PAPER 1 & 2

ADR CIVIL JUSTICE SYSTEM

This is a part of the Civil Law. However, it is not tested everywhere. You will either get a question on ADR or Civil
Justice system. Easy topic, but make sure there is ample discussion between the effectiveness of all. Ensure that
you provide a great comparison of all types of ADR, based upon flexibility, feasibility, costs, timings, and how
formal it is. Make sure that you always tell the advantages and disadvantages of both. You will most likely
always have to mention Tribunals, don’t skip on that. Usually testes in P1.
Introduction
Dispute resolution proceedings can be complex, both in terms of money and
time. It may also be stressful for the people involved, and may not end in the
situation is the most satisfying outcome. The added complication is that the
legal process is generally open to the public and the internet, so there is
nothing to avoid the details of the case being reported in local or national
publications. Therefore it is not shocking that more and more people and
companies are looking for other ways to settle their conflicts. Alternative
methods are known as' ADR' and stand for' Alternative Dispute Resolution,'
which encompasses any means of settling a conflict without going to court
proceedings. There are many different methods that can be used, from very
casual discussions among the parties to a relatively structured commercial
arbitration hearing.

Encouraging ADR

This part will form the foundation for your answer. Mention the Woolf Report and the CPR, if not, most likely, you'll
if not in detail, just name them. For Woolf's report, you need to know 2-3 points. Also, discuss if you think I was bene
There were many steps in the 1990s to promote the use of ADR: for instance,
the Woolf Report included a stronger use of ADR as one of its guidelines. As a
consequence, the 1999 Rules of Civil Procedure require judges to' pause'
court proceedings that is to temporarily stop the trial, so that the parties can
seek mediation or other ADR approaches.

Employment Cases

Use these for brownie points. 

This is an aspect of Law where alternative dispute resolution in the form of an
ACAS (Advisory Conciliation and Arbitration Service) has long been used.
When any lawsuit is made in an employment tribunal, a transcript of that
petition will be sent to ACAS, who will then notify the two parties concerned
and agree to try to resolve the issue without the need for the case to go to
trial. ACAS has highly trained conciliation agents who have a wealth of
experience in conflicts over jobs. This Service's popularity can be seen from
the fact that it resolves more than half of all claims filed in this manner. There
is critical analysis, though, that the money paid in such settlements is less
than a tribunal would have granted. This demonstrates employees are at a
huge risk and feel under settlement pressure.

Funding of cases
As per the rules governing legal aid, support for a court case is not accessible
if it could be operated with by an alternative method of resolution

It can, therefore, be seen that there is a greater understanding of the use of

alternative dispute resolution in all sorts of issues. Nonetheless, as noted in
this chapter's opening paragraph, ADR requires some means of settling a
conflict other than' going to court,' and it is important to realize that a wide
range of approaches is usable. Negotiation, mediation, conciliation, and
arbitration are the principal ones.

1. Negotiation
Someone who has a disagreement with another party could always try to
settle it through direct communication with them. This has the benefit of
being entirely private and is also the fastest and cheapest way to settle a
disagreement. If the parties are unable to reach an agreement, they may end
up taking the action of instructing lawyers, and those attorneys may typically
try to negotiate a resolution. In addition, even when court proceedings are
started, the plaintiffs' attorneys will often seek to bargain on behalf of their
clients, and this is expressed in the high number of out-of-court mediation
settlements.

There will be an expense factor as attorneys become involved–obviously, the

more the talks can proceed, the greater the costs will be. One of the troubling
things is the number of cases that drag on for years, only to end up simply' at
the court threshold' in a negotiated resolution on the morning the jury is due
to begin. It is this scenario that other alternative methods of dispute
resolution and, in particular, the Rules of Civil Procedure for 1999 are
intended to avoid.

