ADR Civil Justice System
This is a part of the Civil Law. However, it is not tested everywhere. You will either get a question on ADR or Civil Justice system. Easy topic, but make sure there is ample discussion between the effectiveness of all. Ensure that you provide a great comparison of all types of ADR, based upon flexibility, feasibility, costs, timings, and how formal it is. Make sure that you always tell the advantages and disadvantages of both. You will most likely always have to mention Tribunals, don’t skip on that. Usually testes in P1. |
Introduction
Dispute resolution proceedings can be complex, both in terms of money and time. It may also be stressful for the people involved, and may not end in the situation is the most satisfying outcome. The added complication is that the legal process is generally open to the public and the internet, so there is nothing to avoid the details of the case being reported in local or national publications. Therefore it is not shocking that more and more people and companies are looking for other ways to settle their conflicts. Alternative methods are known as' ADR' and stand for' Alternative Dispute Resolution,' which encompasses any means of settling a conflict without going to court proceedings. There are many different methods that can be used, from very casual discussions among the parties to a relatively structured commercial arbitration hearing.
Encouraging ADR
This part will form the foundation for your answer. Mention the Woolf Report and the CPR, if not, most likely, you'll score a level 2 answer at max. There were many steps, if not in detail, just name them. For Woolf's report, you need to know 2-3 points. Also, discuss if you think I was beneficial. |
There were many steps in the 1990s to promote the use of ADR: for instance, the Woolf Report included a stronger use of ADR as one of its guidelines. As a consequence, the 1999 Rules of Civil Procedure require judges to' pause' court proceedings that is to temporarily stop the trial, so that the parties can seek mediation or other ADR approaches.
Employment Cases
Use these for brownie points. |
This is an aspect of Law where alternative dispute resolution in the form of an ACAS (Advisory Conciliation and Arbitration Service) has long been used. When any lawsuit is made in an employment tribunal, a transcript of that petition will be sent to ACAS, who will then notify the two parties concerned and agree to try to resolve the issue without the need for the case to go to trial. ACAS has highly trained conciliation agents who have a wealth of experience in conflicts over jobs. This Service's popularity can be seen from the fact that it resolves more than half of all claims filed in this manner. There is critical analysis, though, that the money paid in such settlements is less than a tribunal would have granted. This demonstrates employees are at a huge risk and feel under settlement pressure.
Funding of cases
As per the rules governing legal aid, support for a court case is not accessible if it could be operated with by an alternative method of resolution
It can, therefore, be seen that there is a greater understanding of the use of alternative dispute resolution in all sorts of issues. Nonetheless, as noted in this chapter's opening paragraph, ADR requires some means of settling a conflict other than' going to court,' and it is important to realize that a wide range of approaches is usable. Negotiation, mediation, conciliation, and arbitration are the principal ones.
1. Negotiation
Someone who has a disagreement with another party could always try to settle it through direct communication with them. This has the benefit of being entirely private and is also the fastest and cheapest way to settle a disagreement. If the parties are unable to reach an agreement, they may end up taking the action of instructing lawyers, and those attorneys may typically try to negotiate a resolution. In addition, even when court proceedings are started, the plaintiffs' attorneys will often seek to bargain on behalf of their clients, and this is expressed in the high number of out-of-court mediation settlements.
There will be an expense factor as attorneys become involved–obviously, the more the talks can proceed, the greater the costs will be. One of the troubling things is the number of cases that drag on for years, only to end up simply' at the court threshold' in a negotiated resolution on the morning the jury is due to begin. It is this scenario that other alternative methods of dispute resolution and, in particular, the Rules of Civil Procedure for 1999 are intended to avoid.
