tribunals and ADR Flashcards
what are tribunals a product of?
the welfare state as a consequence of the growth in disputes between citizens and the state
how many cases do tribunals handle annually?
1 million
what type of jurisdictions do tribunals have?
specialist jurisdictions
How do tribunals compare to courts in terms of process and costs?
offer a quicker process and lower costs than court
what principles do tribunals uphold?
openness, fairness and impartiality
what legislation relates to tribunals?
tribunals, courts and enforcement act 2007
What is a consequence of the potential for a vast number of disputes?
court overload and they need for specialists
why is there a need for tribunals?
to provide an appropriate forum to resolve disputes
what are the 6 advantages of tribunals?
- speed
- cost
- informality
- flexibility
- privacy
- expertise
what is a major issue regarding state funding for tribunals?
it is unavailable
what changed with the legal aid sentencing and punishment of offenders act 2012?
tribunals were free until this act was implemented
Are there any fee remissions available for tribunal users?
yes
What is a common question regarding payments for tribunal services?
should you pay for the state to look at its own mistakes?
is there any state funding available at different tribunal levels??
yes in the upper level
What service allows individuals to represent themselves in tribunals?
lay representative meaning no solicitor/barrister is needed
what is ADR?
an alternative way of resolving disputes that are normally dealt with by the court system
true or false - ADR are less formal, less expensive, less public and less confrontational
true
why might court action not always be the most appropriate means of resolving a dispute?
the complexity of law and legal procedures
what is a significant financial concern related to court action?
the cost of court and legal representation
how can the atmosphere of courts affect individuals?
deter people from pursing their cases
what is a common issue with the timeline of court resolution?
significant delays in resolution
What is a drawback of court action regarding privacy?
the public nature of court action can expose personal matters
how does the nature of court action differ from ADR?
court action is adversarial, which can create conflict rather than collaboration
what are the 3 types of ADR?
- mediation
- conciliation
- arbitration
what is mediation?
mediator assists the parties in coming to an agreement
what is conciliation?
similar to mediation but the 3rd party takes a more active role
what is arbitration?
disputes decided by 3rd party who is an official arbitrator
what is the ombudsman?
an independent office holders who investigate complaints by the public of maladministration of government services
what is utility regulators?
officials appointed by government to oversee privatised utilities e.g. gas, water and electricity
true or false - mediators are generally qualified lawyers but cannot advise
true
where does the majority of mediation take place?
on the phone
if parties cannot reach an agreement through mediation then the case will go to court?
yes
mediation - family matters
mediation is encouraged by courts since adversarial system not conducive to settlement of family matters where parties in dispute
what does mediation for family matters assume?
that parties can freely negotiate to reach a settlement
mediation - divorce
parties encouraged to attempt mediation as the first step
what legislation removed legal aid for divorce cases except domestic abuse?
sentencing and punishment of offenders act 2012
mediation - problems
assumes equality of bargaining power/knowledge, court may be preferable
What is conciliation in the context of dispute resolution?
Conciliation is a step further than interventionist than mediation, where the mediator can make suggestions
In what types of disputes is conciliation often used?
industrial and employment
what is an example of a conciliation services in the UK?
the advisory, conciliation and arbitration services provides conciliation before employment tribunals
How does conciliation differ from mediation?
Conciliation gives the mediator power to suggest grounds for compromise and a basis for agreement
Do mediation and conciliation have binding power?
no
What case illustrates a failure in the conciliation process?
Burchell v Bullard (2005) serves as an example of how not to conduct conciliation
What is the importance of ADR in the Civil Procedure Rules?
to emphases the role in dispute resolution
Which rule should be considered for mediation in the Civil Procedure Rules?
rule 26.4 of the civil procedure rules
what does the CPR state about the costs at the end of a case?
follows the rules that the loser pays the winners costs
Can judges deviate from the general rule regarding costs?
yes rule 44 allows this
What constitutes ‘bad behaviour’ in the context of ADR?
refusal to engage in ADR especially if recommended by court
Which case exemplifies the consequences of refusing to consider ADR?
Dunnet v Railtrack pls (2002)
What was the outcome for Railtrack in the Dunnet case regarding costs?
although railstrahk won the cost of appeal was disallowed
What was the significance of the case Halsey v Milton Keynes General NHS Trust (2004)?
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
Did the Court of Appeal make mediation compulsory in the Halsey case?
no
What is arbitration in the context of dispute resolution?
issues are referred to a third party instead go going to court
what type of arbitration is mentioned, and what is its outcome?
private arbitration when binding awards are issued by the arbitrator
Who accredits arbitrators?
chartered institute of arbitrators
In which areas is arbitration particularly relevant?
commercial and shipping disputes
What international framework supports arbitration?
the New York arbitration convention
Why is arbitration often preferred over court litigation?
maintaining good business relations in key
what is commonly included in contracts and agreements related to dispute resolution?
arbitration
Which law governs arbitration and what does it consider?
Arbitration is governed by the Arbitration Act 1996, which considers the autonomy of parties, powers of arbitrators, and limited rights of appeal
is there judicial review in arbitration proceedings?
no
What do both parties in a dispute do regarding the arbitrator?
allow the arbitrator to decide the outcome
What is the nature of the decision made by the arbitrator?
legally binding
What do commercial contracts typically include regarding disputes?
an arbitration agreement
what role do arbitrators play in the arbitration process?
inquisitorial role as they are expert in the field
what is maritime law?
massive body of law that deals with commercial law, shipping, private international law etc
what are 5 advantages of arbitration?
- private
- informal
- faster
- cheaper
- specialist areas