2. Mediation
Most people forget that there are two parts to mediation. You need to discuss both, with their advantages and disa
both types of mediations in their self, and elaborate on which one is best in which scenario. Commentary is essentia
There will be a neutral mediator that lets the sides reach an agreement. A
mediator's job is to meet with each side, and see how much common ground
there is among them. With each party, he/she will discuss the place, look at
their needs, and make proposals to and fro, while preserving confidentiality.
Generally, a mediator will not tell the parties his / her own viewpoints of the
validity of the dispute; acting as a' facilitator' is part of the process so that the
parties come to an agreement.

Therefore, a mediator can be asked for advice on the issues, and in this
situation, the consultation is more of an assessment process and seeks to
resolve the conflict again.

Mediation is only necessary if there is a certain possibility that the parties will
collaborate. Organizations that are used to negotiating contracts within
themselves will most likely benefit from this method. The mediation will take
various forms too, and the parties will choose the exact method they want. In
mediation, the important point is that the parties are in power: they make
the decisions.

Formalized Settlement Conference

Very important this is. Don’t miss out on this. 

Another way of conducting mediation is more structured. This includes a'
mini-trial' in which each side makes their argument to a jury consisting of
each party's decision-making representative and a neutral group. Once all the
applications are made, the executives must assess the views of the two
parties with the aid of the impartial counsel and seek to come to an
agreement. If the executives cannot agree, they will act as a mediator
between the neutral advisers. Even if the whole thing is not settled, it may be
important for this form of action to narrow down the issues so that, if the
case goes to court, it will not take so long.

A benefit of mediation and mini-trials is that it doesn't have to be a strictly

legal action that holds to the letter of the Law. Consumer common sense and
consensus are more likely to be the reason for this. The approach will also
make it easier for companies to start conducting business with each other in
the potential, and it may require arrangements between the parties about
the operation of future business. This is something that can not arise until the
judgment is issued by the judge since the court is dealing only with the
current conflict. This removes the courtroom's adversarial dispute, and the
winner/loser conclusion of court proceedings-it has been said that everybody
gains through mediation.

Mediation Services

This is what will make you stand out from the rest. Mention the online services, family mediation services, free ones
the URL? Then yes, you have to.  You can copy-paste this part as it is. No issues. But do not miss out on this no matt
Commercial mediation facilities are increasing in number. One of the main
ones is the Dispute Resolution Centre, which was founded in London in 1991.
It has several crucial firms as representatives, such as nearly all of the big law
firms in London. Businesses say it has saved several thousand pounds in court
costs by using the Center to resolve disputes. A mediator's typical cost is
about 2,000 £. It contrasts with potential litigation expenses that are often
above £ 100,000 and can sometimes escalate to more than a million pounds,
notably in major business proceedings.

The main drawback of using counseling facilities is that there is no assurance

that the issue will be settled, and after the unsuccessful settlement effort, it
will then be appropriate to go to arbitration. In such cases, there are
additional costs and complications by mediation attempts. The reality,
though, is that a large number of cases will be resolved; the Center for
Dispute Resolution estimates that more than 80 percent of cases are decided
in which they are required to respond. There is also the hope that at least the
problems may have been resolved, and thus any court hearing will be less
than if mediation had not been tried.

There are also mediation programs that seek to settle minor conflicts, such as
those involving neighbors. West Kent Mediation Service is one example of
such a service. It provides a free program that will attempt to help settle
public problems resulting from concerns such as traffic, car parking, pets, or
border fence conflicts. The Service is run by qualified professionals who are
not going to take positions or make judgments about the rights and wrongs of
a situation. Typically they'll contact the party that made the allegation and
hear their side of the story, and, if that party agrees, suggest to meet the
other individual and get their opinions.
Eventually, the mediator organizes a discussion between them in a neutral
place, if both parties are willing. The participants are in charge and can
withdraw at any point from the mediation phase.

Digital Dispute Resolution is the most recent idea. This is being provided by a
growing number of websites, for example,
www.disputemediationservices.co.uk and www.themediationroom.com.

