Tribunals & ADR

Role of Tribunals

To enforce rights granted through social and welfare legislation - rights to mobility allowance, right to redundancy payment, right to not be discriminated because of one's gender/age/disability, the right for immigrants to have a claim for political asylum.

Courts and Enforcement Act 2007

Reformed Tribunal system.

Allows the Senior President to request judges of the Court of Appeal and High Court, as well as Circuit/District Judges to sit as members of either type of Tribunal

Tribunals Service

An executive agency of the Ministry of Justice.

First-Tier Tribunal Service

1. Social Entitlement Chamber (criminal injuries, compensation, gender recognition)
2. Health, Education & Social Care (mental health detention appeals, special educational needs issues)
3. War pensions and Armed Forces Compensation
4. General Regulatory Chamber
5. Taxation Chamber
6. Asylum and Immigration Chamber

Upper Chambers (divided into 4 chambers, handles appeals from FTT )

Includes immigration/asylum, Lands chamber, Tax and chancery chamber, Administration Appeals Chamber

Employment Tribunals

Separate from First-Tier/Upper chambers, has its own appeals chamber too.

Senior President of Tribunals

Sits over the First-Tier/Upper Tribunals.

Advantage of Tribunal - Low Cost

Applicants are encouraged to represent themselves. Very rare for order of costs to be awarded, so little fear of a large bull at the end of the case.

Advantage of Tribunal - Quick

Most tribunals are very quick and can be heard in only one day.

Advantage of Tribunal - Informality

Less formal than court hearings, held in private.

Advantage of Tribunal - Expertise

2 non-lawyers sit with a tribunal judge : the lay members are experts in the case being heard which gives them good understanding of the issue in dispute.

Disadvantages of Tribunal - Lack of Funding

Legal aid is not available for tribunals - this is an issue if the other party hires a lawyer. It is available where human rights are in dispute.

Disadvantages of Tribunal - More Formal than ADR

Can be overwhelming for participants.

Disadvantages of Tribunal - Delay

The number of cases coming to tribunal can delay the process. Lay members also sit part time adding to the delay.

Negotiation (ADR)

parties attempt to settle the dispute informally, with or without solicitors negotiating on behalf of a client,.

Has the advantages of being private, very cheap, available for use at any point in a dispute and negotiated resolution can include agreements about future business deals.

Has the disadvantages of it being unsuccessful as there may have to be many negotiation attempts and this method is difficult to do with antagonistic parties.

Mediation

The neutral mediator tries to help parties reach a solution, both parties must be willing to co-operate.. There are commercial mediation services and a mediator costs less to fund than a court case. Mediation is usually partnered with conciliation.

They are disadvantaged in that decisions made are not binding and parties may end up going to court for a final resolution.

Formalised Settlement Conference

A formal method of approaching mediation. It involves a mini-trial, submissions are heard by a neutral advisor who will try to advise an agreement.

Conciliation

A third party (the conciliator) is appointed as a neutral and unbiased person to help parties involved in a dispute to achieve a settlement by steering negotiations towards an amicable conclusion.

Arbitration

1st meaning = courts use an informal procedure to hear cases

2nd meaning = parties agree to submit claims to private arbitration. It is governed by the Arbitration Act 1996 which states that the parties are fre to choose the number of arbitrators used. the method of arbitration is chosen by the parties and the agreement to carry it out can happen at any time. Many commercial contracts contain a Scott v Avery Clause, which states that at any point the parties will agree to have their case heard by Arbitration.

Arbitration Procedure

Left to discretion of parties. Can opt for 'paper' arbitration ( evidence and arguments are written down and submitted to arbitrator) or they can submit oral evidence. The final decision is known as an AWARD and is binding on both parties and can be enforced within a court if necessary.