Alternative Dispute Resolution (ADR)

The formal courts are not the only means of solving disputes. The great majority of civil disputes are settled out of court: by various tribunals, by means of arbitration or mediation. There are literally thousands of tribunals around the country of more than 80 different types. They are independent judicial bodies, which consist of expert assessors sitting alongside legally qualified chairmen. They hear claims where ordinary courts either lack the necessary expertise or are too formal and costly. But although tribunals exist outside the ordinary courts of law, their decisions are subject to judicial control. If a decision is taken on the wrong grounds, it may be challenged in the High Court and can be quashed on review. From the point of-view of the lawyer, tribunals are perhaps the least important element in the court system but from the point of view of the ordinary citizen, they are among the most important courts in the country.

Administrative tribunals are set up by Parliament to regulate relations between social groups, such as employers and employees, or between the state and its citizens, as in the welfare system. Examples of these are Employment Tribunals (hear disputes between employers and employees or trade unions); Commissioners for Income Tax (settle disputes involving liability for tax); Social Security Appeal Tribunals (hear claims concerning eligibility for social benefit), etc. Domestic tribunals are set up by statute or by contract between members, and have jurisdiction over the internal affairs of a particular profession or association. Examples include the disciplinary committee of the Law Society or the British Medical Association or a trade union.

Both the tribunals and the claims they consider are the product of legislation. In contrast, arbitration is a private means of solving disputes by an independent body or person. Often businesses entering into legal contracts will insert a clause that, in the event of a dispute, settlement will be by an independent arbitrator. The judgment of an arbitrator is known as an award. If both parties have agreed to arbitration, the matter cannot then normally be raised in the courts but it is possible to appeal to the High Court on a question of law. There is, as we have seen, an arbitration service for small claims available in the county court. Where appropriate, parties can have recourse to mediation - a flexible process conducted confidentially in which a neutral person actively assists parties to work out a negotiated agreement. Unlike arbitrators, mediators do not have decision-making powers and cannot force the parties to accept a settlement. In fact, the civil courts actively encourage parties to use ADR, and in particular mediation.

12. Comprehension questions. Answer these questions.

1 What four options are open to a defendant when he receives a Claim Form from the

other party?

2 In what three cases can a court give summary judgment without a trial?

3 Why do you think measures are taken to prevent the parties being taken by surprise in

civil proceedings?

4 What three things need to be proved in order to start an action in breach of contract?

5 On what general principle are damages for breach of contract calculated?

6 When is a claim considered too remote?

7 Why will the court never impose a specific performance order in employment contracts?

8 Which method of enforcing a court's judgment do you think is the most expensive?

9 Which means of ADR are public and which are private?

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