tribunals and adr Flashcards
what is the relationship between tribunals and the court system
tribunals are separate from the courts but they do run alongside the court system. they must be used instead of court proceedings.
what issues do tribunals deal with
usually disputes involving a person’s social rights, such as employment disputes
who set up the tribunals service and when was this
the lord chancellor set up the tribunals service in 2006
what act created a framework for tribunals to make them more organised and simplified
the tribunals, courts and enforcement act 2007
what system did the tribunals, courts and enforcement act 2007 create
a two tier system that tribunals currently operate under
which type of tribunals operates outside of the two tier system
employment tribunals
who sits in a tribunal
a judge and two other people who are experienced in the field
who passes judgement in a tribunal
the tribunal judge
can you appeal a tribunal decision
yes
can lawyers be used in tribunals?
yes, but they are discouraged. parties are encouraged to represent themselves, particularly in employment hearings
how does is the tribunal judge involved in the process
the tribunal judge takes a very active role in the tribunal, particularly when an individual is representing themself
is the result of a tribunal legally binding
yes
how is litigation approached for civil disputes
litigation is always the last option for civil disputes
what are the four types of ADR
- negotiation
- mediation
- conciliation
- arbitration
what is negotiation
negotiation is the least formal type of ADR- the parties attempt to resolve the dispute privately by speaking to eachother.
can legal professionals be involved in negotiation
yes- solicitors can be involved but this adds to the cost and formality of the process
how long should negotiation continue for
as long as it can, parties should try to continue to negotiate throughout the dispute, even if they are planning to go to court. this means that civil disputes can be resolved before their trial date comes.
what is mediation?
mediation is a form of negotiation except it involves a qualified, professional neutral third party known as the mediator who assists the parties in resolving their dispute.
what is required for mediation
it is completely voluntary, meaning that the parties must actively want to resolve their dispute and be willing to compromise, or the process is pointless
what is the role of the mediator
the mediator will not take sides or give input- they are simply their to facilitate the discussion. they will carry offers from side to side and continually encourage them to resolve the dispute without going to trial
how does a mediator work
the mediator will listen to both sides of the story beforehand to establish common ground. the mediator will focus the conversation on the components of the dispute to prevent any arguments about irrelevant points. the mediator will move the discussion onwards if they feel like progress is not being made
what is an example of a mediation centre that resolves commercial disputes and how much does it cost
the centre for dispute resolution in London which costs parties £2000 per day
what is the result if the parties can successfully come to an agreement by mediation
the agreement will be drawn up in a legally binding contract
what is a famous mediation service for family disputes
RELATE
what is a specific type of mediation service used for commercial disputes
formalised settlement conference
explain the process of a formalised settlement conference
there is a mini trial with a panel consisting of a mediator, a neutral advisor and two representatives from either side. this is used when the parties involved in a commercial dispute need to salvage their relationship.
how is conciliation different to mediation
the conciliator will play a more active role in the discussion, offering their opinions on the dispute and providing a non-legally binding proposition for settlement
what is conciliation most useful for
commercial disputes
how might companies use conciliation
to assess the strength of their case before taking it to court
what is an example of a conciliation service
ACAS (advisory conciliation and arbitration service)
how is arbitration used in relation to litigation
arbitration is used instead of litigation
what act governed arbitration
the Arbitration Act 1996
is arbitration voluntary or involuntary
it is voluntary
what is a clause contained in some commercial contracts that states how disputes will be resolved if they occur
scott v avery clause
what are the two types of arbitration
paper arbitration
arbitration hearing
what happens in paper arbitration
both parties make their submission in writing and hand this over to the arbitrator who makes a legally binding final decision
what is involved in an arbitration hearing
it is very similar to litigation, there is a judge, witnesses, evidence, cross examination, solicitors and barristers
what is the big difference between an arbitration hearing and litigation
it is voluntary and the parties are free to decide on a date, venue and other arrangements, making it flexible
what are three key points about arbitrators
may be legally qualified or an expert in the field
member of the institute of arbitrators
can be up to three arbitrators in the hearing- up to the parties
what is the end result of arbitration
a legally binding ‘award’ decided by the arbitrator which may be enforced by the courts
how do appeals for arbitration operate
the arbitration act 1996 said that the award could be appealed in the queens bench division of the high court, requiring leave to appeal
