AS Level Law - PowerPoint PPT Presentation

Machinery of JusticeAlternative Dispute Resolution

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.

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

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

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

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)

• 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

• 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

• 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

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)

• 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)

• potential disadvantages:

• poor quality decision-making BUT safeguards: natural justice, statutory framework, judicial review, professional abitrators

• bias BUT safeguards (see above)

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

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)

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

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

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?

Useful Websites:

• Dealing with problems without going to court
• The Leggatt Review of Tribunals
• Chartered Institute of Arbitrators
• ACAS
• Information on mediation
• ODR