Procedure is less formal than in court and in many instances there is no need for the parties to be legally represented. In some tribunals, lawyers are not allowed.
There are many tribunals but they can be classed as two main types: administrative and domestic.
Administrative tribunals deal with disputes between the individual and the State. The tribunal will apply the relevant law to the dispute between the parties.
Domestic tribunals are ‘in-house’ tribunals often set up by professional bodies. The tribunal will apply the rules of the particular organisation to the dispute between the parties.
Negotiation
Negotiation is usually the first method in trying to resolve a dispute. The parties communicate directly with each other and try to agree matters without going to court. This communication can be face to face, by letter, telephone, email etc.
If either or both parties are legally represented, the lawyers will continue to negotiate without their involvement. Many cases are settled on the morning of a court hearing, this is because the parties do not want to settle the dispute in court as it will be expensive.
There are no costs involved with negotiation unless representatives are involved. Should an agreement be reached, the parties may then instruct a lawyer.
Arbitration
Arbitration is where the parties refer the dispute to a third party, who will act like a judge and give a decision on the dispute, which is called an award.
The arbitrator will usually be a person with both legal and specialist knowledge in the subject matter of the dispute.
Arbitration is covered by the Arbitration Act 1996. The arbitration agreement must usually be in writing, but how the arbitration proceeds is open to the parties to agree. The parties may have included an arbitration clause in their original contract, committing them to arbitration in the even of a dispute, known as the Scott v Avery clause.
The process of arbitration is free, but the arbitrator will charge a fee. The parties are allowed to be represented by a lawyer if they wish, but this is not encouraged.
b) Advantages and disadvantages of ADR
There are many advantages of using alternative methods to court. The main advantages, which are also the main reason people use ADR as appose to the courts are the cost and speed. There are no fees using ADR, except if you are using arbitration, in which the arbitrator will have a fee, but even if you are using arbitration the overall cost is substantially less than if you were to take your case to court. The speed of alternative methods to court is a lot faster than the court process, and you are able to decide when you want to try and find a resolution to your dispute, which means you do not necessarily have to take time out of work, which you may have to do to attend court, which makes it a lot more convenient.
Some other points to make would be that you have privacy and more control over your case. With alternative methods to court your case is not open to the public, and you have a say in the outcome of the dispute unlike in court where a judge decides the outcome.
Another advantage, which isn’t an advantage to the parties who do decide to use an alternative method, is that it relieves some congestion from the courts. If for example all the cases heard by tribunals were heard in the civil courts, the court system would be overloaded and this would cause more delays.
However, there are also some disadvantages of using alternative methods to the courts.
In some methods there could be a lack of legal expertise, for example in mediation; when the result of a dispute involves a difficult or complicated point of law, the mediator may not have the ability to deal with the mediation in an appropriate manner.
Some methods, unless the parties agree otherwise are not binding, and the parties cannot enforce the agreement in the courts.
Tribunals and arbitrators are not bound by the rules of judicial precedent. Tribunals are not bound by the strict rules of evidence either. As a result, tribunal decisions will sometimes be inconsistent, which creates uncertainty for future cases. As with arbitration, each case is judged on its own merits, providing no real guidelines for future disputes. This leads to inconsistent decisions and conclusions.
Because of the lack of publicity for tribunals, cases of public importance are not given the attention and consideration they deserve.
There is limited right to appeal. In tribunals there are different rights and routes of appeal from different tribunals which may make the process complicated. However, all tribunal decisions may be reviewed by the High Court under the principle of judicial review.
