Alternative Dispute Resolution Sample

Even after many changes and improvements to the old court system there are still many flaws that need dealing with. There are the obvious problems like delays and cost but also things like privacy and the lack of sensitivity when dealing with certain personal matters. To help with some of these matters there is now easy accessible alternatives to court they are called Alternative Dispute Resolution (ADR). Unlike before the courts now encourage clients to look into ADR as an alternative to court.

With less cases going through the court system it allows more time to be spent on more difficult and complex cases that need the courts assistance. There are many forms of ADR each specialising in their own areas therefore having different advantages and disadvantages. Although general advantages are that they come to agreements quicker and at much cheaper costs than that of the courts. They are often less formal making the situation less worrying and stressful for the client. There are very different forms of ADR given something for everyone.

There is Commercial Arbitration this is the procedure when two businesses that have a contract together appoint someone else to settle any disputes they may have. A commercial arbitrator basically has the right to settle any dispute that he beforehand has been told he can. The Commercial Arbitrator should have a legal background but also know the business that is being dealt with. Although the Commercial Arbitrator is on a fixed high cost it would still be cheaper than going to court and as the Commercial Arbitrator is always on stand by it is obviously much quicker.

There is also the advantage of privacy, big companies may not want other companies knowing their business with other companies. They may also not want the general public to know what disputes they are having as it may effect their image. Another ADR is The Codes Of Practice. This is when a group of businesses that do the same thing come together to form an organisation. They set rules that they all must follow. If one company breaks these rules the customer could ring but the code of practice for that certain area and they would sort it out for them.

An example of this is the Association of British Travel Agents this is the code of practice for the travel industry. The main advantage is the cost, as you don't have to go to court or employ anyone. It will of course be quicker and informal. The Small Claims Track is a different form of ADR as it is still in the courts. It deals with cases under i?? 5,000. It usually deals with debts, faulty goods, poor service, negligence and wages owed. This is probably the must complex ADR as you have to fill in a 'statement of claim' then a summons is sent to the defendant if they decide to defend the case it then goes to court.

It is in the form or arbitration so is much more informal than another court. It is encouraged for people to represent themselves, as legal aid is not available. But people can be legally represented if they wish. These hearings are cheap, quick informal and are normally held in private. They are also some disadvantages with the Small Claims Track though. One is that is if an individual is taking a large business to court the large business would probably have legal representation unlike the individual. This causes a distinct disadvantage over the individual and may also be very intimidating.

Another problem is that is you win the case and are awarded compensation it is a different matter whether you receive it. There is also Administrative Tribunals These are normally made up of three members one who is the chair should be legally qualified and the other two are lay representatives they may provide specialist knowledge on the subject being decided. The tribunal system was set up to prevent the ordinary courts of law being over run with cases but a disadvantage that has been noted is that they is often breach of natural justice and that tribunals have acted in an ultra vires manner.

An example of a tribunal is the industrial tribunal. This is normally made up of a chairperson, a representative for the employers and a representative for the employee. They would deal with things like redundancy and unfair dismissal. If you appeal from a tribunal like the employment tribunal you may eventually end up in the courts system but in some tribunals they word is the finally word which some people see as a disadvantage.

The advantages are that it can be quicker, it is cheaper and the people who are dealing with your case have knowledge of the area being dealt with so the decision is on actual practise as opposed to abstract legal theory. There are other kinds of tribunals, which are called Domestic Tribunals. These deal with internal disciplinary procedures of particular institutions, such as governors in schools. The ordinary courts ensure that they follow the rules of natural justice and do not act ultra vires.

The overall advantages of both administrative and domestic tribunals ate that they are quicker, cheaper as no court building is required, informal, the use of expert opinions and privacy. There are also disadvantages such as that ADRs like tribunals are thought of as second-rate system and that is not 'real law'. Another disadvantage is that no legal aid is available and that the tribunals are getting more formal because the chairperson is legally qualified. The lack of publicity may also be a disadvantage because it may be of general public importance and the public will never know about it.

Then there is ombudsman or when first appointed Parliamentary Commissioner for Administration (PCA). Since the first ombudsman was appointed the number of ombudsman has increases greatly they now oversee the administration of Local Government in England & Wales and also the Health Service Commissioners For England, Wales and Scotland. Ombudsman investigates complaints of maladministration this is when the performance of a government department has fallen below acceptable standards of administration.

Maladministration includes bias, neglect, inattention, delay and incompetence. Members of the public haven't complain straight to the ombudsman they first must go through their MP. If the complainant had rights to pursue their complaints in a court or tribunal then they cannot make use of the ombudsman procedure. Although it is thought that this method is normally very effected is has some disadvantages one being that there is an assumption that the MP will put pressure on the appropriate minister of state to ensure that any changes are made.

Another disadvantage is the lack of publicity given to the complaints if the complaint is in general public interest the public should know about it. A big advantage of the ombudsman is that they have the right to go beyond 'the red tape'. They can go into files or look at evidence that was previously undisclosed. Finally there is Mediation and Conciliation which tries to get people to talk to each other and come to an agreement that way this is a lot quicker than going through the courts and will also save a lot of money.

The main disadvantage is that they do not also some to a conclusion and even if they do it is not binding. But the advantage is that if they do come to an agreement they feel that they have come to the solution themselves so they feel committed to the outcome. With all these alternatives now available instead of court it will hopefully take the pressure off the courts to hurry cases along. The courts will know encourage the use of ADR as it will not only be less cases for the courts but you often get a better result at a lower cost and in a much shorter time.