Legal System: Alternate Dispute Resolution and Civil Courts

What is Negotiation?

Discussion to reach a compromise agreement which can be verbal or formally set down in writing

What are examples of Negotiation?

-Face to Face talking

-Writing

-Phone or Email

Who is negotiation conducted by?

Parties, representatives, lawyers

Who helps in Mediation and what do they hope to achieve?

Neutral mediator helps both parties to reach a resolution (Compromise)

Where may the parties sometimes be?

In separate rooms or locations

What does the Mediator act as and what do they do?

As a facilitator, to put forward points and opinions

When is it often used?

in Family disputes where they are more likely to attend mediation together

What Charity promotes the service as an effective form and provides training for mediators?

Centre for Effective Dispute Resolution

What does a Formal Mediation involve?

A mini trial (Panel composed of a neutral party, the executives with the help of a neutral advisor will evaluate both sides)

What do parties have control over in mediation?

The process and can stay as long as they wish

What will the mediator not offer unless asked?

An opinion

What do the parties have to show they have before going to court?

Attempted mediation before going to court

What does a successful mediation depend on?

Both parties embracing the concept

How many percent of cases has been settled via mediation?

80

What is a conciliation?

Neutral third party helps to resolve the dispute; the conciliator plays an active role.

What will they discuss with the parties and what will they suggest grounds for?

Discuss the issues with the parties and suggest grounds for a compromise or settlement

What is ACAS?

A Conciliation service which encourages parties in employment dispute to reach a settlement before a claim can be issued in an employment tribunal

What will the parties have control of in Conciliation?

The parties will still have control of the process and can withdraw at anytime

What must both the parties agree to for a conciliation?

To a final compromise and the process may not lead to a resolution

What other type of disputes will ACAS attempt to conciliate?

Industrial disputes (trade unions)

What is Arbitration?

Both parties voluntarily agree to let their dispute be left to the judgement of a neutral arbitrator or panel of arbitrators (with experience in that field)

What is the initial contract which will be made before any dispute arises in Arbitration?

Scott v Avery Clause

What is paper arbitration?

All points are set out in writing and arbitrator makes a decision based on this

What is Formal Arbitration?

Formal court like hearing with the date and place of any hearings decided by the parties

What is not always necessary to have and what does this mean?

legal representation which saves the parties the expense of employing lawyers and is less confrontational

What is the arbitrators decision called and what is it?

An award which is final and binding on the parties

If necessary what can happen to the arbitrators decision?

It can be enforced by the courts

When can an award be challenged?

If their is serious irregularly in the proceedings or on the point of law

When is the civil courts used to resolve disputes between individuals or businesses?

If the dispute cannot be settled in any other way

What type of cases do the civil courts deal with?

Deal with civil cases

What are examples of Civil Courts?

County Court and the High Court

Since the Crime and Courts Act 2013 how many County Courts are sitting in centres?

500

When should a court claim be considered?

As a last resort if a negotiated settlement cannot be reached, or a form of ADR failed

Civil Courts can try most civil claims up to how much in value and what does this include?

£100,00 (includes negligence, tort-based claims, debt claims and consumer disputes)

Where are civil claims heard in and by who?

Open Court by a Circuit Judge or Recorder or District Judge

What will the judge do before the hearing?

Read the case papers before hearing and can hear evidence

What type of court will hear is the High Court and who by?

Open Court by a single judge which will be assigned to one of the three divisions (Kings Bench, Chancery and Family

What does the single judge do?

Read case papers before the hearing and hear evidence and legal arguments

Which is the largest of the three divisions of the High Court?

Kings Bench Division

What type of claims do the Kings Bench Division deal with?

• Contract and tort claims over £100,000 or smaller claims with complicated issues

What are the specialist courts in the King Bench Division?

Administrative Court, Circuit Commercial Courts

What type of disputes does the Chancery Division deal with?

