Tribunals, ADR and ODR

Two main alternatives to the Court System

Tribunals = an informal method of dispute resolution developed under for issues arising under the Welfare State

ADR = A key recommendation of Lord Woolf

Tribunals

Structure

Role

Advantages

Disadvantages

Separated at first instance into 7 divisions, each dealing w/ specific areas of law e.g. Social Entitlement, Taxation, Health, Education and Social Care

Then move onto 4 divisions for appeals e.g. Administrative Appeals, Tax and Chancery, Lands, Asylum

First tier deal w/ 600,000 cases py

Set up alongside the Welfare State and are an important part of the legal system

Enforce the rights granted under the Welfare State

E.g. right not to be discriminated against

Organisation

As welfare develpments happened, more Tribunals were set up which led to over 70 different types

This was reformed under the Tribunals, Courts and Enforcement Act 2007

They run alongside the usual court system and must be used instead, not before

Composition

Usually 1 judge sits who has an inquisitive role when not represented

2 non-lawyers can sit that are an expert in the field

Procedure

Can sometimes be formal w/ witness such as Employment or Aslum

Employment Tribunal and Appeal run in isolation

Legal aid is not usually available except in Employment where they are usually represented by their trade union

Cheaper and often quicker than going to court as often last 1 day and no legal rep

Informal due to lack of representation and held in private

Some legal aid is available for HR and Mental Health

Heard in a panel of three - expertise

Public funding not available in most cases

High-rate applicants will have a lawyer giving an unfair advantage

More formal than ADR - scary

High volume of cases means there is often a delay

ADR

Negotiation

Mediation

Concilliation

Arbitration

Where an individual attempts to resolve an issue directly, privately and possibly face to face w/ the D

Most basic form of ADR

E.g. Noise caused by neighbours, returning faulty goods

Advantages

Potentially the quickest, cheapest and most informal way of settling a dispute as no lawyers are involved

No need to use others

Used at any point

Resolution can include the future

Disadvantages

may not be succesful

Not useful when parties are antogonistice

If there are repeated negotiations, it may prolong the issue

Where a neutral 3rd party attempts to resolve a dispute w/o their opinion

Slightly more formal than negotiation, but still relatively informal

Advantages

Parties are in control of proceedings and decsisions

Based on common sense rather than legal rules

Disadvantages

Will only work if parties cooperate

Decisions are not binding

Monetary issues are smaller

A form of mediation where a 3rd party is active is raising ideas for a compromise

Agreed upon by both parties

If it goes to court, what is said here cannot be used so people are more open

Advantages

More formal than mediation

Active role means a wide range of ideas

Does not need to be a law based decision

High number of case resolves - 80% of the Centre for Dispute Control

Disadvantages

Can require confrontation w/ the other part

Couples therapy, Business negotiating contracts

Decision of conciliator is not binding

Parties may still need to go to court

Cases of alleged discrimination; employment dispute (Stacy); family law matters

2 Kinds

Where courts use an informal procedure to hear cases

Where parties agree to submit their cases to private arbitration - this one

Governed by the Arbitration Act 1996 o give parties freedom on how their dispute should be solved

Scott v Avery Clause in contracts may mean that a case will go here first

s.15 of the AA 1996 states that the parties are free to chose a single arbitrator or a panel and who will sit

The Institute of Arbitrators provides trained arbitrators for major disputes

The arbitrator will usually be an expert, including a lawyer

Witnesses can be called but they are not normally put under oath

Paper Arbitration is also an option

Decisions are binding and can be enforced by the courts and it can be challenged at the court level on a point of law

Disputes between employers and employees using ACAS

Advantages

An agreement to arbitrate can be made at any time

Usually included into a contract - Scot v Avery

Decision is binding and can be enforced through the courts

Parties can decide on the formalities and arbitrators

Usually an expert

Private

Award is usuallyfinal

Disadvatages

Parties may not be on equal footing

An unexpected legal point may arise

Professionals will have fees

Appeal is limited

Delays can nearly be as large as a courts

ODR and Online Courts

ADR has long-since been championed or saving both time and money and Woolf's 1990s reforms have done this

Since 2015, the govt has been looming into ways to develop online courts and ODR

The Govt tasked the Courts and Tribunals Judiciary Service to look at ways internet technology at solving low-level civil cases. Their proposals included...

Allowing senior judges to look at the case and court papers and decide the outcome of a case online

Using an online facilitator, a person who would bring together parties virtually to negotiate and act as a mediator to resolve cases that don't need to go to court

This is already used on sites such as Ebay where 60,000 cases are solved py with guidance and strict time limits

Resolver solves online disputes between retailers and suppliers

The Financial Ombudsman service solves 1/2 Million financial disputes py and was set up by statute as a mandatory ADR of finance

Advantages

People can do it from their own home

Many sites give prompts and choices so issues are explained easily

Some sites are free - a charge is likely to be a set amount and known at the start of the process. No hidden costs or need to use lawyers

Where disputes are international, ODR means no-one has to leave the country, saving money

As many businesses work worldwide, ODR makes it easier

Disadvantages

Only suitable for certain types of dispute

Particularly useful for a contract dispute as with eBay but not for issues such as a car accident where it is necessary to see who is telling the truth

Parties must accept the decision otherwise proceedings may continue