Civil Dispute Resolution Civil Courts and ADR The Civil Courts and other forms of Dispute Resolution...

Civil Dispute ResolutionCivil Courts and ADR

The Civil Courts and other forms of Dispute

Resolution

Other forms of civil dispute resolution

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http://www.thelawbank.co.uk/


Objectives• State reasons why there is a need for other forms of

dispute resolution

• Describe the people involved in each of the other forms of dispute resolution

• Outline the procedures in each of the other forms of dispute resolution

• Allocate types of dispute to each form

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Key Terms• Tribunal• Administrative tribunals• Domestic tribunals• Alternative Dispute Resolution (ADR)• Chartered Institute of Arbitrators (CIA)• Advisory, Conciliation and Arbitration Service (ACAS)• Mediator• Conciliator• Negotiation

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Reasons for Alternatives • When a dispute cannot be resolved parties often

end up in civil court• For many reasons these courts are not always the

most appropriate. – Expensive– Slow– Specific procedures need to be followed

• Alternative methods have developed/been created • Less costly, speedier and less procedural

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Tribunals• Growth in legislation affecting people’s private lives

– Employment laws– Social security benefits– Housing – Education

• These laws often end up in disputes• Need a system to resolve these disputes• Courts would not be able to cope – so tribunals

created• Fast, inexpensive

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Tribunals• Franks Committee 1957 recommended:

– Independent– Openness– Accessible

• As a result Tribunals and Enquiries Act 1958 • Created Council of Tribunals

– 15 members – observe cases an deal with complaints – Cannot insist on reforms (can make recommendations)– E.g. Gvt set up Leggatt Committee 2001 (all tribunals dealt

with under Tribunals Service from 2006)

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Types of disputes dealt with by tribunals

• Two main types:– Administrative – Domestic

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Administrative Tribunals• Disputes between individual and state• Will apply law to the dispute between the parties

– Social Security Appeal Tribunal– Immigration and Asylum Tribunal – Mental Health Review Tribunal

• Some deal with disputes between individuals– Rent Tribunals– Employment Tribunals

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Domestic Tribunals• In-House Tribunals• Professional bodies• Apply rules of the organisation to the dispute

– Solicitors disciplinary Tribunal– Bar Council– General Medical Council– Football Association

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People Involved• Mostly three members

– Legally trained chairperson (e.g. qualified lawyer)– Two lay members (have expertise in area)

• Employment Tribunal – Legally qualified chairperson (Employment Judge)– Two lay members with experience of industry and commerce

• Some tribunals have a chairperson with expertise not legal qualification

• Generally parties encouraged to represent themselves • Parties attend as well as witnesses

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Procedure• Parties and their witnesses give evidence• All available for questioning by other party,

chairperson, lay members• Panel’s judgement based on law,, evidence,

arguments• Not bound by strict rules of judicial precedent• No need to employ a lawyer• May represent themselves, represented by a

friend or someone with an understanding (TU)

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Procedure• Tribunals are free (no fees charged)• Employment Tribunal fee from April 2013• If chooses a lawyer unlikely to get public funding• Exceptions:

– Mental Health Review Tribunal– Employment Appeal Tribunal

• Each party meets own legal costs regardless of outcome• Helps discourage use of lawyers and keeps costs down• Costs can be awarded if a party behaves unreasonably

during case

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Procedure• Most obliged to give reasons for decisions• This allows for more appeals• Appeal may be to other tribunal –

– Employment Tribunal to Employment Appeal Tribunal to Court of Appeal

• Appeals only on point of law• Must follow rules of natural justice

– Parties given time to prepare and fair hearing

• QBD of High Court can look at decision if claimed that rules of natural justice not followed

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Alternative Dispute Resolution (ADR)

• LJ Woolf – 2 year investigation into reform of civil justice system

• Report in 1997 proposed streamlining of civil court procedure and more use of ADR

• Civil Procedure Rules 1998 – courts need to encourage more ADR

• Courts do not have power to force parties to ADR (as breaches Article 6)– Halsey v Milton Keynes General NHS Trust (2004)

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Alternative Dispute Resolution (ADR)

• If party unreasonably refuses to try ADR and then wins case at court

• They may not be awarded costs to be paid by losing party– Dunnett v Railtrack plc (2002)

• 4 ways of ADR:– Arbitration– Mediation– Conciliation– Negotiation

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Arbitration

• Parties refer dispute to third party• 3rd party acts like judge & give decision on

dispute• This is called an award• Arbitrator usually has legal and specialist

knowledge – E.g. surveyor in building dispute

• Governed by Arbitration Acts 1979 & 1996

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Arbitration – Types of dispute

• May arise in a number of ways:– Most large commercial contracts will contain an arbitration

clause– A number of trade and professional organisations offer an

arbitration facility• E.g. ABTA can arbitrate between a holiday company and holiday

makers• Most disputes use the arbitration process and the Chartered

Institute of Arbitrators (CIA) can suggest an arbitrator

– If claim started at the Employment tribunal copy of claim and response automatically sent to Advisory, Conciliation and Arbitration Service (ACAS)

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Arbitration – People involved

