What is judicial determination?

[Newton]

Can someone please help, what is judicial determination?

[meganrobyn]

It's one of the four methods of dispute resolution listed on the Study Design. It is used by both courts and VCAT, so it is not equal to either of them: it is a method (or process) parties could use in *either* venue.

Judicial determination is when a judicial officer presides over (ie umpires) a trial or hearing in which parties submit legal arguments and evidence favouring their side of the dispute. The judicial officer decides which party's argument is the stronger, and makes a legally-binding verdict or order in their favour. It is the most adversarial method of dispute resolution, and involves one winner and one loser.

A judicial officer is an independent member of the judiciary, such as a magistrate or judge.

Judicial determination is used in courts when a hearing or trial is conducted before a magistrate or judge. If a judge is involved in a pre-trial mediation (for example, in the Supreme Court) they are not sitting as a judge and it is therefore not judicial determination. Judicial determination is only when it is a proper hearing or trial.

Judicial determination is used in VCAT when a hearing is conducted by the President of VCAT (who is a Supreme Court justice) or one of the Vice-Presidents (who are all County Court judges).

Contrary to popular belief, you do not start at mediation and then work your way through all the methods. Some legal disputes go straight to judicial determination or arbitration and get resolved there without anything else happening; others resolve during a conciliation or mediation conference; others have unsuccessful mediation or conciliation and then go to judicial determination or arbitration; others resolve a few matters at mediation or conciliation then go to judicial determination or arbitration for the remaining issues they can't agree on. It all depends on the type of dispute.

Note: If it's a trial you call the decision the 'verdict', while if it's a hearing you call the decision an 'order'.

[Newton]

Thank you, I really appreciate and admire the time and effort you put into all your responses! Im just little confused, maybe because of the way my teacher explained it. So judicial determination is an ADR method (mediation, conciliation and arbitration)  and it can also be used by the courts. However than why is it not mentioned, with ADR? 

Secondly what I concluded is that judicial determinations is basically when both parties are given the opportunity to present their case with full evidence to a judge, magistrate or a VCAT member who than decides  the outcome of the case by imposing a legally binding decision. In judicial determination, one party always wins while the other loses?

thank you for your reply once again, could you please clarify my misunderstandings?

[meganrobyn]

Thank you I like to help when I have the time.

A common error being made currently is the use of the term 'ADR'. It is misleading, and doesn't really make sense given the range of methods being used by courts nowadays; it's being phased out of legal terminology (often replaced with 'appropriate dispute resolution' including all methods, or 'judicial' versus 'non-judicial' methods) and consequently was deliberately removed from the current Study Design. ADR used to essentially mean 'alternatives to court'... but now that courts use mediation etc pretty extensively, that doesn't make sense anymore!

So, basically, scratch the term 'ADR' from your vocabulary, as it will only confuse you, and replace it with judicial methods (ie judicial determination) and non-judicial methods (including mediation, conciliation and arbitration) if you really need to make the distinction. VCAT uses both judicial and non-judicial methods, and courts *also* use both judicial and non-judicial methods.

Apart from that, your understanding of JD is fine. The differences between it and arbitration are therefore things like:
 - arbitration isn't done by a judicial officer, therefore the arbitrator isn't protected by the independence of the judiciary and the separation of powers;
- judicial determination has much stricter rules of evidence and procedure (partly because of its judicial nature); and
- arbitrators are more likely to split the claim down the middle, while judicial officers find in favour of one party and against the other.

[Newton]

Thank you so much
that REALLY helped. OMG! love you! and once again thanks for everything <3

[Liuy]

I am speaking for all the 2011 Legal Eagles of Atarnotes when I say this, I WISH you were around this forum last year Megan!

[meganrobyn]

Aw, what a good day this is! 

I was working full-time last year so, you know, you have to prioritise.