Advantages and Disadvantages of Legal Machinery of Justice

1. AS Level Law Machinery of JusticeAlternative Dispute Resolution

2. AS Level Law What you need to know and discuss: • the advantages and disadvantages of the traditional courts as a forum for resolving disputes. • the role of tribunals. • the contribution made by arbitration, mediation and conciliation. • whether the consumer of these various alternatives receives effective advice and guidance on the range of options available.

3. AS Level Law Introduction • most disputes are resolved informally however • this is sometimes unsuccessful or inappropriate therefore • a formal mechanism is required to ensure a fair resolution • the courts are the most obvious option but may also be inappropriate in some circumstances • other formal/semi-formal options have developed to complement the courts

4. AS Level Law Limitations on the courts • cost - expensive and sometimes disproportionate • delay - litigation is lengthy and time-consuming • inaccessibility - formality can be intimidating • inappropriateness - adversarial nature may be undesirable - e.g. family disputes • incapacity - court system could not cope with all disputes needing formal resolution

5. AS Level Law nevertheless • courts still have a vital role to play: • resolving cases not suited to ADR - e.g. criminal cases • overseeing ADR to ensure fairness and quality

6. AS Level Law Tribunals • Aim = quick, cheap, informal justice • Administrative (Public) Tribunals: • e.g. social security, employment • created by statute • 3 member panel (legally-qualified chair, 2 lay experts) • informal procedures • appeal on point of law to the High Court • supervised by QBD via judicial review • monitored by Council on Tribunals (est. 1958)

7. AS Level Law • Domestic (Private) Tribunals: • concerned with conduct/discipline of members of a profession - e.g. doctors. solicitors • subject (like admin. Tribunals) to rules of natural justice and fair procedure • supervised via judicial review • may be specific provision for appeal - e.g. to the Privy Council from the GMC

8. AS Level Law • advantages: • quick • cheap (absolute and relative cost) • informal and accessible • expertise (lay experts, limited jurisdiction) • capacity - tribunal system deals with approx. 1,000,000 cases per year

9. AS Level Law • potential disadvantages: • poor quality decision-making (speed, informality) BUT safeguards: natural justice, appeals, judicial review, Council on Tribunals • bias against inexpert claimants BUT safeguards: as above + balanced membership (e.g. Employment Tribunals) • representation: often allowed but legal aid rarely available - Access to Justice Act 1999 reforms may redirect resources • major review of administrative justice recently completed - Leggatt Review

10. AS Level Law Arbitration • arbitration is the reference of a dispute to an independent third party (arbitrator) for determination (award) • private arrangement, but regulated by statute and supervised by the courts • three common areas: • commercial (avoids costs, delay and bad feeling of commercial litigation)

11. AS Level Law • industrial (via ACAS) • consumer (trade association schemes in conjunction with the OFT- e.g. ABTA) • advantages: • quick, cheap, informal/accessible • expertise (often use member of Chartered Institute of Arbitrators) • private (protects commercially sensitive information) • convenient (takes place at a time and place to suit the parties)

12. AS Level Law • potential disadvantages: • poor quality decision-making BUT safeguards: natural justice, statutory framework, judicial review, professional abitrators • bias BUT safeguards (see above)

13. AS Level Law Mediation and Conciliation • forms of ‘assisted settlement’ rather than ‘alternative adjudication’ • role of the third party is to help the disputing parties reach a mutually agreed settlement

14. AS Level Law Advice and Guidance • consumers receive insufficient advice and guidance on mechanism most suited to their problem • some parts of USA operate ‘multi-door’ courthouse • CABx could play this role in UK? • Access to Justice Act 1999 reforms may help here • use new technology? - Online Dispute Resolution (ODR)

15. AS Level Law Conclusion • wide and growing range of ADR mechanisms • courts still have a vital role to play • use of ADR could be more effective if better advice and guidance available - various reviews, AJA reforms and new technology (ODR) will hopefully help here

16. AS Level Law Revision Headings: ADR - Intro ADR - Limits on Courts ADR - Admin Tribunals ADR - Domestic Tribunals ADR - Ads/Disads of Tribunals ADR - Arbitration ADR - Mediation & Conciliation ADR - Advice & Guidance ADR - Conc

17. AS Level Law Test Questions: Using your cards, you should now be able to write a short paragraph in response to each of the following questions: • What are the limitations of the courts as a forum for resolving disputes? • What important roles do the courts continue to play? • Discuss the contribution made by tribunals to dispute resolution. • What are the advantages and disadvantages of arbitration, mediation and conciliation? • Do consumers receive adequate advice and guidance on the range of dispute resolution mechanisms available to them?

18. AS Level Law Useful Websites: • Dealing with problems without going to court • The Leggatt Review of Tribunals • Chartered Institute of Arbitrators • ACAS • Information on mediation • ODR