Download evaluation of courts and VCAT compared

Evaluation of courts and VCAT
Evaluate two weaknesses of
mediation as a dispute resolution
method (4 marks)
Evaluation of how courts
resolve disputes
 This is different to an evaluation of courts as
lawmakers
 Here, we are looking at strengths and weaknesses of
how courts (and VCAT – a comparison really) resolve
disputes, not of how they make law
Strengths of courts
Weaknesses of courts
Can adjudicate a range of disputes,
including criminal not just minor civil
disputes, which VCAT is limited to.
Court proceedings are often far more time
consuming than ADR methods, with delays
common.
D.O.P ensures predictability and and
consistency in the way that disputes are
resolved.
The adversarial nature of our trial system
results in a win/loss scenario with only one
party the winner. This could cause further
animosity between parties and resentment
towards our legal system.
Use of legal representation ensures both
parties have equal footing in a case who
understand the legal system and the
strict rules of evidence and procedure
Legal representation is incredibly costly and
some parties may not be able to afford it,
leading to inequality. Civil juries are also paid
for by the parties, adding to the cost of a fair
and unbiased trial.
Strict rules of evidence and procedure
ensure equality for both parties before
the law
The formality of court room procedures could
be intimidating to some individuals
Courts have an appeal process, where
there are grounds to do so, and in this
way incorrect decisions may be
corrected whereas Appeals from VCAT
are limited.
The appeals process adds to the time and
cost of a case, increasing the costs that
parties have already had to endure.
Evaluation of the courts:
 Can hear all types of cases – Courts can hear both
criminal and civil cases as opposed to VCAT, which is
only suitable for small civil disputes.
 More formal – Strict rules of evidence and procedure
ensure that all parties are treated in a fair manner. Legal
representation ensures both parties are represented
equally and are able to argue their case to their best
ability. However, the formality of the courts may be
intimidating for some parties. In addition, high court fees
and the need for legal representation are expensive, which
reduces access for people with limited financial means.
Furthermore, the outcome may depend on how good the
lawyer is.
 Legally binding – This may be suitable if there is
animosity between the parties or when they need there
to be a legally enforceable outcome to the case.
However, the adversarial nature of the courts may
actually increase animosity between the parties and
increase the stress involved. Furthermore, court
decisions create a win-loss situation where one party
will feel disappointed.
 Juries – In the courts, you are able to have a trial by
one’s peers for indictable offences and this is optional
for civil cases. This ensures the courts reflect
community values as opposed to VCAT whereby
decisions are made by the sitting member. However,
juries increase costs, and there are delays involved in
going to court, and personal biases or the media may
influence juries. This may lead to an unfair result.
Evaluation of VCAT
Strengths of VCAT
Weaknesses of VCAT
Less formal method of resolving disputes
compared to courts due to absence of
strict rules of evidence and procedure
which benefits parties who find formality
intimidating
Lack of formality can make the process
appear redundant and parties may feel as
though a decision, though technically
binding, does not need to be followed
Low cost method of resolving a dispute,
with fees much lower than courts and
legal representation is not always
necessary.
Without legal representation a case could
be presented poorly and if one of the more
formal methods is used, such as arbitration
or JD, parties may not understand rules of
evidence and procedure. Fees have also
increased dramatically in 2013
Faster dispute resolution, average time
from application to resolving is 5 weeks
which is much faster than courts
Appeals are limited those those relating to a
question of law which means incorrect
outcomes may not be rectified.
VCAT takes the burden off courts by
resolving minor civil disputes, allowing
courts to deal with more serious matters
Can only resolve minor civil disputes,
cannot resolve any criminal disputes or
major civil disputes which is a significant
weakness, as courts can hear all types of
disputes.
Evaluation of VCAT
 Much less formal than the courts – due to the lack of
strict rules of evidence and procedure. This is much
less intimidating for the parties and increases access,
which allows more people to have their dispute
resolved. However, parties may feel influenced into
accepting a decision they are not satisfied with.
Tribunals are not suitable for large civil claims or where
there is animosity between the parties.
 Timely resolution – VCAT is able to resolve dispute
much faster than the courts. Generally disputes are
resolved by VCAT in less than a day, as opposed to the
courts, which can often take months to resolve a
dispute. This reduces the stress involved in parties not
knowing the outcome and reduces the costs involved.
However, VCAT decisions can be appealed to the
courts, which would further increase the delays and
costs involved. If this occurs, the parties may have
been better off going straight to the courts in the first
place.
 Low cost – VCAT provides low cost dispute resolution
due to lower fees and generally no need for legal
representation. This increases access to the legal
system and enables more people to afford to have their
disputes resolved. Additionally, if disputes can be
resolved in VCAT, this reduces the burden on the
courts and allows more people to have their cases
heard there. However, costs may escalate if the parties
have legal representation or the matter is appealed to
the courts.
 Less adversarial than the courts – Parties are
encouraged to come to an agreement themselves. This
means they are more likely to abide by the decision
and be satisfied with the outcome. If parties cannot
reach a compromise, a binding decision can be made.
However, parties may prefer the adversarial nature of
court if there is anger and animosity towards the other
party. Courts are more suitable for criminal cases and
large, complex civil claims.
 VCAT is better at resolving disputes than courts
 Do you agree with this statement? Justify your
response
 10 marks
Your task
 Create a group presentation about whether VCAT or
Courts are better at resolving disputes. You must
incorporate AT LEAST 4 strengths of your chosen
resolution body and their corresponding weaknesses.
 You must also explain why the strengths of your
resolution body outweigh its weaknesses