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U401 disputeresolutionmethods
1. Area
of
Study
1
Resolution
Bodies
&
Methods
Unit
4
Resolution
&
Justice
2. Introduction
to
Unit
4
! Aim
to
explain
the
differences
between
criminal
and
cases
and
civil
disputes.
! Criminal
cases
and
civil
disputes
are
the
main
focus
of
Unit
4
! Refer
to
Justice
&
Outcomes
textbook
pp
294-‐5
“Differences
between
criminal
and
civil
disputes”
2
3. Outcome
U401
! You
should
be
able
to
describe
and
evaluate
the
effectiveness
of
institutions
and
methods
for
the
determination
of
criminal
cases
and
the
resolution
of
civil
disputes
3
4. Key
knowledge
! Reasons
for
court
hierarchy
! Original
and
appellate
jurisdictions
of
the
Victorian
Magistrate’s
Court,
County
Court
and
Supreme
Court
(Trial
Division
and
Court
of
Appeal)
! Role
of
the
Victorian
Civil
and
Administrative
Tribunal
(VCAT)
! Dispute
resolution
methods
used
by
courts
and
VCAT,
including
mediation,
conciliation,
arbitration
and
judicial
determination
! Strengths
and
weaknesses
of
dispute
resolution
methods
used
by
courts
and
VCAT
! Strengths
and
weaknesses
of
the
way
courts
and
VCAT
operate
to
resolve
disputes
4
7. Victorian
Court
System
! Jurisdiction
–
to
the
power
that
courts
have
to
hear
cases
arising
from
particular
areas
of
law.
It
indicates
the
type
of
cases
courts
can
adjudicate
on
! Original
jurisdiction
–
hearing
a
case
for
the
first
time
! Appellate
jurisdiction
–
hearing
a
case
on
appeal
7
8. Reasons
for
court
hierarchy
! Doctrine
of
precedent
! Precedent
relies
on
higher
courts
making
statements
of
law
that
are
binding
on
lower
courts
in
the
same
hierarchy
! Appeals
! A
hierarchy
allows
parties
to
appeal
to
a
higher
and
more
experienced
court.
Their
case
is
reviewed
and
mistakes
corrected
! Specialisation
! If
courts
regularly
hear
the
same
types
of
disputes,
the
judges
can
develop
expertise
in
those
areas
of
law
! Administrative
convenience
! allows
more
complex
cases
to
be
heard
by
more
experienced
judges
8
9. Pros
&
Cons
of
Court
Hierarchy
Advantages
Disadvantages
Allows
for
doctrine
of
precedent
Precedent
can
be
avoid
by
judges
(distinguishing)
Allows
for
appeals
Argued
that
there
are
too
many
appeals
Administrative
convenience
allows
more
complex
cases
to
be
heard
by
more
experienced
judges
More
administrative
personnel
needed
to
run
the
different
courts
Specialisation
allows
courts
to
become
experts
in
a
particular
area
There
are
more
courts
–
a
single
court
would
be
easier
Fewer
delays
because
less-‐
complicated
cases
are
heard
in
lower
courts
and
not
mixed
in
with
more
complicated
cases
Parties
to
cases
in
lower
courts
are
not
receiving
the
same
high
level
of
judicial
expertise
as
parties
in
higher
courts
9
13. County
Court
! The
County
Court
sits
above
the
Magistrates’
Court
and
hears
most
indictable
offences
apart
from
the
most
serious,
as
well
as
the
more
complex
or
expensive
civil
claims
Original
Appellate
Criminal
• Indictable
offences
except
the
most
serious
(murder)
• Before
a
jury
of
12
• Appeals
on
questions
of
fact
(conviction
or
sentence)
from
the
Magistrates’
Court
Civil
• Claims
exceeding
$100,000
• Before
an
option
jury
of
6,
otherwise
judge
alone
• None,
except
under
a
specific
Act
13
14. Specialist
Divisions
of
County
Court
! The
Koori
County
Court
! Objective
to
ensure
greater
participation
of
the
Aboriginal
community
in
the
sentencing
process
! Culturally
appropriate
justice
process
! The
Sexual
Offenders
List
! To
ensure
a
more
efficient
trial
process,
and
be
more
responsive
to
the
needs
of
all
participants,
including
victims
of
sexual
offenders
14
15. Supreme
Court
! The
Supreme
Court
is
the
highest
state
court
with
original
jurisdiction
and
the
lowest
that
is
able
to
set
precedent.
