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english legal systems > tribunals and adr > Flashcards

tribunals and adr Flashcards

1
Q

what is the relationship between tribunals and the court system

A

tribunals are separate from the courts but they do run alongside the court system. they must be used instead of court proceedings.

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2
Q

what issues do tribunals deal with

A

usually disputes involving a person’s social rights, such as employment disputes

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3
Q

who set up the tribunals service and when was this

A

the lord chancellor set up the tribunals service in 2006

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4
Q

what act created a framework for tribunals to make them more organised and simplified

A

the tribunals, courts and enforcement act 2007

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5
Q

what system did the tribunals, courts and enforcement act 2007 create

A

a two tier system that tribunals currently operate under

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6
Q

which type of tribunals operates outside of the two tier system

A

employment tribunals

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7
Q

who sits in a tribunal

A

a judge and two other people who are experienced in the field

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8
Q

who passes judgement in a tribunal

A

the tribunal judge

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9
Q

can you appeal a tribunal decision

A

yes

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10
Q

can lawyers be used in tribunals?

A

yes, but they are discouraged. parties are encouraged to represent themselves, particularly in employment hearings

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11
Q

how does is the tribunal judge involved in the process

A

the tribunal judge takes a very active role in the tribunal, particularly when an individual is representing themself

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12
Q

is the result of a tribunal legally binding

A

yes

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13
Q

how is litigation approached for civil disputes

A

litigation is always the last option for civil disputes

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14
Q

what are the four types of ADR

A
  1. negotiation
  2. mediation
  3. conciliation
  4. arbitration
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15
Q

what is negotiation

A

negotiation is the least formal type of ADR- the parties attempt to resolve the dispute privately by speaking to eachother.

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16
Q

can legal professionals be involved in negotiation

A

yes- solicitors can be involved but this adds to the cost and formality of the process

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17
Q

how long should negotiation continue for

A

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.

18
Q

what is mediation?

A

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.

19
Q

what is required for mediation

A

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

20
Q

what is the role of the mediator

A

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

21
Q

how does a mediator work

A

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

22
Q

what is an example of a mediation centre that resolves commercial disputes and how much does it cost

A

the centre for dispute resolution in London which costs parties £2000 per day

23
Q

what is the result if the parties can successfully come to an agreement by mediation

A

the agreement will be drawn up in a legally binding contract

24
Q

what is a famous mediation service for family disputes

A

RELATE

25
Q

what is a specific type of mediation service used for commercial disputes

A

formalised settlement conference

26
Q

explain the process of a formalised settlement conference

A

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.

27
Q

how is conciliation different to mediation

A

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

28
Q

what is conciliation most useful for

A

commercial disputes

29
Q

how might companies use conciliation

A

to assess the strength of their case before taking it to court

30
Q

what is an example of a conciliation service

A

ACAS (advisory conciliation and arbitration service)

31
Q

how is arbitration used in relation to litigation

A

arbitration is used instead of litigation

32
Q

what act governed arbitration

A

the Arbitration Act 1996

33
Q

is arbitration voluntary or involuntary

A

it is voluntary

34
Q

what is a clause contained in some commercial contracts that states how disputes will be resolved if they occur

A

scott v avery clause

35
Q

what are the two types of arbitration

A

paper arbitration

arbitration hearing

36
Q

what happens in paper arbitration

A

both parties make their submission in writing and hand this over to the arbitrator who makes a legally binding final decision

37
Q

what is involved in an arbitration hearing

A

it is very similar to litigation, there is a judge, witnesses, evidence, cross examination, solicitors and barristers

38
Q

what is the big difference between an arbitration hearing and litigation

A

it is voluntary and the parties are free to decide on a date, venue and other arrangements, making it flexible

39
Q

what are three key points about arbitrators

A

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

40
Q

what is the end result of arbitration

A

a legally binding ‘award’ decided by the arbitrator which may be enforced by the courts

41
Q

how do appeals for arbitration operate

A

the arbitration act 1996 said that the award could be appealed in the queens bench division of the high court, requiring leave to appeal

english legal systems (13 decks)

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