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.
Another form of ADR is arbitration where parties agree to submit their claims and agree to accept the binding decision of an independent third party. This may be common in holiday packages under the ‘Scott v Avery’ clause. The decision made can then be enforced by courts.
There are several advantages in arbitration such as the flexibility and the informality of the procedure where parties can choose the location, arbitrator(s) and procedure. Arbitration is increasingly popular as the informality and privacy may be desirable to parties that wish to keep their affairs private.
However, similar to tribunals, the right to appeal is limited. Although parties would pay arbitrators fees in own proportion, it may be costly if a professional is used. There is no public funding to support arbitration which may be a detriment where parties may receive some public funding in court hearings.
Mediation and Conciliation are similar forms of ADR. In mediation, a neutral third party will encourage parties to discuss their differences and come to a compromise solution. Conciliation bear similarities to mediation but with a more interventionist role and would suggest compromise solutions. An example of conciliation is ACAS which provide impartial opinions.
The processes in both methods are similar. There is an initial meeting where each party puts forward their cases. Followed by the private meetings with the adjudicator as each party puts forward their arguments and case. In the second plenary meeting, the mediator and conciliator would bring the two parties together to negotiate each of their terms. This allows parties to reach their own agreed solutions void of aggressive atmosphere in courts which helps to sustain relationships. Hence it is popular in divorce cases and commercial disputes.
The advantages in mediation are that it is facilitative and evaluative. Issues can be defined and mediators will not take part in the decision making process. When mediation is successful, it is written down to form a legally binding contract. In conciliation, the main issues are identified and clarified.
However, mediators may overstep boundaries and take control of the decision making process. This loses the purpose of mediation and is ineffective as parties may prefer to make their own decision. In conciliation, there may be a disadvantage (weakness) of imbalance of powers between parties such as big vs small firms. Hence it may not necessarily be the better (most popular) forum for all disputes especially when one party is acting less voluntarily than the other.
Negotiation is the cheapest and most private form of ADR where parties negotiate their terms. However, it may fail if lawyers are involved as they incur cost and may formalize the process.
ADR processes claims more quickly than civil courts. The strict rules of precedent allow more flexibility into the system. They are less formal and less intimidating which ensures a high level of satisfaction. All methods of ADR are effective in their own ways and are able to overcome problems of court hearings. However, they do have their limitations such as decisions are hard to be enforced or lack of faith by people. Overall, it has become a necessary alternative. UK is moving towards ADR methods and Woolf reforms impose judge duties to encourage parties to use ADR and facilitate its use.