Unit 4 Area of Study 1 Booklet 1.3 Answers

Advantages of ADR ADR (mediation, conciliation, arbitration) is a MUCH LESS FORMAL compared to the adversarial approach in that it does not use strict rules of evidence and procedure. ADR is a much cheaper alternative to litigation as parties are not required to employ legal representation. ADR is held in a more suitable venue as it is accessible to both parties. ADR is flexible in that it is able to address the needs of the parties and the issue concerned and is more concerned with the future relationships of the parties. ADR is voluntary and both parties can leave at any time although parties may be ordered to use these by VCAT or the court. Decisions made through ADR are more likely to be followed in that parties are able to reach the decisions themselves (except for arbitration) and the process is often voluntary. ADR is confidential, unlike courts which are open to the public ADR demands that the parties reach the decisions themselves, which is more likely to produce an outcome that is FAIR for both parties and people will be more inclined to follow a decision that they make themselves. ADR is conducted in a safe and supportive environment. Mediators are trained to make the parties feel comfortable, supported and that their point of view will be listened to.

Weaknesses of ADR Except for arbitration, ADR methods are not legally binding. ADR is not appropriate for all cases for example criminal cases of civil cases involving large companies. ADR is ineffective if one party is more dominant than the other party and is able to intimidate the other party, which may mean that the decision reached is not fair for both parties. ADR main delay the final resolution if parties are not able to reach a mutually agreeable decision, it may need to go to courts. People participating in ADR may have hate towards the other party which makes it difficult to resolve the dispute as they have emotional investment in the issue which may prevent them from compromising to achieve an outcome that meets the needs of both parties.

Judicial determination Judicial determination provides a binding, final resolution to both criminal and civil cases heard in court. It can provide experienced legal professionals who are experts in a particular area of law and in the application of the law.

Advantages of judicial determination Judicial determination is legally binding, so the decision is enforceable through the courts. Judicial determination is appropriate for all types of disputes (criminal and civil matters) as opposed to ADR and Tribunals (such as VCAT) which are only appropriate for civil matters. Judges are experienced legal professionals and this allows for appropriate justice to be served. Parties may also be more satisfied if a decision is made for them as they trust in the formal processes of the adversarial court system.

Weaknesses of judicial determination Judicial determination can be expensive to the individual due to needing legal representation and the extensive length of some court cases. Judicial officers are bound by rules of strict rules and procedures which results in a more formal environment that can result in the resolution taking longer and this process can be intimidating for parties.

Strengths of using the courts to resolve disputes A strength of the court is that the decisions that are made are legally binding which the parties must follow. A strength of the court is that they can hear all types of cases (criminal and civil) whereas ADR (mediation and conciliation and arbitration) can only hear civil disputes, as can VCAT. A strength of the courts is that judicial officers are often more experienced in the knowledge and the application of the law (not the strongest) Uses formal court processes and strict rules of evidence and procedure and this ensures that parties are treated in a fair manner. The community has trust and respect in the court system due to the formalities of the court system as opposed to methods of ADR (RESPECT FOR AND CONFIDENCE IN THE SYSTEM). Adversarial nature is often a more appropriate means for parties that are not on good terms to reconcile their differences.

Weaknesses of using the courts to resolve disputes Courts are expensive – the cost of legal representation and high court fees means that courts are expensive and this may lead to people not pursuing their cases. Resolving a decision through the courts can be time consuming. Formal – the rules of evidence and procedure may be intimidating to parties which may deter them from pursuing a case. The adversarial nature of the trial means that one party must lose, rather than a mutually agreeable decision being made.

Strengths of using VCAT to resolve disputes Cheaper than the courts because of the low application fees and people are able to represent themselves. Quicker resolution of legal disputes as opposed to the adversarial court system which may take weeks or months to resolve a dispute. Informal atmosphere – parties can put forward their case in their own way and can have input on the outcome of the case. Each list operates in its own specialised jurisdiction, resulting in tribunal personnel developing their own areas of expertise and being able to apply them to a particular area of law. Parties are encouraged to reach a decision by themselves. Decisions are binding.

Weaknesses of using VCAT to resolve disputes ONLY USED TO RESOLVE CIVIL DISPUTES, not criminal. Not appropriate to settle large civil claims. Too informal – some parties say that the court is not equipped to deal with the lack of formal procedure and processes.