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

Efficient slide for revision - contain different types of ADR

Typology: Lecture notes

2020/2021

Uploaded on 07/10/2021

sj-wong
sj-wong 🇲🇾

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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