Mediation research has found some fun facts which prove it has benefits and
drawbacks. On the positive side, it was reported that the sides were more
likely to settle the conflict without going to court than in non-mediated
situations, even though the final mediation session did not resolve the
disagreement. There are, indeed, pitfalls too. Throughout negotiated
agreements, amounts paid are often smaller than the sum accepted in other
negotiations and significantly lower than payments imposed by the courts.

The challenge is that effective mediation involves a professional mediator

with' natural talent, acquired skills, and experience.' If these characteristics
are not present, mediation will transform into an act in coercion in which the
vulnerable side can be coerced into arbitration. One individual who said:'
Leaning on friends is the only way you'll get a payout knows that. When you
rely on two halves of a see-saw, it's typically the weaker side that splits, and
that's where the energy should be added.'

Generally, though, it seems that informal negotiations may encourage early

resolution and can contribute to a condition where the sense of indignation is
minimized, and an appropriate compromise is achieved.

3. Conciliation

You must compare this with mediation since there is little difference between both. Analyze its best to use conciliatio
comment on how conciliation will be more applicable in scenarios and how mediation will be applicable in scenarios
This is very much like mediation in that a third party can resolve the dispute,
but the key difference is that typically the conciliator would take a more
active role. It is anticipated that he will propose conditions for settlement,
and the potential reason for agreeing. ACAS may provide an unbiased view on
the legal status of labor disputes. As with mediation, conciliation does not
necessarily lead to a settlement, and court action may need to proceed.

Advantages of Using ADR

There are many perks of using ADR, rather than going to court. The main ones
are for it to be:

• faster

• cheaper

• more flexible

• less stressful

• Possible to agree on resolutions that are not available in court.

The courts can only award damages or one of the fair solutions on this last
point. The parties can seek different settlements with ADR. For starters; a
debt repayment can be reorganized over a prolonged period of time. And
where there is an issue with faulty items, the object may be repaired or
replaced. Where the sides are likely to remain to do business in the future,
terms for the future can be agreed upon.

4. Arbitration

This is the boss of all kinds of ADR. There are particular sections that you must use. Do not miss to mention the Aver
and the A*. Always mention the arbitrator, proceeding, award, etc. in different paragraphs and in one paragraph su
you discuss awards, etc., discuss how it's different than courts, tribunals, and other forms of the ADR. Commentary i
The term' arbitration' is used to describe two systems that are quite distinct.
The first is where the courts use a more casual method to hear cases; this is
the way they characterize trials in the Queen's Bench Division's Commercial
Court. The second definition of the word 'arbitration' is where the parties
have agreed to refer their disputes to private arbitration; this is the form of
arbitration applicable to alternate dispute resolution since it is a way to
resolve a disagreement without the need for a court case.

Private arbitration is now regulated by the 1996 Arbitration Act, and the rules
behind it are laid out in s 1 of that Law. This is what it says:
VERYYYYY IMPORTANT 
'(a) the object of arbitration is to obtain the fair resolution of disputes by an
impartial tribunal without unnecessary delay or expense;

(b) the parties should be free to agree how their disputes are resolved,
subject only to such safeguards as are necessary for the public interest.'

Therefore arbitration is the mutual application of the parties to the decision

of some individual other than a prosecutor in their disagreement. Such an
arrangement must generally be in writing, and indeed only signed arbitration
arrangements are protected by the Arbitration Act 1996. The exact manner in
which the arbitration is being conducted is left almost entirely to the
agreement of the parties.

These are the parts that you must discuss in depth and that too separately, 
The Agreement to Arbitrate
The parties will make an agreement to go to arbitration at any point. It may
be before a conflict occurs or when the disagreement is obvious.

Most commercial contracts provide what is referred to as a Scott v Avery

provision, which is an agreement where the parties agree in their original
contract that they will have their conflict resolved through arbitration in the
case of a disagreement occurring between them. Where an arbitration clause
is entered into a settlement, the 1996 Arbitration Act specifies that the judge
may usually fail to resolve the dispute; the case must go to arbitration as
decided by the parties. Nevertheless, the rules are different from customer
disputes, where the issue applies to a quantity that can be dealt with in the
small claims process. In this kind of condition, the consumer might choose to
comply with the contract to go to private arbitration or to try to claim that
the case is noticed in the route of small claims.

