tribunals and ADR

Question 1

what are tribunals?

Answer 1

• tribunals operate alongside the court system and have become an important part of the legal system.
• many tribunals were created in the second half of the twentieth century, with the development of the welfare sate.
• they were created in order to give people a method of enforcing their entitlement to certain social rights.
• however, unlike alternative dispute resolution where the parties decide not to use the courts, the parties in tribunal cases cannot go to court to resolve their dispute. the tribunal must be used instead of court proceedings

Question 2

tribunals

Answer 2

• forums used instead of a court for deciding certain types of disputes. they are less formal than courts

Question 3

role of tribunals

Answer 3

• tribunals enforce rights which have been granted through social and welfare legislation. there are many different rights, such as:
• the right not to be discriminated against because of ones sex, race, age or disability

Question 4

organisation of tribunals

Answer 4

• tribunals were set up as the welfare state developed, so new developments resulted in the creation of a new tribunal. this led to more than 70 different types of tribunals. each tribunal was separate and the various tribunals used different procedures. this made the system confused and complicated
• the whole system was reformed by the tribunals courts and enforcement act 2007. this created a unified structure for tribunals, with a first tier tribunals to hear cases at first instance and an upper tribunal to hear appeals

Question 5

first tier tribunal

Answer 5

• the first tier tribunal deals work about 600,000 cases each year and has nearly 200 judges and 3,600 lay members. it operates in seven chambers:
  1. social entailment chamber - this covers a wide range of matters such as child support, criminal injuries compensation ect
  2. health, education and social care chamber - this includes the former mental health review tribunal which dealt with appeals against the continued detention of those in mental hospitals
  3. war pensions and armed forces compensation chamber
  4. general regulatory chamber
  5. taxation chamber
  6. land, property and housing chamber
  7. asylum and immigration chamber
• as well as these, here is one tribunal which still operates separately from first tier tribunal - the employment tribunal which hears claims from such matters as unfair dismissal, redundancy act

Question 6

upper tribunal

Answer 6

• the upper tribunal is divided into four chambers. these are:
  1. administrative appeals chamber, which hears appeals from social entitlement chambers, health, education and social care chambers and war pensions and armed forces compensation chambers
  2. tax and chancery chamber
  3. lands chamber
  4. asylum and immigration chamber
• from the upper tribunal there is a further possible appeal route to the court of appeal and from here a final appeal to the Supreme Court

Question 7

composition of tribunals

Answer 7

• cases in the first tier tribunal are heard by a tribunal judge. also, for some types of cases, two non lawyers will sit with the judge to make the decision. these people will have expertise in the particular field of the tribunal.
• in employment tribunals one person will usually be from an employers organisation and the other from an employees organisation. this gives them a very clear understanding of employment issues

Question 8

procedure in tribunals

Answer 8

• both sides must be given an opportunity to put their case. in some tribunals, especially employment and asylum tribunals, this will be done in a formal way and witnesses giving evidence on oath and being cross examined. other tribunals will operate in a less formal way
• funding for representation is only available in a few tribunals, so most applicants will not have a lawyer, but will present their own case. the exception is in employment tribunal cases, there employees often have representation provided by their trade union.
• where an applicant is putting his own case, the tribunal judge must try to make sure that the applicant puts the case fully
• the decision of the tribunal is binding

Question 9

advantages of tribunals

Answer 9

• tribunals were set up to prevent the overloading of the courts with the extra cases that social and welfare rights claims to generate and also to be a specialist venue for such cases
• cheapness
• quick hearings
• informality
• expertise

Question 10

cheapness of tribunals

Answer 10

• as applicants are encouraged to represent themselves and not use lawyers, tribunal hearings do not normally involve the costs associated with court hearings. it is also rare for an order for costs to be made by a tribunal, so that an applicant need not fear a large bill of he loses the case

Question 11

quick hearings of tribunals

Answer 11

• most tribunal hearings are very short and can be dealt with in one day

Question 12

the informality of tribunals

Answer 12

• the hearing is more informal than in one court. parties are encouraged to present their own case. in addition, most cases are heard in private

