Civil Courts & ADR

1. Civil Courts & ADR Advantages and Disadvantages

2. Learning Objectives • I will be able to state the advantages and disadvantages of each form of civil dispute resolution • I will be able to give examples that illustrate these advantages and disadvantages • I will be able to compare the courts with each of the other forms of dispute resolution • I will be able to evaluate civil dispute resolution

3. Civil Courts

4. Advantages • Legal expertise/experience • Judges in the county or high court have lots of experiences both as lawyers and judges • Final decision will have a detailed explanation • Availability of public funding • Public funding is available for some civil cases (financial claim related to divorce) • Granted by the Community Legal Service • Remedies • Civil court has the power to award remedies • Damages (compensation) • Injunction (cease an act or activity) • Specific performance (complete a contract) CPR in book

5. Disadvantages • Lack of technical knowledge • Slow process • Lack of flexibility in court process • Need for lawyers • General cost • Adversarial process • Publicity

6. Tribunals

7. Advantages • Expertise • Chairperson and lay members will have experience in the area • Reasons for decisions • S.10 Tribunals and Enquiries Act 1992 • Cost • Informality • Flexibility • No rules of precedent or evidence • Speed • Final hearing usually completed in one day • Privacy • Congestion

8. Disadvantages • Influence of chairperson on lay members • Lack of availability of public funding • One member only may be able to afford a lawyer • Appeals procedure • There are different rights and routes for different tribunals • Inconsistencies in decisions • no precedent or rules of evidence • Publicity • Hearings might not get the consideration they deserve • Formality • Franks Committee- chairperson must now be legally qualified – can be lawyers present – can be heard like the courtroom – all adds to the formality

9. Arbitration

10. Advantages • Expertise • Privacy • Convenience • Enforceability of the award • Informality • Speed • Cost • Cost-saving to the state

11. Disadvantages • Lack of legal expertise • Courts rely on witnesses for expert evidence • Inconsistencies in decisions • Cost • Appeals • Ss68 and ss69 of the 1996 Act mean limited grounds to appeal on – prolongs time and cost • Lack of awareness/popularity

12. Mediation

13. Advantages • Speed and convenience • Parties arrange it themselves saving time • Lack of formality • Empowerment • Does not force a decision upon the parties, it is up to them to come to an agreement. Leads to both parties being satisfied – Professor Hazel Genn (2002) • Cost • Public funding is available for mediation in some family cases • Expertise • Mediators are trained specialists • Privacy

14. Disadvantages • Imbalance of power • One party usually stronger financially or emotionally • Lack of legal expertise • Mediator may not have expertise on complicated areas of law • Lack of certainty • No need to agree with each other which leads to costs and court – Paul and Heather McCartney • Enforceability

15. Conciliation

16. Advantages • Pro-active element of conciliator • Conciliator offers neutral advice • Expertise • Conciliator will have expert knowledge on the area under dispute – ACAS are experts on employment law

17. Disadvantages • Imbalance of power • One or both parties may feel the conciliator is not neutral in their suggestions • Others are similar to mediation

18. Negotiation

19. Advantages • Speed • The longer you wait, the more problems can be exaggerated • Formality • Can find solutions that may not be allowed in the courts • Cost • Privacy

20. Disadvantages • Imbalance of power • Lack of legal expertise • Lack of certainty • Enforceability