Chapter 7. Alternative Dispute Resolution and Tribunals

Question 1

ADR - what it is and why to choose

Answer 1

The way of resolving a dispute without going to court

Less costly, speedier and less procedural

Question 2

Failing to consider ADR

Answer 2

If a party unreasonably refuses to try ADR and then wins case at court.

They may not be awarded costs to be paid by losing party.

Question 3

ADR methods

Answer 3

Negotiation
Mediation
Conciliation
Arbitration

Question 4

Negotiation

Answer 4

Negotiation is the least formal method of ADR and is used by most lawyers in different areas of law to resolve disputes.

Face to face, telephone, e-mail, text etc.

May also be carried out by non-legally qualified representatives (e.g. Trade Union Official).

Usually first method in trying to resolve a dispute – least formal method

Question 5

Negotiation advantages

Answer 5

• efficient use of time – usually over the phone
  
  • speed – no formalities
  • inexpensive – only parties or their legal reps are involved
  • where both parties are represented – negotiators can bring element of objectivity – help prevent emotions getting in way of settlement
  • preserve good working relationships – important in contractual disputes between companies which still want to do business in the future
  • it is confidential – no risk of bad publicity
  • can explore a range of possible solutions
  • more informal than other types of ADR – no TP participating
  • the parties have control over the negotiating and can stop at any point

Question 6

Negotiation disadvantages

Answer 6

• time may be wasted if negs unsuccessful
  
  • if 1 party has a significantly more dominant bargaining position, the negotiated settlement may be disadvantageous and unfair for the other party
  • where 1 party is represented and the other is not (litigant in person) the unrepresented party is likely to be at a significant disadvantage.

Question 7

Mediation

Answer 7

Mediation is typically used in family law disputes.

It is an informal process under which
the parties submit statements beforehand.

Mediator helps define issues but parties must create solution
Mediator does not act as an advisor

Question 8

Mediation process

Answer 8

Mediator organise the mediation at a time and place convenient to all parties
Parties will attend with legal adviser (if any)
Mediator will pass on information from one party to another
Parties may be in separate rooms if they prefer
Takes place in private and neutral setting
Procedures vary but usually each party puts forward its position followed by private meetings between mediator and each party in turn
Mediator acts as go-between
Two parties communicate and negotiate through mediator
Mediator remains neutral and makes NO suggestions
Cannot force settlement on parties
Encourages both parties to reach an agreement
Each party may be legally represented but this is discouraged
Each party must meet own legal cost
Public funding available for family mediation
Witnesses rarely involved
If agreement reached this may be written down
If parties agree it becomes legally binding
Agreement enforceable by Civil Courts
If no agreement may be taken to court or tribunal

Question 9

Mediation advantages

Answer 9

• Faster, cheaper and more informal than a court hearing
• Mediator will be able to receive the clear and frank views of the parties separately without confusion of a heated argument
• Mediator can introduce element of objectivity to the discussions
• Parties can contribute to the content of the agreement
• Non-confrontational atmosphere may benefit both parties and help restore good relationships subsequently.
• Outcome can be agreed to be legally binding finalizing the dispute.

Question 10

Mediation disadvantages

Answer 10

Lack of formal framework – could be difficult for the mediator to ensure weaker party not exploited. No power to ensure a secretive wealthy husband discloses all financial assets in a divorce

If parties don’t have their own legal reps, weaker party may be persuaded into agreeing to a settlement without having received legal advice as to prospects of success in a court case.

Question 11

Conciliation

Answer 11

Similar to Mediation but additional feature that the Conciliator can also propose compromises and agreements.

Often used to resolve disputes between groups of workers represented by their Trade Union and their employers – ACAS.

Question 12

Conciliation process

Answer 12

Similar to mediation
Conciliator and parties meet
Conciliator listen to grievances
Make suggestions on how it can be resolved
If parties agree is made legally enforceable
If no agreement can then go to court or tribunal

Question 13

Arbitration

Answer 13

Arbitration is a more formal process commonly used in disputes where the parties wish the arbitrator to have technical expertise, for example building disputes.

The parties submit their arguments and evidence before the arbitrator makes their decision. The arbitrator must act impartially

Limited rights of appeal to the High Court including where there was a serious irregularity in procedures during the arbitration. Appeals to the High Court may be made on points of law IF both parties and the High Court agree.

Question 14

Arbitration advantages

Answer 14

Quicker and cheaper than going to court

Proceedings more informal than court

Less adversarial than court – may help preserve relationships between companies

Private proceedings

Expert arbitrator in subject matter of dispute – won’t need technical explanations like a non-expert judge

Used to resolve disputed about:
Technical and scientific matters e.g. construction or accounting disputed
Consumer matters e.g. holidays
Commercial disputes

Question 15

Arbitration disadvantages

Answer 15

Seen as providing a “privatized” parallel court system with very limited rights of appeal

Independence of experts in some consumer arbitration schemes has been questioned.

Question 16

Tribunals

Answer 16

Deal with specific issues of law outside of the court system

Decisions are normally made by a legally qualified tribunal judge assisted by 2 experts with specialist knowledge of the subject-matter of dispute.

Most tribunals are administered by HMCTS

Can appeal on points of law from the Upper Tribunal to the Court of Appeal

Question 17

First-tier Tribunals:

Answer 17

First-tier – make the first decision

General Regulatory Chamber;
Immigration and Asylum Chamber;
Property Chamber;
Social Entitlement Chamber;
Health, Education and Social Care;
Tax Chamber;
War Pensions and Armed Forces Compensation Chamber

Question 18

Upper Tribunals:

Answer 18

Upper Tribunals - appeals

Administrative Appeals Chamber;
Immigration and Asylum Chamber;
Lands Chamber;
Tax & Chancery Chamber