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Flashcards in tribunals and ADR Deck (17)
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1
Q

what are tribunals

A
  • certain disputes that cannot be resolved in the courts, they are used to resolve disputes involving a persons social rights for example an employment dispute hearing claims for unfair dismissal, redundancy and discrimination.
  • tribunals were set up by the lord chancellor in 2006.
2
Q

describe the framework created for tribunals by a certain act

A
  • the tribunals, courts and enforcement act 2007 created a two tier system for tribunals (employment tribunals currently operate outside the two tier system).
  • the system involves a first tier tribunal and an upper tribunal both of which are split into two chambers
3
Q

explain the role of the people sitting in a tribunal

A
  • a judge and two other non legal members with experience in the particular issue sit in a tribunal
  • the tribunal judge will play an active role in the hearing, particularly if an individual is representing themselves
  • lawyers can be used but they are discouraged. Parties are encouraged to represent themselves, particularly in employment hearings.
4
Q

what are three advantages and disadvantages of tribunals

A

+quicker and cheaper than litigation
+legally binding
+can appeal
-media are allowed to report, not always private
-delays can happen
-people are reluctant to take cases to tribunal because they don’t want to represent themselves, unjust

5
Q

what are the four different forms of ADR

A

negotiation, mediation, conciliation, arbitration

6
Q

which courts will solve a civil dispute

A

county court, high court

7
Q

describe the advantages of ADR

A
  • Lord Woolf’s reform actively encourages parties to resolve civil disputes outside of a courtroom
  • reduces pressure of the courts
  • issue can be resolved in private
  • much quicker and therefore cheaper than the courts
8
Q

describe negotiation

A
  • should always be the first option in civil disputes
  • least formal type of ADR
  • two disputing parties simply try to come to an agreement themselves
  • solicitors can be used
  • negotiation should be continued throughout the dispute even if it failed at first
  • often cases will be resolved outside of court just before the trial date arrives
9
Q

what are three advantages and disadvantages of negotiation

A

+informal, less daunting
+litigation is still an option
+can save a relationship (might be lucrative business relationship)
-not legally binding, a party can change their mind
-cost can be incurred if solicitors are involved
-both parties have to be willing to negotiate

10
Q

describe mediation

A
  • a form of negotiation that includes a professional, trained, neutral third part (the mediator)
  • there must be some hope of compromise and cooperation
  • the mediator will use their skills to help facilitate the negotiation between parties, they will not give a decision, take sides or offer suggestions. They will continually encourage the parties to resolve the dispute without going through the courts.
  • the mediator will speak to both parties in advance so they can gain common ground and prevent the discussions of irrelevant topics by focusing on the points in the dispute. They will also move the discussion on if they feel they are not making progress.
  • if the parties come to an agreement a contract will be drawn up
11
Q

give two examples of specific mediation firms

A
  • Centre For Dispute Resolution London deals with commercial dispute and charges £2000 per day. The parties will split these costs.
  • Relate is a famous mediation service for family disputes.
12
Q

describe the form of mediation that takes place at a mini trial

A

formalised settlement conference= specific type of mediation service where the parties involved in a commercial dispute need to salvage their relationship.. There is a mini trial with a panel consisting of a mediator, a neutral advisor and representatives from each party. a decision is made based on commercial common sense.

13
Q

describe conciliation

A

-similar to mediation except the consiliator will play a more active role in solving the dispute, giving suggestions to parties, they will offer thoughts and opinions on the dispute and a non legally binding proposal for settlement.

14
Q

give two examples of when conciliations is used

A
  • ACAS (advisory conciliatory and arbitration service) deals with disputes between employers and employees.
  • Conciliation is useful for companies who may assess thee strength of their case before taking it to court
15
Q

give three advantages and three disadvantages of conciliation and mediation

A

+works- approx 70% of cases dealt with by centre for dispute resolution are successful
+relationships can be salvaged
+actively encouraged by Civil procedures rules 1999
-legal aid unavailable, parties have to pay 50% each
-relationships could be made worse
-not legally binding

16
Q

describe arbitration

A
  • arbitration is chosen instead of litigation and is the most formal type of ADR
  • parties agree to have their dispute decided by an independant arbitrator
  • governed by the arbitration act 1996
  • voluntary so parties cannot be forced into it unlike litigation
  • ACAS use this method to resolve employment disputes
  • in some commercial contracts there is a clause that states that any disputes must be settles by arbitration rather than conciliation, this is known as the scott v avery clause
  • there are two types of arbitration: paper arbitration (parties make their submission in writing to the arbitrator) and arbitration hearing
  • hearing is more common involving the arbitrator as a judge, solicitors and barristers, evidence, witnesses, questioning etc
  • an arbitrator will be trained/ experienced, can have legal qualifications or be an expert in the field. There can be 1 2 or 3 arbitrators depending on what the party decides.
  • a legally binding decision or ‘award’ is made by the arbitrator and is final, the award can be enforced by the courts
  • s68 of the arbitration act 1996 allows for the award to be challenged in the QBD court, such challenges require leave to appeal.
17
Q

give three advantages and disadvantages of arbitration

A

+parties can appoint their chosen barrister
+private so confidentiality is protected
+decision is legally binding
-expensive legal professionals and no legal aid
-voluntary, one party can refuse
-flexibility can suit the more powerful party ( david v goliath)