Chapter 7

Question 1

What are the four main methods of alternative dispute resolution

Answer 1

Negotiation, mediation, conciliation and arbitration

Question 2

What is involved in the method of negotiation

Answer 2

Discussion between a lawyer and the opposing party (or their lawyer) to try to reach an agreement, which will usually require one or both parties to compromise

Question 3

What is a settled case

Answer 3

One in which an agreement, or ‘settlement’ has been reached before the Court hearing date

Question 4

What two types of matters is the method of negotiation mostly used to try and settle and why

Answer 4

Personal injury (to establish size of damages) and Employment disputes (to discuss size of dismissal compensation and other matters such as referrals)

Question 5

What are the nine advantages of negotiation

Answer 5

Efficient use of time, speed due to lack of formalities, inexpensive, objectivity from lawyers (less emotional), preserves good working relationships, confidential (no bad publicity), range of solutions can be explored which may save parties backing down, more informal than other methods, parties are in control of the process and can stop if they want

Question 6

What are the three disadvantages of negotiation

Answer 6

Unsuccessful negotiation is wasted time, if one party has a more dominant bargaining position it can lead to an unfair result, unrepresented parties are usually at a significant disadvantage

Question 7

Describe mediation

Answer 7

Informal process whereby written statements and evidence are submitted by each party to set out their side of the case to a trained mediator (who can sometimes be a barrister or solicitor) who then holds a confidential meeting where the parties are usually in separate rooms. The mediator shuttles between them to present the evolving views of the parties to each other

Question 8

What three types of matters is mediation mostly used for

Answer 8

Workplace disputes (provided by Advisory, Conciliation and Arbitration Service) contractual disputes and family law (parties wishing to take their family dispute to Court must first prove they have considered mediation)

Question 9

What are the eight advantages of mediation

Answer 9

Faster than court / cheaper than court / more informal than a court hearing / clear and frank views can be given separately without arguments / mediators can be objective / parties can contribute to agreement / non-confrontational atmosphere / outcomes can be made into legally binding agreements

Question 10

What are the two disadvantages of mediation

Answer 10

Lack of formality means mediator struggles to ensure weaker parties are not exploited (eg can’t ensure a wealthy husband discloses all finances) / parties without representation may be pressured into agreements without legal advice about their potential success in court

Question 11

Describe the method of conciliation

Answer 11

Parties submit statements and evidence to a conciliator (similarly to mediation) but a conciliator is able to propose compromises and agreements

Question 12

What matters is conciliation mostly used for

Answer 12

Employment disputes between groups of workers (represented by their trade union) and their employers, service is provided by Advisory Conciliation and Arbitration Service (ACAS)

Question 13

What is the extra advantage of conciliation (besides those of mediation)

Answer 13

The conciliator may come up with a settlement proposal neither party had thought of

Question 14

Describe the method of arbitration

Answer 14

Parties of civil disputes submit statements and evidence to an independent arbitrator who decides the final outcome of the dispute, and whom must act fairly and impartially. They decide on all matters of procedure and evidence. The arbitrator may consult an independent expert.

Question 15

How does the Arbitration Act 1996 govern arbitration

Answer 15

It gives parties involved wide powers regarding decisions on the principles that will be used to decide the dispute.

Question 16

What two rights of appeal to the high court are there with arbitration

Answer 16

On points of law (only if both the parties and the High Court agree) / if there was a serious irregularity in procedures during the arbitration process

Question 17

What three types of matter is arbitration most often used for

Answer 17

Technical and scientific matters such as construction and accounting, consumer matters such as holidays and commercial matters

Question 18

What are the six advantages of arbitration

Answer 18

Quicker than court, cheaper than court, more informal than court, atmosphere is less adversarial which may preserve company relations, proceedings are held privately, arbitrator is an expert in the subject

Question 19

What are two disadvantages of arbitration

Answer 19

seen as a privatised court system with limited rights of appeal, independence of experts in consumer arbitration has been questioned

Question 20

Why were tribunals set up

Answer 20

They were set up in specific legal areas to help solve problems of costs and delay

Question 21

Who makes decisions in tribunals

Answer 21

A qualified tribunal judge, usually assisted by two experts with specialist knowledge in the dispute’s subject matter

Question 22

What does the Employment Tribunal do

Answer 22

Hears disputes between employers and employees regarding unfair dismissal, redundancy, discrimination and refusal to pay minimum wage

Question 23

Where are appeals from the employment tribunal heard

Answer 23

Employment appeal tribunal

Question 24

Where are first tier tribunal appeals heard

Answer 24

In upper tribunals

Question 25

Where are appeals on points of law from Upper Tribunals heard

Answer 25

Court of Appeal

Question 26

What are the two main requirements of the Senior President of Tribunals under s2(3) Tribunals, Courts and Enforcement Act 2007

Answer 26

Tribunals must be made accessible, and matters must be handled fairly, quickly and efficiently.

Question 27

Why is the Special Immigration Appeals Commission considered controversial

Answer 27

It deals with immigration involving national security, and decisions are made (in part) based on ‘secret government information’ which cannot be disclosed to the person threatened with deportation. This means that their representative cannot challenge the evidence as they are not permitted to discuss it with their client

Question 28

What are the five advantages of tribunals

Answer 28

Quicker than court, high volume of cases reduces ministry of justice costs, flexibility of procedures (as not bound by CPR), informal and so less intimidating,
expertise is helpful in specialised cases

Question 29

What is an added advantage the Employment Tribunal has (case of Lord Chancellor (UNISON) [2017])

Answer 29

This outcome of this case ruled that tribunal fees in employment matters were illegal but court fees are still chargeable - making it a less expensive route

Question 30

What are the two disadvantages of tribunals

Answer 30

Costs not usually awarded so legal fees are deducted from any compensation, legal aid is not available.