Tribunals And Alternative Methods Of Dispute Resoloution

Question 1

What is ADR? ( alternative dispute resolution)

Answer 1

In order to avoid the cost of going to court, there are alternatives methods to settling disputes. These are known as negotiation, mediation, conciliation and arbitration.

Question 2

The forms of ADR explained - negotiation

Answer 2

Can either happen with or without lawyers. The only problem with it is that negotiation can sometimes drag on for a long time. If lawyers are involved, the costs may therefore be high.

Question 3

Advantages of using negotiation

Answer 3

Negotiation is the method with the most advantages and fewest disadvantages.
- it can be conducted by parties themselves. There is no need to use lawyers or other people in the process
- negotiation can be used at any point in the dispute from the beginning right up to the start of a court hearing.
- it is the cheapest method of resolving a dispute.

Question 4

Disadvantages of using negotiation

Answer 4

• it may not be successful, so that other ADR or court proceedings have to be used.
• 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

Question 5

The forms of ADR explained - mediation

Answer 5

• the neutral theirs party will work with both sides, offering advice on the merits of each sides evidence.
• companies in dispute will often use a mediation panel to which they will present evidence.
• mediation is only useful if there some hope of a compromise
• a MIAM (mediation information and assessment meeting) is normally used in family cases before any court proceedings.

Question 6

The forms of ADR explained - conciliation

Answer 6

Similar to mediation, but with a more active role for the third party. In the case of ACAS (advisory conciliation and arbitration service - an organisation that looks for disputes between employers and employees) can give an impartial legal opinion.

Question 7

Advantages of using mediation and conciliation

Answer 7

• 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.
• the decisions need not be strictly legal one sticking to the letter of the law
• also makes it easier for companies to continue doing business with each other in the future.

Question 8

Disadvantages of mediation and conciliation

Answer 8

The main disadvantage of mediation and conciliation is that there is no guarantee the matter will be resolved, and it will be necessary to go to court after the failed attempt at mediation.
I’m such situations there is also a additional cost and delay to resolution

Question 9

What is arbitration

Answer 9

• if the two parties involved in the dispute both agree, they can put their arguments in writing for arbitration
• this is a court like scenario, but a lot less formal
• the matter is dealt with in private and so cannot be reported on as in a court.
• the rules around private arbitration are set out in the arbitration act 1996
• both parties will voluntarily submit to go through the process
• the number of arbitrators must also be agreed upon.
• the date, time and place of the hearing is worked Kuh between the parties and the arbitrator, so it is more flexible than a court.
• when a decisions has been reached, an award is made and the arbitrators decision is final and binding

Question 10

Arbitration or Scott v avery clauses in consumer agreements

Answer 10

• most consumer contacts now include arbitration clauses
• these are also known as Scott b avery clauses
• examples of these contracts include mobile phone contracts, package holidays contacts and anywhere a signature is demanded in terms and conditions

Question 11

The arbitrator and the hearing itself

Answer 11

• depending on what is agreed, there may be a single arbitrator or up to 3
• the method of choosing the arbitrator is up to the two parties involved
• if the dispute involves a point of law, a lawyer might also be appointed
• hearings can either be ‘paper arbitrations’ where all communication is conducted on paper, the arbitrator reads through everything and then makes their decisions or they might be face to face
• witnesses can also be called
• the arbitrators decides is final and legally binding and can be enforced by the courts
• any award can be appealed to the courts if there are any grounds of irregularity or a point of law is in question

Question 12

What’s the advantages of arbitration?

Answer 12

• parties may choose their own arbitrator under section 15 of the arbitration act
• a question of quality can be decided by a technical expert being called in
• the hearing time and place can both be arranged to suit both parties (flexible)
• the entire procedure used is flexible and the parties can choose that which is most suited to the situation
• matter is dealt with in private
• dispute will be resolved more quickly
• usually much cheaper
• award is normally final and can be enforced by the courts

Question 13

What’s the disadvantages of arbitration?

Answer 13

• an unexpected legal point may rise which cannot be dealt with by a non lawyer arbitrator
• a professional arbitrator may have expensive fees
• it will also be expensive if the parties opt for a formal hearing, with witness giving evidence on both sides and lawyers representing
• rights of appeal are limited
• delays for commercial and international arbitration are almost as long as court hearing delays

Question 14

What’s a tribunal?

Answer 14

• Tribunals were first established in the second half of the 20th century as a means of enforcing people’s social rights - sex/age/race discrimination, unfair dismissal etc.
• they reside alongside, although are not part of the court structure
• less formal than Courts
• decisions are binding and can be enforced by the courts if not followed
• tribunals can deal with matters as diverse as: disability allowance rights, discrimination cases

Question 15

whats the tribunal structure

Answer 15

tribunals, courts and enforcement act 2007 reformed the old tribunal system and created a 2 year system.

Question 16

first tier tribunal

Answer 16

• handles about 600,000 cases a year. nearly 200 judges, 3,600 lay members.
• different divisions, known as chambers
• social entitlement chamber
• health, education and social care chamber
• war pensions and armed forces compensation chamber
• taxation chamber
• land, property and housing chamber
• asylum and immigration chamber
• there is also a separate chamber called the employment tribunal that deals with workplace disputes

Question 17

upper tribunal

Answer 17

• hears appeals from the first tier tribunal
• 4 chambers: administrative appeals chamber (deals with appeals from social entitlement, health, education, social care, war pensions and armed forces compensation chambers). tax and chancery chamber, lands chamber, asylum and immigration chamber
• there is a further appeal route to the court of appeal and from there to the supreme court

Question 18

what is the procedures at a tribunal

Answer 18

• usually presided over by one judge. they may be assisted by some non lawyers who are experts in their fields, depending on the type of tribunal
• 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 avaliable in some tribunals. in employment tribunals, an employees trade union will sometimes provide them with legal representation

Question 19

the advantages of tribunals

Answer 19

1. cheaper than courts as applicants are encouraged to represent themselves and not use lawyers
2. quick hearings as most tribunal hearings are very short and can be dealt with in one day
3. informality as the hearing is more informal than in court.
4. expertise as the 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.

Question 20

disadvantages of tribunals

Answer 20

1. lack of funding as legal aid funding is not available for most tribunals, which may put an applicant at a disadvantage if the other side uses a lawyer.
2. more formal than ADR as a tribunal hearing is more formal than using ADR. the place is unfamiliar and the procedure can be confusing for individuals presenting own case.
3. delay, although the intention is that the cases are dealt with quickly, the number of cases dealt with by tribunals means that there can be delays in getting a hearing