Do You Think The Courts Offer The Best Means Of Solving Disputes?

Essay written by Paul Powlesland (AS Student).

Introduction 

Civil disputes between people have occurred ìad infinitumî and as such, there have always been decisions to be made, as to which way to solve a dispute. This question focuses on whether the Civil Courts offer the best means of solving disputes, or whether there is an alternative. I believe that the alternative consists of Alternative Dispute Resolution (ADR), arbitration and Tribunals and these are what I shall consider in my essay. In this essay I shall give an introduction to each alternative and then explain the advantages and disadvantages of each compared to the civil courts

However, the alternatives in themselves provoke a dispute, due to the way I have listed Tribunals separately to ADR. Many textbooks include them within ADR and as such a method of alternative dispute resolution. However, I do not believe this is the case, as Tribunals cannot be considered as a means of ìalternativeî dispute resolution, as it is compulsory for certain disputes to be tried by tribunals and not by the courts. This differs from ADR, where the parties choose to try another method before going to court. There is still another problem with including Tribunals as alternatives to courts though, and that is that many people would consider them to be part of the court structure. They believe this, because Tribunals try cases that would otherwise be tried in the courts but for the fact that this would overload them, and the fact that there is an appeals route through the courts. Despite this, I believe that Tribunals are separate to courts, because they do not have to follow a uniform system of precedent, many do not have an appeal route through the courts and Tribunals deal with highly technical points that could not be dealt with by the normal courts. Also, Tribunals are generally considered to be inferior of the courts, as shown in Peach Grey& Co v Summers (1995), in which the Divisional Court accepted it had jurisdiction to punish someone who had been in contempt of court by influencing a witness at a Tribunal. Finally, I believe the best way to sum up the status of tribunals as ìÖinferior to the ordinary courts, even though they are largely independent from them in their own jurisdictions.î[1] Finally, whether they are considered part of the court system or not, they do play a major role, with one survey in 1978 finding that tribunals heard six times as many contested cases as the High Court and County Courts[2] and this figure has increased since then.

Tribunals 

Tribunals were in existence as long ago as 1799, but the present system has mainly grown up since the Second World War. The need for Tribunals has come about due to new legislation and rights that have been enacted in the last fifty years, alongside the development of a welfare state. There are many rights we are entitled to, such as the right to social security benefit, the right to not be unfairly dismissed and the right not to be discriminated against. However, these new rights have inevitably given rise to disputes and it was felt that the ordinary court system would not be able to cope with the amount of cases, or the highly technical points involved. Due to this, administrative tribunals were created, which include Social Security Tribunals, The Mental Health Review Tribunal and, probably most well known, Employment Tribunals. The majority of Tribunals sit as a panel of three, which consists of a legally trained chairperson and two lay people with specialist knowledge of the area within which the tribunal deals.

Tribunals do not follow a rigid pattern and there are many differences between them. However, most of their procedures are similar to that of a court except slightly less formal, as there are no strict rules of evidence, although the rules of natural justice- the idea that certain basic rules are fundamental to the decision making process, with the two main ones being ìno one should be a judge in his own case [and] both sides have a right to be heardî[3]- apply.

Advantages And Disadvantages Of Tribunals Compared To The Civil Courts 

The principle advantage of Tribunals is cost. Tribunals do not charge fees and unlike in civil disputes in the courts, both sides usually pay their own costs, instead of the loser having to pay all. In addition the parties at a Tribunal are encouraged to represent themselves and not to use lawyers. Tribunals make it easier for people to represent themselves, because of their simpler procedures. It is thought that these two measures would help people who would be discouraged from bringing a case through the civil courts, by the prospect of a large bill at the end.

          However, there is a problem with costs at Tribunals, which arises from the fact that some parties choose to use a lawyer. This puts some parties at a serious disadvantage, as they might be defending themselves, while facing an opponent, such as an employer or government department, who has access to the very best representation. Furthermore, despite the fact that the procedures are meant to be informal compared to ordinary courts research has shown that ìÖ because the law with which Tribunals was concerned was complex, and their adjudicative process sometimes highly technical, individuals with representation had a much better chance of winning their case.î[4] Indeed, statistics in the early 1990ís showed that the success rate for those with lawyers was 49%, while for those without lawyers it was 28%.

