tribunals and ADR

Question 1

what are tribunals

Answer 1

• certain disputes that cannot be resolved in the courts, they are used to resolve disputes involving a persons social rights for example an employment dispute hearing claims for unfair dismissal, redundancy and discrimination.
• tribunals were set up by the lord chancellor in 2006.

Question 2

describe the framework created for tribunals by a certain act

Answer 2

• the tribunals, courts and enforcement act 2007 created a two tier system for tribunals (employment tribunals currently operate outside the two tier system).
• the system involves a first tier tribunal and an upper tribunal both of which are split into two chambers

Question 3

explain the role of the people sitting in a tribunal

Answer 3

• a judge and two other non legal members with experience in the particular issue sit in a tribunal
• the tribunal judge will play an active role in the hearing, particularly if an individual is representing themselves
• lawyers can be used but they are discouraged. Parties are encouraged to represent themselves, particularly in employment hearings.

Question 4

what are three advantages and disadvantages of tribunals

Answer 4

+quicker and cheaper than litigation
+legally binding
+can appeal
-media are allowed to report, not always private
-delays can happen
-people are reluctant to take cases to tribunal because they don’t want to represent themselves, unjust

Question 5

what are the four different forms of ADR

Answer 5

negotiation, mediation, conciliation, arbitration

Question 6

which courts will solve a civil dispute

Answer 6

county court, high court

Question 7

describe the advantages of ADR

Answer 7

• Lord Woolf’s reform actively encourages parties to resolve civil disputes outside of a courtroom
• reduces pressure of the courts
• issue can be resolved in private
• much quicker and therefore cheaper than the courts

Question 8

describe negotiation

Answer 8

• should always be the first option in civil disputes
• least formal type of ADR
• two disputing parties simply try to come to an agreement themselves
• solicitors can be used
• negotiation should be continued throughout the dispute even if it failed at first
• often cases will be resolved outside of court just before the trial date arrives

Question 9

what are three advantages and disadvantages of negotiation

Answer 9

+informal, less daunting
+litigation is still an option
+can save a relationship (might be lucrative business relationship)
-not legally binding, a party can change their mind
-cost can be incurred if solicitors are involved
-both parties have to be willing to negotiate

Question 10

describe mediation

Answer 10

• a form of negotiation that includes a professional, trained, neutral third part (the mediator)
• there must be some hope of compromise and cooperation
• the mediator will use their skills to help facilitate the negotiation between parties, they will not give a decision, take sides or offer suggestions. They will continually encourage the parties to resolve the dispute without going through the courts.
• the mediator will speak to both parties in advance so they can gain common ground and prevent the discussions of irrelevant topics by focusing on the points in the dispute. They will also move the discussion on if they feel they are not making progress.
• if the parties come to an agreement a contract will be drawn up

Question 11

give two examples of specific mediation firms

Answer 11

• Centre For Dispute Resolution London deals with commercial dispute and charges £2000 per day. The parties will split these costs.
• Relate is a famous mediation service for family disputes.

Question 12

describe the form of mediation that takes place at a mini trial

Answer 12

formalised settlement conference= specific type of mediation service where the parties involved in a commercial dispute need to salvage their relationship.. There is a mini trial with a panel consisting of a mediator, a neutral advisor and representatives from each party. a decision is made based on commercial common sense.

Question 13

describe conciliation

Answer 13

-similar to mediation except the consiliator will play a more active role in solving the dispute, giving suggestions to parties, they will offer thoughts and opinions on the dispute and a non legally binding proposal for settlement.

Question 14

give two examples of when conciliations is used

Answer 14

• ACAS (advisory conciliatory and arbitration service) deals with disputes between employers and employees.
• Conciliation is useful for companies who may assess thee strength of their case before taking it to court

Question 15

give three advantages and three disadvantages of conciliation and mediation

Answer 15

+works- approx 70% of cases dealt with by centre for dispute resolution are successful
+relationships can be salvaged
+actively encouraged by Civil procedures rules 1999
-legal aid unavailable, parties have to pay 50% each
-relationships could be made worse
-not legally binding

Question 16

describe arbitration

Answer 16

• arbitration is chosen instead of litigation and is the most formal type of ADR
• parties agree to have their dispute decided by an independant arbitrator
• governed by the arbitration act 1996
• voluntary so parties cannot be forced into it unlike litigation
• ACAS use this method to resolve employment disputes
• in some commercial contracts there is a clause that states that any disputes must be settles by arbitration rather than conciliation, this is known as the scott v avery clause
• there are two types of arbitration: paper arbitration (parties make their submission in writing to the arbitrator) and arbitration hearing
• hearing is more common involving the arbitrator as a judge, solicitors and barristers, evidence, witnesses, questioning etc
• an arbitrator will be trained/ experienced, can have legal qualifications or be an expert in the field. There can be 1 2 or 3 arbitrators depending on what the party decides.
• a legally binding decision or ‘award’ is made by the arbitrator and is final, the award can be enforced by the courts
• s68 of the arbitration act 1996 allows for the award to be challenged in the QBD court, such challenges require leave to appeal.

Question 17

give three advantages and disadvantages of arbitration

Answer 17

+parties can appoint their chosen barrister
+private so confidentiality is protected
+decision is legally binding
-expensive legal professionals and no legal aid
-voluntary, one party can refuse
-flexibility can suit the more powerful party ( david v goliath)