2. Mediation
Most people forget that there are two parts to mediation. You need to discuss both, with their advantages and disadvantages separately. You can also just simply discuss both types of mediations in their self, and elaborate on which one is best in which scenario. Commentary is essential. |
There will be a neutral mediator that lets the sides reach an agreement. A mediator's job is to meet with each side, and see how much common ground there is among them. With each party, he/she will discuss the place, look at their needs, and make proposals to and fro, while preserving confidentiality. Generally, a mediator will not tell the parties his / her own viewpoints of the validity of the dispute; acting as a' facilitator' is part of the process so that the parties come to an agreement.
Therefore, a mediator can be asked for advice on the issues, and in this situation, the consultation is more of an assessment process and seeks to resolve the conflict again.
Mediation is only necessary if there is a certain possibility that the parties will collaborate. Organizations that are used to negotiating contracts within themselves will most likely benefit from this method. The mediation will take various forms too, and the parties will choose the exact method they want. In mediation, the important point is that the parties are in power: they make the decisions.
Formalized Settlement Conference
Very important this is. Don’t miss out on this. |
Another way of conducting mediation is more structured. This includes a' mini-trial' in which each side makes their argument to a jury consisting of each party's decision-making representative and a neutral group. Once all the applications are made, the executives must assess the views of the two parties with the aid of the impartial counsel and seek to come to an agreement. If the executives cannot agree, they will act as a mediator between the neutral advisers. Even if the whole thing is not settled, it may be important for this form of action to narrow down the issues so that, if the case goes to court, it will not take so long.
A benefit of mediation and mini-trials is that it doesn't have to be a strictly legal action that holds to the letter of the Law. Consumer common sense and consensus are more likely to be the reason for this. The approach will also make it easier for companies to start conducting business with each other in the potential, and it may require arrangements between the parties about the operation of future business. This is something that can not arise until the judgment is issued by the judge since the court is dealing only with the current conflict. This removes the courtroom's adversarial dispute, and the winner/loser conclusion of court proceedings-it has been said that everybody gains through mediation.
Mediation Services
This is what will make you stand out from the rest. Mention the online services, family mediation services, free ones, etc. If you are wondering that do you have to write the URL? Then yes, you have to. You can copy-paste this part as it is. No issues. But do not miss out on this no matter what. |
Commercial mediation facilities are increasing in number. One of the main ones is the Dispute Resolution Centre, which was founded in London in 1991. It has several crucial firms as representatives, such as nearly all of the big law firms in London. Businesses say it has saved several thousand pounds in court costs by using the Center to resolve disputes. A mediator's typical cost is about 2,000 £. It contrasts with potential litigation expenses that are often above £ 100,000 and can sometimes escalate to more than a million pounds, notably in major business proceedings.
The main drawback of using counseling facilities is that there is no assurance that the issue will be settled, and after the unsuccessful settlement effort, it will then be appropriate to go to arbitration. In such cases, there are additional costs and complications by mediation attempts. The reality, though, is that a large number of cases will be resolved; the Center for Dispute Resolution estimates that more than 80 percent of cases are decided in which they are required to respond. There is also the hope that at least the problems may have been resolved, and thus any court hearing will be less than if mediation had not been tried.
There are also mediation programs that seek to settle minor conflicts, such as those involving neighbors. West Kent Mediation Service is one example of such a service. It provides a free program that will attempt to help settle public problems resulting from concerns such as traffic, car parking, pets, or border fence conflicts. The Service is run by qualified professionals who are not going to take positions or make judgments about the rights and wrongs of a situation. Typically they'll contact the party that made the allegation and hear their side of the story, and, if that party agrees, suggest to meet the other individual and get their opinions.
Eventually, the mediator organizes a discussion between them in a neutral place, if both parties are willing. The participants are in charge and can withdraw at any point from the mediation phase.
Digital Dispute Resolution is the most recent idea. This is being provided by a growing number of websites, for example, www.disputemediationservices.co.uk and www.themediationroom.com.