Question 13

expertise of tribunals

Answer 13

• in some tribunals two non lawyers sit to hear the case with the tribunal judge. these members of the panel are experts in the type of case being heard. this gives them good knowledge and understanding of the issue in dispute

Question 14

disadvantages of tribunals

Answer 14

• lack of funding
• more formal
• delay

Question 15

lack of funding in tribunals

Answer 15

• legal aid funding is not available for most tribunals, which may put an applicant at a disadvantage of the other side uses a lawyer. legal aid is available for cases where fundamental human rights are involved.

Question 16

more formal than ADR

Answer 16

• a tribunal hearing is more formal than using ADR. the place is unfamiliar and the procedure can be confusing for individuals presenting their own case. where applicants are not represented the judge is expected to taken a role and help to establish the points that the applicant wishes to make. but this ideal os not always achieved

Question 17

the delay of tribunals

Answer 17

• although the intention is that cases are dealt with quickly, the number of cases dealt with by tribunals means that there can be delays in getting a hearing. the use of non lawyer members on the panel can add to this problem as they sit part time, usually one day a fortnight. if a case is complex lasting serval days this can lead to proceedings being spread over a number of weeks or even months

Question 18

Alternative dispute resolution (ADR)

Answer 18

• using the courts to resolve disputes can be costly, in terms of both money and time. It can also be traumatic for the individuals involved and may not lead to the most satisfactory outcome for the case. An additional problem is that court proceedings are usually open to the public and the press, so there is nothing to stop the details of the case being published in local or national newspapers. It is not surprising, therefore, that more and more people and businesses are seeking other methods of resolving their disputes. There are many different methods which can be used, ranging from very informal negations between the parties, to a comparatively formal commercial arbitration hearing

Question 19

Negotiation

Answer 19

• anyone who has a dispute with another person can always try to resolve it by negotiating directly with them. Negotiation has the advantage of being completely private, and is also the quickest and cheapest method of settling a dispute. If the parties cannot come to an agreement, they may decide to take the step of instructing solicitors, and those solicitors will usually try to negotiate a settlement
• in fact, even when court proceedings have been commenced, the lawyers for the parties will often continue to negotiate on behalf of their clients, and this is reflected in the high numbers of cases which are settled out of court. Once lawyers are involved, there will be a cost element

Question 20

Advantages of using negotiation

Answer 20

1. it can be conducted by the parties themselves. There is no need to use lawyers or other people in the process
2. Negotiation can be used at any point in the dispute from the beginning right up to the start of a court hearing
3. It is the cheapest method of resolving a dispute, particularly where the parties do the negotiation themselves
4. A negotiated resolution can include agreement about future business deals. This can also be done in mediation and conciliation but cannot be done where the court makes the decision

Question 21

Disadvantages of using negotiation

Answer 21

1. It may not be successful, so that other ADR or court proceedings have to be used
2. It is not suitable where the parties are very antagonistic towards each other as they will not be prepared to ‘co operate’ in finding a resolution
3. If there are repeated unsuccessful attempts at negotiation, it may prolong the whole issues

Question 22

What is Mediation

Answer 22

• this is where a neutral mediator helps the parties to reach a compromise solution. The role of a mediator is to consult with each party and see how much common ground there is between them. He will explore the positions with each party, looking at their needs and carrying offers to and fro, while keeping confidentially
• a mediator will not usually tell the parties his own views of the merits of the dispute; it is part of the job to act as a ‘facilitator’, so that an agreement is reached by the parties. However, a mediator can be asked for an opinion of the merits, and in the case the mediation becomes more of an evaluation exercise, which again aimed at ending the dispute
• mediation is only sutiable if there is some hope that the parties can co operate. Companies who are used to negotiating contracts with each other are most likely to benefit from this approach
• mediation is also important in family cases. Parties in a family case must normally show that they have attended a mediation information and assessment meeting (MIAM) before starting any court proceedings in a family case.
• mediation can also take different forms and the parties will choose the exact method they want. The important point in mediation is that the parties are in control; they make the decision

