3.2.9 institutions used to resolve disputes - courts Flashcards
(9 cards)
whether courts are appropriate
Whether the dispute falls within the court’s jurisdiction
- Whether there are other or better ways to resolve the dispute
- Whether parties can resolve themselves through mediation/negotiation
- Costs of going to court VS CAV/VCAT
- Whether they are prepared to take the risk of a third party binding decision, including the possibility of an adverse costs order
- Whether parties can afford legal representation
- Whether parties are comfortable with the formality of court
- If it is a class action, it needs to be determined in the Supreme Court
- Time and delays of court. If they want a quicker resolution, CAV/VCAT may provide this
- Whether parties are prepared to have their dispute in an open hearing (whether the public and media may be present)
when are courts not appropriate
If the parties want to negotiate and
resolve the dispute themselves.
*
If the parties do not want to deal
with the formalities and complexities
of a court proceeding.
*
If the parties prefer less costly and
time-consuming dispute resolution
methods, like mediation or
conciliation.
*
If it is more effective to have the
matter resolved through CAV or
VCAT, due to their jurisdictions
and less timely processes.
*
If the parties wish to self-represent
or not engage legal representation,
other informal dispute resolution
bodies may be more appropriate.
*
If the parties prefer to have greater
influence over the final resolution,
more flexible dispute resolution
methods, such as mediation, may
be more appropriate as opposed
to judicial determination.
what’s the courts method
Judicial determination - a judge/magistrate makes a legally-binding decision after the parties
present their case at a trial/hearing
How do the courts achieve fairness?
Judges are impartial and independent, applying the law objectively and ensuring procedural fairness.
Juries, when used, help reflect community values and make decisions based on facts.
Both parties can present their case fully, ensuring a fair and informed resolution.
How might the courts limit fairness?
Court delays can increase stress and reduce fairness, especially if justice is significantly postponed.
Jurors may have biases or misunderstand legal arguments, which could affect the outcome.
Self-represented parties may struggle to navigate complex court procedures, reducing their chance of a fair trial.
How do the courts promote equality?
Laws and procedures apply equally to both the plaintiff and defendant.
Each party has the same opportunity to present their evidence and arguments.
Judges must ensure that self-represented parties are supported procedurally, helping to reduce inequality.
How might the courts limit equality?
Self-represented parties may be disadvantaged compared to legally represented opponents.
High legal costs may prevent people of lower socioeconomic backgrounds from accessing quality representation.
Varying quality of legal representation can lead to unequal outcomes, even when both sides have lawyers.
How do the courts promote access to justice?
Courts offer binding and enforceable outcomes, providing finality to disputes.
Their wide jurisdiction means many types of civil matters can be resolved through the court system.
Court decisions can set precedents, helping clarify the law for future cases.
How might the courts limit access to justice?
High costs of legal representation and court fees make the process unaffordable for some people.
Civil juries must be paid for by the parties, potentially deterring their use due to expense.
Without legal help, the complexity of the court system can discourage or confuse those seeking justice.
