alternative methods of dispute resolution (adr) civil law stage 1

ALTERNATIVE METHODS OF DISPUTE RESOLUTION (ADR)

CIVIL LAWStage 1

PROBLEMS USING THE COURTS IN CIVIL CASES

• Using the courts to resolve disputes can be costly in terms of both time and money

• It can be traumatic for the individuals involved• It may not lead to the most satisfactory outcome• The dispute may come into the public domain

through the press• Consequently many businesses and people are

turning to alternative methods to resolve disputes

TYPES OF ADR

ADR

Tribunals Mediation

Arbitration Conciliation

Negotiation

Ombudsman

NEGOTIATION• Anyone who has a dispute

with another person can negotiate a settlement privately

• If disputing parties cannot reach an agreement they can ask their solicitors to negotiate a settlement on their behalf (this is more costly

• Often a dispute can drag on for years only to be resolved ‘at the door of the court’

MEDIATION• A neutral mediator helps the two parties to reach a

compromise• The mediator consults with each party to determine if

they are willing to reach a compromise. The mediator will only agree to help if there is a chance a solution can be reached.

• The mediator will carry possible solutions to the dispute until the problem is resolved

• The mediator acts as a ‘facilitator’ to reach agreement and will not normally offer their own opinion or suggest a solution

• Under mediation it is the parties who are in control: they make the decisions

• An example of mediation services includes: the Centre for Dispute Resolution and www.theclaimroom.com

CONCILIATION

• Conciliation is similar to mediation but instead the ‘conciliator’ plays a more active role offering solutions to the dispute

• The Advisory Conciliation and Arbitration Service (ACAS) can provide conciliation services

ARBITRATION

• Arbitration in terms of ADR is a also known as Private Arbitration

• The rules and procedures for taking a claim to arbitration are covered by the Arbitration Act 1996

• ACAS can provide independent arbitration services

Arbitration hearing

• There are many forms of arbitration hearing e.g.

• The decision made by the arbitrator is called an ‘award’ and it is binding on all parties

‘Paper’ arbitration hearing

A more formal hearing where disputing parties have to put their case

Ombudsman• The Ombudsman offers

protection against bad government administration to citizens

• The ombudsman is not able to investigate personal matters or initiate an investigation.

• There are several types of ombudsman e.g. The Legal Service Ombudsman

TRIBUNALS

• Tribunals are similar to the courts but they act outside of the court system

• Most tribunals were established after the development of the welfare state post 1945

• Tribunals were set up to give people a method of enforcing their entitlement to certain social rights

• They therefore deal with disputes between the citizen and the state

TYPES OF TRIBUNAL

TYPES

Rent tribunalsSocial security tribunals

Employment tribunals

Mental HealthReviewTribunal

Immigration tribunals

Administrative tribunals

Composition of tribunals

• Since the different tribunals have been set up at different times, they do not operate in the same way

• However, the majority of tribunals sit with a panel of three: a legally qualified chairman and two lay members with particular experience in the work of that tribunal

• Tribunals are designed to encourage individuals to bring their own case and not use lawyers

Employment Tribunals

• These were originally called industrial tribunals

• They were set up under the Industrial Training Act 1964

• The role of employment tribunals is to cover all aspects of work-related disputes e.g. unfair dismissal

Control of Tribunals

• The Tribunals and Inquiries Act 1958 set up the Council on Tribunals

• Control by the Courts – this can occur either through an appeal route or the QBD can hear applications for judicial review against tribunal decisions