Question 23

Mediation services

Answer 23

• there are a growing number of commercial mediation services. One of the main ones for business disputes is the centre for effective dispute resolution.
• there is also mediation services aimed at resolving smaller disputes, e.g, West Sussex mediation service
• other mediation services may offer mediation just for family issues, such as Kent family mediation

Question 24

Conciliation

Answer 24

• conciliation is similar to mediation in that a neutral third party helps to resolve the dispute, but the main difference is that the conciliator will usually play a more pro active role
• the conciliator discusses the issues with both parties in order to help them reach a better understanding of each others positions. He will also be expected to suggest grounds for compromise, and the possible basis for settlement. However, the conciliator has no authority to seek evidence or call witness.
• as with mediation, conciliation does not necessarily lead to a resolution, and it may be necessary to continue with a court action. In this both mediation and conciliation differ from arbitration where the arbitrator will make a decision that is final and binding on the parties

Question 25

Advantages of mediation and conciliation

Answer 25

1. for both mediation and conciliation the parties are in control and can withdraw from the process at any point. Also a compromise cannot be reached without the agreement of both parties
2. The decision need not be strictly legal one sticking to the letter of the law - it is more likely to be based on commercial common sense and compromise
3. This also makes it easier for companies to continue to do business with each other in the future, and it may include agreements about the conduct of future business between parties. This is something that cannot happen if the court gives judgement, as the court is only concern with the present dispute
4. Mediation and conciliation avoid the adversarial conflict of the court room and the winner/loser result of court proceedings. It has been said that with mediations, everyone wins

Question 26

Mediation and conciliation cases

Answer 26

• a high number of cases are resolved through mediation and conciliation. The centre for dispute resolution claims that over 80% of cases in which it is asked to act are settled. It has also been found that even if the actual mediation session did not resolve the dispute, the parties were more likely to settle the case without going to court than in non mediated cases. There is also the possibility that the issues may at least have been clarified, and so any court hearing will be shorter than if mediation had not been attempted

Question 27

Disadvantages of mediation and conciliation

Answer 27

1. The main disadvantage of using mediation and conciliation is that there is no guarantee the matter will be resolved, and it will then be necessary to go to court after the failed attempt at mediation. In such situations there is additional cost and delay to resolution
2. Successful mediation and conciliation requires a skilled mediator or conciliator with ‘natural talent, honed skills and accumulated experience’ if these qualities are not present, mediation can become a bullying exercise in which the weaker party may be forced into a settlement. This is even more likely to happen in conciliation where the conciliator plays an active role in suggesting ground for compromise or settlement
3. Amounts paid in mediated settlements are often lower than the amounts agreed in other settlements, and considerably lower than amounts awarded by the courts

Question 28

Arbitration

Answer 28

• the word ‘arbitration’ is used to cover two quite different processes. The first is where the courts use a more informal procedure to hear cases. The second meaning of the word ‘arbitration’ is where the parties agree to submit their claims to private arbitration; this is the type of arbitration that is relevant to ADR, as it is another way of resolving a dispute without the need for a court case
• private arbitration is now governed by the arbitration act 1996.
• arbitration is the voluntary submission by the parties, of their dispute, to the judgment of some person other than a judge. Such an agreement will usually be in writing and indeed the arbitration act 1996 applies only to written arbitration agreements. The precise way in which the arbitration is carried out is left almost entirely to the parties agreement

Question 29

The agreement to arbitrate

Answer 29

The agreement to go to arbitration can be made by the parties at any time. It can be before a dispute arises or when the dispute becomes apparent. Many commercial contracts include what is called a Scott v avery clause, which is a clause where the parties in their original contract agree that in the event of a dispute arising between them, they will have that dispute settled by arbitration.
- where there is an arbitration agreement in a contract, the arbitration act 1996 states that the court will normally refuse to deal with any disputes
- an agreement to go to arbitration can also be made after the dispute arises. Arbitration is becoming increasingly popular in commercial cases

