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legal and criminal justice systems > tribunals and ADR > Flashcards

tribunals and ADR Flashcards

1
Q

what are tribunals a product of?

A

the welfare state as a consequence of the growth in disputes between citizens and the state

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2
Q

how many cases do tribunals handle annually?

A

1 million

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3
Q

what type of jurisdictions do tribunals have?

A

specialist jurisdictions

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4
Q

How do tribunals compare to courts in terms of process and costs?

A

offer a quicker process and lower costs than court

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5
Q

what principles do tribunals uphold?

A

openness, fairness and impartiality

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6
Q

what legislation relates to tribunals?

A

tribunals, courts and enforcement act 2007

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7
Q

What is a consequence of the potential for a vast number of disputes?

A

court overload and they need for specialists

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8
Q

why is there a need for tribunals?

A

to provide an appropriate forum to resolve disputes

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9
Q

what are the 6 advantages of tribunals?

A
  1. speed
  2. cost
  3. informality
  4. flexibility
  5. privacy
  6. expertise
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10
Q

what is a major issue regarding state funding for tribunals?

A

it is unavailable

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11
Q

what changed with the legal aid sentencing and punishment of offenders act 2012?

A

tribunals were free until this act was implemented

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12
Q

Are there any fee remissions available for tribunal users?

A

yes

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13
Q

What is a common question regarding payments for tribunal services?

A

should you pay for the state to look at its own mistakes?

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14
Q

is there any state funding available at different tribunal levels??

A

yes in the upper level

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15
Q

What service allows individuals to represent themselves in tribunals?

A

lay representative meaning no solicitor/barrister is needed

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16
Q

what is ADR?

A

an alternative way of resolving disputes that are normally dealt with by the court system

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17
Q

true or false - ADR are less formal, less expensive, less public and less confrontational

A

true

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18
Q

why might court action not always be the most appropriate means of resolving a dispute?

A

the complexity of law and legal procedures

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19
Q

what is a significant financial concern related to court action?

A

the cost of court and legal representation

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20
Q

how can the atmosphere of courts affect individuals?

A

deter people from pursing their cases

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21
Q

what is a common issue with the timeline of court resolution?

A

significant delays in resolution

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22
Q

What is a drawback of court action regarding privacy?

A

the public nature of court action can expose personal matters

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23
Q

how does the nature of court action differ from ADR?

A

court action is adversarial, which can create conflict rather than collaboration

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24
Q

what are the 3 types of ADR?

A
  1. mediation
  2. conciliation
  3. arbitration
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25
Q

what is mediation?

A

mediator assists the parties in coming to an agreement

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26
Q

what is conciliation?

A

similar to mediation but the 3rd party takes a more active role

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27
Q

what is arbitration?

A

disputes decided by 3rd party who is an official arbitrator

28
Q

what is the ombudsman?

A

an independent office holders who investigate complaints by the public of maladministration of government services

29
Q

what is utility regulators?

A

officials appointed by government to oversee privatised utilities e.g. gas, water and electricity

30
Q

true or false - mediators are generally qualified lawyers but cannot advise

A

true

31
Q

where does the majority of mediation take place?

A

on the phone

32
Q

if parties cannot reach an agreement through mediation then the case will go to court?

A

yes

33
Q

mediation - family matters

A

mediation is encouraged by courts since adversarial system not conducive to settlement of family matters where parties in dispute

34
Q

what does mediation for family matters assume?

A

that parties can freely negotiate to reach a settlement

35
Q

mediation - divorce

A

parties encouraged to attempt mediation as the first step

36
Q

what legislation removed legal aid for divorce cases except domestic abuse?

A

sentencing and punishment of offenders act 2012

37
Q

mediation - problems

A

assumes equality of bargaining power/knowledge, court may be preferable

38
Q

What is conciliation in the context of dispute resolution?

A

Conciliation is a step further than interventionist than mediation, where the mediator can make suggestions

39
Q

In what types of disputes is conciliation often used?

A

industrial and employment

40
Q

what is an example of a conciliation services in the UK?

A

the advisory, conciliation and arbitration services provides conciliation before employment tribunals

41
Q

How does conciliation differ from mediation?

A

Conciliation gives the mediator power to suggest grounds for compromise and a basis for agreement

42
Q

Do mediation and conciliation have binding power?

A

no

43
Q

What case illustrates a failure in the conciliation process?

A

Burchell v Bullard (2005) serves as an example of how not to conduct conciliation

44
Q

What is the importance of ADR in the Civil Procedure Rules?

A

to emphases the role in dispute resolution

45
Q

Which rule should be considered for mediation in the Civil Procedure Rules?

A

rule 26.4 of the civil procedure rules

46
Q

what does the CPR state about the costs at the end of a case?

A

follows the rules that the loser pays the winners costs

47
Q

Can judges deviate from the general rule regarding costs?

A

yes rule 44 allows this

48
Q

What constitutes ‘bad behaviour’ in the context of ADR?

A

refusal to engage in ADR especially if recommended by court

49
Q

Which case exemplifies the consequences of refusing to consider ADR?

A

Dunnet v Railtrack pls (2002)

50
Q

What was the outcome for Railtrack in the Dunnet case regarding costs?

A

although railstrahk won the cost of appeal was disallowed

51
Q

What was the significance of the case Halsey v Milton Keynes General NHS Trust (2004)?

A

Court of Appeal stated that the trial judge was wrong to award costs to the defendant NHS Trust because it refused the claimants’ requests for mediation

52
Q

Did the Court of Appeal make mediation compulsory in the Halsey case?

A

no

53
Q

What is arbitration in the context of dispute resolution?

A

issues are referred to a third party instead go going to court

54
Q

what type of arbitration is mentioned, and what is its outcome?

A

private arbitration when binding awards are issued by the arbitrator

55
Q

Who accredits arbitrators?

A

chartered institute of arbitrators

56
Q

In which areas is arbitration particularly relevant?

A

commercial and shipping disputes

57
Q

What international framework supports arbitration?

A

the New York arbitration convention

58
Q

Why is arbitration often preferred over court litigation?

A

maintaining good business relations in key

59
Q

what is commonly included in contracts and agreements related to dispute resolution?

A

arbitration

60
Q

Which law governs arbitration and what does it consider?

A

Arbitration is governed by the Arbitration Act 1996, which considers the autonomy of parties, powers of arbitrators, and limited rights of appeal

61
Q

is there judicial review in arbitration proceedings?

A

no

62
Q

What do both parties in a dispute do regarding the arbitrator?

A

allow the arbitrator to decide the outcome

63
Q

What is the nature of the decision made by the arbitrator?

A

legally binding

64
Q

What do commercial contracts typically include regarding disputes?

A

an arbitration agreement

65
Q

what role do arbitrators play in the arbitration process?

A

inquisitorial role as they are expert in the field

66
Q

what is maritime law?

A

massive body of law that deals with commercial law, shipping, private international law etc

67
Q

what are 5 advantages of arbitration?

A
  1. private
  2. informal
  3. faster
  4. cheaper
  5. specialist areas

legal and criminal justice systems (18 decks)

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