[Alternative Dispute Resolution] has been described as being 'at the heart of today's' civil justice system.' Briefly describe the main forms of ADR.
A.D.R. [Alternative Dispute Resolution] has been described as being 'at the heart of today's' civil justice system.' Briefly describe the main forms of ADR.
[15 marks]
A.D.R. [Alternative Dispute Resolution] is a method of solving disputes without the need for litigation. A.D.R. deals with cases concerned with civil courts and civil procedures. There are two main areas of A.D.R. which include:
Arbitration and tribunals.
Arbitration is when two parties come to an agreement using an arbitrator. An arbitrator is a go between the two sides and gets them to come to an agreement. An arbitrator can be anyone as long both sides agree on the person. However, the arbitrator normally is someone who knows about the information the case deals with.
Arbitration is split into two different types; there is judicial arbitration and private arbitration. Judicial arbitration is when a dispute is resolved inside the court i.e. commercial court. Private arbitration is when a dispute is resolved outside of court.
The governing body for arbitration is the Arbitration Act 1996. Private arbitration is common with commerce, shipping and construction and is an alternative to litigation. The purpose of arbitration is for the two parties to reach a settle between themselves rather than judgement that may favour one party at the expense of the other.
Arbitration may come to pass in one of three ways: by contract, by reference from the court or by statue.
Both parties may agree on going to arbitration in the occurrence of a dispute, before actually going to court. This is referred to as the Scott v Avery clause as this was the first case in which this matter took place. There is normally a clause in the contract saying that if any problems or complaints to arise they will be determined through arbitration. However, if in any clause it states that the parties cannot go to court then that clause is annulled. Likewise, if there is a Scott v Avery clause in a contract and any one of the parties decides to ignore this and go straight to court, then the other party may request a stay for proceedings so that the matter can be reassigned to arbitration.
Another way arbitration can occur is when a judge i.e. from the commercial court refers a dispute to an arbitrator.
Thirdly, arbitration can occur by statue i.e. Employment Protection [Consolidation] Act 1978, allowed disputes to do with employment to be resolved by A.C.A.S. [Advisory Conciliation Arbitration Service].
Other types of A.D.R's. include mediation, conciliation and negotiation. Mediation is the least formal of the other A.D.R's. Conciliation is half-way between mediation and negotiation and negotiation is when one party negotiates directly with the other party.
Tribunals are inferior to courts of law but are vital ...
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Another way arbitration can occur is when a judge i.e. from the commercial court refers a dispute to an arbitrator.
Thirdly, arbitration can occur by statue i.e. Employment Protection [Consolidation] Act 1978, allowed disputes to do with employment to be resolved by A.C.A.S. [Advisory Conciliation Arbitration Service].
Other types of A.D.R's. include mediation, conciliation and negotiation. Mediation is the least formal of the other A.D.R's. Conciliation is half-way between mediation and negotiation and negotiation is when one party negotiates directly with the other party.
Tribunals are inferior to courts of law but are vital to the legal system as they take of a lot of burden away from the courts. They make an award rather than give a judgment. They are not absolutely bound by previous decisions of the tribunal, although they may look at previous cases for assistance in making their decisions. They are however bound by decisions of courts. Tribunals have grown in popularity over the last 50 years or so and were investigated by the Franks Report of 1957.
The Franks Committee investigated the workings of tribunals. It reported that the tribunal system was likely to become an increasingly important part of the legal system, and recommended that tribunal procedures should be marked by 'openness, fairness and impartiality.' Openness required, where possible, hearings in public and explanations behind the decisions. Fairness entailed the adoption of clear procedures which allowed parties to know their rights, present their case fully, and be aware of the case against them.
The Committee also recommended the establishment of two permanent Councils on Tribunals, one for England and Wales and one for Scotland, to control procedures. Although a Council was set up (with a Scottish Committee), its functions are only advisory, it has little real power, and cannot reverse or even direct further consideration of individual tribunal decisions. This Council reviews and reports on the constitution and workings of certain specified tribunals and is consulted before any changes to their procedural rules are made; it also considers and reports on matters referred to it concerning any tribunal.
Tribunal are also categorised into three different types which include: administrative [or statutory] tribunals, employment tribunals and domestic tribunals.
Administrative [or statutory] tribunals are tribunals set up by acts of parliaments. This type of tribunal deals with disputes between ordinary citizens and the government. Their formation provided a speedier and cheaper alternative to court. These tribunals are split up into two types: Social Security tribunals and lands tribunals.
