1. The Civil Courts and other forms of Dispute Resolution
Other forms of civil dispute resolution

2. Objectives
State reasons why there is a need for other forms of dispute resolution
Describe the people involved in each of the other forms of dispute resolution
Outline the procedures in each of the other forms of dispute resolution
Allocate types of dispute to each form

3. Key Terms Tribunal Administrative tribunals Domestic tribunals
Alternative Dispute Resolution (ADR)
Chartered Institute of Arbitrators (CIA)
Advisory, Conciliation and Arbitration Service (ACAS)
Mediator
Conciliator
Negotiation

4. Reasons for Alternatives
When a dispute cannot be resolved parties often end up in civil court
For many reasons these courts are not always the most appropriate.
Expensive
Slow
Specific procedures need to be followed
Alternative methods have developed/been created
Less costly, speedier and less procedural

5. Tribunals Growth in legislation affecting people’s private lives
Employment laws
Social security benefits
Housing
Education
These laws often end up in disputes
Need a system to resolve these disputes
Courts would not be able to cope – so tribunals created
Fast, inexpensive

6. Tribunals Franks Committee 1957 recommended:
Independent
Openness
Accessible
As a result Tribunals and Enquiries Act 1958
Created Council of Tribunals
15 members
observe cases an deal with complaints
Cannot insist on reforms (can make recommendations)
E.g. Gvt set up Leggatt Committee 2001 (all tribunals dealt with under Tribunals Service from 2006)

7. Types of disputes dealt with by tribunals
Two main types:
Administrative
Domestic

8. Administrative Tribunals
Disputes between individual and state
Will apply law to the dispute between the parties
Social Security Appeal Tribunal
Immigration and Asylum Tribunal
Mental Health Review Tribunal
Some deal with disputes between individuals
Rent Tribunals
Employment Tribunals

9. Domestic Tribunals In-House Tribunals Professional bodies
Apply rules of the organisation to the dispute
Solicitors disciplinary Tribunal
Bar Council
General Medical Council
Football Association

10. People Involved Mostly three members Employment Tribunal
Legally trained chairperson (e.g. qualified lawyer)
Two lay members (have expertise in area)
Employment Tribunal
Legally qualified chairperson (Employment Judge)
Two lay members with experience of industry and commerce
Some tribunals have a chairperson with expertise not legal qualification
Generally parties encouraged to represent themselves
Parties attend as well as witnesses

11. Procedure Parties and their witnesses give evidence
All available for questioning by other party, chairperson, lay members
Panel’s judgement based on law,, evidence, arguments
Not bound by strict rules of judicial precedent
No need to employ a lawyer
May represent themselves, represented by a friend or someone with an understanding (TU)

12. Procedure Tribunals are free (no fees charged)
Employment Tribunal fee from April 2013
If chooses a lawyer unlikely to get public funding
Exceptions:
Mental Health Review Tribunal
Employment Appeal Tribunal
Each party meets own legal costs regardless of outcome
Helps discourage use of lawyers and keeps costs down
Costs can be awarded if a party behaves unreasonably during case

13. Procedure Most obliged to give reasons for decisions
This allows for more appeals
Appeal may be to other tribunal –
Employment Tribunal to Employment Appeal Tribunal to Court of Appeal
Appeals only on point of law
Must follow rules of natural justice
Parties given time to prepare and fair hearing
QBD of High Court can look at decision if claimed that rules of natural justice not followed

14. Alternative Dispute Resolution (ADR)
LJ Woolf – 2 year investigation into reform of civil justice system
Report in 1997 proposed streamlining of civil court procedure and more use of ADR
Civil Procedure Rules 1998 – courts need to encourage more ADR
Courts do not have power to force parties to ADR (as breaches Article 6)
Halsey v Milton Keynes General NHS Trust (2004)

15. Alternative Dispute Resolution (ADR)
If party unreasonably refuses to try ADR and then wins case at court
They may not be awarded costs to be paid by losing party
Dunnett v Railtrack plc (2002)
4 ways of ADR:
Arbitration
Mediation
Conciliation
Negotiation

16. Arbitration Parties refer dispute to third party
3rd party acts like judge & give decision on dispute
This is called an award
Arbitrator usually has legal and specialist knowledge
E.g. surveyor in building dispute
Governed by Arbitration Acts 1979 & 1996

17. Arbitration – Types of dispute
May arise in a number of ways:
Most large commercial contracts will contain an arbitration clause
A number of trade and professional organisations offer an arbitration facility
E.g. ABTA can arbitrate between a holiday company and holiday makers
Most disputes use the arbitration process and the Chartered Institute of Arbitrators (CIA) can suggest an arbitrator
If claim started at the Employment tribunal copy of claim and response automatically sent to Advisory, Conciliation and Arbitration Service (ACAS)

18. Arbitration – People involved
Arbitrator independent of the parties
Usually an expert in the area of dispute
Parties may name a specific arbitrator in their contract
Or may name a professional body that can appoint one if needed
Parties will present their cases to the arbitrator and will involve witnesses