After the dispute arises, the agreement can also be made to go to arbitration.
In commercial cases, arbitration is getting more and more popular.

The Arbitrator
Section 15 of the 1996 Arbitration Act specifies that the sides are free to
negotiate on the number of arbitrators so that a jury of two or three may be
used or a single arbitrator may be available. If the parties cannot decide on an
amount, then the Act calls for the selection of just one arbitrator. The Act,
therefore, stipulates that the parties can decide on the process for naming an
arbitrator. In reality, most arbitration agreements will either designate an
arbitrator or provide a method of selecting one, and in commercial contracts,
it is often specified that the arbitrator is appointed by the president of the
relevant trade organization.

There is also the Arbitrators' Institute, which gives qualified arbitrators for
major disputes. The arbitrator will, in many situations, be someone with
experience in the particular area involved in the conflict, but if the dispute
concerns a point of Law, the parties then agree to nominate a prosecutor. If
no agreement is reached about who or how to choose, then the court may be
required to select a suitable arbitrator as a last resort.

The Arbitration Hearing

In each situation, the particular process is left to the consent of the parties, so
that many ways of listening exist. In some situations, the parties can agree for
a' legal' arbitration, where the two sides put for writing all the points they
wish to raise and apply this to the arbitrator along with any relevant
documents. Then he reads all the documents and makes his decision.

Instead, the parties can submit all these papers to the arbitrator, but both
parties must hold a hearing until they render oral representations to the
arbitrator in favor of their argument and making their decision. Witnesses
may be called to give testimony when appropriate. When witnesses are asked
to give oral testimony, this will not usually be given under oath, i.e., the
individual will not be allowed to pledge to tell the truth. If the parties agree,
though, then the complainant may be asked to give testimony under oath,
and the whole process will be very formal.  When witnesses are called upon
to give evidence, the 1996 Arbitration Act requires court proceedings to be
used to ensure that those witnesses comply.

The date, time, and place of the arbitration hearing in coordination with the
arbitrator are all matters for the parties to agree about. It allows the hearings
a great degree of flexibility; the participants can choose what is most
appropriate for all involved.
The Award
The arbitrator's ruling is called an acknowledgment and is binding on the
parties. It can even be followed by the judiciary if need be. Generally, the
decision is final, although it may be challenged in court on the basis of
significant irregularity in the processor on the point of Law (s 68 Arbitration
Act 1996).

Advantages of Arbitration

These are the advantages, and they must be compared in relevance to the disadvantages.  The best way to do so is
The idea that the sides have the luxury of making their own arbitration
agreement to work out exactly how formal or informal they want it to offer
some benefits. The main advantages are:• The parties can choose their own
arbitrator, so they can decide whether a technical expert or a lawyer or a
professional arbitrator will deal with the matter best.

• If there is a question of quality, it can be determined by a specialist in the

particular field, avoiding the expense of obtaining expert witnesses and the
time to justify to a court all the technicalities.

• The time and place of the hearing may be scheduled to match the parties.

• The actual procedure is versatile, and the participants can choose what is
best suited to the situation; this will usually lead to a more casual, more
comfortable meeting than in litigation.

• The issue will be dealt with in secret, and no media will be necessary.

• The issue shall be resolved more easily than by a court hearing.

• Arbitration hearings are typically considerably cheaper than court

proceedings.

• The grant is usually binding and is enforceable by the judiciary.

Disadvantages of Arbitration
There are some drawbacks in arbitration, though, in fact, where the sides are
not on an equal footing as to their ability to present their argument. This is
because legal aid is not eligible for litigation and this can hinder a plaintiff in a
lawsuit against a business; if the matter had been brought to court, a person
with a low income would have qualified for legal aid and thus had the benefit
of an advocate to argue his argument. The other big limitations are to:

• In the case which is not suitable for decision by a non-lawyer arbitrator, an

unexpected legal point may arise.

