Civil Courts

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Civil Courts ADR

• Advantages and Disadvantages

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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

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Civil Courts
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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

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Disadvantages

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

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Tribunals
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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

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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

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Arbitration
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Advantages

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

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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

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Mediation
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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

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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

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Conciliation
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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

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Disadvantages

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

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Negotiation
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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

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Disadvantages

• Imbalance of power
• Lack of legal expertise
• Lack of certainty
• Enforceability