Law157 Integrating Indigenous Justice Assignment Answers

• Internal Code :
• Subject Code : LAW157
• University : University of New England
• Subject Name : Law

Alternative Dispute Resolution - Answer 1(a)

The Aboriginal culture that has resonance with other nations related to the following:-

1. The author claims that Aboriginals share a spiritual connection with other nations through stories of their origin. The period of creation is known as Dreaming. During this, the world was created by Angels or Hero Ancestors who returned to nature afterward. They are Rainbow serpent, Crocodile for Behrendt’s people, or Yuludarra or Baabagu for Kellys.
2. There is evidence of established trade relations between different clans and nations. For instance, some traces reveal that Gumgaynggirr people met at New South Wales with people from northern, southern, and western parts of Australia. Some of them followed matriarchy or patriarchy. Men and Women shared equal rights. Families comprised of whole clans and sub-clans. Relationships were identified with totems or Biigarr and kinship within the clans.
3. All the Aboriginal cultures show affinity and belongingness towards nature. The environmental conditions forced them to live a nomadic life. They knew all the possible sources of food, medicine, and water. Increases sites were maintained to ensure sustainable use of resources. The boundaries were marked through stories passed down through generations.
4. As members of a clan were closely knit, their emphasis was on speedy dispute resolution and for ascertaining the ideal behavior, the law of the creation being was followed. The knowledge of the law was imparted through art, dance, and songs. Different clans never had a dispute over ownership of land.
5. Elders were authoritative figures. Eldership vested in a person who knew most of the laws and ceremonies. The concept of sovereignty didn’t exist. Senior members collectively made decisions for clans. The priority was not an individual but maintaining order and peace in the clan.

Alternative Dispute Resolution - Answer 1(b)

1. In Australian litigation, an oral complaint which is drafted as per Uniform Civil Procedure Rules is filed for starting a civil matter at the magistrate’s court. The solicitors plead the cases of the plaintiff or defendant at trial. Everything is recorded and sworn upon. Affidavits are tendered to ensure credibility and want of estoppels. In Aboriginals, everything is informal.
2. The parties to the dispute are expected to maintain the decorum of the court. Their responses are recorded and pre-defined as per the advice of their counsel. There is no room for emotional outbursts in litigation. Everyone is expected to follow and cooperate in the due process of law. The disputes are often dragged on for years.
3. The case is presided by a judge who has received a formal education of the written statutes. The parties are not known to them or any other officer of the court. The judgment is given according to precedents and previous conduct and behavior of the accused or victim are not considered unless evidence is tendered for that too.
4. The adversarial mode of trial is time-consuming and sometimes prove to be vengeful. It is cold and calculated. The procedures and deadlines are fixed. A layman can’t understand the technicalities of law. In aboriginals, the law is passed on through generations through a common language. Whatever judgment is being reached upon by the judge at the end of the trial concludes the rights and liabilities of the parties.
5. Evidence in litigation is adduced according to the law of the forum. The lack of promptness in recording evidence leads to confusion and the risk of tainting the evidence with external influence. The process of retrieving and identifying the evidence is daunting. In Aboriginals, the credibility of the evidence is ensured by invoking the conscience of the witness. The evidence could only be given for the pre-defined issues.
6. The laws and procedures remain the same in litigation depending upon the nature of the dispute. Whereas, the procedure for dispute resolution in Aboriginal culture evolves with the nature of every dispute. The ides of justice is social as well as individual-centric. The priority is given to the interest of the clan rather than the individual.

Alternative Dispute Resolution - Answer 2(a)

Las gap negotiations are the penultimate pain for mediators to score a settlement. It is known as the last dance. Sometimes, a negotiation fails because of myriad financial and emotional reasons. In disputes relating to money or an asset that can be divided and monetized, the mediators' advice the parties to sell the asset at an auction and divide the proceeds equally. This arrangement can’t roll out successfully where a party has already sacrificed a lot for the sake of dispute resolution.

The party who is adamant and not keen on solving the issue rather than frustrate it after a lot of efforts are being put to reach an amicable settlement takes the bigger piece of cake if this kind of proposition is being followed. For this reason, many negotiators don’t offer a realistic and reasonable proposition. Given the psychological trait of humans, this holds for most of the negotiations. Even after a reasonable offer is put, the opposite party would always try to push for more.

Alternative Dispute Resolution - Answer 2(b)

The last gap in negotiations could be filled or passed by the following strategies that could help parties to ease out the deadlock and reach an effective dispute resolution:-

1. Educating parties about the purpose of negotiation

An experienced counselor arbitrator can foresee and predict the possible course the arguments can take. They can prepare the party to dispute beforehand about the various stages of negotiations. This could help the client not to get caught by surprise and act maturely rather than impulsively. The training can be imparted through diagrams, videos, case studies, and workshops.

1. Convincing parties to be accommodating

A skilled negotiator understands the needs of the parties and over time he can predict their behavior too. This helps him to read them psychologically and handle them accordingly. He can give examples of the previous deal-breaking last gap issues and how parties made peace with the original proposition eventually after going through a great amount of emotional and financial pain for a long time. He can make them understand the viability of the thing if they resorted to giving up a little more.

