The Essay Explores The Functioning Of Tribunals And Alternative Dispute Resolution.

Observations on Alternate Dispute Resolution Tribunal

Produce a report on the functioning of Tribunals and   Alternative Dispute Resolution Systems within the English legal system.

You are required to visit a tribunal to observe a case and summarise the case together with the decisions of the panel. Outline the strengths and weaknesses of tribunals in the UK (visitors badge or attendance certificate from the tribunal need be attached as evidence).

Discuss the importance and types of Alternative Dispute Resolutions available under the English legal system.

Alternate Dispute Resolution (commonly known as ADR) is referred as a forum, which provides an alternative to solving disputes addressing the regular courts in a country. In fact, the name Alternate dispute resolution is derived from the fact that they provide dispute resolution, which is an alternative to the regular routine dispute solving tribunals called the courts (Ramsbotham, Miall and Woodhouse 2011). Therefore, in short, Alternate Dispute Resolution refers to method or a technique, which helps the parties who are in dispute about a particular thing, can use and come to a common agreement without opting to file a case in the court and use litigation as a means to resolve their disputes.

Alternate Dispute Resolution can solve any disputes between disputing parties using various methods and techniques. Some of these techniques are called as Arbitration, Mediation and Adjudication (Merrills 2011). I recently visited an Alternate dispute resolution tribunal in London on 23 February 2016 to observe the working of the said tribunal; the said tribunal was dealing with an arbitration case. The case that was being heard in the tribunal related to a divorce proceeding through arbitration. I observed that every dispute, which can be solved through litigation, could be alternatively solved through arbitration if the parties have an arbitration agreement in place which allows them to take the recourse of arbitration instead of the usual litigation (Cane 2011). I observed that the procedure of the arbitration proceeding starts when a dispute arises and the parties request for the dispute to be resolved through arbitration. The parties then decide a common arbitrator, in the divorce, case that I visited the arbitrator decided by the parties was a renowned lawyer Mr. William. The arbitrator then called the parties who were Mr and Mrs Ford in the present case for Preliminary meeting in which they represent their case with or without the help of an attorney (Boyle 2011).  In the present case, Mr and Mrs Ford were married for twenty long years and belonged to a very elite background from United Kingdom. They were aware that their divorce would create a lot of news and the partition of their property and alimony claim with make headlines (Chong and Mohamad Zin 2012). Therefore, both Mr and Mrs Ford decided to resort to divorce by arbitration. In the present case, Mrs Ford had discovered that Mr Ford was having an affair for about seven years and had a mistress who he maintained with a house and all the other amenities in Italy. Mr Ford in return claimed that Mrs Ford has had severe psychological problems, which have aggravated over the years and due to these problems she had becomes impossible to live with due behaviour of doubting every action and step taken by Mr Ford. The arbitrator in the said case did not find any reason to award any interim award and asked the parties to submit their respective claims and pleadings in the next proceeding (Langbein 2012).  Mrs Ford claimed that she caught Mr Ford with another woman in her Italy house and Mr Ford was introducing the other woman as his legally wedded wife. Therefore, Mrs Ford alleged that her husband had committed adultery and is seeking for divorce on the grounds of Adultery under the Marriage Act in United Kingdom. She also submits her calculation of alimony, which amounts to $2 million. In the counter claim submitted by Mr Ford, he claimed that his wife had a severe psychological disorder, which had made her medical condition worsen over the years. He submitted Mrs Ford medical records as evidence of her medical condition (Moses 2012). He also claimed that due to her psychological disorder, she assumed facts and made stories in her mind and her claim was a part of such a story, which she has assumed. Mr Ford also submitted an alibi, which showed that he was present in London in an important business meeting on the day his wife Mrs Ford claimed that he was seen in his Italy house without another woman (Fiadjoe 2013).

Strengths of Alternate Dispute Resolution Tribunals

In their response to each other claims, Mrs Ford wants a divorce on the grounds of adultery whereas Mr Ford shows enough evidence suggesting that Mrs Fords claim is unreasonable and due to her medical condition (Mackie and Mackie 2013). I visited the proceeding where the above-mentioned events took place however; I learned that in the next proceeding, the arbitrator will hear all the parties along with reviewing all the evidence which the parties submit. He will then decide the case by giving an appropriate award and stating which party will bear the cost of the proceeding unless it is decided to be equally divided between both the parties (Van Ness and Strong 2013).

