To be effective, the legal system must seek to resolve disputes in a timely and appropriate manner. Unnecessary delay or obstruction in the resolution of disputes results in justice not being achieved. Delays often force potential litigants to abandon or forfeit litigation or a defence to a criminal prosecution, due to lack of financial resources or disruption to their personal and/or professional lives. As well, delays can create problems in trial procedures. The quality of evidence may be undermined over time as witnesses’ memories fade about critical incidents, facts and perceptions. Overall, the appropriate time periods and without undue delay or interference to their lives. The timely resolution of disputes is important to the legal system’s effectiveness.
Various Mechanisms in the Dispute Resolution Framework
Example of the links between various mechanisms in the dispute resolution framework:
-main mechanism responsible for formally making laws/rules
-enables potential future disputes to be prevented or minimised in advance
-operates by creating new laws or amending existing laws, in accordance with jurisdictional limitations and as a result of social input in a democratic process
Police and law enforcement agencies
-authority is conferred by law-maker
-major role is to discover crime, deterrence, apprehension of offenders and bring them before the courts
-presence and existence helps to prevent disputes and disruptive conduct before it occurs
The traditional court hierarchy is the major forum for dispute resolution within the legal system, and is often used when other (alternative) methods of dispute resolution fail or are inadequate for the purposes of justice. Each court in the traditional hierarchy has its own particular jurisdiction (e.g. the High Court of Australia (HCA) is the only court that resolves constitutional disputes). The courts are the mechanisms where: (1) accusations of wrongful conduct (civil wrongs) and (2) alleged law-breakers (criminal) are legally processed. They are presided over by qualified and skilled personnel who have considerable expertise in the law. The traditional courts are arranged in a hierarchy which makes the dispute-settling process more efficient by offering degrees of specialisation in the resolution of particular types of disputes, allowing a system of appeals to operate, and facilitating the use of the doctrine of precedent in law-making. The courts’ main function is to resolve disputes by punishing wrongdoers, enforcing obligations and protecting individual rights.
Mechanisms in the Dispute Resolution Framework
Specialised courts and tribunals
Specialised courts and tribunals (SCATs) make a contribution to the efficient dispute resolution process by offering expertise in recurring areas of dispute resolution, reducing delays and costs in disputes and being generally more accessible mechanisms for citizens to use.
Adversary trial process
Including pre-trial, trial and post-trial stages (see ‘Equality’ and ‘Fairness’):
-specific pre-trial procedures are required (e.g. civil – exchange of documents)
-enables both parties to know issues in dispute (civil) and assist out-of-court settlement
-enables decision about whether sufficient evidence to support conviction exists (committal – criminal)
-rules of evidence and procedure assists disputes to be settled fairly, with both parties provided opportunity to prepare and present cases
-legal aid allows parties otherwise undefended to undertake legal proceedings
-system of appeals allows dissatisfied litigants chance of redress
-major role-players in resolution of clients’ disputes before the courts
-knowledge of the law and legal procedures enables fair trial to occur and assists litigants to reach more informed decisions about the conduct/presentation of court cases (to their advantage)
1. Provision of advice for prospective litigants regarding rights, duties, legal status.
2. Representation in court and assist in resolution of disputes.
Prisons and Corrections
-authority conferred by parliament
-mechanisms of lawful detention where offenders are detained for disruptive or criminal conduct
-essential to proper functioning of legal system and just outcomes so as to make criminal law effective and enforceable