Unit  8  –  Tribunals  and  ADR  GCSE  Law  

Mrs.  Fyfe  

There are methods of resolving disputes outside the court structure and this unit looks at these.

Tribunals Tribunals were set up to deal with specific types of claim. Most tribunals are there to help enforce individual rights, for example social or employment rights.

In order to protect these rights it is necessary to have either a court or another place to which one can apply if there are any problems. Since the courts were already very busy, the government set up separate tribunals to deal with specific types of rights.

Types  of  tribunal  There are different types of tribunal. They include:

• Employment tribunals • Social security tribunals • Immigration tribunals

Employment tribunals only hear cases connected to employment. For instance they hear claims for payments for people who are made redundant from their job, or who have been discriminated against because of their sex, race or age, or who claim to have been unfairly dismissed from work.

Social security tribunals hear appeals from the refusal to grant certain state benefits. These include payments for people who are suffering from a disability.

Immigration tribunals hear claims from immigrants against a refusal to allow them to stay in this country.

These are only a few examples; there are many more tribunals.

Composition  Since the various tribunals have been set up over a number of years they do not all operate in the same way. However, the majority will have a panel of three people sitting to decide the case. The chairman will usually be legally qualified. The other two members will have some experience or specialist knowledge in the particular subject matter of the tribunal.

For instance in any tribunal where there is a question involving health, the two law (non-lawyer) members will be doctors; in employment tribunals one will be from an employers’ organisation and the other from an employees’ organisation, often a trade union.

Procedure  The procedure for each tribunal varies, with many using no formal rules of evidence or procedure. Employment tribunals are the most formal and their procedure is very similar to that of a court. Social Security appeals tribunals are less formal. In all tribunals individuals are encouraged to bring their own case and not to use lawyers.

Public funding is not available for most tribunals so that anyone wishing to be represented by a lawyer will have to pay his or her own legal fees.

Public funding is only available for a very small number of tribunals. These are mainly ones where the individual’s liberty is an issue such as the Mental health Review Tribunal which decides if a refusal to release a mental patient from hospital is justified and immigration tribunals where the immigrant is at risk of being deported from this country.

 

Advantages  of  tribunals  There are many advantages to using this system of tribunals instead of courts.

1. It is cheaper since there are no expensive lawyers’ fees to pay as most applicants represent themselves. In employment tribunals, people are more likely to be represented by a lawyer than at social security tribunals.

2. The proceedings are less formal than a court, making it easier for ordinary people to start proceedings and conduct their own case.

3. Each tribunal specialises in one type of case so that they become expert in that area. In addition the two lay members will have their own specialist knowledge of the subject.

4. Cases are dealt with more quickly than in the courts.

Disadvantages  of  tribunals  Although there are advantages to using tribunals, the system also has some drawbacks.

1. Applicants who have no lawyer are less likely to win their case. One of the main problems in tribunals is that although the individual will not have a lawyer, the employer or government department on the other side is likely to have its own lawyer.

2. Government funding for legal representation is not available 3. Although the procedure is comparatively informal, many people still find it confusing and

intimidating. The fact that each tribunal is likely to have its own methods adds to this confusion.

4. The specialist knowledge of tribunals may make an applicant feel at a disadvantage since he or she will not share that knowledge

5. Tribunals do not always operate quickly. It is normal for employment cases to take a year or more to be heard and if the case goes to appeal there will probably be another year to wait.

Reasons for having tribunals

To protect individual rights To stop the courts from being over-loaded To provide specialist tribunals dealing with one area of law

Types of tribunal Employment tribunals Social security tribunals Immigration tribunals Mental Health Review tribunal There are many more

Composition and procedure Usually a panel of three (chairman and two lay members) Some tribunals are quite formal, for example employment Other tribunals are quite informal, for example social security

Advantages of using tribunals

Cheaper than the courts Less formal than the courts Specialise in one type of case Quicker than using the courts

Disadvantages of using tribunals

Those without lawyers are less likely to win case Public funding is not normally available for tribunal cases People still find the procedure confusing and intimidating Applicant may feel at a disadvantage as they do not share the specialist knowledge which the panel have There can be delays

Alternative Dispute Resolution (ADR) We will now look at methods of resolving disputes, which are quite independent of the legal system. Remember that in civil cases it is the claimant who decides whether or not to start a court case. People do not want to start a case unnecessarily and will usually try to settle the problem in another way where possible. Alternative Dispute Resolution (ADR) has become popular, especially with businesses, as a cheap and quick way of sorting out a dispute. ADR takes a number of different forms. The main ones are:

• Negotiation • Mediation • Conciliation • Arbitration

In the first three the parties are encouraged to come to a settlement themselves, instead of allowing another person (a judge or arbitrator) to make a decision. Arbitration is different as this is where the parties get an independent arbitrator to decide the dispute.

