ADR and Tribunals Flashcards
What is a ADR
Ways of solving disputes without going to court
What is arbitration?
The most formal type of ADR
– Parties agreed to have decided by an independent arbitrator and are bound to the outcome
– ACAS for employment disputes
Parties choose time date and degree of formality as well as a whether to have a hearing and its format
– Paper arbitration – party submit the disputes to the arbitrator
Can choose the arbitrator – lawyers or experts Institute of arbitrators provide skills arbitrators if parties cannot agree
Decision is final and can be enforced by court
S69- arbitration act 1996 need permission
Known as a reward
Can be appealed to KBD of High Court on a point of law or if there has been a serious irregularity
Place within the court system as well as outside it for example in family cases the parties can choose to go to an arbitration and then have the award converted into a court order
In other cases, the court may allow to proceedings to allow to take place
What is negotiation?
The least formal way to resolve dispute
Parties try to negotiate a settlement before a court action is taken
– Negotiation will also take place between the solicitors of the parties in the run-up to a civil trial
– Negotiations often continue once a claim has been made and the parties are awaiting their trial date
– Many cases settle out of court just before trial
What is mediation?
An independent third-party will meet the parties in the dispute to try to get them to reach a settlement
– The mediator will not make suggestions to the parties but instead facilitate the parties to make their decision for themselves
Can take other forms e.g. a mini trial may be held between the parties and a natural mediator
– Is often used in family disputes and the mediators are often trained in counselling skills
– The family law act 1996 was introduced to try to encourage divorcing couples to use mediation rather than the courts
– Has also become popular with businesses as it helped preserve commercial relationships
– Also has been used by local councils to help solve neighbour disputes
What is conciliation?
Conciliation is similar to mediation except for conciliator will play in more active role in trying to solve the disputes
– A conciliator is a neutral third-party who will actively try to get the parties in the dispute to come to an agreement
– the conciliator Will suggestions and try to find a way to get the parties to reach a settlement
– A conciliator will often meet with the party separately and go with the two suggesting solutions to the problem
– Then offers the parties a non-binding option on how they should settle the dispute
ACAS offers this service for disputes between employers and employees
– This form of ADR is useful in dispute between companies who may use conciliation to access the strength of their case before they decide to take the case to court
What is Tribunals
They operate alongside the court system
– They were established to allow individuals to enforce their entitlement to social welfare rights
– E.g. right to redundancy pay mobility allowance not to be discriminated against
In these areas, the tribunals must be used instead of court
A tribunal is composed of the three people
– one will be legally qualified and will be experienced in the area considered by the tribunals
Extensive research was taken in 1957 France made many recommendations about the openness fairness and impartiality of tribunals
Sir Andrew leggatts review of tribunals in 2001 led to the tribunal service being set up by the Lord Chancellor in 2006
Following the court enforcement at 2007 there has now a unqualified framework for tribunals making them more organised and simplified
Employment appeals tribunals
They are out of reform system
Cases are heard by a judge and two lay members one from employers organisation and one from an employees organisation giving them a clear understanding of employment issues
More on tribunals
Tribunals are overseen by the senior president of tribunals
– Ensure that tribunals are accessible quick and efficient
– Liaise with parliament and the Lord Chancellor
– Supervise training this is allocation of tribunals judges to chambers and cases
Advantages of tribunals
Useful as they alleviate the pressure on the civil courts by dealing with cases that would otherwise fall to them
They do not suffer from the delays and expense which be set the civil court
– This is helpful for the administration of justice and accord with the rule of law
Generally cheaper to use in civil courts as the loser does not have to pay the winners cost
The informal nature of tribunals mean that lawyers are not always required
Tribunal panels are experts the type of dispute they are established here
– this makes good decisions more likely than if the disputes were heard by a district judge with less specific experience in the area
– This also makes appeals less likely – contributing to the overall efficiency of the system
Disadvantages of tribunals
Appeal roots from tribunals can be complex and expensive and some tribunals have no appeals
There is no domestic right of appeal against a decision of the investigatory powers tribunal
This is contrary the right to a fair trial
Legal aid is not available for the majority of tribunal hearings
This could lead inequality of bargaining power if only one side can afford a lawyer
This is contrary to the rule of law requirements that everyone should be equal before the law
Advantages
Disadvantages
Of arbitration
Advantages
Cheaper than a court case
– The arbitrator will be qualified and experienced
– The arbitrator decision is final and binding
– The arbitrator decision can be enforced in court
Disadvantages
– The process could be formal and complicated
– It is likely to be more expensive than other forms of ADR
– It is not a suitable process if there is a complicated point of law involved
Advantages
Disadvantages
Mediation
Advantages
– Cheaper than a court case
– The parties are in control over the process
– Future businesses and personal relationships can be maintained
Disadvantages
– One of the parties may be unwilling to take part in the process
– The parties may be unwilling or unable to reach a settlement
– the result may not be binding on one of the parties
Advantage
Disadvantages
Conciliation
Advantages
– Cheaper than taking a court case
– The parties have some controlled choosing the conciliator and the process
– Future business relationship can be preserved
Disadvantages
The conciliator may force a resolution on one or both of the parties
– The process may not bring about a resolution
– The result may not be binding one or both parties
Advantages
Disadvantage
Arbitration
Advantages
– Cheaper than a court case
– The arbitrator will be qualified and experience
– The arbitrators decision is final and binding
– The arbitrator decision can be enforced in court
Disadvantages
The process can be formal and complicated
It is likely to be more expensive than other forms of ADR
– it is not suitable process if there is a complicated point of law involved
Advantage
Disadvantages
Negotiation
Advantages
– It can be straightforward contract between the parties
Low or no cost – no need for the lawyers
– The parties themselves are in control
– Relationships between the parties are preserved
– Continued business relationships
Disadvantages
– One of the parties may not be prepared to negotiate with the others
– One of the parties may be hostile towards the others
– Either party may believe there are right and not prepared to settle
– court proceedings may be the only way to resolve the dispute
