• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/25

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

25 Cards in this Set

  • Front
  • Back

dispute resolution methods

- mediation


- conciliation


- arbitration


- judicial determination

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.

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)

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)

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. `

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.

types of disputes

- family law


- neighbourhood disagreements


- discrimination methods


- work related complaints


- disputes between landlords and tenants


- planning problems - builders etc.

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

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

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.

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

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.



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.

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.

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.

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.

types of remedies

- damages (compensatory, exemplary, aggravated, normal)


- injunctions

damages

- most common type of remedy


- involve payment from defendant to plaintiff


- amount varies according to the circumstances (type of loss suffered)


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)


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.


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.


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.


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



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.

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