Mediation research has found some fun facts which prove it has benefits and drawbacks. On the positive side, it was reported that the sides were more likely to settle the conflict without going to court than in non-mediated situations, even though the final mediation session did not resolve the disagreement. There are, indeed, pitfalls too. Throughout negotiated agreements, amounts paid are often smaller than the sum accepted in other negotiations and significantly lower than payments imposed by the courts.
The challenge is that effective mediation involves a professional mediator with' natural talent, acquired skills, and experience.' If these characteristics are not present, mediation will transform into an act in coercion in which the vulnerable side can be coerced into arbitration. One individual who said:' Leaning on friends is the only way you'll get a payout knows that. When you rely on two halves of a see-saw, it's typically the weaker side that splits, and that's where the energy should be added.'
Generally, though, it seems that informal negotiations may encourage early resolution and can contribute to a condition where the sense of indignation is minimized, and an appropriate compromise is achieved.
3. Conciliation
You must compare this with mediation since there is little difference between both. Analyze its best to use conciliation, negotiation, or mediation. Ensure that you comment on how conciliation will be more applicable in scenarios and how mediation will be applicable in scenarios. |
This is very much like mediation in that a third party can resolve the dispute, but the key difference is that typically the conciliator would take a more active role. It is anticipated that he will propose conditions for settlement, and the potential reason for agreeing. ACAS may provide an unbiased view on the legal status of labor disputes. As with mediation, conciliation does not necessarily lead to a settlement, and court action may need to proceed.
Advantages of Using ADR
There are many perks of using ADR, rather than going to court. The main ones are for it to be:
• faster
• cheaper
• more flexible
• less stressful
• Possible to agree on resolutions that are not available in court.
The courts can only award damages or one of the fair solutions on this last point. The parties can seek different settlements with ADR. For starters; a debt repayment can be reorganized over a prolonged period of time. And where there is an issue with faulty items, the object may be repaired or replaced. Where the sides are likely to remain to do business in the future, terms for the future can be agreed upon.
4. Arbitration
This is the boss of all kinds of ADR. There are particular sections that you must use. Do not miss to mention the Avery Clause, and it will be the difference between the A and the A*. Always mention the arbitrator, proceeding, award, etc. in different paragraphs and in one paragraph summarise it and tell how they work together. Every time you discuss awards, etc., discuss how it's different than courts, tribunals, and other forms of the ADR. Commentary is what gets you the marks, so don't be lazy. |
The term' arbitration' is used to describe two systems that are quite distinct. The first is where the courts use a more casual method to hear cases; this is the way they characterize trials in the Queen's Bench Division's Commercial Court. The second definition of the word 'arbitration' is where the parties have agreed to refer their disputes to private arbitration; this is the form of arbitration applicable to alternate dispute resolution since it is a way to resolve a disagreement without the need for a court case.
Private arbitration is now regulated by the 1996 Arbitration Act, and the rules behind it are laid out in s 1 of that Law. This is what it says:
VERYYYYY IMPORTANT |
'(a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;
(b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary for the public interest.'
Therefore arbitration is the mutual application of the parties to the decision of some individual other than a prosecutor in their disagreement. Such an arrangement must generally be in writing, and indeed only signed arbitration arrangements are protected by the Arbitration Act 1996. The exact manner in which the arbitration is being conducted is left almost entirely to the agreement of the parties.
These are the parts that you must discuss in depth and that too separately, |
The Agreement to Arbitrate
The parties will make an agreement to go to arbitration at any point. It may be before a conflict occurs or when the disagreement is obvious.
Most commercial contracts provide what is referred to as a Scott v Avery provision, which is an agreement where the parties agree in their original contract that they will have their conflict resolved through arbitration in the case of a disagreement occurring between them. Where an arbitration clause is entered into a settlement, the 1996 Arbitration Act specifies that the judge may usually fail to resolve the dispute; the case must go to arbitration as decided by the parties. Nevertheless, the rules are different from customer disputes, where the issue applies to a quantity that can be dealt with in the small claims process. In this kind of condition, the consumer might choose to comply with the contract to go to private arbitration or to try to claim that the case is noticed in the route of small claims.
