Tribunals and ADR - English legal system

Question 1

Why do we use ADR

Answer 1

ADR is used in order to avoid the cost of going to court

Question 2

What are the 4 different types of ADR

Answer 2

Negotiation, mediation, conciliation and arbitration

Question 3

What is negotiation

Answer 3

Negotiation is when two parties who are having a dispute try to resolve it themselves by negotiating directly

Question 4

Can negotiation take place with a lawyer or not

Answer 4

It can take place with a lawyer or without a lawyer but if a lawyer is used then that will increase the cost. A lawyer will be used if the parties cannot come to an agreement and the lawyer will usually try to negotiate a settlement

Question 5

What is mediation

Answer 5

Meditation is where a neutral mediator helps the parties to reach a compromise solution

Question 6

How does the mediator go about his job

Answer 6

The mediator will see how much common ground there is between the two parties. He will explore the position with each party looking at their needs and carrying offers whilst keeping confidentiality.

Question 7

Does a mediator give his own views on the merit

Answer 7

They will not usually give their own views on the merit but he can be asked for an opinion of the merit.

Question 8

When is mediation useful

Answer 8

Mediation is only ever useful if there is some hope of a compromise

Question 9

What is conciliation

Answer 9

Conciliation is similar to mediation in that a neutral third party helps to resolve the dispute but the conciliator now plays a more pro-active role

Question 10

What is arbitration

Answer 10

Arbitration is the voluntary submission by the parties, of their dispute, to the judgement of a third party and their decision will be legally binding

Question 11

What do most commercial contracts include in them

Answer 11

They include 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 a dispute settled by arbitration and this is done because arbitration is private whereas court hearings are and most companies want to keep their name out of the public

Question 12

What act sets out the rules about arbitration

Answer 12

The arbitration act 1996

Question 13

What can be agreed upon by the two parties when undergoing arbitration

Answer 13

As this is a less formal court like scenario the two parties can decide on the number of arbitrators appointed (between 1-3), the date, time and place of the hearing is worked out between the parties and the arbitrator and the method of choosing the arbitrator is up two the parties involved

Question 14

What happens when a decision is made in a arbitration hearing

Answer 14

When a decision has been reaches an award is made and the arbitrator’s decision is final and legally binding so it can be enforced by the courts

Question 15

What will happen if a dispute in arbitration involves a point of law

Answer 15

A lawyer might be appointed

Question 16

What are the different ways an arbitration hearing can take place

Answer 16

In some cases a hearing can be a ‘paper arbitrator’ which is where the two sides put all the points they wish to raise into writing and submit this together with any relevant documents to the arbitrator. The hearing could also take place face to face where oral submissions to the arbitrator will be made

Question 17

Why were tribunals established

Answer 17

They were established in the second half of the 20th century as a means of enforcing peoples social rights and they operate alongside the court system but are less formal

Question 18

Are the decisions made in tribunals binding

Answer 18

The decisions are binding and can be enforced by the courts if not followed

Question 19

What sort of matters can tribunals deal with

Answer 19

Tribunals can deal with matters as diverse as disability allowance rights, discrimination cases and political asylum cases

Question 20

What is the tribunal structure

Answer 20

The tribunals, court and enforcement act 2007 reformed the old tribunal system and created a 2 tier system

Question 21

How many judges and magistrates are there in the first tier tribunal

Answer 21

There are nearly 200 judges and 3600 lay members and about 600,000 cases are dealt with each year

Question 22

Name two chambers in the first tier tribunal

Answer 22

The health, education and social care chamber and the taxation chamber

Question 23

How many divisions are there in the upper tribunal

Answer 23

There are 4 chambers the administrative appeals chamber, tax and chancery chamber, lands chamber and the asylum and immigration chamber

Question 24

What cases does the upper tribunal hear

Answer 24

They hear appeals from the first tier tribunal and there is a further appeal route to the court of appeal and from there to the Supreme Court

Question 25

What are the procedures at a tribunal

Answer 25

Cases are usually presided over by one judge but they may be assisted by some non-lawyers who are experts in their fields depending on the type of tribunal. The formality depends on the tribunal but both sides are given the opportunity to have their say. Applicants will usually represent themselves as funding is only available in some tribunals.