The Alternate Dispute Resolution case laws are heard in an informal tribunal in United Kingdom. The primary purpose of establishing the same was to give every disputing party an alternative to resolving issues between them without resorting to litigation (Lodder and Zeleznikow 2010). However, when the alternate dispute resolution tribunals became popular many advantages and disadvantages of the same were figured out. The strengths of Alternate Dispute Resolution Tribunals are as follows:

Cost – Dispute resolution through ADR tribunals can be less expensive than litigation where litigation in a case is time consuming and takes many years to reach judgement. However, cost is always not an advantage in the said case and the same can be a disadvantage in some cases (Stipanowich 2010).

Quick Decision – the techniques used in solving disputes by the used of ADR follow a very definite and informal proceeding which leads to a quick and speedy decision in solving dispute

Fairness – As the arbitrators are decided by mutual consent of both parties, the decision is usually fair as compared to litigation.

Confidential – As the proceedings in ADR are conducted in ADR tribunal, which are not open courts, the proceedings are confidential between the parties (Emsley, Dunn and White 2010).

The weakness of Alternate Dispute Resolution Tribunals are as follows:

Cost – Arbitration can lead an expensive means to solve disputes as when awards are non-binding it leads to further cost of litigation.

Location – When parties of different countries seek to solve dispute through ADR, the decision to locate a tribunal and the nationality of the arbitrator is a major disadvantage

No Appeal – Arbitration awards are usually binding and there is no option to appeal like available in litigation

Weaknesses of Alternate Dispute Resolution Tribunals

Conclusion

Therefore, it is clear that one can decide after considering the strength and the weakness of the Alternate Dispute Resolution, if they wish or if they method is suitable to resolve the concerned legal matter a party is involved in.

Alternate Dispute Resolution has proven to be very beneficial in solving civil disputes between parties who are under disputes. Alternate Dispute Resolution is a collection of techniques, which can be used to resolve disputes between disputing parties with the help and guidance of a third neutral and independent individual. The neutral individual in the present case performs the function, which a judge has in case of litigation. The most important benefit of Alternate Dispute resolution is that it lightens the burden of cases that appear in the courts and tribunals in United Kingdom. With the introduction of Alternate dispute resolution, many individuals and companies resort to dispute resolution by the techniques alternate dispute resolution to avail the multiple advantages of the same and to avoid the long-going and costly dispute resolution through litigation (Hodges, Benöhr and Creutzfeldt-Banda 2012).

As the various method in alternate dispute resolution use informal and simpler procedures to hear and review evidence of disputing parties, many individuals and companies get attracted to the said option available to solve disputes to avoid the formal procedures of litigation. Another benefit to availing the methods of alternate dispute resolution is that the dispute and the names of the parties who are in dispute remain confidential and confined between the parties and the closed door of the alternate dispute resolution tribunal. The proceedings of the alternate dispute resolutions are not conducted in the open courtrooms like that in litigation. Therefore, dispute resolution through alternate dispute resolution is most suitable when a dispute consists of trade secrets and sensitive confidential data, which is of great importance to a particular party. In this case, the feature of confidentiality makes Alternate dispute resolution much more suitable than the regular course to litigation for dispute resolution (Petrauskas and Gasiunaite 2012).

Another important feature of dispute resolution through alternate dispute resolution is that it provides the disputing parties a good amount of flexibility as the disputing parties can select their own third party who can act in a neutral manner to resolve the dispute between the disputing parties (Hörnle 2012). The decision or the awards passed under the various techniques of alternate dispute resolution are quicker compared to parties who resort their disputes through litigation, which is a very formal, long-going and sometimes unfair method of solving disputes.

Differences between Alternate Dispute Resolution and Litigation

Various techniques can be used to resolve a case under the Alternate Dispute Resolution. However, some of the most commonly used techniques or methods are Arbitration, Mediation, Adjudication and dispute resolution through Ombudsman schemes. Let us look at each of these techniques separately (Van Ness and Strong 2013).

Arbitration – Arbitration is one of the most commonly used alternate dispute resolution method and it results from a prior arbitration agreement which disputing parties have mentioned in any contract they have entered into to resolve potential disputes. When a disputing parties submits its disputes to arbitration, they mutually decide on a arbitrator and consider his award as binding eliminating the option to take the dispute to litigation unless the case is to enforce the award made by the arbitrator. The arbitrator gives an award based on written evidence. An arbitration proceeding is conducted in an informal manner and is confidential between the parties as it is not conducted in an open court. In the recent years, law has made provisions for parties to resort to courts if the awards, which are binding under the alternate dispute resolutions, are not performed. In such a case, the parties can resort to the court for enforcement of an award which was passed by a alternative dispute resolution tribunal when the said award being binding on the parties (Fiadjoe 2013).

