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