Transcript Civil Courts and Other Forms of Dispute Resolution

Civil Courts and Other Forms
of Dispute Resolution
Other Forms of Dispute Resolution
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
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.
The various methods of resolving
disputes
Method
• Negotiation
• Mediation
Brief description
• The parties themselves
• The parties with the help of a neutral third
party
• Conciliation • As above, but a neutral third party plays an
active role in suggesting a solution
• Arbitration
• The parties agree to let a third party make a
binding decision
• Litigation
• 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
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)
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.
Types of dispute
There are many tribunals but they may be
classed as two main types: administrative and
domestic.
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.
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.
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.
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
Lord Woolf
Page 82 - Reform
Tribunals: advantages and disadvantages
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
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)
•
•
•
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
•
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?
Types of tribunal
•social security
tribunals
•rent tribunals
•immigration tribunals
•Mental Health Review
Tribunal
•employment 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
Method of
hearing
Tribunals
Control of tribunals
•The courts - appeal system to
Legal funding available for:
put right incorrect decisions
(judicial review proceedings)
•Mental Health Review
•The Council of Tribunals Tribunal
reports but has little power
•Employment Appeals
Tribunal
•Informal
and in
private
•Except
employment
tribunals
which are
more formal,
like a court,
and open to
the public
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.
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.
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.
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.
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
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
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
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
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.
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.
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
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
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
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.
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
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.
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.
People involved
The only people involved are the parties
themselves of their representatives if they
have one.
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
Advantages of using ADR
• costs less
• speed
• less formal than court
• less adversarial
Disadvantages of using ADR
• under used
• lack of precedents
• unequal bargaining power