Civil Courts and Other Forms of Dispute Resolution

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Civil Courts and Other Forms of Dispute
Resolution

• Other Forms of Dispute Resolution

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Lesson Objectives

• I will be able to state reasons why there is a
  need for other forms of dispute resolution
• I will be able to describe the people involved in
  each of the other forms of dispute resolution
• I will be able to outline the procedures in each
  of the other forms of dispute resolution
• I will be able to allocate types of dispute to
  each form

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Topic 8 Alternative dispute resolution
Introduction to ADR
Alternative dispute resolution (ADR) has become
increasingly popular. The civil court system is
expensive and time consuming. Therefore, people
often seek alternatives to court in order to
resolve their disputes.
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The various methods of resolving disputes

• Method
• Negotiation
• Mediation
• Conciliation
• Arbitration
• Litigation

• Brief description
• The parties themselves
• The parties with the help of a neutral third
  party
• As above, but a neutral third party plays an
  active role in suggesting a solution
• The parties agree to let a third party make a
  binding decision
• The parties go to court (and therefore a judge)
  or tribunal (panel)

NB all of the above except litigation are
commonly referred to as ADR, or alternative
methods of dispute resolution, i.e. alternative
to litigation
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Tribunals

• Since the late 1940s there has been a growth in
  parliamentary legislation affecting individuals
  in their private lives.
• These laws inevitably result it disputes, for
  example whether an individual is entitled to a
  particular state benefit.
• A system had to be constructed to allow these
  disputes to be resolved. The court system could
  not cope with the number of disputes so tribunals
  were created for each area, e.g. the Social
  Security Appeal Tribunal.
• In 1957, the Franks Committee on Tribunals
  reviewed how tribunals were working and
  recommended that tribunals should be based on,
  for example
• Independence (from Government)
• Openness (all hearings should, if possible, be in
  public)
• Accessibility ( so that all parties could
  understand the procedure involved, and legal
  representation was not essential)

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• As a result of this Committees report, the
  Tribunals and Enquiries Act 1958 created the
  Council of Tribunals to review the running and
  workings of tribunals.
• The Council has 15 members, who observe cases
  and deal with complaints. The Council cannot
  insist on reforms, but may make recommendations.
• After a recommendation, the Government set up
  the Leggatt Committee in 2001, which advised that
  all tribunals should be dealt with under the
  Tribunals Service from April 2006.

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Types of dispute

• There are many tribunals but they may be classed
  as two main types administrative and domestic.

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Administrative tribunals

• Administrative tribunals are set up by the
  government to allow citizens a way to challenge
  the decisions of the state. Examples include
• social security appeal tribunals
• immigration appeal tribunals
• mental health tribunals
• However, some administrative tribunals deal with
  disputes between individuals
• rent tribunals
• Employment (formerly industrial) tribunals
• They are governed by the Tribunals and Enquiries
  Act 1992 and are supervised by the Queens Bench
  Division of the High Court.

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Domestic tribunals

• Domestic tribunals are used by professional
  bodies to discipline or to resolve disputes
  within the profession.
• For example, the Law Society governs solicitors
  and has the power to suspend or disbar a member
  for misconduct.
• The tribunal will apply the rules of the
  particular organisation to the dispute between
  the parties. Other examples include
• Solicitors Disciplinary Tribunal
• Bar Council
• General Medical Council
• F.A.

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People involved

• A tribunal is composed of three people. One will
  be legally qualified and the other two will be
  experienced in the area considered by the
  tribunal.
• Tribunals vary in their procedures, with some
  being similar to a court trial. Not all tribunals
  have a route for appeal.
• Generally, parties are encouraged to represent
  themselves and not use lawyers. The parties will
  attend, as will their witnesses.

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Procedure

• The parties and their witnesses give evidence
• All will be available for questioning by the
  other party and by the chairman and lay members
• Not bound by strict rules of evidence and
  procedures that apply in the civil courts
• Rules of precedent do not apply
• Lawyer not needed for representation
• Party can represent themselves, a friend, or
  someone with an understanding of their complaint
  such as a trade union member
• Tribunals are free
• If lawyer is used very unlikely public funding
  will be available (exceptions are Lands Tribunal,
  Mental Health Review and Employment Appeals
  tribunal)
• Unlike in civil courts, each party must meet
  their own legal costs regardless of who wins
• Most tribunals are obliged to give reasons for
  their decisions, which has allowed for more
  decisions to be challenged on appeal
• Tribunals must follow the rules of natural
  justice time to prepare, fair hearing etc.
  Queens bench can reverse a decision if these
  rules have not been followed

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Lord Woolf

• Page 82 - Reform

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Tribunals advantages and disadvantages

• Disadvantages
• Lack of funding
• If an applicant is not represented s/he has less
  chance of winning that those who are represented
  (28 cf 49 with a lawyer)
• Less speedy than before
• Due to the large volume of cases they hear
• Also because many tribunals sit part-time
• Procedural disadvantages
• For those without experience
• Even more complicated and difficult to find if
  more than one Act has to be consulted to find out
  what the law is
• Some tribunals do not have to give reasons for
  their decisions
• Some tribunals do not follow a system of
  precedent
• Is the chairman impartial?