After the dispute arises, the agreement can also be made to go to arbitration. In commercial cases, arbitration is getting more and more popular.
The Arbitrator
Section 15 of the 1996 Arbitration Act specifies that the sides are free to negotiate on the number of arbitrators so that a jury of two or three may be used or a single arbitrator may be available. If the parties cannot decide on an amount, then the Act calls for the selection of just one arbitrator. The Act, therefore, stipulates that the parties can decide on the process for naming an arbitrator. In reality, most arbitration agreements will either designate an arbitrator or provide a method of selecting one, and in commercial contracts, it is often specified that the arbitrator is appointed by the president of the relevant trade organization.
There is also the Arbitrators' Institute, which gives qualified arbitrators for major disputes. The arbitrator will, in many situations, be someone with experience in the particular area involved in the conflict, but if the dispute concerns a point of Law, the parties then agree to nominate a prosecutor. If no agreement is reached about who or how to choose, then the court may be required to select a suitable arbitrator as a last resort.
The Arbitration Hearing
In each situation, the particular process is left to the consent of the parties, so that many ways of listening exist. In some situations, the parties can agree for a' legal' arbitration, where the two sides put for writing all the points they wish to raise and apply this to the arbitrator along with any relevant documents. Then he reads all the documents and makes his decision.
Instead, the parties can submit all these papers to the arbitrator, but both parties must hold a hearing until they render oral representations to the arbitrator in favor of their argument and making their decision. Witnesses may be called to give testimony when appropriate. When witnesses are asked to give oral testimony, this will not usually be given under oath, i.e., the individual will not be allowed to pledge to tell the truth. If the parties agree, though, then the complainant may be asked to give testimony under oath, and the whole process will be very formal. When witnesses are called upon to give evidence, the 1996 Arbitration Act requires court proceedings to be used to ensure that those witnesses comply.
The date, time, and place of the arbitration hearing in coordination with the arbitrator are all matters for the parties to agree about. It allows the hearings a great degree of flexibility; the participants can choose what is most appropriate for all involved.
The Award
The arbitrator's ruling is called an acknowledgment and is binding on the parties. It can even be followed by the judiciary if need be. Generally, the decision is final, although it may be challenged in court on the basis of significant irregularity in the processor on the point of Law (s 68 Arbitration Act 1996).
Advantages of Arbitration
These are the advantages, and they must be compared in relevance to the disadvantages. The best way to do so is writing advantages: disadvantages. |
The idea that the sides have the luxury of making their own arbitration agreement to work out exactly how formal or informal they want it to offer some benefits. The main advantages are:• The parties can choose their own arbitrator, so they can decide whether a technical expert or a lawyer or a professional arbitrator will deal with the matter best.
• If there is a question of quality, it can be determined by a specialist in the particular field, avoiding the expense of obtaining expert witnesses and the time to justify to a court all the technicalities.
• The time and place of the hearing may be scheduled to match the parties.
• The actual procedure is versatile, and the participants can choose what is best suited to the situation; this will usually lead to a more casual, more comfortable meeting than in litigation.
• The issue will be dealt with in secret, and no media will be necessary.
• The issue shall be resolved more easily than by a court hearing.
• Arbitration hearings are typically considerably cheaper than court proceedings.
• The grant is usually binding and is enforceable by the judiciary.
Disadvantages of Arbitration
There are some drawbacks in arbitration, though, in fact, where the sides are not on an equal footing as to their ability to present their argument. This is because legal aid is not eligible for litigation and this can hinder a plaintiff in a lawsuit against a business; if the matter had been brought to court, a person with a low income would have qualified for legal aid and thus had the benefit of an advocate to argue his argument. The other big limitations are to:
• In the case which is not suitable for decision by a non-lawyer arbitrator, an unexpected legal point may arise.