It
hears
most
serious
cases.
Original
Appellate
Criminal
• The
most
serious
indictable
offences
• Before
a
jury
of
12
• Appeals
on
questions
of
law
from
the
Magistrates’
Court
Civil
• Complex
claims
exceeding
$100,000
• Before
an
optional
jury
of
6,
otherwise
judge
alone
• Appeals
on
questions
of:
• Law
and
fact
from
the
Magistrates’
Court
• Law
from
VCAT,
but
not
from
an
order
of
the
president
or
vice-‐president
15
16. Specialist
Divisions
! Victorian
Costs
Court
! Responsible
for
hearing
and
determining
the
assessment,
settling,
taxation
and
review
of
costs
in
proceedings
in
the
Supreme
Court,
County
Court,
Magistrates’
Court
and
VCAT
! Commercial
Court
! Introduced
various
procedures
to
resolve
matters
more
efficiently,
including
a
case
management
conference
and
an
evaluation
procedure.
16
17. The
Court
of
Appeal
! The
Court
of
Appeal
is
the
division
of
the
Supreme
Court
that
sits
with
more
than
one
justice.
! It
is
the
highest
court
for
appeals
below
the
High
Court
Original
Appellate
Criminal
• None
• On
questions
of
law
and
fact
from
the
County
Court
and
the
Supreme
Court
Civil
• None
• On
questions
of
law
and
fact
from
the
County
Court
and
the
Supreme
Court
• On
questions
of
law
from
VCAT,
against
the
order
of
the
president
or
vice-‐president
17
18. Victorian
Civil
and
Administrative
Tribunal
(VCAT)
Structure,
role,
jurisdiction,
orders,
appeals
&
anti-‐discrimination
list
20. VCAT’s
divisions
and
lists
! VCAT
is
divided
into
three
divisions:
Civil,
Administrative
and
Human
Rights.
Within
each
division
are
sections
known
as
‘lists’
Civil
Division
Administrative
Division
Human
Rights
Division
•
Domestic
Building
List
•
Civil
Claims
List
•
Credit
List
•
Real
Property
List
•
Legal
Practice
List
• Residential
Tenancies
List
•
Retail
Tenancies
List
•
General
List
•
Planning
&
Environment
List
• Land
Valuation
List
•
Taxation
List
•
Occupational
&
Business
Regulation
List
•
Anti-‐Discrimination
List
•
Guardianship
List
20
21. Disputes
dealt
with
by
VCAT
Civil
Division
Administrative
Division
Human
Rights
Division
Disputes
between
individuals:
•
consumer
matters
•
credit
•
domestic
building
works
•
residential
tenancies
•
retail
tenancies
Disputes
between
individuals
&
government:
•
land
valuation
•
licenses
-‐
business,
travel
agents,
motorcar
traders
•
planning
•
state
taxation
•
traffic
accident
commission
decisions
•
freedom
of
information
issues
Disputes
involving:
•
discrimination
•
guardianship
•
administration
21
22. Reasons
for
VCAT
! VCAT
is
similar
to
a
court,
only
less
formal,
faster
and
cheaper
Reason
Evidence
Less
formal
• The
tribunal
member
takes
an
active
role
in
proceedings
• In
some
circumstances,
proceedings
can
be
conducted
online
or
without
the
parties
Faster
• Documentary
evidence
is
allowed
• There
are
no
pre-‐hearing
procedures
and
limited
appeals
Cheaper
• There
is
a
one-‐off
filing
fee
rather
than
many
ongoing
ones
• Legal
representation
is
often
prohibited
unless
both
parties
agree
otherwise
22
25. Dispute
Resolution
Methods
! Criminal
Cases
! Judicial
Determination
! Civil
Cases
! some
times
Judicial
Determination
but
most
commonly
resolved
through
Alternative
Dispute
Resolution
(ADR)
! ADR
is
less
formal
where
dispute
is
reconciled
between
parties
with
the
help
of
an
independent
third
party
! ADR
includes,
mediation,
conciliation
&
arbitration
25
26. Mediation
! Involves
two
parties
! The
mediator
help
the
parties
