Hi guys.
A few questions on the Dispute Resolution topic.
1. Is it true that mediation can be used in criminal disputes; arbitration and conciliation only civil?
So if a question asked you to distinguish between, say, mediation and arbitration would you say mediation is suitable for both criminal and civil whilst arbitration is only suitable for civil?
The reason how I got the idea that mediation is also for criminal disputes is because of restorative justice? The book mentions this, that mediation is part of post-trial victim-offender resotration?
2. Is arbitration confidential? I was struggling to find differences between judicial determination and arbitration. So would you say one strength of arbitration is that it is confidential?
3. When you are trying to refer to mediation, conciliation and arbitration as a collective, can you abbreivate them as ADR. I remember my teacher saying that they don't use the abbrievation ADR anymore?
4. Can criminal cases be appealed to the Court of Appeal on a question of fact?
In the book, the appellate criminal jurisdiction of the Court of Appeal does not include appeals on question of fact. But for civil appellate jurisdiction, questions of fact is mentioned.
Clarification please?
Thanks.
1. Restorative justice and victim/offender mediation only resolve personal issues - not legal ones. Med, con and arb are only for civil disputes in terms of legal outcomes.
2. Arbitration is only confidential when conducted through the courts. All hearings in VCAT presided over by the President or a Vice-President are conducted using arbitration, and these are open to the public. If you're struggling for differences, think also that JD is adversarial whereas arbitration is conducted inquisitorially; arbitration has limited appeal avenues; judicial officers are legally-qualified, independent members of the judiciary, whereas arbitrators are employed on contract by the executive; JD has strict rules of evidence and procedure whereas arbitration has flexible...etc
3. Nope, don't use 'ADR'. It doesn't make sense anymore since all methods are used by courts, so they're not 'alternatives' to court anymore. Use "non-judicial" if you really need to group them.
4. Conviction and sentence are essentially questions of fact, so don't worry. A question of fact appeal is essentially querying a fact of the case rather than an interpretation or application of law - as in, the facts of the case do not support a conviction, or do not support the sanction that was given.