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AS Level Law. Machinery of Justice Alternative Dispute Resolution. 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.

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as level law
AS Level Law

Machinery of JusticeAlternative Dispute Resolution

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

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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?
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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