationships. (neighbours) disadvantages: - both parties must be willing to engage in the process. - may be power imbalance (eg between employer and employee) |
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conciliation |
- impartial third party can give advise and make suggestions to help the parties reach an agreement. - decision is still made by the parties, however taking in account the advise of the third party. - decision is not legally binding. - used in VCAT usually for larger claims (>10K) |
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arbitration |
- slightly more formal process process. - the impartial third party (arbitrator) hears evidence and arguments from both parties and makes a decision on their behalf. - process is governed by rules of evidence and procedure but not as strict as formal court matters. - if the parties do not make a decision the arbitrator will. - parties will agree to abide by the decision by the arbitrator, the decision is legally binding and can not be appealed. ` |
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judicial determination |
- judgement made by judicial officer (judge, magistrate, VCAT member.) - the decision is legally binding and cannot be appealed. - used in courtrooms. - used when other dispute resolution methods are not successful. - use strict rules of evidence procedure, but VCAT hearings use judicial determination can still be less formal and strict. |
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types of disputes |
- family law - neighbourhood disagreements - discrimination methods - work related complaints - disputes between landlords and tenants - planning problems - builders etc. |
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advantages and disadvantages of VCAT |
Advantages: - less money that courts - faster to hear disputes - less formal therefore less of an intimidating environment - easier access to the public disadvantages: - because VCAT is less formal, after a dispute has been removed it may not stay (not legally binding) - not as many strict rules (could lead to unfairness) - only deals with civil disputes |
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civil pre trial procedures |
- when one party believes that their rights have been infringed and takes action - can involves parties of individuals, companies and government - aim of action is to restore their original position, and compensate them for any loss suffered |
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what to consider when bringing in a dispute |
- costs: legal fees, how much damages are there likely be. - the likelihood of winning - possible publicity: significant factor for public figures and companies - personal circumstances: time and energy to see the case through - defendants ability to pay: if case is not successful will you be able to pay damages. |
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steps in dispute resolution options |
1. speak to the other party and try to negotiate 2. use mediation, conciliation or arbitration 3. reach an out of court settlement: payment 4. pre trial procedures: to resolve dispute before reaching the court 5. take legal action |
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pleadings |
1. writ - informs defendant that legal action has been initiated against them. 2. statement of claim - sent with the writ, sets out the precise nature of the claims made against them and the remedy sought. 3. notice of appearance - informs the court that the defendant has received the writ and will defend the claims made in it. 4. statement of defence - defendant may deny any of the claims and provide an explanation of their actions. 5. counterclaim - made by the defendant that alleges the plaintiff had committed a civil wrong for which the defendant requires a remedy. |
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discovery |
1. discovery - allows opposing party to copy or inspect the other parties documents or additional information that is revenant. 2. interrogatory - document containing answers to a series of questions posed by the opposing party prior to a court hearing. |
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directions hearing |
is a pre-trial conference between the trial judge and counsel to establish key issues such as the law to be applied and the key evidentiary issues in a dispute. |
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overall purpose of civil pre trial procedures |
- inform both parties about the details of legal action - informs defendant that legal action is being taken. - provides opportunity for negotiating a settlement. - clarify issues - helps parties prepare for the case - provides information to the court about the case. |
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purpose of civil remedies |
restore an individual / group whose rights have been infringed back to their original position, and taking civil action to seek a remedy. |
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types of remedies |
- damages (compensatory, exemplary, aggravated, normal) - injunctions |
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damages |
- most common type of remedy - involve payment from defendant to plaintiff - amount varies according to the circumstances (type of loss suffered) |
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compensatory damages |
- damages awarded that aim to compensate the plaintiff for loss suffered (as much money that can do that)
- purpose is to restore plaintiff to original position. (not possible in physical injury cases) |
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specific damages |
a set amount that relates to an identifiable cost, such as medical bills or loss of income.
eg: fall over on school grounds and breaks leg. the cost of medical damages for this treatment for injury could be paid as specific damages by the school. |
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general damages |
an amount of money that cannot be linked to a specific loss/cost.
eg: pain and suffering in falling over at school and breaking your leg, you may also be paid an additional amount for your pain and suffering. |
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nominal damages |
- a small amount of of money is paid by way of damages, as the plaintiff's main aim in taking action was to prove a point.
- purpose is to make a point about being right. - wouldn't happen very often because the cost of legal proceedings would be deter most people form taking this kind of action. |
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exemplary / punitive damages |
3 purposes:
1. to punish 2. to show disapproval of the action 3. to deter others form behaving the same. - usually a large sum of money |
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aggravated damages |
- additional compensation paid for humiliation or insult suffered or injured feelings as result of the defendants conduct - purpose is to punish defendant for lack of regard. - the defendant has shows reckless disregard for the plaintiff's welfare - harm is aggravated by the way the act was done. |
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injunctions |
- to prevent or force someone to taking an action in order to rectify a situation. 1. restrictive/prohibitive: orders a person to refrain from doing something 2. mediatory: orders a person to do something. eg: injunction is used to prevent a divorced couple from selling a property, or prevent publication or defamatory article - interm injunction = short term - perpetual injunction = permanent |