Alternative Dispute Resolution and Tribunals

10 Other forms of dispute resolution
After Reading This Chapter You Should Be Able To:

  • Have an outline understanding of the tribunal structure.

  • Understand the role of tribunals.

  • Understand the role of negotiation in resolving civil cases.

  • Understand the role of mediation in resolving civil cases.

10.1 Tribunals

  • Tribunals operate alongside the court system and have become an important part of the legal system.

  • Many tribunals were created in the second half of the twentieth century, coinciding with the development of the welfare state.

  • They were established to provide individuals a method of enforcing their entitlement to certain social rights.

  • Unlike alternative dispute resolution (ADR), the parties in tribunal cases cannot go to court to resolve their dispute; they must utilize the tribunal instead.

Key Term

  • Tribunals: Forums used instead of a court for deciding certain types of disputes. They provide a less formal alternative than traditional courts.

10.1.1 Role of Tribunals

  • Tribunals enforce rights granted through social and welfare legislation, encompassing various rights including:

    • Mobility Allowance: Right to a payment for those unable to walk more than a very short distance due to disability.

    • Redundancy Payment: Right to compensation if made redundant from employment.

    • Non-Discrimination Laws: Right not to be discriminated against based on sex, race, age, or disability.

    • Political Asylum Claims: Right for immigrants to have their claim for asylum heard.

10.1.2 Organisation of Tribunals

  • The emergence of new rights led to the formation of various tribunals, resulting in over 70 different types initially, each with separate and differing procedures.

  • To address confusion, the Tribunals, Courts and Enforcement Act 2007 restructured the tribunal system, creating a unified structure containing a First-tier Tribunal for initial cases and an Upper Tribunal for appeals.

First-tier Tribunal

  • Handles approximately 600,000 cases per year with around 200 judges and 3,600 lay members.

  • Divided into seven Chambers (divisions):

    • Social Entitlement Chamber: Includes matters like Child Support and Criminal Injuries Compensation.

    • Health, Education, and Social Care Chamber: Handles mental health reviews and Special Educational Needs issues.

    • War Pensions and Armed Forces Compensation Chamber

    • General Regulatory Chamber

    • Taxation Chamber

    • Land, Property, and Housing Chamber

    • Asylum and Immigration Chamber

  • The Employment Tribunal operates independently from the First-tier Tribunal, addressing issues such as unfair dismissal and discrimination claims.

Upper Tribunal

  • Consists of four Chambers (divisions):

    • Administrative Appeals Chamber: Listens to appeals from the Social Entitlement, Health, Education and Social Care, and War Pensions Chambers.

    • Tax and Chancery Chamber

    • Lands Chamber

    • Asylum and Immigration Chamber

  • Appeals can further proceed to the Court of Appeal and then to the Supreme Court.

Composition of Tribunals

  • Decisions in the First-tier Tribunal are typically made by a tribunal judge, sometimes aided by two non-lawyers with specific expertise.

  • For instance, in mobility allowance hearings, medically qualified individuals may accompany the judge.

  • Employment Tribunals often consist of members from both employers' and employees' organisations to provide a balanced understanding of employment matters.

Procedure in Tribunals

  • All parties must have the opportunity to present their cases, which may be formal or informal depending on the tribunal.

  • In specific tribunals like employment, formal procedures, including witness oaths and cross-examination, may be employed.

  • Representation funding is limited, leading many applicants to self-represent, although judges are expected to ensure that these applicants can fully articulate their cases.

  • Tribunal decisions are binding.

Advantages of Tribunals

  • Established to alleviate the burden on courts from social and welfare rights cases. Benefits include:

    • Cost: More affordable as parties often represent themselves.

    • Speed: Tribunal hearings are typically brief, often concluded within a single day.

    • Informality: Hearings are less formal than court, and typically private.

    • Expertise: Many tribunals include non-lawyers with relevant expertise on the panel.

Disadvantages of Tribunals

  • Lack of Funding: Legal aid is limited to specific cases, possibly disadvantaging applicants against those with legal representation.

