Activity 5a

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of negotiation options to achieve the principles of justice requires students to write about relevant strengths and weaknesses of negotiation options. Responses will vary according to the arguments selected.

        Arguments in support of negotiation options achieving the principles of justice include:

• Informing a party that there is a complaint against them provides an opportunity to negotiate and settle the claim before it reaches the court – this contributes to fairness, by informing the party of the complaint against them, and access, by giving a responding party options to resolve the dispute.
• Some options allow each party to explore his or her point of view on the case with the assistance of an independent third party, and allows both parties to attempt to reach a resolution together – this promotes equality between the parties.
• Each negotiation option is relatively inexpensive, compared with a full trial or hearing, and options such as private mediation can be conducted in any neutral place – this enhances access for parties who wish to avoid the set court fees, or for parties who cannot afford them.
• Negotiation options, even the most combative ones, are less adversarial than a full court trial process, and they focus on agreement and willing acceptance of a resolution – this enhances access to dispute settlement for a party who may wish to preserve a continuing relationship, and who does not desire the adversarial approach of a court proceeding.
• By giving parties expert advice on their prospects of success before a trial, early neutral evaluation improves access to the legal system by informing parties thoroughly before they embark on expensive and demanding litigation.
• Court procedures have evolved to accommodate, or even require, negotiation options – this promotes equality between the parties, because it does not rely on the goodwill of one party to decide whether the other gets the benefit of negotiation attempts: all parties must make some attempt in all serious civil matters (for example, a defendant can be penalised for rejecting a reasonable settlement offer made in a letter of demand – thisreduces the ability of a wealthy defendant to simply push the plaintiff in that case to trial).

        Arguments against negotiation options achieving the principles of justice include:

• Many potential defendants ignore a letter of demand if they are not certain that the complainant will follow through with legal action (for that reason, legal advice is recommended to give the letter authority) – obtaining expensive legal advice at such an early stage may deter many people from initiating a complaint, preventing effective access to methods of settling a dispute.
• The absence of strict rules of evidence and procedure in negotiation methods may allow one party to dominate the other and obtain an outcome they were not otherwise entitled to – the mediator or conciliator has no power to intervene to prevent an agreement being made that is unfair to one party, and in private negotiation there is no third party (the absence of strict rules may reduce the fairness of the process).
• Before all the facts have been tested at trial, parties may not be aware of the relative strength of their cases – parties may make an offer to settle a case for much less than they could be entitled to following a full trial, which would not be a fair outcome and would not give parties access to natural justice.
• Early neutral evaluation is not binding, and negotiation options conducted privately may not be binding if parties do not enter into a contract with each other or draw up a deed of settlement – fairness would not be achieved if one party negotiated in good faith, or relied on the ENE advice in good faith, and the other party undermined this by taking advantage of a non-binding outcome.
• Admissions made during negotiation options are without prejudice, meaning that an opposing party cannot rely on them during court proceedings – this can inhibit equality if one party refuses to make complete and honest admissions in their formal filing documents, while the other is transparent – anything additional learnt during negotiations cannot be used in formal proceedings.
• Settlement is often not possible because plaintiffs and defendants have different reasons for engaging in negotiation, and are usually willing to settle at different times in the dispute – parties therefore have access to negotiation alternatives in theory, but these options are more difficult to realise in practice.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against negotiation options, that it does achieve one principle of justice. Responses will vary according to the arguments selected.