• Advantages
• Tribunals prevent overloading of the courts
• They hear six times the number of cases the
  courts hear
• Cost effective
• Applicants are encouraged to represent themselves
  and not use lawyers
• Also, it is rare for an order of costs to be
  made, so applicants are not deterred from using a
  tribunal by the fear of a large bill if they lose
• Speedy hearings
• Whereas judges can only change the law on very
  small areas of law piecemeal
• Proactive reform, not reactive
• Simple procedure
• More informal than court
• Most hear in private
• Flexible procedure
• Chairman helps those who are not represented

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• Panel hearing case
• Mostly a panel of three chairman and two lay
  members with knowledge of the topic
• Some tribunals have just one adjudicator

• Types of tribunal
• social security tribunals
• rent tribunals
• immigration tribunals
• Mental Health Review Tribunal
• employment tribunals

• Method of hearing
• Informal and in private
• Except employment tribunals which are more
  formal, like a court, and open to the public

Tribunals

• Control of tribunals
• The courts - appeal system to put right incorrect
  decisions (judicial review proceedings)
• The Council of Tribunals - reports but has little
  power

• Legal funding available for
• Mental Health Review Tribunal
• Employment Appeals Tribunal

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Arbitration

• Arbitration is where the parties refer the
  dispute to a third party, who will act as a judge
  and give a decision on the dispute, which is
  called an award.
• The arbitrator will usually be a person with both
  legal and specialist knowledge of the subject
  matter of the dispute, for example, a surveyor
  may arbitrate in a building dispute.
• Arbitration is governed by the Arbitration Acts
  1979 and 1996, which sets out rules for
  arbitration and the various grounds for appeal
  from an arbitrators award.

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Types of dispute

• Most large commercial contracts will contain an
  arbitration cause allowing for arbitration to
  occur if a dispute arises under the contract.
• A number of trade and professional organisations
  offer an arbitration facility. E.g. ABTA
• Most disputes may use the arbitration process
  and the Chartered Institute of Arbitrators (CIA)
  can suggest and supply an independent arbitrator,
  if requested.
• If a claim is started at the Employment
  tribunal, a copy of the employees claim and
  employers response is sent automatically to the
  Advisory, Conciliation and Arbitration Service
  (ACAS). The ACAS representative is an expert in
  employment law and can, if the parties agree, act
  as an arbitrator.

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People involved

• The arbitrator is independent of the parties and
  is usually an expert in the area of the dispute.
• The parties may name a specific arbitrator in
  their contract or name a professional body that
  can appoint the arbitrator should a dispute
  arise.
• The parties will present their case to the
  arbitrator, which may involve witnesses.

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Procedure

• The Arbitration Act 1996 states
• The object of arbitration is to obtain the fair
  resolution of dispute by an impartial tribunal
  without unnecessary delay or expense.
• The organisation ACAS (Arbitration, Conciliation
  and Advisory Service) uses this method to resolve
  employment disputes.

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• Arbitration agreement must be in writing, but how
  the arbitration proceeds is open to the parties
  to agree
• Arbitration clauses may be inserted into
  contracts Scott v Avery clause
• Clause will specify who is arbitrator, or the
  process for appointing one
• Court will refuse to deal with a case with this
  clause if it has not gone to arbitration first
  e.g. ABTA package holidays
• An agreement to go to arbitration can also be
  reached after a dispute has arisen
• The Act sets out the powers of the parties to
  shape the process according to their needs,
  together with the powers of the arbitrator
• Both parties and arbitrator agree hearing
  procedure together
• Hearing can be set at place of mutual convenience
• Private hearing
• Each party puts forward own arguments and
  evidence either in writing or orally
• Witnesses may be called to give evidence and
  cross-examined
• Arbitrator makes final decision (award), which IS
  BINDING on the parties
• E.g. arbitrator has the power to order one party
  to pay money to another
• Arbitration process is free, but arbitrator will
  charge a fee
• Although it is discouraged, parties are allowed
  to be represented by a lawyer
• There is no automatic right of appeal
• S.68 of the Arbitration Act allows for a High
  Court appeal if there is a serious irregularity
• S.69 a party may appeal on a point of law that
  arises in the arbitration decision

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Arbitration

• ADVANTAGES
• Parties choose their own arbitrator i.e.
  lawyer, professional arbitrator or technical
  expert
• Questions of quality can be decided by an expert
  no expense of calling expert witnesses
• Time place to suit parties
• Flexible procedure
• Private no publicity
• Low cost
• The award is normally final and enforceable
  through courts