NEGOTIATION

Anyone who has a dispute with another person can always try to resolve it by negotiating directly with them. This has the advantage of being completely private, and is also the quickest and cheapest method of settling a dispute. If the parties cannot come to an agreement, they may decide to take the step of instructing solicitors, and those solicitors will usually try to negotiate a settlement.

In fact, even when court proceedings have been commenced, the lawyers for the parties will often continue to negotiate on behalf of their clients, and this is reflected in the high number of cases, which are settled out of court.

Advantages  of  negotiation  1. Negotiation is much quicker than taking a case to court. 2. It is more convenient as the parties can conduct the negotiation in writing, by telephone

or by email. 3. It is informal. People refer this to the formality of court proceedings. 4. It also allows the parties flexibility in the terms of their settlement. The court can

only award damages (money) but in negotiation the parties may agree other matters as well as or instead of a money settlement. These could include future business terms, or giving a consumer a voucher to use on future purchases.

5. Negotiation is much cheaper than taking a case to court. If the parties can come to an agreement between themselves there are no lawyers’ costs. The only cost will be postage on letters, or the cost of telephone calls. It is also the cheapest method of ADR as no other people are involved.

6. All negotiations are conducted in private. The agreement will not be made public. Court proceedings are open to the public and high-profile cases may even feature in newspapers or on TV.

Disadvantages  of  negotiation  1. There may be an imbalance of power. In particular, this will occur where one party is

an individual and the other party a big business. 2. The parties may not be able to come to an agreement. If they cannot, then they will

have to try another method of resolving the dispute. 3. If the dispute involves a point of law, the parties will not have the necessary legal

knowledge to deal with it. They will either have you use lawyers to negotiate or take the matter to court.

Mediation

This is where a neutral mediator helps the parties to reach a compromise solution. The role of a mediator is to consult with each party and see how much common ground there is between them. The mediator will explore the position of each party, looking at their needs and carrying offers to and fro, while keeping confidentiality.

A mediator will not usually tell the parties his own views of the merits of the dispute. The role is to act as a ‘facilitator’, so that the parties reach an agreement. However, a mediator can be asked for an opinion of the merits, and in this case the mediation becomes more of an evaluation exercise, which again aims at ending the dispute.

Advantages  of  mediation  1. Using mediation is quicker than taking a case to court 2. It is also more convenient than using the courts, as the parties can agree where and

when the mediation will take place. 3. It is less formal than a court case. 4. It allows the parties to continue with their business relationship. Court proceedings are

about winning a case and leave bad feelings between parties. Mediation is about the parties reaching an agreement with which both parties are happy.

5. Mediation is cheaper than a court case. There will be fees for the use of a professional mediator but these fees are not that expensive. In family cases, it is also possible to get public funding for mediation.

6. Mediators are trained in the art of mediation and are often expert in the area of the dispute

7. Mediation takes place in private and is not publicised in the media

Disadvantages  of  mediation  1. One party may be intimidated by the mediator. This may lead to a party agreeing a

settlement, which is not very favourable to them. This could not happen in a courtroom. 2. Mediators are not always legal experts, so they may not appreciate or be able to deal

with it if there is a point of law in the case 3. Mediation may not work. There is no guarantee that a settlement will be reached. If

there is no settlement it will still be necessary to take court proceedings. The mediation will then have added to the costs and time of the case with no result. An example of a failure to reach a settlement happened in the divorce between Sir Paul McCartney and Heather Mills.

4. A mediation statement is not binding unless the parties agree that it shall be. If this is not agreed then it cannot be enforced in the courts.

Concil iation

This has similarities to mediation in that a neutral third party helps to resolve the dispute, but the main difference is that the conciliator will usually play a more active role. The conciliator will be expected to suggest grounds for compromise, and the possible basis for a settlement.

Advantages  of  conciliation  The advantages of conciliation are similar to mediation. It is quicker and cheaper than going to court. It is also convenient as the parties and the conciliator can arrange where and when the conciliation will take place.

As with mediation, conciliation allows for parties to include terms about future business deals, and helps the parties continue in their business relationship. It is private and terms of any settlement will not be open to the media.

Conciliators are trained and are often expert in the particular type of dispute.

