5210LAW Lecture Notes - Lecture 6: Counterclaim, Adverse Inference, Adversarial System
1. GETTING TO TRIAL
1.1. Alternative Dispute Resolution
- Alternative to what? Adversarial litigation.
- Recall week 1 and some of the shortcomings of the traditional adversarial system
we considered:
ofinancial costs (social justice issues)
ohostile and defensive, leaving parties alienated (yet in some instances the
parties must continue to work together after the ‘battle’)
olimited to legal issues in dispute, rather than holistic resolution (often
disputes run deeper and wider than mere legal issues)
- Partly as a symptom of adversarial system shortcomings, ADR has grown
significantly over the past 30 years.
- ADR has been integrated into the court’s processes through court-ordered
mediation and case appraisal.
- ADR has been mandated in some Australian jurisdictions (Cth and Vic)
1.2. Types of ADR
- Types of ADR include:
oInformal
oMediation
oConciliation
oArbitration
Starts to get more expensive, more formal and more work
- Circumstances in which ADR occurs:
oAd hoc – anytime
oContracted
oCourt-ordered
oLegislated
1.3. ADR – Mediation
- Facilitative.
- Mediator determines how process to be conducted. But doesn’t direct the
substance of the dispute.
- ‘Public’ and ‘private’ caucus
oPrivate = mediator meet with party separately
oCan be in different rooms if necessary
- Lawyers may be present.
- If successful, usually ends in a signed agreement.
- Positive features of mediation:
oaccessible and flexible;
ovoluntary;
oconfidential; and
ofacilitative.
- Negative features of mediation
opower imbalances;
oquestions over enforceability of agreements to mediate; and
orequirement for parties to already have some common ground.
1.4. ADR – Conciliation
- Facilitative
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- More directive than mediation – conciliators advise parties as to substance.
- Often linked to an institution – court – government funded
- Lawyers may be present although not common
- If successful, usually ends in a signed agreement.
1.5. ADR – Arbitration
- Determinative
- Often what happens in a civil tribunal like QCAT
- Can look like litigation
- Best works in specialist areas – ie international commercial arbitration
oInternational arbitration treaties
- Like litigation – best works when parties on even playing field.
1.6. Court-ordered ADR
- The Civil Proceedings Act 2011 (Qld) part 6 and the UCPR establish court-annexed
ADR processes.
- Incorporates mediation and case appraisal into pre-trial management process.
- Parties may refer dispute to mediation or case appraisal (s 42), or may be ordered
by court (s 43 r 319).
-ADR is not a legislative obligation (as it is in Vic and Fed Civil Proceedings Acts),
although in real terms, case management and the likelihood of a court order makes ADR
almost mandatory
oJudge before the trial proceedings begin will ask whether ADR has occurred
and if not will generally not begin the trial until done so
1.7. Court-ordered ADR – Mediation
-Mediation process rr 323-333.
- Dispute can be referred to an appointed mediator r 323
- Parties have obligation to assist mediator r 325
- If parties reach settled agreement, must be written down and filed with court: see s
48 and r 329.
oCan become courts order
- No adverse inference drawn against a party in the event that mediation fails and
the dispute proceeds to trial: r 332.
oWithout prejudice mediation – same as negotiation
1.8. Court-ordered ADR – case appraisal
-Case appraisal process rr 334-345
- Dispute can be referred to an appointed case appraiser (barrister or solicitor of at
least five years standing) who provisionally decides a dispute: r 334.
- A case appraiser has the power of the Ct to decide the dispute r 335, but
oCannot punish for contempt
- A party dissatisfied with the case appraisal decision may elect to have the matter
continue: r 343.
- Otherwise, decision of case appraiser will be binding: r 341.
1.9. Court-ordered ADR
- Mediation or case appraisal (or both)?
ocommercial parties generally choose mediation – greater party control over
the process and outcome.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Partly as a symptom of adversarial system shortcomings, adr has grown significantly over the past 30 years. mediation and case appraisal. Adr has been integrated into the court"s processes through court-ordered. Adr has been mandated in some australian jurisdictions (cth and vic) Starts to get more expensive, more formal and more work. But doesn"t direct the substance of the dispute. Can be in different rooms if necessary o. Positive features of mediation: accessible and flexible; o voluntary; confidential; and facilitative. o o o. Negative features of mediation o power imbalances; questions over enforceability of agreements to mediate; and requirement for parties to already have some common ground. o o. More directive than mediation conciliators advise parties as to substance. Often linked to an institution court government funded. If successful, usually ends in a signed agreement. Often what happens in a civil tribunal like qcat. Best works in specialist areas ie international commercial arbitration o.