• DISADVANTAGES
• An unexpected legal point may arise that is
  unsuitable for a non-lawyer arbitrator
• If a professional arbitrator is used his fee may
  be high
• A formal hearing is expensive witnesses giving
  evidence and representation by lawyers
• Rights of appeal are limited
• Delays for commercial and international
  arbitration with professional arbitrator and
  lawyers are nearly as great as courts delays

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Mediation

• Mediation is a process by which a third party
  acts as a messenger between the parties to assist
  in resolving the dispute. The parties do not have
  to meet and the mediator will pass on the offers,
  counter-offers and general comments between the
  parties.
• The mediator is to help the parties define the
  issues in dispute and the emphasis is on the
  parties themselves creating a solution.
• The mediator is not to act as advisor to either
  party, who must make their own judgements on the
  offers made.
• Mediators may be selected from mediation bodies
  such as the Centre for Dispute Resolution
  approx. 300 trained mediators

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Types of dispute

• The Family Law Act 1996 has encouraged separating
  couples to use mediation instead of court action.
  If a party wishes to obtain public funding for
  legal advice and representation then it will be a
  condition that mediation must first be attempted.
• The mediation may cover disputes over children,
  property and finance.
• There are now a growing number of mediation
  services aimed at resolving small disputes, E.g.
  West Kent Independent Mediation Service offers a
  free service from trained voluntary mediators to
  try to resolve neighbour disputes over noise and
  boundaries.

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People involved

• The mediator will organise the mediation at a
  time and place convenient to all parties. The
  parties attend with legal advisors (if any). The
  mediator will pass on information from one party
  to another. The parties may be in separate rooms
  from each other if they prefer.

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Procedure

• Private and neutral setting
• Put forward position, followed by private
  meetings between the mediator and each party in
  turn
• Mediator acts as a go-between, whereby the two
  parties in dispute communicate and negotiate
  through the mediator
• Mediator remains neutral and does not suggest
  solutions and cannot force settlement
• Mediator encourages the two parties to reach an
  agreement
• Each party may be legally represented, but this
  is discouraged
• Each party must meet their own legal costs but
  public funding is available for family mediation
• Witnesses are rarely involved
• If the parties reach an agreement then this may
  be written down and , if the parties agree, the
  agreement becomes legally binding
• The agreement is enforceable by the civil courts
  should either party fail to follow the terms of
  the agreement
• If no agreement is reached, the matter may be
  taken to court or a tribunal

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Conciliation

• A conciliator discusses the dispute with the
  parties and encourages them to find a solution
  upon which they both agree.
• Most disputes involving employment try this
  method before the case goes to an employment
  tribunal.
• It is important for the parties to realise that
  the conciliator is neutral and is not acting as
  their representative

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Types of dispute

• The organisation ACAS offers this service to
  encourage an employer and employee to come to an
  agreement.
• In a tribunal case ACAS will be sent a copy of
  the employee's claim and employers response.
• The ACAS representative is an expert in
  employment law and, with the parties agreement,
  can act as a conciliator in the dispute

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People involved

• The conciliator will organise the conciliation
  at a time and place convenient to all parties.
  The parties attend with legal advisors (if any).
  The conciliation will proceed as mediation except
  for the conciliators added powers of
  intervention.

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Procedure

• Similar to mediation
• Conciliator and parties will meet and the
  conciliator will listen to the grievances and
  will make suggestions how the problem can be
  resolved
• If the parties agree then the agreement may be
  made legally enforceable as for mediation
• If no agreement is reached, the mater may be
  taken to court or a tribunal

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Negotiation

• The parties involved in a dispute discuss the
  problem between themselves, with or without a
  lawyer present, to try to find a solution.
• Can be face-to-face, by letter, telephone,
  email, text, etc.
• If either or both of the parties are legally
  represented, the lawyer(s) will continue to
  negotiate throughout their involvement. Many
  cases are settled on the morning of a court
  hearing.

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Types of dispute

• Any dispute may be resolved by negotiation.
  Mediation and conciliation are forms of
  negotiation, but using third parties to assist in
  the process.
• Low-key disputes are best resolved by
  negotiation without expensive court action. A
  neighbour disagreement or a dispute between an
  electrician and the homeowner are examples of
  when a negotiated settlement would be
  appropriate.

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People involved

• The only people involved are the parties
  themselves of their representatives if they have
  one.

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Procedure

• No fixed procedure
• Often a meeting will commence with each party
  stating their position
• Successful negotiation requires focus on the
  issues not personalities. It will also require
  compromise
• No costs involved. If agreement not reached then
  the parties may instruct lawyers
• Lawyers will encourage clients to reach an
  agreement without resorting to the court.
• Cheaper without court and lawyers

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Advantages of using ADR

• costs less
• speed
• less formal than court
• less adversarial

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Disadvantages of using ADR

• under used
• lack of precedents
• unequal bargaining power