There is one point, which may be an advantage over mediation. The conciliator has the power to suggest terms and advise parties on the offers made by the other side. This means that a settlement is more likely to be achieved.

Disadvantages  of  conciliation  Again the disadvantages are similar to the disadvantages of mediation Conciliators are not always legal experts. The conciliation may not lead to a settlement, so that the case still has to go to court. Also the settlement is not binding unless the parties agree to this.

An additional disadvantage is that one of the parties may feel the conciliator’s suggestions and advice are not truly neutral. The conciliator may appear to favour one party. If this occurs then the party feeling at a disadvantage is not likely to agree to any settlement.

Arbitration

Going to arbitration means that the parties voluntarily agree to have their dispute judged by another person privately, not in court. They agree to accept the decision as final.

The  agreement  to  go  to  arbitration  The agreement to go to arbitration is often made in writing at the time the parties made their original contract. At this time, of course, there would have been no dispute, but he agreement would be aimed at any possible future disputes. This type of arbitration agreement is known as a Scott v Avery Clause, being named after a case in 1855.

Many organisations automatically include arbitration clauses in any contracts made. In particular arbitration clauses are commonly found in car insurance contracts and contracts for package holidays. The example below is an example from a holiday brochure.

“Disputes arising out of, or in connection with this contract which cannot be amicably settled may be referred to arbitration under a special scheme arranged by the Association of British travel Agents and administered independently by the Chartered Institute of Arbitrators. The scheme provides for a simple and inexpensive method of arbitration on documents alone with restricted liability on the customer in respect of costs.’

Apart from making an arbitration agreement at this early stage, it is possible to agree to go to arbitration after a dispute arises.

When people agree to use arbitration the courts will normally refuse to allow them to take proceedings in court instead of going to arbitration.

Using  arbitration  Arbitration is popular with businesses and is used by many companies. International companies often use what is called the London Court of Arbitration to resolve their disputes. There is also the Institute of Arbitrators, which provide arbitrators for major disputes.

Apart from these major disputes, arbitration is also used as a way of resolving disputes between businesses and customers in a variety of services and industries.

The difference between arbitration and other forms of ADR is that in arbitration the arbitrator makes a decision and both parties are then bound by that decision, while in other forms of ADR the parties either negotiate directly to come to a settlement or are helped to come to an agreement by a neutral third party.

The  arbitrator  An arbitrator can be anyone whom the parties agree should decide their case. The arbitrator may be a lawyer who specialises in the type of law involved in the dispute or may be a non-lawyer who is a technical expert in the area involved.

This second type of arbitrator is often used where the dispute is over the quality of goods or work done. An example would be an engineer being asked to make a decision in a case about faulty machinery. The agreement to go to arbitration will generally name, or provide a method for choosing, the arbitrator.

The  award  The decision of the arbitrator is called an award. The award can be enforced in the same way as a judgment of the court. There is normally no appeal from a decision made by an arbitrator.

Advantages  of  arbitration  There are many advantages to using arbitration instead of going to court:

• The parties can make their own rules as to how the arbitration should be conducted. This means that they can choose either a formal hearing with witnesses giving evidence on oath in a similar way to a court hearing or they can agree to a more informal hearing. They may even agree that all the evidence will be put in as documents and have a ‘paper’ arbitration with no witnesses.

• The time and the place of the hearing can be arranged to suit the parties. Where suitable the hearing may be in the evening or at a weekend so as not to interfere with business.

• The whole case will take place in private, so that business disputes are not made in public. If a case goes to court the hearing is almost always open to the public.

• The case will be finished more quickly than in the courts. • An expert, rather than a judge decides questions of quality. This can also save time

since the parties will not have to waste time explaining technical points. • It is much cheaper than going to court. Some estimates suggest that a court case costs

10 times more than an arbitration hearing. This is particularly true if the parties agree that they will not use lawyers at the hearing.

Disadvantages  of  arbitration  As with all schemes, however, there are some disadvantages:

• Arbitration is not always cheap. If the parties use a professional arbitrator from an organisation such as the London Institute of Arbitrators, the charge for such an arbitrator could be over £1000 per day. In addition, if the parties use lawyers to present their cases at the hearing. The costs may well be the same as going to court.

• An individual with a dispute against a big business may feel at a disadvantage. Legal aid is not available for arbitration hearings, although it may be if the same dispute were heard in court, sot he individual will either have to do without a lawyer or pay their own costs.

• The fact that there is no general right of appeal can be a disadvantage. • Arbitration is being increasingly criticised as being almost as costly and time-consuming

as going to court and many companies now prefer to use ADR