Alternative Dispute Resolution
Alternative Dispute Resolution
Sometimes the courts are not the most appropriate places to resolve civil disputes as they may not produce the most satisfactory outcome. Alternative Dispute Resolution refers to methods of resolving disputes without going to court. This has proved to be effective and a necessary alternative over the years.
Resolving disputes via the fixed legal framework of court hearings may be inappropriate if parties prefer to be in control. The aggressive atmosphere in courts may divide the parties involved which may be detrimental if there is a need to sustain relationships. Judges may not have the technical knowledge required and would bring in expert witnesses. This incurs time and cost. Also, enforced solutions may not necessarily be the optimum solution that both parties would have preferred. Privacy is also an issue with court hearings as business disputes would be better kept private. Hence alternative dispute resolution has become increasingly popular as a necessary alternative to resolve disputes without the problems of court hearings.
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There are various forms of alternative dispute resolution. Tribunals are specialist judicial bodies that decide on cases concerning particular areas of law. They give individuals the entitlement to certain social rights. It is said to be a ‘halfway house’ between formal litigation and informal forms of ADR. Examples of tribunals are Employment Tribunal, Mental Health Review Tribunal and Asylum Tribunal.
Tribunals consist of 2 lay persons with expert knowledge and 1 chairman. Hearings in Tribunals are less formal and less intimidating. Each side is expected to put its case, but wigs and gowns are usually not worn and the strict rules of evidence are not applied. However, it is possible for individuals to be sentenced for contempt of court.
In the case of Peach Grey v Sommers, R claimed wrongful dismissal by his employer and sought to put some pressure on relevant witnesses. The court held that interference with witnesses in current proceedings before a tribunal amounts to contempt of court. Hence, R was sent to prison for a month. This shows that tribunals can benefit (effectively exercise) by having the power of the state similar of a court without experiencing its drawbacks.
They are cheaper than usual court hearings as each side bears their own cost and there are no court fees. Legal representation is not encouraged thereby reducing legal costs. However, applicants can be assisted by a ‘friend’ be it a trade union or social worker.
In Bache v Essex’s case, P was represented by a lay person X in an employment tribunal. X persisted in raising irrelevant matters and tribunal directed P to represent herself. It was held that tribunals can insist on proper behaviour but cannot restrict the right to legal representation.
Tribunals are also private as they are not obliged to disclose cases to the public. They process claims more quickly than civil courts. As panels play a more interventionist role rather than enforcing solutions, they may be more effective in reaching a satisfactory outcome for the case.
However, appeals made may only be made on a point of law. In Yeboah v Crofton, the local government officer complained racial discrimination and the Employment Tribunal found in his favour. The decision was reversed by the Employment Appeal Tribunal but was restored by Court of Appeal. This is a weakness(ineffectiveness) of the tribunal system as litigants would have been able to appeal through the various methods provided in courts.
The speed and informality may lead to poor decisions being made. The doctrine of precedent is not followed, hence it is unpredictable. This may also lead to suspicion of the fairness in tribunals. This shows that tribunals may not necessarily be the better alternative to courts.