          This problem stems from the main disadvantage of Tribunals, that no legal aid is available for all but a couple of Tribunals. The Tribunals where legal aid is given are those that concern ìsocial welfare cases, such as cases about peopleís basic entitlements.î[5] And this entitlement is given by the Legal Aid Act (1988). While I fully agree that legal aid should be given for these types of cases, as they involve basic rights, I believe that Legal Aid should be given to other cases as well, because many (for instance discrimination cases) involve a personís, or a businessí reputation. However, despite this there is still some dispute as to the desirability of using lawyers in Tribunals, for although they may be suitable for some Tribunals, there are fears that introducing them could detract from the aims of speed, informality and reduced costs. Some believe that ìIf money for Tribunal representation were available, it would be better spent on developing lay representation.î[6] For instance, investing in the UK Immigration Advisory Service, or the Child Poverty Action Group, who could then develop real expertise in specific areas. I believe this is a good idea, because then the taxpayer would fund organisations to have a lot of knowledge in a specific area they care about, instead of just writing blank cheques to greedy lawyers. Whatever the best way of spending, it is largely hypothetical, as there are no signs of money being made available.

          Another large advantage of Tribunals is the speed in which a dispute can be resolved. Tribunal cases come to court fairly quickly and many are dealt with within a day. Also, many Tribunals are able to specify the exact date and time when a case will be heard, thus minimising time wasting for the parties.

However, Jacqueline Martin believes that ì[Speed] used to be one of the advantages of Tribunal hearings, but this is no longer the case.î[7] She cites reports by the Council on Tribunals, which highlighted ìDelays due to the vast volume of work that tribunals now face, together with the fact that lay members only sit part-time.î Martin cites the case of Darnell v United Kingdom (1993) concerning a doctor who had been dismissed in 1984, but had not had a final decision on the case by the Employment Appeals Tribunal until 1993. He complained to the European Court of Human Rights and the complaint was upheld. Despite this, I disagree with Martin, because while there maybe some cases that continued for far too long, there have been thousands of other casers resolved reasonably quickly. It must also not be forgotten that Tribunals sometimes deal with complex issues that are bound to take a long time to hear and judge upon.

Informality and a simple procedure are also distinct advantages of Tribunals. Although it varies from Tribunal to Tribunal, generally wigs are not worn and the strict rules of evidence do not apply. In addition, the fact that the chairman is expected to take an inquisitorial instead of an adversarial role helps make the process fairer on parties that are representing themselves. However, research into the Social Security Tribunal has shown that in the hearings the researchers attended, the chairmanís conduct could be described as good or excellent in only 57% of cases and adequate in a quarter of cases. In one sixth of cases, the chairmanís conduct was open to serious criticism.[8]

Another advantage is privacy, as in some circumstances tribunals may meet in private, so the individual ìdoes not have to broadcast their circumstances to the general public.î[9] However, this could be a disadvantage, as holding a tribunal in private can lead to suspicion about the fairness of the decisions.

The final advantage is that tribunals relieve congestion from the ordinary courts and without them, the court system would not be able to cope. However, this could be counterbalanced by the fact that, unlike courts, some tribunals are not obliged to give reasons for their decisions. In addition, the diversity of Tribunals is a problem insofar as there is no uniform appeals procedure, unlike in the main courts. Finally, the Council on Tribunals could be seen as a disadvantage, as (unlike many other Ombudsman) it can advise the government of problems, but no take any action; this has led it to be described as a ìwatchdog with not teethî[10]

In conclusion, I believe tribunals have many good, but also many bad points. As such I believe that they are good for some disputes, for instance those that involve technical points in a specific area, but not for others. In addition, while the simpler process and cheaper costs should mean it gives more access to justice, this could be outweighed by the unavailability of legal aid. Finally, it must be remembered that while tribunals are an alternative to the courts, they are not a voluntary one and so I shall now go on to describe voluntary alternatives for dispute resolution.  

Arbitration 

Arbitration is ìthe voluntary submission by the parties, of their dispute, to the judgement to some person other than a judge.î[11] However, some would bring into question Martinís use of the word ìVoluntaryî. Many commercial contracts now use a Scott v Avery clause, in which the parties (in their original contract) agree that if a dispute arises, it can only be settled by arbitration. Companies do this, because it is more desirable for them to use arbitration in many circumstances, for the reasons given later on. Also, if a Scott v Avery clause was used in a contract, then the courts will usually refuse to deal with the dispute, perhaps adding to the involuntary nature of some arbitration cases. However, there is choice whether to sign the original contract, so I believe the use of the word ìvoluntaryî is justified. In addition, an agreement to arbitrate can also be made after a dispute arises, as an alternative to going to court.

