(Paper Two) = ADR and Tribunals

Question 1

What is ADR?

Answer 1

• Alternative Dispute Resolution
• This an option instead of going to court and includes negotiation, mediation, conciliation and arbitration

Question 2

What is negotiation?

Answer 2

• The process of trying to come to an agreement
• Individuals negotiate either directly with each other or with lawyers on their behalf
• These take place in private and not in court
• They are the quickest and cheapest way
• However it can also take a long time but parties are more likely to come to an agreement to avoid costs. It is voluntary so there is no guaranteed outcome so it is a waste. There is also no legal precedent therefore can lead to unfair outcomes

Question 3

What is mediation?

Answer 3

• A neutral personal helps the parties compromise to a solution
• The mediator does not offer a solution
• A mediator is often used in family cases to show the court they have come to a solution
• It is not a legal decision
• This is only viable if there is some hope that they can reach an outcome amicably
• The mediator will assess whether there is any agreement
• The parties are in control which is an everyone wins situation as it avoids courtroom conflict. It enables them to work together in the future
• 86% of services result in an outcome
• They save 2.8 Billion Pounds in relationships in management and legal fees
• There is also online dispute resolution making it more accessible
• Seen in Dunnett v Railtrack
• Advantages are that it is private, confidential, quick, cost-effective, accessible, maintain a relationship and mostly are settled
• A disadvantage is that it is becoming a compulsory step, which leads to a half-hearted commitment and they may end up going to court anyway which is greater costs

Question 4

What is conciliation?

Answer 4

• The third party will suggest a way to settle the dispute, the suggestions have to be reviewed and taken notice of
• The main service is done through ACAS (Advisory, conciliation and arbitration service)
• If they refuse, the judge can refuse to award some or all legal costs which prevents people from ignoring the conciliator
• An advantage is that it is cheaper, plays an active role for someone who doesn’t understand it, private and confidential, identifies and clarifies the dispute
• A disadvantage is that it relies on the skills of the conciliator, may go to court anyway

Question 5

What is arbitration?

Answer 5

• Mostly used for commercial and contract
• Adjudication of a dispute which is a judging by a dispute by one or more appointed experts and lawyers which becomes a binding decision
• Mostly submitting evidence through paper and then the arbitrator comes to a decision
• Often belong to the Chartered Institute of Arbitrators who must meet a certain standard
• This decision is binding and must follow (Adjudicative). They will award one party based on their decision
• Likely to include a Scott v Avery clause where both parties pre-contractually agree to go through arbitration if there is a dispute
• The decision can only be appealed if there is a serious irregularity or issue with a point of law
• Seen in the Arbitration Act 1996
• An advantage is they have discretion as to who the arbitrator is, parties get to decide the details of a hearing, privacy, binding, expert in the field
• A disadvantage is that public funding is not available, appeals are restricted and there is not always a legal professional in the room

Question 6

Why would people choose to use ADR?

Answer 6

1. Can be costly
2. Can be traumatic
3. Not satisfactory outcomes
4. Court proceedings are open to the public meaning there is no privacy

Question 7

What is a tribunal?

Answer 7

• They operate alongside the legal system and have become an important part of the legal system
• It is a way of gaining social rights instead of going to court

Question 8

What areas of law will just be heard in a tribunal?

Answer 8

1. War
2. Tax
3. Property
4. Health, education and social care
5. Social Entitlement
6. Immigration and Asylum
7. General Regulation
8. Many employment issues

• It is mandatory to use a tribunal instead of court if it is in these situations
• They are used to enforce rights granted through social legislation

Question 9

What is the difference between tribunals and court systems?

Answer 9

• They are more accessible
• They are often cheaper
• Procedures are simpler
• They are quicker
• They have limited power
• They deal with specific areas of the law
• It is mandatory to use a trinunal

Question 10

What are the roles of a tribunal?

Answer 10

• They enforce social rights such as mobility allowance, right to pay if made redundant and the right not to be discriminated against

Question 11

What are the advantages and disadvantages of a tribunal?

Answer 11

• They are cheap, quick, informal, more accessible and have legal expertise and will not recieve a bill at the end
• They lack funding and no legal aid therefore puts someone at a disadvantage, they are more formal than ADR and can be unfamiliar or confusing. There can be a delay in cases

Question 12

What is the appeal route for a tribunal?

Answer 12

1. First-tier = This is the first tier of the two tier tribunal process, they hear cases at first instance. They have around 600,000 cases each year. There are seven chambers
2. Upper tribunal = It is separated into found chambers and deal with appeals. They are condensed into collective chambers. You can appeal to the CoA and then the Supreme Court. This should be a quicker proces
3. Court of Appeal
4. Supreme Court

Question 13

Which judge hears tribunals?

Answer 13

• First tier tribunal cases are heard by a tribunal judge or have two non-layers who have expertise in the field and help make the decision depending on how complicated the case is

Question 14

Is a decision in tribunal binding?

Answer 14

• It is legally binding to all parties

Question 15

Who represents a tribunal case?

Answer 15

• Most applicants represent themselves due to lack of funding therefore do not give evidence