ADR & Tribunals

Alternative Dispute Resolution (ADR)

Definition & Types

Ways of solving disputes without going to court

Types:

1. Arbitration - Most formal

2. Negotiation - Less formal

3. Mediation - Less formal

4. Conciliation - Less formal

Reason for ADR

Civil court cases tend to be long, costly, complex and unpredictable.

As a result, other methods have become popular as they allow parties greater involvement in decision making, are private and are quicker and cheaper than court proceedings

Arbitration

• Most formal type of ADR

• Paries agree to have case decided by an independent arbitrator and are bound by the outcome (e.g. ACAS for employment diputes)

• Parties choose time, date and degree of formality, as well as whether to have a hearing and its format (e.g. Paper arbitration - parties submit dispute in writing)

• Parties can choose the arbitrator(s) - usually a lawyer or expert (Institute of Arbitrators can provide skilled arbitrators if parties do not agree)

• Decision is made by arbitrator and is final - This can be enforced by the courts.

• Decision is effective immediately

• The ‘award’ can be appealed to KBD of High Court on point of law, or if there has been a serious irregularity

• Can take place within or outside the court system

Arbitration - Advantages

1. Private, which is benefical as businesses may not wish to publicise their disputes -

   • Can be important as it helps businesses which trade whith each other to remain on good terms without the publicity of a court case

2. Parties can choose the arbitrator in contrast to court system.

   • Parties can also decide how and when the dispute will be heard, allowing for issues to be resolved at a mutually convenient time and in a way that suits them.

   • Also helpful because parties may wish to appoint an arbitrator who has the requisite expertise to decide on technical disputes.

3. Also cheaper and usually quicker than going to court

Arbitration - Disadvantages

1. May be delays in obtaining an arbitrator and setting a mutually convenient date for the hearing

2. Commercial arbitrators cna be very expensive, meaning not much of a saving is made in comparison to court proceedings

3. No legal aid is available for arbitration

4. If dispute involves a legal issue, it may not be one that is approprate for an arbitrator to decide - Particularly so if a party is hoping that the decision will set a precedent in their favour

5. Decision of arbitrator cannot always be enforced in the same way that a court’s decision can

6. Although there are appeal routes available, these are more limited than those available in court proceedings.

Negotiation

• Least formal way to resolve a dispute

• Parties try to negotiate a settlement befroe Court action is taken

• Will also take place between the solicitors of the parties in the run up to a civil trial

• Negotiations often continue once a claim has been made and the parties are awaiting their trial date

• Many cases settle out of court just before trial

Mediation

• An independent third party will meet with the parties in the dispute to try and get them to reach a settlement

• Mediator will not make suggestions to the parties, but will instead facilitate the parties to make a decision for themselves.

• Mediation can take other forms i.e. a mini-trial may be held between the parties and a neutral mediator

• Often used in family disputes

• Mediators are often trained in counselling skills

• Mediation is also popular with businesses as it helps preserve commercial relationships

• Also used by local councils to help solve neighbour disputes

Conciliation

• Similar to mediation except that the conciliator plays a more active role in trying to solve the dispute

• Conciliator is a neutral third party who will actively try to get the parties n the dispute to come to an agreement.

• Conciliator will offer suggestions and try to find a way to get the parties to reach a settlement

• Conciliator will often meet with the parties separately and go between the two suggesting solutions to the problems,

• Conciliator then offers the parties a non-binding opinion on how they should settle the dispute

• ACAS (Advisory Conciliatory and Arbitration Service) offers service for disputes between employers and employees.

• This form of ADR is useful for companies who may use conciliation to assess the strength of their case before they decide to take the case to court

Less formal ADR Advantages

1. Keeps parties on good terms

   • Businesses can still work with each other, families remain on speaking terms and neighbours learn to live with each other

   • Mediation and Conciliation in particular seek to preserve the relationship between the parties and negotiation can be a quick way of achieving this

2. Much cheaper than going to court

   • Mediation in particular is much cheaper and is especially useful in family cases where legal aid may no longer be available

3. Decisions can be made in the best interest of both parties using common sense rather than following the law, which may lead to a less suitable outcome

   • Common sense decision can be more likely as the parties are involved in the decision making

4. Mediation and conciliation can only be used if parties are on speaking terms.

   • If relations have completely broken down, there may be no alternative to the court process

5. If ADR does not work then parties will still need to go to court to settle the dispute - Adding delay and expense to the overall resolution of the case.

6. Legal Aid is not available for ADR processes

7. Mediation is only effective if the mediator is skilled at their job

8. Settlement agreed through mediation or conciliation could be much lower than if parties had gone through court

9. Outcomes of mediation and conciliation are not legally binding

Tribunals

• Operate alongside the court system

• Established to allow individuals to enfore their entitlement to social and welfare rights e.g. right to redundancy pay, mobility allowance, not to be discriminated against etc.

• In such areas, the Tribunal must be used instead of court

• Composed of 3 people - 1 legally qualified and 2 will be experience in the area considered

• Tribunals are overseen by the Senior President of Tribunals whos role is to:

  • Ensure that tribunals are accessible, fair, quick and efficient

  • Liase with Parliament and the Lord Chancellor

  • Supervise Training

  • Supervise allocation of tribunal judges to chambers and cases

First-Tier Tribunal

• Hears cases at first instance

• 300,000 cases per year

• 200 judges and 3,600 lay members

• Operates in 7 chambers

• Cases heard by Tribunal Judge (sometimes with expert lay members)

• Often no legal aid - Parties represent themselves

• Decisions are binding

Upper Tribunal

• Made of 4 chambers

• Hears appeals of decisions from First-Tier tribunal

• Further appeals can be made to the Court of Appeal and Supreme Court

Employment Tribunals

• Heard by a judge and 2 lay members, one from an employer’s organisation and one from an employee’s organisation - Giving a clear understanding of employment issues

Tribunal Advantages

• Alleviate pressure on the civil courts by dealing with cases that would otherwise fall to them

• Do not suffer from the delays and expense whcih beset the civil courts

• Helpful for administration of justice and accords with the rule of law

• Generally cheaper to use than civil courts

• Loser does not usually have to pay the winner’s costs

• Informal nature of tribunals means that lawyers are not always required

• Tribunal panals are expert in the type of dispute they are established to hear - Making good decisions more likely compared to a judge less experienced in that area, and makes appeals less likely

Disadvantages of Tribunals

• Appeal routes from tribunals can be complex and expensive and some tribunals have no appeal - Contrary to right to fair trial

• Legal aid is not available for majority of tribunals - leads to inequality of bargaining power if only one side can afford a lawyer - contrary to rule of law