Alternative methods of dispute resolution.

Mediation services 2.2

• Commercial centres.
• Main ones in London set up 1991. all major London law firms use it.
• Saves money as average is about £1000 instead of £100,000+ in court
• Main disadvantage is that it will not definitely be resolved. So delay and additional cost occurs.
• Advantages are that most cases are settled or become clearer so time in court will be less.

• Other mediation services aimed at resolving small disputes say between neighbours.
• Often free and keeps parties in control. Except in commercial setting.

Conciliation 3

• Same as mediation but mediator will have more of an active role.
• Suggest grounds for compromise.
• May still have to go to court.

Arbitration 4

• Two meanings: one commercial court of QBD for more informal proceeding. But in ADR it means for parties to submit claim private arbitrator.
• Governed by Arbitration act 1996

• States that object is to obtain fair resolution by impartial tribunal without unnecessary delay or expense.
• Parties should be free to agree how disputes are resolved.

• So it’s a way that parties voluntarily submit their dispute to judgement of someone not a judge.
• Precise details left to parties.

The Agreement to Arbitrate 4.1

• Arbitration can be started at any point
• Before dispute arises or after it becomes apparent.
• Many commercial contracts include a Scott v Avery clause. Simply any disputes must be settled in arbitration.
• Under AC1996 courts usually refuse to hear cases with S v A clause.
• Rules differ for consumers.

The Arbitrator 4.2

• AC1996 states parties are free to agree on arbitrator.
• Panel of 2 or 3. If parties cant agree 1 is used
• There are trained arbitrators.
• Lawyers may be used if point of law involved
• Courts will appoint if no agreement.

The arbitration hearing 4.3

• Left down to parties: many ways, left to parties to decide:

• Paper arbitration: parties write sides down and submit to decision maker.
• Witnesses can be called, on oath.

• All times and dates of arbitration are arranged with arbitrator. This makes the process very flexible.

The award 4.4

• Decision made by arbitrator is called an award.
• Decision is legally binding, enforceable by courts.
• Can be challenged if serious irregularity in proceedings.

Advantages / Disadvantages of Arbitration 4.5

Arbitration in Consumer Disputes

• arbitration also offered for consumer disputes wit contracts.

E.g. package holidays.

• Used to be Scott v Avery clauses in contracts. Now it is consumers’ choice whether or not to use tribunals.

Tribunals 5

Tribunals should show three characteristics.

1. Openness – to public
2. Fairness – know case against you, be able to state your case
3. Impartial – unbiased

Rules 2 + 3 are known as the natural rules of justice.

• Operate alongside court system. Now integral part.
• Developed after development of welfare states giving people a method of enforcing their social rights.
• Unlike ADR where choice of court is there, parties in tribunal cases cannot go to court.

Administrative Tribunals 5.1

• Created by statute to enforce rights granted through social and welfare legislation.
• Many different rights E.g. mobility allowance, sex discrimination, political asylum.
• New tribunals get setup as welfare state develops. E.g. child support act 1993 meant child support appeal tribunal set up.
• 70+ tribunals.

Main types of tribunals:

1. social security
2. rent tribunals
3. immigration tribunals
4. mental health review tribunal
5. employment tribunals

Employment Tribunals 5.2

• Originally called industrial tribunals.
• Covers all aspects of work related disputes, form redundancy to unfair dismissal.

Composition and Procedure 5.3

• Very piecemeal setting up of tribunals.
• Not all run the same
• Lord Woolf in the council on tribunals’ annual report 1991-92 said the development was haphazard. It was left down to gvnmt dpts as to whether a tribunal was set up.
• Though most sit with a panel of three. A legally qualified chairman, and two lay members with expertise in that tribunal area.
• Though procedure can vary, there are common elements.

• E.g. encouraged to bring own case.
• Rules of natural justice always apply, both sides get to state case.

• Money to bring case is not available except in mental health review and protection of children tribunal. If you fall into the bracket you can get legal aid.

The Leggatt report 5.4

• 2001 report into workings of tribunals by Sir Andrew Leggatt
• first one since franks inquiry 1957
• some of main recommendations:

• Administration of tribunals should be responsibility of Lord Chancellor.
• Should be a single system divided into divisions.
• Single route of appeal, with a right of appeal by permission on a point of law or on the basis that a decision was unlawful.

• Also recommended that there should be a tribunal board directing the system whose functions would include:

• Advice Lord Chancellor on qualifications for chairman.
• Oversee the appointment of members
• Coordinate their training
• Investigate complaints against them
• Recommend changes to the rules of procedure governing decisions

Control of Tribunals 5.5

• As they are outside the court system & so varied there must be a supervisory board.
• Outlined in the Critch affair. A civil servant did not follow correct procedure about selling back land to families after war.
• Franks committee investigated 1957, a recommendation to set up an ombudsman to deal with complaints of maladministration.
• Also recommended chairmen should be legally qualified and reasons for decisions given. Also an overall tribunals committee to be set up.
•  Following this report a 15 member council has been set up. They go & observe the tribunals, only make recommendations.

Control by the Courts

1. Appeal system against decisions of some tribunals.

E.g. employment tribunal to employment appeal tribunal headed by a high court judge.

• Very important to have formal route of appeal as appeal court uses judicial precedent and will make outcomes a little more predictable.

2. The QBD has power to hear applications for judicial review against decisions. Can quash a decision for example if natural laws of justice have been broken.

Advantages / Disadvantages of Tribunals 5.6

Cost Effectiveness

• As people are encouraged not to use lawyer costs are less than a court trial.
• Also rare for an order of costs to be made, so no large bill if you loose.
• Statistics show however that you are twice as likely to loose your case if you have no legal representation.

Speedy Hearing

• Was an advantage but no longer true.
• Problems are huge workload and lay members only part time.
• Allison Halford brought sex discrimination against police. It took 39 days spread over many months. Took 2 yrs to complete.

Simple Procedure

• More informal than court
• Usually done in private
• Procedure relatively flexible
• Not bound by strict rules of evidence.
• Though for those representing themselves the procedure & surroundings can be confusing
• If council not present then chairmen takes inquisitorial role.
• Great criticisms have been made of the chairmen’s handling of the cases.
• Employment tribunal especially a worker faces lawyers of company; chairman should inquisitorially redress the balance.
• No public funding available for some tribunals.

Other Problems

• A few tribunals do not have to give reasons for their decisions.
• Nor do some have to follow a system of precedent.
• No right of appeal for some, though judicial review can be used.

Impartiality

• Franks committee said that chairmen of tribunals should be impartial. But some where appointed by the minister for the dept against whom the case was being brought.
• Franks says that all appointments should be impartial.
• Now the independent tribunal service recommends a chairman to the Lord Chancellor.

Domestic Tribunals 5.7

• Effectively in house tribunals set up by private bodies.
• Internal disciplinary control.
• Must keep to the rules of natural justice and decisions are subject to judicial review.
• In addition for many professional disciplinary tribunals, there is an appeal route to the judicial committee of the privy council.