• Where a skilled arbitrator is working, his payments may be high.

• This would still be costly because the parties agree for a full trial of
testimony from prosecutors and from attorneys on both sides.

• The appeal powers are limited.                             

• In the case of a professional arbitrator and lawyers, the delays for

commercial and international arbitration can be almost as great as those in
court.

This uncertainty and cost issue also ensured that arbitration has, to some
degree, lost its reputation as a dispute resolution mechanism for businesses.
Many more businesses are looking to the solutions provided by organizations
such as the Centre for Dispute Resolution by opting to have the issue settled
in another jurisdiction in the case of international disputes. One of the issues
was that the arbitration law had become complex, and the 1996 Arbitration
Act is an attempt to improve the procedure. In fact, it can be said that certain
forms of conflict are eligible for arbitration.

It covers, in particular, contractual disputes between two companies where

the participants have little hope of finding adequate mutual ground to make
compromise a realistic prospect, and where there is no substantial point of
Law involved.

Tribunals

Many students forget or do not interpret the question correctly. It is always best to consider all forms of the civil justi
parts at the end, so be on the safe side. In an ADR question discusses tribunals and how it’s different from courts and
you state the law perfectly, it will give you 12/25. However, the commentary is what will provide you with better ma
Tribunals work side by side with the court system and have become an
integral part of the justice system. In the second half of the 20th century, with
the welfare state developing, more tribunals were formed. These were
created to give people a way to assert their claim to some social rights. Like
traditional dispute resolution, though, where the plaintiffs agree not to use
the judiciary, the parties cannot go to trial and settle a disagreement in
tribunal cases. Instead of court proceedings, the arbitration must be used.

Role of Tribunals
Tribunals uphold the rights granted by-laws on social and health issues. There
are many specific freedoms, such as • the right to a mobility pension for
those who are too poor to travel more than a very short distance • the right
to compensate if one is made redundant from employment • the right not to
be discriminated against on account of one's ethnicity, color, age or
impairment • the right of refugees to have a political asylum application
considered. These are just a few of the types of rights that tribunals deal with.

Tribunals, Courts and Enforcement Act 2007

As the welfare state grew, tribunals were set up, and new developments led
to the creation of a modern tribunal. That has contributed to more than 70
separate tribunal forms. -tribunal became independent, so various methods
were used by the specific tribunals. That has confused and complicated the
system.

The Tribunals, Judiciary, and Compliance Act 2007 changed the whole
structure. It established a single judicial system, with a First-tier Judicial
handling first-instance proceedings and an Upper Tribunal hearing appeals.

First-tier Tribunal

Just remember the numbers and 2-3 kinds of tribunals 

This works in seven Chambers (divisions) since the First-tier Tribunal deals
with about 300,000 lawsuits each year and has about 200 judges and 3,600
members of the laypeople. These are:• the Chamber of Social Entitlements-
this covers a wide range of problems such as child support, redress for
traumatic injury, and gender identification.
• The chamber of Health, Education, and Social Services–which comprises the
previous Mental Health Assessment Tribunal, which deals with complaints
regarding prolonged incarceration of mental hospitals; The Committee
frequently deals with issues around specific educational needs.
• The War Pensions and Armed Forces Compensation Chamber.
• The General Regulatory Chamber.
• The Taxation Chamber.

• The Land, Property, and Housing Chamber.

• The Asylum and Immigration Chamber.

Besides these, there is one trial that still functions independently from the
First Tier Tribunal. This is a Commission for Jobs. Nonetheless, this is likely to
eventually become a component of the First-tier Tribunal.

Upper Tribunal
The Upper Tribunal is divided into four Chambers (divisions). These are:

• the Administrative Appeals Chamber, which hears appeals from the Social
Entitlement Chamber, the Health, Education and Social Care Chamber and the
War Pensions and Armed Forces Compensation Chamber

• the Tax and Chancery Chamber

• the Lands Chamber

• the Asylum and Immigration Chamber.

