ADR

Question 1

Why is effective access to courts difficult for civil disputes?

Answer 1

Costs involved in litigating a claim
Mediation / conciliation arbitration mechanisms for resolving disputes
Mediation act 2017 provided important statutory framework

Question 2

Distinctions between mediation & conciliation?

Answer 2

Mediation: parties select independent party to assist in reaching mutually negotiated settlement
Conciliation: independent party takes more interventionist approach in bringing parties together

Question 3

What happened if parties unable to reach settlement?

Answer 3

Conciliator might issue recommendation not binding on parties
Distinction adopted in mediation act 2017

Question 4

What did LRC note was fundamental aspect in meditation & conciliation?

Answer 4

Both interest based dispute resolution processes
Take into account emotions & seek creative solutions to resolution
Voluntary & non binding

Question 5

Fundamental difference between ADR & court processes?

Answer 5

Adversarial court system means clear winner & loser
Courts limited in terms of civil remedies through damages
Families may just want apology
Applied in 2014 Magdalen commission report

Question 6

Provisions in 2017 mediation act?

Answer 6

S2(1) defined mediation as confidential, facilitative & voluntary process which parties to a dispute attempt to reach mutually acceptable agreement

Question 7

Key principles in mediation?

Answer 7

Voluntary
Autonomy & control
Efficiency
Transparency
Confidential

Question 8

What is arbitration?

Answer 8

Long established form of ADR, commonly used for contract disputes insurance holiday etc

Question 9

Arbitration international trade?

Answer 9

Common for companies to require ADR in particular location rather than stated they are trading.
Has nation & international aspect

Question 10

Arbitration procedure?

Answer 10

Held in private
Adversarial in nature
Arbitrator must act impartial

Question 11

Arbitration & courts?

Answer 11

2010 act provides for mechanisms where courts may become involved
Arbitrator may refer to high court & can appeal
Courts unlikely to interfere
Based on policy of encouraging ADR

Question 12

Arbitration schemes?

Answer 12

Common in determining level of compensation on compulsory acquisition of land
Most significant legislation acquisition of land act 1919

Question 13

Coroners legislation?

Answer 13

Regulated by coroners act 1962 as amended
Prescribes procedure under which inquests must be held

Question 14

When is coroner jury necessary?

Answer 14

S60 of 1962 act
Murder
Other statutory provisions
Accident / poisoning

Question 15

Similarities between coroner & regular court?

Answer 15

Sits in public
Presided over by professional person
Witnesses give evidence under oath

Question 16

Differences between coroners court & normal court?

Answer 16

Inquisital body than adversarial
Findings limited
S30 precludes giving of verdict which would implicate civil or criminal liability

Question 17

Criticism of 1962 limitations?

Answer 17

Proposals for reform 2000
Coroner’s amendment act 2005 enacted to deal with two issues:
Limitation in s26 only two medical witnesses
Criminalising of non attendance of juror

Question 18

What is the ombudsman?

Answer 18

More informal review mechanism
Borrows from Scandinavian model

Question 19

What does the ombudsman act 1980 provide?

Answer 19

Independant in performance of functions
May investigate decisions or omissions which occur in administrative functions where it adversely affected person

Question 20

When is ombudsman empowered to investigate any decision / omission?

Answer 20

Taken without proper authority
Irrelevant grounds
Negligence

Question 21

What matters for ombudsman?

Answer 21

Certain matters excluded
Scope of power wide & expanded in 2012 to include all bodies funded by state

Question 22

Key distinction to ombudsman & judge?

Answer 22

No power to make binding determinations
Ultimate sanction adverse publicity
Sanction proved persuasive

Question 23

Example of ombudsman?

Answer 23

GSOC
Empowered to investigate any matter if offence committed or behaviour that would justify disciplinary proceedings
Any member of the public can refer complaint