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Description
Flashcards by sarahmusuku, updated more than 1 year ago
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Created by sarahmusuku
over 9 years ago
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| Question | Answer |
| What is litigation? (judicial) | The process of taking a case to a court so a judgement can be made. - The most high-profile approach to dispute resolution. |
| What are the strengths of litigation? (PBPCS) | - Public enunciation (proclamation) of community values: occurs in a public forum. In a successful murder trial the sentence shows how society views this crime. - Creation of principles and precedent: People can be guided by the principles or precedents set in future dealings. (Negotiation/mediation guidance would be lost) - Binding decisions: Principles are upheld because the final decision is binding, they can be enforced using the resources of the legal system e.g. police force and court officials. Guarantee to parties of a resolution - Protection from power imbalance: All parties in trial are subject to the same strict rules of evidence, the presence of a lawyer also counters any initial power imbalance, substitutes for their clients skill or lack of. - Security for the legal system: Ensures parties have a reliable and enforceable system to fall back on |
| What are the weakness of litigation? (CTDL) | - Cost: Very expensive, many can't afford legal representation - Time: Can take up to months or several years, these delays are costly in fees, loss of time and opportunities (in relationship settlements e.g. divorce, delays are unsettling for children) - Damage to relationships: Aim is to reach the 'correct' decision, in this process relationships can be destroyed, after verdict is reached relationships are often already beyond repair. - Limited range of remedies: Offers a limited range of solutions compared to negotiation and mediation, the best outcome may not available through litigation |
| What is negotiation? | The most common form of dispute resolution used in NZ's legal system. 'Encourages us to separate the person from the problem, rather than see the person as the problem.' |
| What are the strengths of negotiation? (FTP) | - Time and cost: Quicker and cheaper than litigation, also cheaper for the government therefore tax payers - Preserving relationships: Assists in preserving relationships that could be destroyed in court trial. - Flexibility: A lot of flexibility as solutions are potentially unlimited. Parties have complete control over the process and outcome, it's agreement by consent. |
| What are the weakness of negotiation? (LNP) | - Power imbalances: Negotiation doesn't include a third party, so power imbalances could undermine the dispute resolution process (Contrast in how experienced the lawyers of each party are = dangerous for weaker party) - Lack of public enunciation of community values: private nature of negotiation doesn't allow principles to be publicly enunciated, and precedents don't follow negotiated settlements. - No guaranteed binding decision: Negotiation is consensual therefore parties may not consent to agree. |
| What is mediation? | Can be described as 'assisted negotiation' assumes the presence of a third party to 'mediate' between the parties to dispute. |
| What are the strengths of mediation? (BCCCRT) | - Relationships: Mediation revolves around how to preserve and strengthen relationships, mediators are experts in resolving conflict. - Confidential nature: Helps create an environment where relationships can be improved - Cost: Relatively inexpensive, it is the most cost-effective as the main cost is only the mediator's fee - Time and flexibility: It's generally less-time consuming, definitely faster than litigation although it cannot be rushed - Cultural feminism: Associate with a more 'feminine' approach to our legal system, based on inter-personal communication and relationship building - Better outcome: As mediators control the process but parties are in charge of the substance |
| What are the weaknesses of mediation? | - Mediator bias: The mediator could attempt to correct a power imbalance and end up favoring a particular party. Could inappropriately impose their own views on the parties. - Lack of procedural safeguards: There's uncertainty with the legal system - Lack of public enunciation: It's confidential in nature - No guarantee of binding decision: A binding decision often results but isn't guaranteed - Inappropriate for some areas of law: E.g. criminal law cases |
| What is Maori Dispute Resolution? | - Largely holistic, where the actions of an individual are seen in the context of the whole whanau. - Has become more influential in NZ over the past decades |
| What are the advantages for Maori using Maori Dispute resolution? | NZ's legal system is generally impersonal/individualised. Whereas MDR: - Recognises that the mana (status) of the whanau is affected collectively. Whakapapa (ancestry) is taken into consideration. - Its basis is whanaungatanga (family support and community togetherness) - Uses whakamama (shame) to graphically illustrate the damage the offender has caused e.g. through family group conference - Focus on Utu (maintaining balance in society) executes principles of inclusiveness and accountability, allows opportunities for all to be heard - A judge with an understanding of tikanga Maori (style) could decide a warning is enough as opposed to a conviction |
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