          The rules governing arbitration are set down in the Arbitration Act (1996). This act states that the parties are free to choose the number of arbitrators, the procedure for appointing an arbitrator and also, most importantly, who the arbitrator is to be. The parties are also free to decide the procedure of the actual hearing, so the may choose ëpaperí arbitration, or for all the witnesses to give oral accounts. The parties also decide whether witnesses give evidence under oath or not and they decide the date, time and place of the arbitration. Despite this, the decision made by the arbitrator is legally binding on all parties and can be enforced through the courts.

          In conclusion, I believe that the term Alternative Dispute Resolution is most applicable to arbitration. This is because, unlike Tribunals the decision to arbitrate is voluntary, and unlike negotiation, mediation and conciliation the hearing will give a definite end to a dispute.  

Advantages And Disadvantages Of Arbitration Compared To The Civil Courts

 The first and foremost advantage of arbitration is the flexibility of the proceedings, compared to the rigid and inflexible procedure of the courts. The parties can choose the procedure that is most suited to them and their situation, which then results in a more relaxed and informal hearing compared to a court. Part of this flexibility, is that the parties can choose the hearing time and place to suit them, instead of having to organise themselves around set court times.

          Another advantage is cost, as most arbitration proceedings are cheaper than going to court. However, if a professional arbitrator is used his fees may be expensive and it will also be expensive if the parties opt for a formal hearing, with lawyers representing both sides and witnesses giving evidence.

          The flexibility of arbitration hearings is also reflected in the fact that the parties can choose their own arbitrator. As such they can decide whether the matter is best dealt with by a lawyer, technical expert, or a professional arbitrator. Their choice will be influenced by the type of issues at stake, so if it is a legal point then it can be dealt with by a lawyer, but if it is a technical point then it can be dealt with by a technical expert. This is especially useful if there is a question of quality in a consumer dispute, as the arbitrator can already be an expert in this particular field. This saves the expense that would be used in calling an expert witness and the time needed to explain these technicalities to a judge.

          There is also a down side to being able to choose a non-legal arbitrator however, insofar as if an unexpected legal point arises, it may be unsuitable for a non-lawyer arbitrator.

          There are two other advantages that particularly appeal to companies and are often the reason for the use of a Scott v Avery clause. The main one is the fact that with arbitration, the matter is usually dealt with in private and so the company will receive no adverse publicity. This is a very important point given the recent growth of ëPublic Relationsí and the fact that companies often spend large sums of money promoting a good image and thus they do not want their image to be destroyed in a drawn out court battle, with lots of negative publicity. Another point that appeals to companies and the consumer alike, is that the dispute will usually be resolved more quickly through arbitration than through a court hearing. A quicker end to a dispute means less stress and expense for all of the parties involved in a dispute.

          The final advantage of arbitration is that under the Arbitration Act (1996) the award made by the arbitrator is normally final and can be enforced through the courts. This has an obvious advantage over negotiation, mediation and conciliation, because although time and money may be invested in these processes, there is no guarantee that their use will bring an end to the dispute. With arbitration, it is known that once a decision is made, the matter will be resolved.

          However, the finality of an arbitration decision can be seen as a disadvantage, as there are only limited rights of appeal granted in the Arbitration Act (1996), which are on the grounds of a serious irregularity in the procedure, or on a point of law. As such the losing party may not be able to challenge the decision in the same way as they would in the civil courts and in this way, justice may not be seen to be done. Also, the fact that an almost final decision is made makes arbitration partly adversarial, unlike most other forms of ADR. This thus cancels out one of the principal advantages of ADR, resolution of the parties.

          In conclusion, arbitration is perhaps the most ëcourt-likeí option available under ADR. While some may find this a disadvantage and would prefer a more informal ADR process to solve a dispute, others prefer the finality of arbitration. However, even if it is the most like a court in the way it makes a decision, arbitration is much more flexible than the courts and puts the parties themselves more in control. 

Alternative Dispute Resolution

It has been said that ìAlternative Dispute Resolution (ADR) has come about due to a realisation that the courts are not always the best way to solve a dispute.î[12] However, just how true is this statement?

There are many forms of ADR, ranging from informal negotiation, to mediation, through to the more formal conciliation and I shall first give a brief introduction to each before explaining their advantages and disadvantages.

          Negotiation is the most basic form of ADR. It is where the parties themselves try to resolve their dispute by negotiating directly between themselves. Negotiation is usually attempted before going to court and, indeed when court proceedings have commenced, lawyers for the two parties will usually try to negotiate a settlement However, once lawyers are involved the costs will inevitably rise, which slightly defeats the object of ADR.