• Where a skilled arbitrator is working, his payments may be high.
• This would still be costly because the parties agree for a full trial of testimony from prosecutors and from attorneys on both sides.
• The appeal powers are limited.
• In the case of a professional arbitrator and lawyers, the delays for commercial and international arbitration can be almost as great as those in court.
This uncertainty and cost issue also ensured that arbitration has, to some degree, lost its reputation as a dispute resolution mechanism for businesses. Many more businesses are looking to the solutions provided by organizations such as the Centre for Dispute Resolution by opting to have the issue settled in another jurisdiction in the case of international disputes. One of the issues was that the arbitration law had become complex, and the 1996 Arbitration Act is an attempt to improve the procedure. In fact, it can be said that certain forms of conflict are eligible for arbitration.
It covers, in particular, contractual disputes between two companies where the participants have little hope of finding adequate mutual ground to make compromise a realistic prospect, and where there is no substantial point of Law involved.
Tribunals
Many students forget or do not interpret the question correctly. It is always best to consider all forms of the civil justice system in a question about civil law. Discuss all parts at the end, so be on the safe side. In an ADR question discusses tribunals and how it’s different from courts and ADR. You do not get marks for only stating the law; if you state the law perfectly, it will give you 12/25. However, the commentary is what will provide you with better marks. |
Tribunals work side by side with the court system and have become an integral part of the justice system. In the second half of the 20th century, with the welfare state developing, more tribunals were formed. These were created to give people a way to assert their claim to some social rights. Like traditional dispute resolution, though, where the plaintiffs agree not to use the judiciary, the parties cannot go to trial and settle a disagreement in tribunal cases. Instead of court proceedings, the arbitration must be used.
Role of Tribunals
Tribunals uphold the rights granted by-laws on social and health issues. There are many specific freedoms, such as • the right to a mobility pension for those who are too poor to travel more than a very short distance • the right to compensate if one is made redundant from employment • the right not to be discriminated against on account of one's ethnicity, color, age or impairment • the right of refugees to have a political asylum application considered. These are just a few of the types of rights that tribunals deal with.
Tribunals, Courts and Enforcement Act 2007
As the welfare state grew, tribunals were set up, and new developments led to the creation of a modern tribunal. That has contributed to more than 70 separate tribunal forms. -tribunal became independent, so various methods were used by the specific tribunals. That has confused and complicated the system.
The Tribunals, Judiciary, and Compliance Act 2007 changed the whole structure. It established a single judicial system, with a First-tier Judicial handling first-instance proceedings and an Upper Tribunal hearing appeals.
First-tier Tribunal
Just remember the numbers and 2-3 kinds of tribunals |
This works in seven Chambers (divisions) since the First-tier Tribunal deals with about 300,000 lawsuits each year and has about 200 judges and 3,600 members of the laypeople. These are:• the Chamber of Social Entitlements-this covers a wide range of problems such as child support, redress for traumatic injury, and gender identification.
• The chamber of Health, Education, and Social Services–which comprises the previous Mental Health Assessment Tribunal, which deals with complaints regarding prolonged incarceration of mental hospitals; The Committee frequently deals with issues around specific educational needs.
• The War Pensions and Armed Forces Compensation Chamber.
• The General Regulatory Chamber.
• The Taxation Chamber.
• The Land, Property, and Housing Chamber.
• The Asylum and Immigration Chamber.
Besides these, there is one trial that still functions independently from the First Tier Tribunal. This is a Commission for Jobs. Nonetheless, this is likely to eventually become a component of the First-tier Tribunal.
Upper Tribunal
The Upper Tribunal is divided into four Chambers (divisions). These are:
• the Administrative Appeals Chamber, which hears appeals from the Social Entitlement Chamber, the Health, Education and Social Care Chamber and the War Pensions and Armed Forces Compensation Chamber
• the Tax and Chancery Chamber
• the Lands Chamber
• the Asylum and Immigration Chamber.