• Arbitrator independent of the parties• Usually an expert in the area of dispute• Parties may name a specific arbitrator in their

contract• Or may name a professional body that can

appoint one if needed• Parties will present their cases to the arbitrator

and will involve witnesses

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Arbitration – Procedure

• Covered by Arbitration Act 1996• Agreement must usually be in writing• But how it proceeds is up to parties to agree• May include an arbitration clause in original

contract• This may commit them to arbitration in event of

dispute• Known as the Scott v Avery clause

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• Scott v Avery clause:– Specifies who will act as arbitrator– Or the process for appointing one

• Where this type of clause is included court will refuse to deal unless it has gone to arbitration

• Act sets out the powers of the parties to shape process according to their needs

• Also sets out power of the arbitrator • Both parties and the arbitrator agree procedure

together

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• Hearing set at time and place convenient to all• Hearing is carried out in private• Each party puts forward its own arguments & evidence either

orally or in writing• Witnesses may be called to give evidence and be cross

examined• Arbitrator makes the final decision (the award)• This is binding• Also has power to order one party to pay money to the other• Order can be enforced through courts

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• Arbitration process is free• Arbitrator will charge a fee• May be shared or paid by just one party• Although legal representation allowed it is

discouraged• No automatic right of appeal• Under s68 of the 1996 Act party may appeal to

High Court is there is ‘serious irregularity’• Under s69 party may appeal on a point of law

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Mediation

• Process by which third party acts as a messenger between parties to assist in resolving dispute

• Parties do not have to meet and mediator will pass on offers, counter-offers and comments

• Mediator helps define issues but parties must cerate solution

• Mediator does not act as an advisor• May be selected from mediation bodies such as

Centre for Dispute Resolution (has 300 trained)

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Mediation – Types of disputes

• Family Law Act 1996 encourages separating couples to use mediation instead of court

• If a party wants public funding must have attempted mediation first

• Disputes over children, property and finance• Growing number of services aimed at resolving

small disputes• E.G. West Kent Independent Mediation Service

– neighbour dispute over noise and boundaries

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Mediation – People involved

• Mediator organise the mediation at a time and place convenient to all parties

• Parties will attend with legal adviser (if any)• Mediator will pass on information from one party

to another• Parties may be in separate rooms if they prefer

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Mediation – Procedure

• Takes place in private and neutral setting• Procedures vary but usually each party puts forward

its position followed by private meetings between mediator and each party in turn

• Mediator acts as go-between• Two parties communicate and negotiate through

mediator• Mediator remains neutral and makes NO suggestions• Cannot force settlement on parties

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Mediation – Procedure

• Encourages both parties to reach an agreement• Each party may be legally represented but this is

discouraged• Each party must meet own legal cost• Public funding available for family mediation• Witnesses rarely involved• If agreement reached this may be written down• If parties agree it becomes legally binding• Agreement enforceable by Civil Courts• If no agreement may be taken to court or tribunal

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Conciliation

• Similar to mediation• However, conciliator can intervene in process• Actively suggestion terms of settlement and

comment on terms • Important for parties to realise conciliator is

neutral and not acting as their representative (such as a lawyer)

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Conciliation– Types of disputes

• ACAS operates a conciliation scheme in industrial disputes (e.g. Employment Tribunal cases)

• In these ACAS will be sent copies of employee’s claim and employers response

• ACAS representative is an expert in employment law

• And with agreement can act as a conciliator

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Conciliation– People involved

• Conciliator will organise at a time and place convenient to all

• Parties attend with legal advisers (if any)• Conciliation will proceed as mediation except for

conciliators added powers of intervention

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Conciliation– Procedure

• Similar to mediation– Conciliator and parties meet– Conciliator listen to grievances– Make suggestions on how it can be resolved– If parties agree is made legally enforceable– If no agreement can then go to court or tribunal

• Mediation and conciliation very similar• ACAS is a good example of arbitration and

conciliation

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Negotiation

• Usually first method in trying to resolve a dispute• Parties communicate directly with each other• Try to agree matters without going to court• Face to face, telephone, e-mail, text etc• If either or both parties legally represented lawyers

may negotiate with other lawyer or directly with the other party

• Many cases settled on morning of court hearing• May also be carried out by non-legally qualified

representatives (e.g. Trade Union Official)

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Negotiation – Types of Dispute

• Any dispute may be settled by negotiation• Mediation and conciliation are forms of

negotiation• They use third parties though• Low-key disputes best resolved by negotiation

without expensive court action• Neighbour disagreement or dispute between

plumber and home-owner are examples

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Negotiation – People involved

• Only people are the parties themselves or their representatives

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Negotiation – Procedure

• No fixed procedure• Often a meeting will commence with each party

stating their position• Must focus on issues not personalities• Will require compromise• No costs involved unless representatives are

involved (then parties will pay their own costs)• Lawyers often encourage agreement before

court

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Objectives• State reasons why there is a need for other forms of

dispute resolution

• Describe the people involved in each of the other forms of dispute resolution

• Outline the procedures in each of the other forms of dispute resolution

• Allocate types of dispute to each form

36


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