Tribunals and ADR - English legal system Flashcards
Why do we use ADR
ADR is used in order to avoid the cost of going to court
What are the 4 different types of ADR
Negotiation, mediation, conciliation and arbitration
What is negotiation
Negotiation is when two parties who are having a dispute try to resolve it themselves by negotiating directly
Can negotiation take place with a lawyer or not
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
What is mediation
Meditation is where a neutral mediator helps the parties to reach a compromise solution
How does the mediator go about his job
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.
Does a mediator give his own views on the merit
They will not usually give their own views on the merit but he can be asked for an opinion of the merit.
When is mediation useful
Mediation is only ever useful if there is some hope of a compromise
What is conciliation
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
What is arbitration
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
What do most commercial contracts include in them
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
What act sets out the rules about arbitration
The arbitration act 1996
What can be agreed upon by the two parties when undergoing arbitration
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
What happens when a decision is made in a arbitration hearing
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
What will happen if a dispute in arbitration involves a point of law
A lawyer might be appointed
What are the different ways an arbitration hearing can take place
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
Why were tribunals established
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
Are the decisions made in tribunals binding
The decisions are binding and can be enforced by the courts if not followed
What sort of matters can tribunals deal with
Tribunals can deal with matters as diverse as disability allowance rights, discrimination cases and political asylum cases
What is the tribunal structure
The tribunals, court and enforcement act 2007 reformed the old tribunal system and created a 2 tier system
How many judges and magistrates are there in the first tier tribunal
There are nearly 200 judges and 3600 lay members and about 600,000 cases are dealt with each year
Name two chambers in the first tier tribunal
The health, education and social care chamber and the taxation chamber
How many divisions are there in the upper tribunal
There are 4 chambers the administrative appeals chamber, tax and chancery chamber, lands chamber and the asylum and immigration chamber
What cases does the upper tribunal hear
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
What are the procedures at a tribunal
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.