There is another possible route of appeal from the Upper Tribunal to the Court of Appeal, and a direct appeal to the Supreme Court from here.
Composition
Cases are considered by a Tribunal Judge in the First-tier Court. In fact, two community representatives must consult with the judge to make the judgment for some forms of event. Such lay representatives will have tribunal experience in the specific field. Of instance, the lay participants would be medically qualified in a hearing about a petition to mobility compensation, while there would be surveyors seated on the Lands Tribunal. There are two lay leaders also in employment tribunals. These will normally be one individual from an organization of employers and one from an organization of workers. Which allows them a very good understanding of the problems of work.
Procedure
There ought to be a forum for both parties to make their argument. This will be performed properly in some courts, notably jobs and asylum tribunals, with the complainant giving evidence under oath and being cross-examined. All tribunals work in a less organized manner.
Representation funding is available in just a few tribunals, so most candidates won't have an advocate but will make their own argument. Where a claimant submits his own complaint, the Tribunal Judge must then try to ensure that the complainant positions the case in full.
Tribunal ruling is final.
The Administrative Justice and Tribunals Council
That was established under the 2007 Tribunals, Courts, and Enforcement Act. It replaced the former Tribunals Council, which had been operating since 1957. Its duties include: • retaining the functioning of tribunals under review • reporting on the constitution and functioning of tribunals • considering and reporting on any other court-related matter.
A Council member may attend (as an observer) any tribunal proceedings.
Advantages of Tribunals
VERRRY IMPORTANT |
Tribunals are formed to keep the courts from overloading with the extra cases that demand social, and health benefits produce.
For tribunal cases, the benefits for the claimant are that these cases are addressed:
• more cheaply
• more quickly
• more informally
• by experts in the area.
Cheapness
Because claimants are expected to defend themselves and not to use counsel, tribunal proceedings usually do not require the expenses of court hearings. It is also unusual for a judge to request compensation, so a plaintiff needn't be fearful of a big bill if they lose the case.
Quick Hearings
Many court hearings are very brief and can be concluded in one day.
Informality
The hearings are more casual than in court. Parties are encouraged to come forward with their own case. Nevertheless, most situations are attended to in private.
Expertise
Two lay representatives participate in some tribunals to hear the case with the Tribunal President. Some lay participants are specialists in understanding the type of case. It gives them a good understanding and knowledge of the problem at hand.
Disadvantages of Tribunals
Lack of Funding
Public funding for most tribunals is not eligible, which may put a claimant at a disadvantage if the other party (often an employer or government department) has an advocate. Legal aid is provided regarding cases involving fundamental human rights, such as whether an asylum seeker has the ability to remain in the UK or whether a victim can reside in a safe mental hospital.
More Formal Than ADR
A hearing before a tribunal is more formal than using ADR. The location is new, and for people who bring their own situations, the process can be overwhelming. Where candidates are not identified, it is suggested that the judge may perform an inquisitorial position to help to identify the arguments the claimant wants to make. But that vision isn't always accomplished.
Delay
So while the goal is to deal with cases efficiently, the number of cases heard by the tribunals ensures there may be delays in getting a trial. Having leaders of the lay will contribute to this issue as they sit part-time, typically one day a fortnight. If a trial is lengthy and continues for several days, this can result in cases extending over a period of weeks or even months.
Domestic Tribunals
These are tribunals essentially set up' in-house' by private entities, typically for their own internal disciplinary oversight. We will comply with the natural justice laws, and all judgments are subject to judicial review. Furthermore, there is an appeal route to the Judicial Committee of the Privy Council for many professional disciplinary tribunals, in cases where the tribunal has decided to strike a member from the professional register. It refers, for example, to decisions taken by the General Medical Council's disciplinary committee, and also to other medical regulatory tribunals.