1 Chapter 7 Litigation, the legal process and alternative dispute resolution Copyright © Nelson Australia Pty Ltd 2003

2 Outline 1.Conflict and the courts 2.The legal profession 3.Legal proceedings 4.Legal process 5.Facilitating legal action 6.Arbitration 7.Alternative dispute resolution

3 7.1 Conflict and the courts

4 Dispute resolution Ancient methods of dispute resolution included: the duel trial by ordeal clan feuds self-help. Litigation evolved from these methods as a more civilised, and less destructive, method of resolving disputes.

5 Dispute resolution Problems with litigation today: Australian society is increasingly litigious. The costs of litigation are extremely high. There is a constant threat of litigation to advice givers and service providers. Ever-increasing legal complexity and number of courts

6 7.2 The legal profession

7 Lawyers Solicitors: give legal advice prepare legal documents occasionally represent clients in court. Barristers: present cases before the courts provide specialist advice cannot be sued for negligence.

8 Judges Appointed by the government but are otherwise independent Salary cannot be lowered Immune from liability for anything they might say as judges Fixed age of retirement Cannot be removed except in extraordinary circumstances (established misbehaviour or incapacity)

9 7.3 Legal proceedings

10 The adversary system Each party fights through its lawyers in a procedure that awards a result after the two opposing cases are assessed. Essential features: Conduct of litigation is in the hands of the parties. One continuous hearing Evidence is elicited by questions asked by the parties, not the judge. Is the adversary system the best possible approach to resolving disputes?

11 The inquisitorial system Common in civil law jurisdictions The judge, usually a government official, is an inquisitor actively seeking out the facts, rather than an impartial referee. What advantages does the inquisitorial system offer over the adversarial system? In Australia, inquisitorial procedures are increasingly adopted in non-judicial dispute resolution processes.

12 The jury Criminal cases: Only the most serious crimes are heard by a jury; most criminal cases are dealt with by magistrates without a jury. Civil cases: Juries are used infrequently; in some cases either party may request a jury. Is the jury system still appropriate?

13 Burden and standard of proof Burden of proof – Which party has the onus of proving the truth? Criminal trials – The prosecution Civil trials – The plaintiff Standard of proof – To what degree must the facts be established? Criminal trials – Beyond all reasonable doubt Civil trials – On the balance of probabilities

Legal process

15 Pleadings Civil proceedings: Commenced by statement of claim, which outlines the demand of the plaintiff Defendant files a defence, which responds to each allegation Defendant may file a counterclaim. Criminal proceedings: Commenced by issuing of summons or by arrest and charging of accused

16 Pre-trial procedures Interrogatories – A series of questions requiring written answers on oath Discovery – Requires a person to declare on oath all relevant documents in their possession, and allow inspection Interlocutory orders – Orders for the correction of incomplete pleadings or compliance with interrogatories or discovery Interim injunctions – Urgent orders preserving an existing position or restraining a party from doing something

17 Trial Parties present opening cases. Witnesses are called to give evidence: Examination in chief Cross examination Re-examination Jury decides questions of fact. Judge decides question of law.

18 Appeals Parties usually have rights of appeal. Most appeals are restricted to re-examining questions of law rather than questions of fact. Appeals are usually heard by three justices.

Facilitating legal action

20 Facilitating legal action Legal aid – Legal aid commissions provide limited, means tested funding. Contingency fees – Lawyer charges client on ‘no win, no fee’ basis. Class actions – Groups of people with substantially similar claims join together to pursue legal action.

Arbitration

22 What is arbitration? Involves referring the matter to an arbitrator who hears the evidence and makes a decision the parties have agreed to accept as final The arbitrator is usually an expert in the relevant field. Initially a faster, cheaper alternative to litigation Now just as costly, complicated and time- consuming

Alternative dispute resolution

24 ADR The resolution of a dispute without the intervention of a court Aimed at producing a resolution by agreement between the parties rather than through the imposition of a judgement

25 ADR techniques Negotiation – Direct and informal negotiation between the parties Mediation – Use of an independent third-party facilitator who plays a passive role Conciliation – Use of an independent third- party facilitator who plays an active role

26 ADR techniques Mini-trial – Use of a negotiating panel representing both sides plus a neutral advisor which listens to each side and proposes a settlement Expert appraisal / determination – Use of an independent expert who advises on resolution of the dispute