Tribunals and Arbitration

The decision of most tribunals is final, that means there is no appeal available. Again there are some exceptions, the most important being the industrial tribunals which have a complicated appeal route, going first to the Employment Appeal Tribunal and then to the Court of Appeal (Civil Division). Advantages of tribunals There are many advantages to using this system of tribunals instead of the courts. 1. It is cheaper since there are no expensive court or lawyers' fees to pay as most applicants represent themselves.

In industrial tribunals people are more likely to be represented by a lawyer than at social security tribunals. 2. The proceedings are less formal than a court, making it easier for ordinary people to start proceedings and conduct their own case. 3. Each tribunal specialises in one type of case so that they become experts in that area. In addition the two lay members will have their own specialist knowledge of the subject. 4. Cases are dealt with more quickly than in the courts. Disadvantages of tribunals However the system does have its drawbacks. 1.

Applicants who are unrepresented are less likely to win their case. Statistics in the early 1990s showed that in industrial tribunals the success rate for those with lawyers was 49 per cent, while for those without lawyers the rate was only 28 per cent. One of the main problems in tribunals is that although the individual will not be represented, the employer or government department on the other side is likely to have its own lawyer. Legal aid is not available. 2. Although the procedure is comparatively informal, many people still find it confusing and intimidating.

The fact that each tribunal is likely to have its own methods adds to this confusion. 3. The specialist knowledge of tribunals may make an applicant feel at a disadvantage since he or she will not share that knowledge. 4. Tribunals do not always operate quickly. Reports by the Council on Tribunals have highlighted delays. It is normal for employment cases to take a year or more to be heard and if the case goes to appeal there will probably be another two years to wait. One case actually took nine years from start to finish (Darnell v United Kingdom 1993).

Control of tribunals Since tribunals operate outside the court system a special council was set up in 1958 (following the Franks Committee Report in 1957) to supervise and keep under review the constitution and the working of tribunals. It hears complaints about tribunals and publishes an annual report. The Queen's Bench Divisional Court hears applications for judicial review against tribunal decisions and can use its prerogative powers, for example, where there has been a breach of natural justice.

These proceedings are brought in the Queen's Bench Divisional Court but the Divisional Court will only overturn the tribunal's decision for one of the following reasons: 1. The tribunal has acted ultra vires, that is, it has done something it has no power to do. 2. The decision was clearly wrong in law. 3. The decision was against the rules of natural justice. The rules of natural justice include the point that no person is allowed to act as a judge in a case in which he has an interest and that both sides must be given the chance to put their case.

Finally there is an Ombudsman to whom dissatisfied parties can complain. Domestic tribunals These are effectively "in-house" tribunals set up by private bodies usually for their own internal disciplinary control. They must keep to the rules of natural justice and their decisions are subject to judicial review. In addition for many professional disciplinary tribunals there is an appeal route to the Judicial Committee of the Privy Council in cases where the tribunal has decided to strike off a member from the professional register.

ADR AND MEDIATION

We will now look at methods of resolving disputes which are quite independent of the legal system i. e. you do not need to resort to using the courts. Remember that in civil cases it is one of the parties involved who decides whether or not to start a court case. People do not want to start a case unnecessarily and will usually try to settle the problem in another way if possible. ADR means Alternative Dispute Resolution and is becoming popular among big companies as a cheap and quick way of sorting out a dispute.

There are many advantages to using arbitration instead of going to court: 1. The parties can make their own rules as to how the arbitration should be concluded. This means they can choose a formal hearing with witnesses giving evidence on oath in a similar way to a court hearing or they can agree to a more informal hearing. They may even agree that all the evidence will be put in as documents and provide a "paper" arbitration with no witnesses. 2. The time and place of the hearing can be arranged to suit the parties.

Where suitable the hearing may be in the evening or at a weekend so as not to interfere with business. 3. The whole case will take place in private, so that business disputes are not made public. If a case goes to court, the hearing is almost always open in the public. 4. The case will be finished more quickly than in the courts. Questions of quality are decided by an expert rather than by a judge. This can also save time since the parties will not have to waste time explaining technical points. 5.

It is much cheaper than going to court. Some estimates suggest that a court case costs 10 times more than an arbitration hearing. This is particularly true if the parties agree that they will not use lawyers at the hearing. Disadvantages As with all schemes, however, there are some disadvantages: 1. Arbitration is not always cheap. If the parties use a professional arbitrator from an organisation such as the London Institute of Arbitrators, the charge for such an arbitrator could be i?? 1,000 per day.

In addition, if the parties use top barristers to present their cases at the hearing, the costs may well be the same as going to court. 2. An individual with a dispute against a big business may feel at a disadvantage. Legal aid is not available for arbitration hearings, although it may be if the same dispute were heard in court, so the individual will either have to do without a lawyer or pay his own costs. In some instances he may find that he has to go to arbitration since there was an arbitration clause in the original contract.

Many organisations, such as package holiday firms and insurance companies, include such a clause in their standard contracts and consumers may have to accept that arbitration clause if they wish to go ahead with the contract. 3. The fact that there is no general right of appeal can be a disadvantage. If a point of law is involved then it may be more suitable for a judge to make the decision than an arbitrator. Arbitration is being increasingly criticised as being almost as costly and time-consuming as going to court and many companies now prefer to use ADR.