          Mediation is the next step up from negotiation, and it is where ìa neutral mediator helps the parties in a dispute to reach a compromise solution.î[13] The mediatorís job is to consult with each party and see how much common ground they share. The mediator will then carry offers to and fro between the parties and will generally assist in trying to bring a solution to a dispute. However it must be added that a mediator is only a facilitator and it is the parties themselves who are in control. Finally, mediation is only suitable if there is some common ground between the parties and if they are prepared to co-operate in order to find a ëmiddle wayí to resolve the dispute.

          Conciliation is similar to mediation in that a neutral third party helps to resolve a dispute, but usually a conciliator will take a more active role. As well as acting as a facilitator, the conciliator will be expected to actively suggest grounds for a compromise and the possible basis for a settlement.

          It can be seen then, that there are different forms of ADR that range in formality and seriousness, depending on the dispute and the parties involved.  

Advantages And Disadvantages Of ADR Compared To The Civil Courts 

The main advantage of ADR is conciliation of the parties. The adversarial nature of court cases can make the parties enemies, even if they did not begin that way. This is especially undesirable in certain cases, especially divorce cases in which children are involved and in commercial cases where the two parties may need to continue trading together after the dispute. In these cases, ADR can help to maintain business or family relationships. It has been said that with mediation, ìeveryone wins.î[14]

However, it must also be remembered that the parties can only come to a settlement and end a dispute if there is enough common ground between them. After all, if both parties are completely convinced that their own position is entirely the right one, then no amount of negotiation, mediation or conciliation will change that. As such it could be said that ADR is only a suitable alternative to the courts if the two parties share a certain amount of common ground. If they do not, then an adversarial process may be the only way to solve a dispute.

Another main advantage of ADR is cost. For instance, the typical cost of a mediator is about £1,000-£1,500, compared to litigation costs often over £100,000, or even £1,000,000 in major commercial cases. As such it is commercially much more viable for firms to use ADR and this is why there has been a recent upturn in the number of companies using ADR.

However, the cost of ADR could also be seen as a disadvantage, as concerns have been expressed that it could simply be a way of solving disputes cheaply and thus ìoffering a form of second-class justice.î[15] While I do not believe this comment is completely right, it could be the case in the future that people, who cannot afford to bring a court action, simply use ADR instead. This is especially pertinent since, as with nearly all alternatives to court, Legal Aid is not available for ADR.

Another advantage of ADR is that it is generally much more accessible than the courts (especially so with negotiation, where no legal help is required). Also, those who run ADR schemes often have specialist knowledge of the relevant areas, which could promote a fairer as well as quicker settlement. However, while they might have expertise in certain areas, those involved in ADR may not have the necessary legal expertise needed to solve a dispute fairly.

The final advantage of ADR is speed. Despite the Woolf reforms, bringing a civil claim can be a time consuming affair, with this extra time inevitably adding to the costs. This extra time could also adversely affect businesses in commercial cases and cause stress in other cases, especially divorce cases.

In conclusion, ADR would seem to offer a quick, cheap and easy solution to any dispute. However this is not always the case, as the lack of common ground in some cases may make it unsuitable. It must also be remembered that if used incorrectly, ADR could become a form of second-class justice for those who cannot afford to bring a civil claim through the courts. Despite this though, although ADR is not a new idea- it is after-all older than the courts, or even law itself- it has been described as ìan idea whose time has come.î[16] Parties in disputes are now realising the fact that their case may be solved more quickly and cheaply through ADR, rather than an adversarial court case. 

Conclusion 

In conclusion, there are many alternatives to the use of the civil courts when solving a dispute. These options include the involuntary Tribunals, that are in many ways similar to courts and the voluntary arbitration, where the finality of the decision is similar to that of a court, but the procedure is much more informal and flexible. Alternatives to courts also include negotiation, mediation and conciliation, which although are flexible, informal and cost effective, offer no guarantee of solving a dispute.

          The question asks ìDo You Think The Courts Offer The Best Means Of Solving A Dispute?î I believe the answer is ìsometimesî. The best way to solve a dispute is determined by the nature of the dispute itself. All the options, such as the civil courts, Tribunals, arbitration, negotiation, mediation and conciliation have their advantages and disadvantages and are suitable for different types of cases. The Civil Courts are suitable for parties with little or no common ground and how need an adversarial process top end they dispute. Tribunals are suitable for the detailed Welfare disputes with which they deal and arbitration is suitable for reasonably technically orientated disputes, where the parties do not have enough common ground to try other forms of ADR. Negotiation, mediation and conciliation are suitable for cases where the parties have a reasonable amount of common ground and for whom an adversarial process would be unsuitable.

          So, I believe that the courts do not offer the best means of solving all disputes. It depends on the nature of the case and the relationship between the parties, as to whether the courts would offer the best means of solving their dispute and if not, which form of ADR to try.