In employment cases an organisation known as ACAS, or advisory conciliation and arbitration service. A claim form is filled at an employment tribunal and a copy goes to ACAS. ACAS will then contact parties and attempt to resolve the dispute without direct contact, in a hearing etc. This suggests that employees are under direct pressure to settle however which is not a good thing.
Arbitration
Arbitration is the voluntary submission by the parties of their dispute to some other person who isn’t a judge. In arbitration there are two different courses, in the first instance the courts will use an informal procedure to hear cases, such as commercial cases in the Queens Bench Division of the county court. In the second instance the parties give their claims and go to private arbitration, relative to ADR, this is now governed by the Arbitration act 1996. The agreement is usually written and because the Arbitration act applies only to this. The exact carrying out of arbitration is often left to the parties.
Arbitration is becoming increasingly popular in commercial cases, and arbitration in often included in contracts in the form of a Scott V Avery clause, which says that in the event of dispute the parties will use arbitration, and in these cases the Arbitration Act dictates that courts must refuse to deal with the cases. However this does not mean that a decision to arbitrate cannot be made after the dispute has arisen, the decision may be made afterwards.
In arbitration the parties are free to agree on the number of arbitrators used, however if they don’t agree only one is appointed. In commercial cases, however, the head of an appropriate trade will decide on the arbitrator. Also the Institute of arbitration will provide trained arbitrators for respective disputes. There are many forms of the procedure, which is left to the parties to decide, such as giving documents to the arbitrator so he/she can make a decision, giving oral submissions to the arbitrator, using witnesses if necessary.
The decision or ‘award’ of the arbitrator, unlike other forms of ADR is infact legally binding and if not followed will be enforced through the courts.
Tribunals
These operate alongside the court system, and are nonetheless a very important part of the legal system. Tribunals are used instead of court hearings. There are many different types of tribunal such as social security tribunal, rent tribunal, mental health review tribunals and employment tribunals. Most tribunals consist of a panel of 3 people, a legally qualified chairman and 2 lay members with expertise in the field of the tribunal, both parties will be given a chance to make their points and legal aid is not allowed. Exceptions to this are Employment, Lands and mental health tribunals.
Tribunals were mainly set up to prevent the overloading of courts, they are cheaper and quicker due to lack of legal representation, the panel is mixed and they are less formal than courts.
Alternative Dispute resolution has several advantages over court proceedings, the main one is the after affects of settling a dispute; In court the hearing is a two sided debate, with the parties being enemies and only one winner and a loser, however with ADR the parties will often come to a solution which suits them both and as such dealings can still be had after the hearing. In court there is an aggressive attitude with both parties trying to get as much out of the other party as they can, which creates an adversarial nature. So if for example a hotel took a dispute with their suppliers to court and sued the supplier for a lot of money without relenting at all it will be very difficult to have a good relationship afterwards and this would affect business. If this dispute went through the mediation process each company would be happy and so relatively good relations will be maintained rather than ending up as enemies.
Court hearings are often done in public, unlike ADR processes and so this would not be a good thing for cases which a business wants to keep to itself, for example if a bank wanted to sue another company for hacking into their private database the bank wouldn’t want to publicise this because customers would become unnerved and wouldn’t want to use an insecure bank, however if the bank used ADR then no-one would even know about it, so business could carry on as usual.
In court proceding the parties are not in control of anything at all, because strict rules and times are laid down which must be followed, this can allow opinions and important evidence to be unused or overlooked which will affect the overall outcome of the case, if the parties can’t control the case then it will also be difficult to come to agreements, if the barristers and lawyers are speaking on their behalf their own ‘lay’ opinions may be overlooked despite the fact that they are clearly just as vital if not moreso. In ADR the parties are largely left to talk to each other an put across their reasons and opinions, with a mediator or suchlike guiding them to the best way to settle their dispute.
In court, if a business is sueing another then a lot of technical data, evidence and jargon will be present in both speech and in documents, obviously the judge will not be educated in this and as such ‘expert witnesses’ must be called in, this can cost a lot of money, and also time which could be used trying to force a settlement. Cases often have to be adjurned due to a expert not turning up and suchlike. Whereas in ADR the parties generally talk to each other and so do not need to explain technicalities to others, and also in tribunals there can be specified tribunals in which at least 1 member of the panel is qualified in the field of the dispute, this is clearly a major advantage on time, effort and money.
In a court cases, because the parties do not very often agree with the decision it becomes a hard thing to force parties to pay damages etc. Of course all decisions made by a judge in court are legally binding but it can still be difficult to make a person or party who considers theirselves innocent to pay for something. This can lead to further disputes, taking more time and money and making the parties enemies even moreso, further damaging relations. In ADR both parties respect the decision and so allthough not legally binding it isn’t difficult to enforce and relations are mainly undamaged.
In evaluation ADR, allthough not allways legally binding is an important part of the civil legal system, being quicker, cheaper and lessss confusing for ‘lay’ people than the courts themselves.