Social Security tribunal deals with the non-payment of income support or other claims of benefits. The Social Security tribunal has three members: 2 non- lawyers and a lawyer. The lawyer is usually a local solicitor who acts as a chairperson and the two non-lawyers are people who are usually drawn from a panel of people representing employers and the self-employed.
Lands tribunals deals with disputes concerning the claims for compensation cropping up out of necessary purchases by public authorities, i.e. when you are forced to sell your house or land. This tribunal has a president who usually is a person with 7 years general qualifications within the meaning of s.71 C.L.S.A. 1990. This is the same qualification as a district judge.
Appeals, on appoint of law in this tribunal go to the Court of Appeal. Legal aid is also in value of actions in the Land Tribunal.
Employment tribunals were formally known as Industrial Tribunals until the Employment Rights [Dispute Resolution] Act 1998. Employment Tribunals deal with matters coming to pass out of employment contracts, i.e. unfair dismissal, wrongful dismissal, redundancy, equal pay, discrimination etc.
These procedures are regulated by the Employment Industrial Tribunals Act 1996. Tribunals are normally heard by a chairman who holds a 7 year qualification under the C.L.S.A. 1990 and 2 lay persons who are selected from a panel representing employees and employers.
Employment tribunals are sat in public and all proceedings are informal even though the parties may be legally represented. Legal aid is not available and costs are not usually awarded, unless the parties have acted perkily or awkward.
Appeals in this tribunal follow the following path:
Emp. Tribunals > Emp. Appeal Tribunals > Court of Appeal > House of Lords
It is not very common a case getting to the House of Lords but this does happen. This is the path appeals follow. An example of a case which followed this path is Brown v Stockton on Tees B.C. [1988].
Domestic Tribunals are in house tribunals and are private associations. Due to this the courts have limited power in controlling their decisions. These tribunals are normally concerned with disputes between professional people at work. Examples include the disciplinary committees of: The General Medical Council, The Law Society, The Bar. Judicial review is not open to these associations so this means that a judge cannot review the decision of a domestic tribunal. An example of a case in Domestic Tribunals is Law v National Greyhound Racing Club Ltd. [1983].
Identify and briefly discuss the advantages and disadvantages of A.D.R. as a form of civil dispute resolution. [15 marks]
There are many advantages and disadvantages of A.D.R. as a form of civil dispute resolution. The main advantage for arbitration is that it is cheaper in comparison to courts and the procedure is a lot quicker.
Another advantage is that the parties have a choice where the arbitration hearing will take place, i.e. you don't have to go to court. The parties are also protected as the proceedings are heard in private, so there is no public gathering or press etc.
Arbitration is conducted in an atmosphere of informality and compromise so it is friendlier compared to a case in court when the opposition is looking to break you down etc. Arbitration acts as a court substitute, so it is taking the burden away from the court do that the court has more time to deal with more serious and complicated cases.
Another big advantage is that a number of international trade cases are heard in London. This raises money for the economy of the United Kingdom.
The advantages for Tribunals are mainly the same but the main ones are specialisation, tribunal members already have expertise in the relevant subject area and through sitting on tribunals are able to build up a depth of knowledge of that area that judges in ordinary courts could not hope to match. Another one is again privacy as tribunals may, in some circumstances, meet in private, so that the parties are not obliged to have their problems aired in public.
Disadvantages are again mainly the same for both Arbitration and Tribunals. One disadvantage is that Arbitration can still be expensive and long.
Protection and safe guards associated with courts is often substituted by the need for speed in Alternative Dispute Resolution.
Another disadvantage is that the arbitrator does not come to his/her decisions in the same legal manner as a judge, due to this there may be and element of inconsistency.
Legal aid is not available in Arbitration. It also may be in the public interest that facts should be described as in a court hearing.
. Lack of Openness - The fact that some tribunals are held in private can lead to suspicion about the fairness of their decisions.
2. Reasons for decisions are not always given, although this has been strongly recommended by the Court of Appeal.
3. Too Complex - The 1979 Royal Commission on Legal Services (the Benson Comm.) recommended a review of tribunal procedures, with a view to simplifying matters so that applicants could as far as possible represent themselves, yet if anything, tribunal procedures have become more legalistic. - Genns' research appears to confirm that self- representation will be very difficult before some tribunals and therefore better legal or lay representation will become even more necessary.
4. Appeals: There is no absolute right to appeal from a tribunal -such rights exist only when laid down by statute; consequently there is no uniform appeals system, and some tribunals offer no appeal rights at all. Appeals when allowed to the High Court are expensive and complex.
5. Unavailability of legal aid - Full civil legal aid is available for only a couple of tribunals
Habib Mohammed
AS Law
Stephen Ings
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