Mediation – Mediation is a type of Alternate dispute resolution, which is a method to bring the disputing parties to a settlement or a compromise through intervention of a individual who is neutral and unbiased.  Mediation is a voluntary method in which the disputing parties mutually decide the neutral person and show the intention to get the advice and use the expertises of the neutral individual to solve their dispute. The mediator in this case has no authority to impose his suggestion or decision on the disputing parties and he is only allowed to assist the disputing parties to figure the issue which have create the disputes between them, help them to figure out alternate solutions to their disputes and guide the disputing parties to arrive at a common settlement which is a win-win situation for both. Adjudication – Adjudication is a method of alternate dispute resolution, which consists of resolving disputes, which are related to technically, and engineering disputes. It is a quick, efficient and informal way of solving disputes between disputing parties. The clause of adjudication is generally included in construction and engineering contracts. However, it has a very small frame, which is considered its disadvantages. It is very similar to arbitration and its awards are binding like that of an arbitration award. This method of dispute resolution is becoming popular over the years when companies enter into major and expensive construction and engineering contracts (Moses 2012).

Resolution through Ombudsman schemes – Many services, which an individual uses in routine life, has ombudsman schemes. Some of these services include insurance, banking and building society services, which provide an individual the option of dispute resolution through their ombudsman services in case a dispute arises. However, a pre-condition to apply to resolve a dispute through ombudsman services is that one must first complaint to the service provider and in case his complain, is not addressed or adhered to, he must choice the option of ombudsman scheme. On submitting a complaint to ombudsman scheme, the ombudsman will review the complain and make a ruling or an award, however, the same is not legally binding. However, when the same case is forwarded in the court for litigation, the Judges take reference of the Ombudsman’s ruling before passing their judgement in the said matter.

Conclusion

Thus, it is evident that there are various methods under Alternate Dispute Resolution, which can be resorted to by disputing parties. Over the years the importance of Alternate Dispute Resolution techniques of resolving legal disputes has emerged as it takes away the burden from the traditional method of disputing resolving.

Reference List

Boyle, S., 2011. United Kingdom (England). Health Systems Review. Copenhagen: WHO Regional Office for Europe.

Cane, P., 2011. Administrative law. OUP Oxford.

Chong, H.Y. and Mohamad Zin, R., 2012. Selection of dispute resolution methods: factor analysis approach. Engineering, Construction and Architectural Management, 19(4), pp.428-443.

Emsley, R., Dunn, G. and White, I.R., 2010. Mediation and moderation of treatment effects in randomised controlled trials of complex interventions.Statistical Methods in Medical Research, 19(3), pp.237-270.

Fiadjoe, A., 2013. Alternative dispute resolution: a developing world perspective. Routledge.

Hodges, C., Benöhr, I. and Creutzfeldt-Banda, N., 2012. Consumer ADR in Europe. Bloomsbury Publishing.

Hörnle, J., 2012. Encouraging Online Dispute Resolution in the EU and Beyond-Keeping Costs Low or Standards High?. Queen Mary School of Law Legal Studies Research Paper, (122).

Langbein, J.H., 2012. Disappearance of Civil Trial in the United States, The.Yale LJ, 122, p.522.

Lodder, A.R. and Zeleznikow, J., 2010. Enhanced dispute resolution through the use of information technology. Cambridge University Press.

Mackie, K.J. and Mackie, K. eds., 2013. A handbook of dispute resolution: ADR in action. Routledge.

Merrills, J.G., 2011. International dispute settlement. Cambridge University Press.

Moses, M.L., 2012. The principles and practice of international commercial arbitration. Cambridge University Press.

Petrauskas, F. and Gasiunaite, A., 2012. Alternative Dispute Resolution in the Field of Consumer Financial Services. Jurisprudencija, 19(1).

Ramsbotham, O., Miall, H. and Woodhouse, T., 2011. Contemporary conflict resolution. Polity.

Stipanowich, T., 2010. Arbitration: The'New Litigation'. University of Illinois Law Review, 2010(1).

Van Ness, D.W. and Strong, K.H., 2013. Restoring justice: An introduction to restorative justice. Routledge.