There is another possible route of appeal from the Upper Tribunal to the
Court of Appeal, and a direct appeal to the Supreme Court from here.
  
Composition
Cases are considered by a Tribunal Judge in the First-tier Court. In fact, two
community representatives must consult with the judge to make the
judgment for some forms of event. Such lay representatives will have tribunal
experience in the specific field. Of instance, the lay participants would be
medically qualified in a hearing about a petition to mobility compensation,
while there would be surveyors seated on the Lands Tribunal. There are two
lay leaders also in employment tribunals. These will normally be one
individual from an organization of employers and one from an organization of
workers. Which allows them a very good understanding of the problems of
work.
  
Procedure
There ought to be a forum for both parties to make their argument. This will
be performed properly in some courts, notably jobs and asylum tribunals,
with the complainant giving evidence under oath and being cross-examined.
All tribunals work in a less organized manner.

Representation funding is available in just a few tribunals, so most candidates

won't have an advocate but will make their own argument. Where a claimant
submits his own complaint, the Tribunal Judge must then try to ensure that
the complainant positions the case in full.

Tribunal ruling is final.

The Administrative Justice and Tribunals Council

That was established under the 2007 Tribunals, Courts, and Enforcement Act.
It replaced the former Tribunals Council, which had been operating since
1957. Its duties include: • retaining the functioning of tribunals under review
• reporting on the constitution and functioning of tribunals • considering and
reporting on any other court-related matter.

A Council member may attend (as an observer) any tribunal proceedings.

Advantages of Tribunals

VERRRY IMPORTANT 
Tribunals are formed to keep the courts from overloading with the extra
cases that demand social, and health benefits produce.

For tribunal cases, the benefits for the claimant are that these cases are
addressed:

• more cheaply

• more quickly
• more informally

• by experts in the area.

Cheapness
Because claimants are expected to defend themselves and not to use counsel,
tribunal proceedings usually do not require the expenses of court hearings. It
is also unusual for a judge to request compensation, so a plaintiff needn't be
fearful of a big bill if they lose the case.

Quick Hearings
Many court hearings are very brief and can be concluded in one day. 

Informality
The hearings are more casual than in court. Parties are encouraged to come
forward with their own case. Nevertheless, most situations are attended to in
private.

Expertise
Two lay representatives participate in some tribunals to hear the case with
the Tribunal President. Some lay participants are specialists in understanding
the type of case. It gives them a good understanding and knowledge of the
problem at hand.

Disadvantages of Tribunals

Lack of Funding

Public funding for most tribunals is not eligible, which may put a claimant at a
disadvantage if the other party (often an employer or government
department) has an advocate. Legal aid is provided regarding cases involving
fundamental human rights, such as whether an asylum seeker has the ability
to remain in the UK or whether a victim can reside in a safe mental hospital.

More Formal Than ADR

A hearing before a tribunal is more formal than using ADR. The location is
new, and for people who bring their own situations, the process can be
overwhelming. Where candidates are not identified, it is suggested that the
judge may perform an inquisitorial position to help to identify the arguments
the claimant wants to make. But that vision isn't always accomplished.

Delay

So while the goal is to deal with cases efficiently, the number of cases heard
by the tribunals ensures there may be delays in getting a trial. Having leaders
of the lay will contribute to this issue as they sit part-time, typically one day a
fortnight. If a trial is lengthy and continues for several days, this can result in
cases extending over a period of weeks or even months.

Domestic Tribunals

These are tribunals essentially set up' in-house' by private entities, typically
for their own internal disciplinary oversight. We will comply with the natural
justice laws, and all judgments are subject to judicial review. Furthermore,
there is an appeal route to the Judicial Committee of the Privy Council for
many professional disciplinary tribunals, in cases where the tribunal has
decided to strike a member from the professional register. It refers, for
example, to decisions taken by the General Medical Council's disciplinary
committee, and also to other medical regulatory tribunals.