1. Split the difference

This is one of the most common forms of breaking the ice at the stage of last dance. This form, of negotiation, is successful where parties are struck on a material item having monetary value. If none of them wants either one to have it, they can always auction the item and divide the proceeds equally between them.

1. Flipping the coin

This may sound unprofessional but the deal could be closed by just flipping a coin. If parties are finding it hard to reach a mutually satisfactory arrangement, they can flip the coin and leave things on luck. They can save time, money, and integrity as there is no scope of blaming the other party for his shrewdness or manipulation afterward.

1. Transfer the last lap to a neutral third person

Parties often feel that counsel of the respective teams can never see the things from their perspective even if the opposite party is setting out a reasonable offer in reality. Most of the negotiations fail due to this confirmation bias. So, the last gap could always be sent for resolution to a third party who can give his neutral advice on that.

1. Taking breaks in between for easing out the tension

Negotiations can take their toll on the most intellectual and prudent person. The whole process is weary and harrowing. Sometimes, people are not comfortable speaking their minds to their counsel. They may feel to confide in some friends or family members for taking an opinion to avoid second-guessing anything on the table. Taking breaks and giving time to both the parties to cool off and think reasonably is an effective tool to overcome the last gap.

Alternative Dispute Resolution - Answer 3

Litigation is a process where rights and liabilities of the parties to a dispute are ascertained in open court according to the prevailing laws of that country. Following are some advantages of resolving disputes through litigation:-

1. Parties are obligated to accept the terms of the judgment.

Judgment is given by the court needs to be duly accepted and complied with by the parties. They little choice in this regard. Due to time constraints, parties face the imposition of penalties. A person may lose his home or all his property due to compliance with a court order. Because of this reason, the process of litigation is taken seriously by the parties.

1. Right to appeal against the judgment of the trial court

The judicial system of Australia is structured in a way that allows parties who are dissatisfied with the decision of the trial court to file an appeal in the high court. This facilitates the administration of justice as there are chances for the previous decision to get overturned. The appellate court is having the power to order a new trial also.

1. Uniform application of the law

There is a uniform application of the law when it comes to litigation. Rule of law and equality before the law is indispensable to the administration of justice. Principles of stare decisis, obiter dicta, and precedents are being followed. The decision of a higher court is binding on lower courts. Reasoned judgments are delivered with an appreciation of evidence according to law. Findings of the court in a case are also admissible in different judicial proceedings against the same party

1. Adversarial mode of litigation

The Australian judicial system is adversarial i.e. counsels are responsible for putting their case forward. The court is having a passive role and it just decides in favor of the party who can make his case by adducing evidence in support of their claim. The judges and counsel are not related to parties to ensure a non-biased decision.

1. The proceedings are recorded

This is one of the greatest advantages of litigation. The parties are required to furnish an affidavit to ensure consistency throughout the trail. A party who has stated in court regarding a fact in issue can’t detract from it due to estoppel. Everything is formally recorded in court and can be accessed anytime.

Following are the disadvantages of litigation:-

1. Time-consuming

Due to the complexity of procedure and laws, litigation is time-consuming and frustrating as a case can go on for years and the decision must come after the time when the judgment has lost its essence in the lives of the people. It is said that justice delayed is justice denied. Litigation is not fit for trying petty offenses and depute that need quick resolution.

1. System of appeals make it a vicious process

To maintain the law and order and satisfaction among its citizen, the constitution of every nation has provided for a system of appeal. Appeal id filed by a party who is dissatisfied with the decision of the trial court. This determines the rights and liabilities of parties an inconclusive and vicious process as the judgment might get overturned.

1. Litigation is not cost-effective

The cost of litigation in the adversarial system is high because parties have to hire counsels for putting forward their case in front of the court. An experienced counsel charges AUD 100 for an hour notwithstanding the court fee and other expenses.

1. Litigation leads to irretrievable breakdown of relationships

This is the most damaging con of litigation. When parties are involved in a litigation process, it damages their relationship with the other on a personal and professional level. As all the things are recorded, a party can’t take back what it had said against another.

1. Public forum

Litigation is emotionally, financially, and socially taxing. All the documents after being recorded become a public document and can be scandalous. There is a fear of media trials in some high profile cases. This can damage the whole reputation of a party even if he gets an acquittal in the end.

Therefore, whether litigation should be adopted depends upon the complexity of the issue involved.

Bibliography for Alternative Dispute Resolution

Wade, John H, ‘The Last Gap in Negotiations. Why is it Important? How can it be Crossed?’

Ciftci, Sarah and Howard-Wagner, Deirdre,’ Integrating Indigenous Justice into Alternative dispute Resolution Practices: A Case Study of the Aboriginal Care circle pilot Program in Nowra’, (2012) 16(1) Australian Indigenous Law Review

Berndt, Catherine H., and M, Ronald, The world of the First Australians: Aboriginal Traditional life, Past, and Present (Canberra: Aboriginal Studies Press for the Australian Institute of Aboriginal Studies, 1996)

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