19. Arbitration – Procedure
Covered by Arbitration Act 1996
Agreement must usually be in writing
But how it proceeds is up to parties to agree
May include an arbitration clause in original contract
This may commit them to arbitration in event of dispute
Known as the Scott v Avery clause

20. Arbitration – Procedure
Scott v Avery clause:
Specifies who will act as arbitrator
Or the process for appointing one
Where this type of clause is included court will refuse to deal unless it has gone to arbitration
Act sets out the powers of the parties to shape process according to their needs
Also sets out power of the arbitrator
Both parties and the arbitrator agree procedure together

21. Arbitration – Procedure
Hearing set at time and place convenient to all
Hearing is carried out in private
Each party puts forward its own arguments & evidence either orally or in writing
Witnesses may be called to give evidence and be cross examined
Arbitrator makes the final decision (the award)
This is binding
Also has power to order one party to pay money to the other
Order can be enforced through courts

22. Arbitration – Procedure
Arbitration process is free
Arbitrator will charge a fee
May be shared or paid by just one party
Although legal representation allowed it is discouraged
No automatic right of appeal
Under s68 of the 1996 Act party may appeal to High Court is there is ‘serious irregularity’
Under s69 party may appeal on a point of law

23. Mediation
Process by which third party acts as a messenger between parties to assist in resolving dispute
Parties do not have to meet and mediator will pass on offers, counter-offers and comments
Mediator helps define issues but parties must cerate solution
Mediator does not act as an advisor
May be selected from mediation bodies such as Centre for Dispute Resolution (has 300 trained)

24. Mediation – Types of disputes
Family Law Act 1996 encourages separating couples to use mediation instead of court
If a party wants public funding must have attempted mediation first
Disputes over children, property and finance
Growing number of services aimed at resolving small disputes
E.G. West Kent Independent Mediation Service – neighbour dispute over noise and boundaries

25. Mediation – People involved
Mediator organise the mediation at a time and place convenient to all parties
Parties will attend with legal adviser (if any)
Mediator will pass on information from one party to another
Parties may be in separate rooms if they prefer

26. Mediation – Procedure Takes place in private and neutral setting
Procedures vary but usually each party puts forward its position followed by private meetings between mediator and each party in turn
Mediator acts as go-between
Two parties communicate and negotiate through mediator
Mediator remains neutral and makes NO suggestions
Cannot force settlement on parties

27. Mediation – Procedure Encourages both parties to reach an agreement
Each party may be legally represented but this is discouraged
Each party must meet own legal cost
Public funding available for family mediation
Witnesses rarely involved
If agreement reached this may be written down
If parties agree it becomes legally binding
Agreement enforceable by Civil Courts
If no agreement may be taken to court or tribunal

28. Conciliation Similar to mediation
However, conciliator can intervene in process
Actively suggestion terms of settlement and comment on terms
Important for parties to realise conciliator is neutral and not acting as their representative (such as a lawyer)

29. Conciliation– Types of disputes
ACAS operates a conciliation scheme in industrial disputes (e.g. Employment Tribunal cases)
In these ACAS will be sent copies of employee’s claim and employers response
ACAS representative is an expert in employment law
And with agreement can act as a conciliator

30. Conciliation– People involved
Conciliator will organise at a time and place convenient to all
Parties attend with legal advisers (if any)
Conciliation will proceed as mediation except for conciliators added powers of intervention

31. Conciliation– Procedure
Similar to mediation
Conciliator and parties meet
Conciliator listen to grievances
Make suggestions on how it can be resolved
If parties agree is made legally enforceable
If no agreement can then go to court or tribunal
Mediation and conciliation very similar
ACAS is a good example of arbitration and conciliation

32. Negotiation Usually first method in trying to resolve a dispute
Parties communicate directly with each other
Try to agree matters without going to court
Face to face, telephone, , text etc
If either or both parties legally represented lawyers may negotiate with other lawyer or directly with the other party
Many cases settled on morning of court hearing
May also be carried out by non-legally qualified representatives (e.g. Trade Union Official)

33. Negotiation – Types of Dispute
Any dispute may be settled by negotiation
Mediation and conciliation are forms of negotiation
They use third parties though
Low-key disputes best resolved by negotiation without expensive court action
Neighbour disagreement or dispute between plumber and home-owner are examples

34. Negotiation – People involved
Only people are the parties themselves or their representatives

35. Negotiation – Procedure
No fixed procedure
Often a meeting will commence with each party stating their position
Must focus on issues not personalities
Will require compromise
No costs involved unless representatives are involved (then parties will pay their own costs)
Lawyers often encourage agreement before court

36. Objectives
State reasons why there is a need for other forms of dispute resolution
Describe the people involved in each of the other forms of dispute resolution
Outline the procedures in each of the other forms of dispute resolution
Allocate types of dispute to each form