  • Formality vs. ADR: Tribunals are more structured than alternative dispute resolutions (ADR), and their processes can be daunting for unrepresented individuals.

  • Delays: High case volume can lead to delays, exacerbated by part-time participation of non-lawyer panel members in complex cases.

10.2 Alternative Dispute Resolution (ADR)

  • ADR methods aim to resolve disputes without engaging the courts, providing faster, cost-effective, and less adversarial outcomes.

10.2.1 Negotiation

  • Any party may negotiate directly with the other to resolve a disagreement, making this method private, quick, and inexpensive.

  • Negotiation can continue even after court proceedings have begun until an agreement is reached, often occurring just before trial.

Key Term

  • Negotiation: The process of attempting to reach an agreement between parties in a dispute.

Advantages of Negotiation

  • Quick Resolution: Typically faster than formal court processes.

  • Informality: Less rigid than court; parties have more flexibility.

  • Expertise Utilization: Often, parties can involve experts to inform negotiations.

Disadvantages of Negotiation

  • Legal Aid Availability: Support is infrequently available.

  • Formality: Can still be formal in nature, particularly in complex cases.

  • Delays: Prolonged negotiations can occur without resolution.

10.2.2 Mediation

  • Mediation involves a neutral third-party mediator who assists the disputing parties in reaching a compromise.

  • The mediator facilitates communication, explores common ground, and maintains confidentiality without disclosing personal opinions regarding the merits of the dispute.

  • Mediation is particularly applicable when cooperation is possible between the parties.

Key Term

  • Mediation: A method of dispute resolution where a neutral party helps the conflicting parties reach an agreement.

Importance in Family Cases

  • In family disputes, parties often must attend a Mediation Information and Assessment Meeting (MIAM) before initiating court proceedings, although exceptions may apply.

  • Mediation allows for flexible outcomes that may not strictly adhere to legal standards, fostering ongoing business relationships.

Mediation Services

  • Numerous commercial mediation services exist, such as the Centre for Effective Dispute Resolution (CEDR), which reported:

    • Over 10,000 commercial mediations occurred, involving claims totaling £10.5 billion.

    • Estimated savings of £2.8 billion across various factors including time, relationships, and legal fees due to mediation services.

  • There are also services tailored for smaller disputes, like the West Sussex Mediation Service and family-oriented services such as the Kent Family Mediation Service.

  • Online mediation options are increasingly available, with various websites facilitating such processes.

10.3 Comparing Courts and ADR

  • ADR generally proves to be significantly cheaper than court proceedings, especially in minor disputes where legal representation is not used.

  • In commercial settings, while lawyers may be involved in mediation, substantial savings on legal fees have been documented.

Advantages of ADR

  • Control: Parties retain autonomy during negotiation and mediation; they can decide to withdraw if needed.

  • Satisfactory Results: Agreements reached through these methods can promote ongoing business relations, contrasting with the inherently adversarial nature of court outcomes.

Notes

  • It is crucial to distinguish between tribunals and ADR as separate mechanisms for dispute resolution.

Check Your Understanding

  1. Which term describes resolving a dispute by agreement?

    • A. Litigation

    • B. Negotiation

    • C. Mediation

    • D. Arbitration

  2. Which entity is the next level of appeal for a First-tier Tribunal decision?

    • A. County Court

    • B. Court of Appeal

    • C. Upper Tribunal

    • D. Supreme Court

  3. Discuss advantages of tribunal resolution over civil courts.

  4. Evaluate benefits of ADR methods compared to court resolution.

Summary

  • Tribunals enforce social and welfare rights through a structured legal framework and operate with relatively low costs and fast resolution times.

  • A First-tier Tribunal may consist of a solo judge or a judge assisted by lay members.

  • There is an established right of appeal to the Upper Tribunal.

  • ADR encompasses negotiation and mediation, providing cost-efficient, flexible, and less adversarial alternatives to court proceedings.