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Chapter 7

Litigation, the legal process and alternative dispute resolution

Copyright © Nelson Australia Pty Ltd 2003

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Outline

1. Conflict and the courts2. The legal profession3. Legal proceedings4. Legal process5. Facilitating legal action6. Arbitration7. Alternative dispute resolution

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7.1

Conflict and the courts

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Dispute resolution

• Ancient methods of dispute resolution included:• the duel• trial by ordeal• clan feuds• self-help.

• Litigation evolved from these methods as a more civilised, and less destructive, method of resolving disputes.

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Dispute resolution

• Problems with litigation today:• Australian society is increasingly litigious.• The costs of litigation are extremely high.• There is a constant threat of litigation to

advice givers and service providers.• Ever-increasing legal complexity and

number of courts

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7.2

The legal profession

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Lawyers

• Solicitors:• give legal advice• prepare legal documents• occasionally represent clients in court.

• Barristers:• present cases before the courts• provide specialist advice• cannot be sued for negligence.

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Judges

• Appointed by the government but are otherwise independent

• Salary cannot be lowered• Immune from liability for anything they might

say as judges• Fixed age of retirement• Cannot be removed except in extraordinary

circumstances (established misbehaviour or incapacity)

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7.3

Legal proceedings

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The adversary system

• Each party fights through its lawyers in a procedure that awards a result after the two opposing cases are assessed.

• Essential features:• Conduct of litigation is in the hands of the

parties.• One continuous hearing• Evidence is elicited by questions asked by

the parties, not the judge.• Is the adversary system the best possible

approach to resolving disputes?

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The inquisitorial system

• Common in civil law jurisdictions• The judge, usually a government official, is an

inquisitor actively seeking out the facts, rather than an impartial referee.

• What advantages does the inquisitorial system offer over the adversarial system?

• In Australia, inquisitorial procedures are increasingly adopted in non-judicial dispute resolution processes.

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The jury

• Criminal cases: Only the most serious crimes are heard by a jury; most criminal cases are dealt with by magistrates without a jury.

• Civil cases: Juries are used infrequently; in some cases either party may request a jury.

• Is the jury system still appropriate?

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Burden and standard of proof

• Burden of proof – Which party has the onus of proving the truth?• Criminal trials – The prosecution• Civil trials – The plaintiff

• Standard of proof – To what degree must the facts be established?• Criminal trials – Beyond all reasonable

doubt• Civil trials – On the balance of probabilities

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7.4

Legal process

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Pleadings

• Civil proceedings:• Commenced by statement of claim, which

outlines the demand of the plaintiff• Defendant files a defence, which responds

to each allegation • Defendant may file a counterclaim.

• Criminal proceedings:• Commenced by issuing of summons or by

arrest and charging of accused

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Pre-trial procedures

• Interrogatories – A series of questions requiring written answers on oath

• Discovery – Requires a person to declare on oath all relevant documents in their possession, and allow inspection

• Interlocutory orders – Orders for the correction of incomplete pleadings or compliance with interrogatories or discovery

• Interim injunctions – Urgent orders preserving an existing position or restraining a party from doing something

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Trial

• Parties present opening cases.• Witnesses are called to give evidence:

• Examination in chief• Cross examination• Re-examination

• Jury decides questions of fact.• Judge decides question of law.

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Appeals

• Parties usually have rights of appeal.• Most appeals are restricted to re-examining

questions of law rather than questions of fact.• Appeals are usually heard by three justices.

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7.5

Facilitating legal action

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Facilitating legal action

• Legal aid – Legal aid commissions provide limited, means tested funding.

• Contingency fees – Lawyer charges client on ‘no win, no fee’ basis.

• Class actions – Groups of people with substantially similar claims join together to pursue legal action.

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7.6

Arbitration

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What is arbitration?

• Involves referring the matter to an arbitrator who hears the evidence and makes a decision the parties have agreed to accept as final

• The arbitrator is usually an expert in the relevant field.

• Initially a faster, cheaper alternative to litigation

• Now just as costly, complicated and time-consuming

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7.7

Alternative dispute resolution

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ADR

• The resolution of a dispute without the intervention of a court

• Aimed at producing a resolution by agreement between the parties rather than through the imposition of a judgement

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ADR techniques

• Negotiation – Direct and informal negotiation between the parties

• Mediation – Use of an independent third-party facilitator who plays a passive role

• Conciliation – Use of an independent third-party facilitator who plays an active role

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ADR techniques

• Mini-trial – Use of a negotiating panel representing both sides plus a neutral advisor which listens to each side and proposes a settlement

• Expert appraisal / determination – Use of an independent expert who advises on resolution of the dispute