to
negotiate,
but
do
not
give
suggestions
for
ways
to
resolve
dispute
! Decision
not
binding
26
27. Conciliation
! Involves
two
parties
! The
conciliator
helps
the
parties
negotiate
and
makes
suggestions
! Decision
not
binding
27
28. Arbitration
! Involves
two
parties
! The
arbitrator
helps
the
parties
negotiate
and
makes
a
resolution
! Decision
is
binding
28
29. Judicial
Determination
! Involves
two
parties
! The
judicial
officer
hears
the
case
and
makes
a
resolution
! Decision
is
binding
29
30. Evaluation
of
Dispute
Resolution
Methods
Strengths
and
weakness
of
mediation,
conciliation,
arbitration
&
judicial
determination
31. Pros
&
Cons
of
ADR
Strengths
Weaknesses
Less
formal
&
intimidating
Expect
for
arbitration,
decision
not
binding
Costs
less
Not
appropriate
in
cases
where
there
is
a
power
imbalance
Quicker
One
party
may
compromise
too
much
and
result
in
a
unfair
decision
Mediation
and
conciliation
more
satisfaction
with
result
as
normally
considered
a
win-‐win
ADR
is
voluntary,
therefore
one
party
may
not
attend
Keeps
relationship
between
parties
in
tact
No
appeal
options
Confidential
unlike
a
public
court
Individual
merits
(no
doctrine
of
precedent)
31
32. Pros
&
Cons
of
Judicial
Determination
Strengths
Weaknesses
Decision
binding
and
enforceable
by
courts
Expensive
Judicial
officers
are
experienced
in
legal
processes
Judicial
officers
bound
by
formality
and
are
not
allowed
to
assist
unrepresented
parties
Formal
nature
ensures
fairness
as
both
parties
are
subject
to
the
same
rules
of
evidence
and
procedures
Judicial
officers
find
for
either
one
of
the
parties
therefore
leaving
one
party
dissatisfied
with
the
decision
Suitable
to
both
criminal
and
civil
disputes
Judicial
officers
limited
in
the
orders
they
can
make
(more
flexibility
in
decisions
with
ADR)
32
33. Evaluation
of
the
courts
&
VCAT
Strengths
&
weaknesses
of
the
courts
and
VCAT
in
resolving
disputes
34. Pros
&
Cons
of
court
Strengths
Weaknesses
Courts
can
adjudicate
on
all
disputes,
minor,
major,
criminal
or
civil
Adversarial
nature
results
in
win-‐lose
result
Doctrine
of
precedent
allows
for
consistency,
certainty
and
predictability
Time
consuming
as
delays
are
common
Legal
representation
allows
for
equality
for
both
parties
Legal
representation
is
expensive
as
are
other
court
costs
Strict
rules
of
evidence
and
procedure
ensure
both
parties
are
treated
fairly
The
formality
of
the
court
room
may
be
intimidating
Decision
is
final
and
legally
enforceable
Opportunity
to
have
a
jury
in
some
cases
Allows
for
appeal
34
35. Pros
&
Cons
of
VCAT
Strengths
Weaknesses
Less
formal
Cost
increased
due
to
an
increase
in
parties
seeking
legal
representation
Cheaper
Dispute
resolution
now
fragmented
creating
confusion
of
where
best
to
settle
dispute
Faster
Tribunals
have
eroded
the
importance
of
the
courts
Tribunal
personnel
expert/experienced
in
jurisdiction
of
list
Avenues
of
appeal
are
limited
(only
those
relating
to
questions
of
law
permitted)
Decisions
are
binding
and
legally
enforceable
on
the
parties
Relieves
strain
on
courts
and
allow
courts
to
focus
on
more
complex
cases
35
36. References
! Beazer,
Humphreys
&
Filippin
(2012)
Justice
&
Outcomes
12e,
Oxford
University
Press
! Aldous
(2008)
Making
&
Breaking
the
Law,
8th
edition,
Macmillan
Education
Australia
! Humphreys
(2011)
Legal
Notes
Units
3
&
4,
2nd
edition,
Nelson
Cengage
Learning
! Jacaranda
online,
www.studyon.com.au
36
