Alternative Dispute Resolution (ADR) and Tribunals: A Comprehensive Guide, Lecture notes of Law

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ADR & Tribunal

Problems of using court

• Time consuming
• Costly
• Formal & complex
• Proceeding not private
• Not the most satisfied outcome
• Must be winner & loser
• Some are technical in nature (judge dk all pro knowledge)

❑ACAS : Employment case

• Copy of claim for employment tribunal will be sent to Advisory Conciliation & Arbitration Service (ACAS)
• ACAS then contact 2 parties & offer to help them resolve without needing to go tribunal
• But the amount awarded is less than in tribunal

Negotiation

• Not counted as an ADR formally
• Both parties come to an agreement on best way to settle
• If parties cannot agree, may ask for a solicitor to negotiate

❑Formalised settlement conference

• ‘mini-trial’ – parties present its case to decision-making executive from each party
• A neutral party will advise the executive
• If executive not agree, neutral party can act mediator
• If still not solve, it can at least narrow down and easier when going to court ❑ADV : - parties can continue do business with each other in future
  • avoid adversarial conflict & no winner/ loser effect (everyone win) ❑DISADV : - no guarantee case can be solved
  • may have additional cost & delay 对抗

Conciliation

• Almost same as mediation
• But the conciliator play more active role
• He suggest ground for compromise & possible way to settle
• In industrial dispute : ACAS can give impartial opinion 调解

Agreement to arbitrate

❑ Commercial claim

• Many commercial contract got ‘ Scott v Avery ’ clause :
  • the parties agree to use arbitration if got dispute
• If got arbitration agreed in contract, Arbitration Act 1996 states that court normally refuse to deal with that case

❑ Consumer claim

• Can choose small claim track / use private arbitration

Arbitrator

• Parties can freely :
• to appoint number of arbitrator : if both cannot agree, then only 1 is appointed
• Agree of procedure of appointing arbitrator
• Institute of Arbitrators : provide trained arbitrator (which expertise in certain field)
• If dispute involve point of law, lawyer may be arbitrator

Award

• Award : decision made by arbitrator
• Can be enforced through court
• Can be challenged in court on the point of law

Adv

• can choose own arbitrator
• Arbitrator are expert in certain field
• Flexible
• Dealt with privately
• Cheaper
• Resolved more quickly Disadv
• Unexpected legal point may rise
• Expensive fee if professional arbitrator is used
• Right of appeal is limited Arbitration

Legatt Reform

• Sir Andrew Legatt : Tribunal lack independence (coz dependent on govern departments & administrative support)
• Recommend : a unified tribunal service
• Tribunals Service & Court Service were merged - > Her Majesty’s Courts and Tribunals Service

Tribunal, Courts & enforcement Act 2007

• There were different types of tribunals & used different procedures
• The system was reformed by the act :
• Create unified structure
• First-tier Tribunal : hear cases of first-instance
• Upper-tier Tribunal : hear appeals

Upper-tier

• Appeal from first-tier tribunal
• Has 4 Chambers :
• Administrative Appeals Chamber (hear appeal from social entitlement, health, social care & war chamber)
• Tax & Chancery Chamber
• Lands Chamber
• Asylum & Immigration Chamber

Can appeal further to COA and to Supreme Court (final appeal court)

Composition

• First-tier : - heard by Tribunal Judge
  • Lay member (expertise in certain fields) sit tgt with judge
• In employment tribunal : employee’s & employer’s organisation as lay member