Civil Courts & ADR Advantages and Disadvantages

Learning Objectives I will be able to state the advantages and disadvantages of each form of civil dispute resolution I will be able to give examples that illustrate these advantages and disadvantages I will be able to compare the courts with each of the other forms of dispute resolution I will be able to evaluate civil dispute resolution

Civil Courts

Advantages Legal expertise/experience –Judges in the county or high court have lots of experiences both as lawyers and judges –Final decision will have a detailed explanation Availability of public funding –Public funding is available for some civil cases (financial claim related to divorce) –Granted by the Community Legal Service Remedies –Civil court has the power to award remedies –Damages (compensation) –Injunction (cease an act or activity) –Specific performance (complete a contract)CPR in book

Disadvantages Lack of technical knowledge Slow process Lack of flexibility in court process Need for lawyers General cost Adversarial process Publicity

Tribunals

Advantages Expertise –Chairperson and lay members will have experience in the area Reasons for decisions –S.10 Tribunals and Enquiries Act 1992 Cost Informality Flexibility –No rules of precedent or evidence Speed –Final hearing usually completed in one day Privacy Congestion

Disadvantages Influence of chairperson on lay members Lack of availability of public funding –One member only may be able to afford a lawyer Appeals procedure –There are different rights and routes for different tribunals Inconsistencies in decisions –no precedent or rules of evidence Publicity –Hearings might not get the consideration they deserve Formality –Franks Committee- chairperson must now be legally qualified – can be lawyers present – can be heard like the courtroom – all adds to the formality

Arbitration

Advantages Expertise Privacy Convenience Enforceability of the award Informality Speed Cost Cost-saving to the state

Disadvantages Lack of legal expertise –Courts rely on witnesses for expert evidence Inconsistencies in decisions Cost Appeals –Ss68 and ss69 of the 1996 Act mean limited grounds to appeal on – prolongs time and cost Lack of awareness/popularity

Mediation

Advantages Speed and convenience –Parties arrange it themselves saving time Lack of formality Empowerment –Does not force a decision upon the parties, it is up to them to come to an agreement. Leads to both parties being satisfied – Professor Hazel Genn (2002) Cost –Public funding is available for mediation in some family cases Expertise –Mediators are trained specialists Privacy

Disadvantages Imbalance of power –One party usually stronger financially or emotionally Lack of legal expertise –Mediator may not have expertise on complicated areas of law Lack of certainty –No need to agree with each other which leads to costs and court – Paul and Heather McCartney Enforceability

Conciliation

Advantages Pro-active element of conciliator –Conciliator offers neutral advice Expertise –Conciliator will have expert knowledge on the area under dispute – ACAS are experts on employment law

Disadvantages Imbalance of power –One or both parties may feel the conciliator is not neutral in their suggestions Others are similar to mediation

Negotiation

Advantages Speed –The longer you wait, the more problems can be exaggerated Formality –Can find solutions that may not be allowed in the courts Cost Privacy

Disadvantages Imbalance of power Lack of legal expertise Lack of certainty Enforceability