adr (section a - criminal courts and lay people) Flashcards
What is Alternative Dispute Resolution (ADR)?
Alternative Dispute Resolution (ADR) is a process used to resolve disputes between parties without having to go to court.
Whose reforms encourage ADR?
Lord Woolf
ADR is used by?
businesses, individuals and organisations for cheap and quick resolutions to disputes
What is Negotiation in ADR?
- parties reach agreement themselves with no third party
- may act through solicitors
- may negotiate before trial and settle before trial
Example of negotiation
disputes between neighbours
What is mediation in ADR?
- a neutral third person helps the parties in a dispute reach a compromise solution acting as a facilitator.
- mediator does not offer an opinion but acts as a message carrier and takes a passive role.
- explore position and carry offers while being confidential
- only suitable if chance of cooperation
- control and both parties can withdraw
- resolution can’t be imposted
example of mediation
relate - for relationships
centre for effective dispute resolution - for businesses
what is concillation
Similar to mediation but with more power
Conciliator suggests grounds for compromise or settlement
Takes an active role in finding out parties’ positions
Cannot seek evidence or call witnesses
Parties have control and can withdraw at any point
Outcome cannot be imposed upon parties, they must agree to it
conciliation example
Often used in industrial disputes using ACAS
arbitration definition
A process where parties agree to allow their dispute to be judged by a neutral arbitrator or panel of arbitrators.
arbitration additional points
Governed by the Arbitration Act 1996.
Agreements to engage in arbitration can be made before a dispute arises through a Scott Avery Clause in the contract.
The parties may appoint an arbitrator or the court may do so.
Arbitrators are often experts in the relevant field or a lawyer may be appointed for disputes involving a point of law.
Parties agree on the procedure and the date, time, and place of the arbitration in consultation with the arbitrator.
The decision is binding and enforceable by the courts.
Awards can be challenged in the courts under s.68 of the Arbitration Act 1996 for serious irregularity in proceedings or on a point of law.
what is an employment tribunal
A forum used instead of court for deciding certain disputes related to employment.
Created to help people enforce their entitlement to social rights granted through social and welfare legislation.
Must be used instead of court due to the nature of the dispute.
employment tribunal procedure
- both sides out case forward
- formal - evidence under oath but no wig/gown
- funding for rep not usually available but advice can be gained in strength of their case
- in employment tribunals there is rep from trade unions
- decision is binding
- no fee
- claim must be brought within 3 months, less than a day before event: redundancy, discrimination or unfair dismissal in workplace
employment tribunal preliminary matters
- usually acas contact first
- claim issued if not resolved
- claim sets out detailed reasons for action and must be filed with tribunal within time limit
- employer invited to make comments
employment tribunals panel hearing
judge
rep for employee and employer
short trial and can be open to public
employment tribunal outcome
in favour of employee:
- panel encourages settlement
- favourable reference
- compensation
if no settlement then compensation awarded
if claim lost
- employee doesn’t pay employers costs
- employee responsible for own lawyers
if dissatisfied = in 14 days, tribunal can review decision
employment tribunal appeals
- either side can appeal to EAT in 42 days only on point of law
- further appeal to CoA and SC on point of law and leave to appeal from EAT
ADV OF CIVIL COURTS - use of legally qualified person
P - use legally qual person
DP - trial conducted by legal expert and decision by experienced and qualified lawyer - appropriate in complex legal cases
WDP - competent legal decision = legally binding, both parties guaranteed that matter will be resolved
ADV OF CIVIL COURTS - time management
P - time management
DP - judge has control, allocation questionnaire to ensure case is allocated to right track - ensure strict timetable, eg length of hearing and no of witnesses set
WDP - minimises delay in case heard and costs less for parties
ADV OF CIVIL COURTS - use of precedent
P - use of precedent
DP - lawyers can advise clients due to existing decision
WDP - also appeal process so if C not happy, can appeal
ADV OF CIVIL COURTS - cost
P - cost
DP - some legal aid available for civil matters unlike ADR
WDP - parties can’t walk away which may save costs. failed mediation or conciliation = more costs if it goes to court
ADV OF CIVIL COURTS - open system
P - open system
DP - companies can’t hide behind private arbitration. public aware of case and customers
WDP - of public aware, they can guard against it eg use alternative company
DISADVANTAGE OF CIVIL COURT - cost
P - cost
DP - cost of court fee can be more than amount claimed due to front loading costs
WDP - eg in High Court, cost can be hundreds of thousands and for smaller claims, costs more than amount claimed
DISADVANTAGE OF CIVIL COURTS - delay
P - delay
DP - mixed views if track system helped reduce delays eg fast track can take 48 weeks and small claims 29 weeks
WDP - due to preliminary stages that add to length of case. total of this and wait means cases can take years
DISADVANTAGE OF CIVIL COURTS - complicated process
P - complicated
DP - compulsory actions before case started in court eg pre action protocols and forms set out in Civil Procedure Rules but too complicated for lay person
WDP - ordinary person without legal advice or help may struggle to take a case to court = no ATJ
DISADVANTAGE OF CIVIL COURTS - uncertainty
P - uncertainty
DP - no guarantee of winning a case, person losing may have to pay other side’s costs - difficult to know how much a case is going to cost in advance
WDP - delays in cases = uncertainty and cost which may deter people from taking case to court = denied access to justice
DISADVANTAGES OF CIVIL COURTS - little use of ADR
P - little use of ADR
DP - despite woolf reform suggesting increase it its use, little increase so burden of caseload is with civil courts = delays and costs for trials
WDP - civil courts under resourced with IT systems
ADVANTAGE OF MEDIATION/CONCILLATION - parties in control
P - parties in control
DP - can withdraw from process, a compromise cannot be reached without the agreement of both parties
WDP - different from arbitration, decisions not legally binding, more likely to reach favourable decision
ADVANTAGE OF MEDIATION/CONCILLATION - speed and cost
P - speed and cost
DP - cheaper and quicker than court, issue resolved earlier- advantageous for businesses who may be running at a loss
WDP - if goes to court then mediation clarified issues so court hearing faster
ADVANTAGE OF MEDIATION/CONCILLATION - private
P - private
DP - more priv than court and media les a likely so only parties aware of dispute
WDP - rep of businesses less likely to be damaged - commercial sense
ADVANTAGE OF MEDIATION/CONCILLATION - successful
P - successful
DP - avoids adversarial conflict of court rooms and winner/loser result of court proceedings - everyone wins
WDP - high number of cases are resolved - centre for dispute resolution = 80% of cases are settled
ADVANTAGE OF MEDIATION/CONCILLATION - not strictly legal
P - not strictly legal
DP - more likely to be based on commercial sense and compromise than letter of law
WDP - easier for companies to continue business with each other - include agreements about conducts of future business between parties
DISADVANTAGES OF MEDIATION AND CONCILLATION - dispute not resolved
P -
