C2 Alternative methods of dispute resolution

normal courts

1. expensive - lawyer

2. slow and delay - wait for case to be heard

3. no privacy - open court system (can be reported to the media)

1. negotiation

1. informal

2. no involvement/ assistance of 3rd party

3. with/ without aid of lawyer

4. agreement sought by offering and seeking compromise

5. give and take

advantages

1. cheap

2. private

2. mediation/ conciliation (3rd party more active in proposing solutions)

1. neutral 3rd party informally brings together parties

   • exchange views

   • reach a settlement

2. reach a compromise

3. mediator

   • consult each party

   • look for common ground

2. mediation/ conciliation (3rd party more active in proposing solutions)

institutionalised under professional bodies

1. PAM pertubuhan arkitek malaysia

2. insurance mediation bureau

advantages

1. cheap

2. private

used in

• employment

• industrial

• family

• consumer

conciliation:

1. employment Employment Act 1955

2. trade Trade Union Act 1959

3. Tribunals

• work of ordinary courts is supplemented by tribunals set up by Acts of Parliament to hear and decide on specialised areas

• social security, employment, mental health, agriculture, land, rent, transport

1. domestic tribunals

   • resolve disputes

   • exercise control

   • discipline members

   • eg: General Medical Courts - doctors

2. statutory tribunal

   • created by statutes

   • particular types of disputes

     • consumer trial tribunal

     • industrial court

3. Tribunal

Advantages

1. specialised personnel

   • special knowledge in particular areas of the law

2. cheap

   • less people

   • procedure less formal

   • legal representation not needed

   • ordinary courts judges (high paying) not needed

3. quicker

   • set up when and where it is needed (not many cases)

4. strict rules of evidence are relaxed

5. can appeal

6. private - no access to the public and press

7. reduce workload of already overburdened ordinary courts

4. arbitration

• arbitration clause to be inserted in contract

• if not, can be done anytime, choose existing arbitral form

• independent person (arbitrator) makes a binding decision

• governing law - arbitration act 2005

• decisions are called awards

  • parties agree awards have a binding effect

  • courts can enforce awards if future disputes arises

• may have legal representation unless agreement says otherwise

• less time to settle dispute compared to normal court

4. arbitration

advantages

1. choose arbitrator

2. informal

3. rarely any publicity

4. awards may be enforced by courts

disadvantage

1. expensive

2. cannot appeal