Lecture 1 – Conflict
Conflict is law:
· Mediation doesn’t exist in the criminal law process
· Mediation has been around longer than the court process – for as long as two people have been arguing
· Mediation is a third person trying to resolve an argument between two people
· Conflict is a disagreement between two people
· Mediation defintion: To resolve or settle (differences) by working with all the conflicting parties:
· Incompatibility
· Conflict will always be around
· What is the root cause of conflict: trying to meet a need, personality differences, correcting a wrong doing
· It is not just within the law – can be between personal relationships, etc
· Law is sufficiently different: law exists because of conflict
· The Law exists to solve conflict between two or more people
· Contract is to avoid conflict – contracts are created to avoid conflict
· The law exists because it wants to educate people – tries to educate people what their rights and their obligations they have under the law
· The law exists to stop people from doing certain things
· Laws also exists to punish those who start conflict (criminal law) – prison etc
· Also try to restrict future conflict from happening
· Law is conflict – law exist to try to avoid conflict
The structure of our legal system:
· 3 branches: federal, provincial, municipal
· In Ontario, we use Common law – a system of law based on case law
· In Quebec, they have civil law – they don’t really rely on cases, they rely on the statutes themselves.
· Civil procedure: how the law is administered in each province, how to serve people, how you commence procedures. Section 96 courts.
· Responsibility between courts are split between federal and provincial. Judges are appointed by federal government. Each province has their own rules as to what happens in those court rooms.
· Procedural law: how do you access those laws? How do you commence?
· Different in each court house
What is the role of our court:
- give binding decisions, give people a final decision.
· Give consistent rules
· To make sure everything goes fairly (procedure)
· To interpret the law
· To provide justice
· Constitutional law – maintain our democracy
· Independent judiciary
There are 3 characteristics of judiciary
1. security of tenure
2. financial security
3. administered independence
The role of the judiciary: to maintain our democracy.
Why do you think security of judiciary exists?
· judiciary independence costs money
· Each judge has an assistant, a law clerk.
· Judges must earn a certain type of money
Judges have control over matters what they want to hear.
If you want to divorce someone or sue somebody how to commence?
1. Draft an application or file a claim
2. Go to court and get it issued
3. Go give it to the other party
4. Draft an answer
5. Draft a statement of an offence
6. Give the answer to the other side
7. Go back to the court make sure they have all the documents in order and they give it to them
8. Case conference –you stand before a judge
9. A motion – the step you take to get what you want
10. Settlement conferences
11. Forced mediation (civil law)
Everything has been commenced, what happens next?
· Put on a trial list
Why do we have these procedures?
-Legitimizes the process
- procedures are justice
- justice is all the motions and procedures
· These rules are not coherent (family law rules and civil)
· The reason why there is access to justice is because of lawyers.
· They break urgent motions.
· Lawyers have to do their obligations (due diligence)
Access to justice
Alternative dispute resolution:
· resolving a dispute.
· Mediation
· Negotiation
· Arbitration: where you appoint someone to make a decision on one or several issues on a case. Someone imposing a decision on you.
Mediation has existed for centuries
· Intuitive concept. It’s nothing something that is new.
The article
Why did mediation become so popular?
· There has been this growing dissatisfaction with the legal system
· 1930’s divorce was very hard to get – hard to prove adultery, abuse, etc
· 1968 the divorce act has been enacted – no fault divorce
· instated concepts on ideas – spouse support, child support
· 1968 created a whole new area of law – new ways people can go to court
· mediation takes off – informal and flexible path.
· Mediation costs significantly less than going to court
· Its time saving, cheaper, more time efficient, it can help improve communication
· A big part of mediation is maintaining the relationships
· Promote confidentiality
· Creative solutions to complex problems
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