advantages and disadvantages of using civil courts and ADR to resolve disputes

civil courts advantages

• the case will be presided over by a qualified judge, judges are experienced, qualified lawyers who can deal with complex legal matters. they will apply established rules of evidence and procedure to ensure a case is dealt with fairly and without favouring either side when giving their decision on liability judges will provide reasoned opinions so that the parties can see how the decision is reached

• reasoned judgments can be studied for accuracy of the law used by the judge to reach their decision if there are inaccuracies there is a clear structured appeal route appeals can also be made against the amount of compensation awarded

• a judge will allocate a defended case at an early stage to the most suitable track and court. it will be case managed through the court process to a hearing to minimise delays. both parties will know in advance the number of witnesses allowed and the length of the hearing

• a legally binding an enforceable decision will be made by the judge. The parties are guaranteed a resolution by the end of the hearing and an enforceable remedy is guaranteed

• the court system provides open justice as the public and press are able to sit in and report most cases this can stop individuals and businesses hiding disputes and outcomes that the public should be aware of

• by considering precedent lawyers can give informed advice to their clients at an early stage the client can then asses the strength of their case and if its worth perusing precedent can be quoted in court in support of the arguments

civil courts disadvantages

• the way it works in a civil court is that the loser pays the winners costs as well as their own as a result of this the costs of taking someone to court court can be more than the sum claimed this is the case in the high court especially there is a need for lawyers to be used in more complicated cases who’s time has to be paid for

• even with the three track system there can be considerable delay in completing the preliminary stages of a claim once these stages are completed there is often further delay in the hearing date some completed cases may take years to resolve

• a claimant can only apply to their lawyer for a no win no fee agreement in a personal injuries claim a lawyer will only agree to such agreement if a claim stands a high chance of success if it is deemed to low the claimant must fund the claim from their own recourses. claimants in other cases will have to pay lawyer fees and hope they win to cover the cost from the loser in addition to any compensation

• except in small claims it is very difficult for a claimant to take a case without the assistance of a lawyer this is due to the requirements of pre action protocols, the civil procedure rules an the formal nature of hearings failure to abide by these rules can lead to the dismissal of a claim more complicated rules apply if an appeal is required

• using lawyers tends to lead to greater confrontation between the parties this can produce delay and further costs

ADR advantages

• using a method of ADR is less formal than using the courts, negotiation can involve just the parties themselves in mediation and conciliation the party’s are encouraged to reach a settlement themselves, in arbitration, the parties can set the form of the process

• lawyers are no encouraged as, the process is flexible and less formal, there is no rule of the loser paying the winners costs. this is likely to mean lower costs for both parties and less confrontation there will be no loser winner situation and the parties can continue a personal or business relationship

• it is quicker and easier to arrange a resolution than going through courts if there is a hearing it is likely to be in private will be little or no publicity to embarrass either party

• especially negotiation, mediation and conciliation the decision does not have to be strictly legal and is more likely to be based on commercial common sense and compromise again this is likely to preserve future relationship between parties

ADR disadvantages

• in all forms of ADR except tribunals the parties cannot be forced to engage in the process and one party may decide not too this will result in the process being abandoned and court action being required to resolve the dispute which will result in further delay and cost

• if a claim is settled using ADR the claimant is likely to receive lower compensation than they would have if they used the courts

• no funding is available for claimants using ADR this may put unrepresented claimants at a disadvantage in arbitration and employment tribunals where business or employer is likely to be legally represented

• if an unexpected legal issue appears in arbitration or an employment tribunal, an unrepresented claimant will be at an disadvantage, a non legally qualified arbitrator may not be able to resolve it

• proceedings and hearings at employment tribunals have a certain formality that may be intimidating for unrepresented claimants

• there are limited appeal rights for most forms of ADR in arbitration an appeal can only be made on the grounds of serious irregularity, with employment tribunals an appeal can only be made if there is a point of law involved any appeal is likely to require a lawyer and involve more costs for a claimant