Tribunals And Alternative Methods Of Disputes Flashcards
1
Q
What is ARD?
A
- in order to avoid the cost of going to court, there are alternative methods to settling disputes. Negotiation, mediation, conciliation and arbitration
2
Q
What is negotiation?
A
- can either happen without lawyers
- only problem is that it can sometimes drag on for a long time
- if lawyers are involved the costs may be high
3
Q
Advantages of negotiation
A
- it can be conducted by parties - no need to use lawyers
- can be used at any point in the dispute from the start of a court hearing
- cheapest method of resolving a dispute
- can include an agreement about future business deals. Can also be done in mediation and conciliation but cannot be done where the courts make the decision
4
Q
Disadvantages of negotiation
A
- may not be successful, so other ARD may have to be sued
- not suitable where the parties are antagonistic towards each other
5
Q
What is Mediation?
A
- the neutral third party will work with both sides, offering advice on each other
- companies in dispute often will use a mediation panel to which they will present evidence
- commercial mediation firms can cost nearly £2,000 a day. Still a lot less than court cases which in some major commercial cases can be £500,000
- some mediation services are free, where trained volunteers will help to settle disputes between neighbours
- only used if there is some hope of a compromise
A MIAM is normally used in family cases before any court proceedings
6
Q
What is conciliation?
A
- similar to mediation, but with a more active role for the 3rd party. In the case of ACAS (advisory conciliation and arbitration service - an organisation that looks after disputes between employers and employees) can give an impartial legal opinion
7
Q
Advantages of mediation and conciliation
A
- for both the parties are in control and can withdraw at any time. A compromise cannot be reached with out the agreement of both parties
- the decision need not be strictly legal one sticking to the letter of the law - more likely to be based on commercial common sense and compromise
- makes it easier for companies to continue to do business with each other in the future, business between parties is something they cannot happen if the court gives judgement, as the court is only concentrated with the present dispute
- they avoid the conflict of the court room and the winner/loser result of the court proceeding
8
Q
Disadvantages of mediation and conciliation
A
- there is no guarantee the matter will be resolved and then I of necessary to go to court after the failed attempt at mediation. Means additional cost and delay to resolution
- successful mediation and conciliation requires a skilled mediator or conciliator. If these skills are not present, mediation can become bullying exercise in which the weaker party may be forced into settlement
- amounts paid in mediation settlements are considerably lower than amounts awarded by the courts
9
Q
What is arbitration?
A
- if the two parts involved in the dispute both agree they can put their arguments in writing for arbitration
- a court like scenario, but a lot less formal
- the matter is dealt with in private and so cannot be reported on as in 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 appointed must be also agreed upon
- the date, time and place of the hearing is worked out between the parties and the arbitrator so it’s more flexible than a court
10
Q
Scott vs Avery clauses in consumer agreement
A
- most consumer contracts now include arbitration clauses - these are known as Scott v avery clauses e.g, of these contracts include mobile phone contracts, satellite tv, package holiday and anyway where a signature is required
11
Q
The arbitrator and the hearing
A
- depending what is agreed there many be a single arbitrator or up to 3
- the method of choosing the arbitrator is up to the 2 parties involves
- the arbitrators decision is final and legally binding
- if the dispute involves a point of law, a lawyer might also be appointed
- hearings can either be ‘paper arbitrators’ were all communication is conducted
- witnesses can also be called
12
Q
Advantages of arbitration
A
- parties may choose their own arbitrator under s 15 of the arbitration act
- question of quality can be decided by a technical expert
- the hearing time and place can be decided (flexible)
- the entire procedure used is flexible and the parties can choose what is most suited
- matter is dealt with in private
13
Q
Disadvantages of arbitration
A
- an unexpected legal point may rise which cannot be death 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 ar limited
- delays for commercial and international arbitration are almost as long as court hearings delays
14
Q
What are tribunals?
A
- were first established in the second half of the 20th century as a means of enforcing peoples social rights - sex/age/race discrimination/unfair dismissal etc
- less formal than courts
- they reside alongside, although are not part of the court structure
- decisions are binding and can be enforced by the courts
- tribunals can deal with matters diverse as: disability allowance rights, redundancy payments, discrimination cases, political asylum
15
Q
Tribunal structure
A
- tribunal, courts and enforcement act 2007 reformed the old tribunal system and created a 2 tier system
