Tribunals and ADR Flashcards
1
Q
What are tribunals?
A
- forums deciding on certain types of dispute.
-less formal than court
-set up for normal people to appear without legal representation. - operate alongside the court system and have become an important part of the legal system.
- parties in a tribunal case cannot go to court to resolve their dispute.
2
Q
What is the role of tribunals?
A
- enforce rights granted through social welfare legislation
- the right to a mobility allowance for those who are too disabled to walk
- payment if one is made redundant
- not to be discriminated against
- immigrants to have a claim for political asylum heard.
3
Q
What is the composition of tribunals?
A
- first tier tribunals heard by ‘tribunal judge’
- for some cases two ‘non-lawyers’ will sit with the judge, they will have expertise in the particular field of the tribunal and are known as ‘tribunal members’
- tribunal members take an equal part in the decisions made but are advised on points of law by the judge.
4
Q
What is the procedure in tribunals?
A
- both sides have opportunity to put their case
- this can be with witnesses giving evidence
- most applicants will not have a lawyer but present their own case
- the tribunal judge must make sure the case is put forward properly.
- the decision of the tribunal is binding
5
Q
What is an employment tribunals?
A
- statutory jurisdiction to hear kinds of disputes between employers and employees.
- established in the industrial training act but are now governed by a mixture of primary and secondary legislation.
- the most common disputes deal with unfair dismissal, redundancy payments and employment discrimination.
6
Q
What is the process in employment tribunals?
A
- claim has to be made within three months of the event
- must first inform the advisory conciliation and arbitration service
- once informed they will encourage both parties to settle making use of their ‘early conciliation’
- once informed ACAS they must submit the ET1 claims form. defendant then has 28 days to respond.
- preliminary hearing conducted to decide whether claim can go ahead, when and how long it will take.
- there are three members of the tribunal, an employment judge, a person representing employers organisations and one for employees organisations.
7
Q
What is the appeals process of employment tribunals?
A
- have their own appeals route
- can go to employment appeal tribunal if a legal mistake was made for example got the law wrong, not applied law correctly, not followed correct procedures, no evidence to support decision or unfairly biased to other party.
8
Q
What is ADR?
A
- any method of solving a dispute without resorting to using the courts. there are many different methods which can be used ranging from informal negotiations between the parties to a formal commercial arbitration hearing.
9
Q
What is negotiation?
A
- negotiating directly with them.
- completely private process and is quick and cheap
- they may decide to instruct solicitors who will try to negotiate a settlement
- even when court proceedings have commenced, lawyers will continue to negotiate on behalf of their clients reflected in high number of cases settled out of court.
10
Q
What are the advantages of negotiation?
A
- cheapest and quickest way to solve a dispute
- can include agreement about future business deals.
11
Q
What are the disadvantages of negotiation?
A
- it may not be successful to other forms have to be used
- it is not suitable for antagonistic parties not prepared to ‘co-operate’
- if there are repeating unsuccessful attempts it may prolong the whole issue.
12
Q
What is mediation?
A
- a neutral mediator helps to reach a compromise solution.
-they consult each party and see how much common ground there is - they will carry offers to and fro keeping confidentiality
- they will not tell the parties their own views of the merits of the dispute however they can be asked where they become more of an evaluation exercise which again aims at ending the dispute
- mediation is only suitable if there is some hope that the parties can co-operate
-parties in a family case have to show they attended a mediation information and assessment meeting before court proceeds. - the important point is the parties are in control and make the decisions
13
Q
What are examples of mediation services?
A
- one of the main ones for business disputes is centre for effective dispute resolution.
- CEDR reported 10,000 commercial mediations in 12 months involving 10.5 billion pounds worth of commercial mediations and use of this saved an estimated 2.8 billion pounds.
- west Sussex mediation service offers help for disputes between neighbours to resolve disagreements arising from such matters as noise, car-parking, dogs or boundary fence dispute.
14
Q
What is conciliation?
A
- similar to mediation except the neutral third part take a more pro active role
- the conciliator discusses issues with both sides to help them reach a better understanding and also they suggest grounds for compromise and the possible basis for settlement.
- in industrial disputes the advisory council and arbitration service can give an impartial opinion
15
Q
What are the advantages of mediation and conciliation?
A
- the parties are in control and can withdraw at any point
- the decision need not be strictly legal sticking to the letter of the law and is more likely to stick to common sense.
- makes it easier for companies to do business with each other in the future and may include agreements about the conduct of future business between parties.
- they avoid the adversarial conflict of the court room, everyone wins.
- over 80% of cases in which the centre for dispute resolution has been asked to act have been settled.
- parties were more likely to settle without going to court
- issues may have at least been clarified therefore any court hearing will be shorter.