Question 30

The arbitrator

Answer 30

• section 15 of the arbitration act 1996 states that the parties are free to agree on the number of arbitrators, so that a panel of two or three may be used or there may a sole arbitrator. If the parties cannot agree on a number than the act provides that only one arbitrator should be appointed. The act also says that the parties are fee to agree on the procedure for appointing an arbitrator. In fact most agreements to go to arbitration will ether name an arbitrator or provide a method of choosing one.
• many cases the arbitrator will be someone who has expertise in the particular field invloved in the dispute, but if the dispute involves a point of law, the parties may decide to appoint a lawyer

Question 31

The arbitration hearing

Answer 31

• the actual procedure is left to the agreement of the parties in each case, so that there are many forms of hearing. In some cases the parties may opt for a paper arbitration, where the two sides put all the points they wish to raise into writing and submit this. He will then read all the documents and make his decision. Alternatively, the parties may send all these documents to the arbitrator, but before he makes his decision both parties will attended a hearing at which they make oral submission to the arbitrator to support their case. Where necessary, witnesses are asked to give evidence orally.
• the date and time of the arbitration hearing are all matters for the parties to decide in consultation with the arbitrator. This gives a great degree of flexibility to the proceedings; the parties can choose what is mist convenient for all the people concerned

Question 32

The award

Answer 32

• the decision made by the arbitrator is called an ‘award’ and is binding on the parties. It can be enforced through the courts if necessary. The decision is usually final, though it can be challenged in the courts on the grounds of serious irregularity in the proceedings or on a point of law

Question 33

Advantages of arbitration

Answer 33

• there are several advantages which largely arise from the fact that the parties have the freedom to make their own arbitration, and decided exactly how formal or informal they wish it to be. The main advantages are:
  1. The parties may choose their own arbitrator, and can therefore decide whether the matter is best dealt either by a technical expert, a lawyer or a professional arbitrator
  2. If there is a question of quality this can be decided by an expert in the particular field, saving the expense witness and the time that would be used in explaining all the technicalities to a judge
  3. The hearing time and place can be arranged to suit both parties
  4. The actual procedure used is flexible and the parties can choose that which is most suited to the situation; this will usually result in a more informal and relaxed hearing than in court
  5. The matter is dealt with in private and there will be no publicity
  6. The dispute will be resolved more quickly than through a court hearing
  7. Arbitration proceedings are usually much cheaper than going to court
  8. The award is normally final and can be enforced through the courts

Question 34

Disadvantages of arbitration

Answer 34

There are some disadvantages of arbitration, especially where the parties are not on an equal footing as regards to their ability to present their case. This is because legal aid is not available for arbitration and this may disadvantage an individual.
1. An unexpected legal point may arise in the case which is not suitable for decision by a non lawyer arbitrator
2. If a professional arbitrator is used, his fees may be expensive
3. It will also be expensive if the parties opt for a formal hearing, with witnesses giving evidence and lawyers repressing both sides
4. The rights of appeal are limited
5. The Delays for commercial and international arbitration may be nearly as great as those in the courts if a professional arbitrator and lawyers used

Question 35

Arbitration and the problems of delay and expense

Answer 35

• these problems are delay and expense have meant that arbitration has, to some extent, lost its popularity with companies as a method of dispute resolution.

Question 36

Evaluating the differences between using the courts and ADR

Answer 36

• using ADR is usually much cheaper than going to court. For small local disputes the parties are unlikely to use lawyers so saving legal fees. In commercial mediation lawyers may be involved - shows that even so very large savings are made by using arbitration
• another advantage of most forms of ADR is that the parties are in control. In negotiation and mediation, the parties can choose to stop at any time. An agreement will only be reached if both sides accept it.
• the fact that the parties come to an agreement has another advantage; it means they will be able to go on doing business with each other. Court proceedings are more adversarial, and will end up with one party wining and one party losing. This is likely to make the parities bitter about the dispute