Disputes relating to business, property or land over £100,000

Where are Family Divisions heard in and why?

Private due to them dealing with sensitive topics

Where are claims below £10,000 heard?

in Small Claims Court

Where are claims below £100,000 heard?

in the County Court

Where are claims above £100,000 heard?

in High Court

What form needs to be completed with the names and addresses of the parties with particulates of the claim?

N9

Where will the court generally send the claim?

to the Defendant

What does the defendant have the option to do with the N9?

Admit the claim and pay full amount of instalments, dispute the claim, filing an Acknowledgement of Service

The Case Track Management System: What is the maximum value of claims held in small track systems?

£10,000

What type of judge hears small track claims and for how long?

District Judge with maximum 2-3 hours

What is the maximum value of claims held in fast track claims?

£10,000-25,000

What is the strict timetable set at for fast track?

Maximum 30 weeks

What is the maximum value of claims held in Intermediate Track cases?

£25,00-£100,00

Intermediate Track involves damages or claims for money for how long?

No longer than 3 days

How is negotiation and mediation cheaper and easier than court?

-Cheaper than taking a case to court

-No need to use lawyers

-Quicker and easier to arrange a resolution than going to court

How is negotiation and mediation less confrontational?

-Parties are in control, just involve them

-Relationships between the parties are preserved

-Continued business relationship

Why might there be disputes between the two parties in negotiation and mediation?

-Might not be prepared to negotiate

-May be hostile towards each other

-Forced to engage in the process

-One party may believe they are right and not prepared to settle

What are the disadvantages for claimants in negotiation and mediation?

-One party may insist on court as only way to settle

-The C will get lower compensation in negotiation

-No legal funding available

How is conciliation cheaper and easier?

-Cheaper than the court

-It is less formal than the court

-Less confrontational than the court

How is conciliation less confrontational?

-Have some control of choosing the conciliator and the process

-Future business relationships are preserved

-Lawyers are not necessary

-Legal binding and so can offer the parties some flexibility

What is the financial complications with conciliation?

-The C may receive lower reward than in a court case

-There are still some costs involved

-No legal funding is available

What may be problematic about the resolution in conciliation?

-Conciliator may force a resolution on one or both party’s

-May not result in resolution

-The result may not be binding one or both partys

How is arbitration legally binding?

-The arbitrator will be qualified and experienced

-The arbitrators decision is final and binding

-The decision can be enforced by the court

How is arbitration less confrontational?

-Cheaper than the court

-Lawyers are not always needed (cheaper and less adversarial)
-Quicker and easier resolution than the court

-Hearing are in private (reduces embarrassment)

-There are limit

What is the financial problems with arbitrition?

-The claimant might get a lower reward

-No legal aid (especially if going against a business who is likely be represented)

What is the problem with clients for arbitration?

-Unrepresented claimants might be disadvantaged if an unexpected legal issue arises

-There are limited rights of appeal (it can only be made on the grounds of a serious irregularity)

Why is the no-win no-fee arrangement advantageous for claimant?

Form of funding which pays lawyers fees- legal representation, saves money, standard increases

What is a disadvantage of using the no-win no-fee arrangements?

Can only apply for arrangements in personal injury claim, only agree if the standards of winning are high, low chance then a claimant must fund the claim

By considering precedent what can lawyers give?

Informed advice to their clients at an early stage- Precedent can be quoted in court which ,means means the client can assess the strength of the case and whether it is worth pursuing and reduces the backlog

Even with the track system what can there be in civil courts?

Considerable delay in completing the preliminary stages of a claim as there is backlogging in the civil courts and further delay with arranging a hearing date- C has to wait and the claimant can not be returned to their original position

However what is the courts judgement?

Judgement is instant unlike ADR

Through using lawyers what does their tend to be between parties?

Greater confrontation which is often seen in Family Law where it is the breakdown of family bonds- traumatisation for the children

Business law- breakdown of relationships- no longer benefit from the services