1. Civil Courts and Other Forms of Dispute Resolution

2. 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

3. 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.

4. The various methods of resolving disputes
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

5. Tribunals
Since the late 1940’s 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)

6. As a result of this Committee’s 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.

7. Types of dispute
There are many tribunals but they may be classed as two main types: administrative and domestic.

8. 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 Queen’s Bench Division of the High Court.

9. 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.

10. 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.

11. 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. Queen’s bench can reverse a decision if these rules have not been followed

12. Lord Woolf
Page 82 - Reform

13. Tribunals: advantages and disadvantages
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
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?

14. Tribunals 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

15. 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 arbitrator’s award.

16. 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 employee’s claim and employer’s 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.

17. 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.

18. 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.

19. 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

20. Arbitration ADVANTAGES DISADVANTAGES
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

21. 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

22. 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.

23. 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.

24. 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

25. 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

26. 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 employer’s response.
The ACAS representative is an expert in employment law and, with the parties’ agreement, can act as a conciliator in the dispute

27. 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 conciliator’s added powers of intervention.

28. 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

29. 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, , 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.

30. 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.

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

32. 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

33. Advantages of using ADR
costs less
speed
less formal than court
less adversarial

34. Disadvantages of using ADR
under used
lack of precedents
unequal bargaining power