Civil Courts & ADR
Advantages and Disadvantages
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
Civil Courts
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
Disadvantages
•
•
•
•
•
•
•
Lack of technical knowledge
Slow process
Lack of flexibility in court process
Need for lawyers
General cost
Adversarial process
Publicity
Tribunals
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
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
Arbitration
Advantages
•
•
•
•
•
•
•
•
Expertise
Privacy
Convenience
Enforceability of the award
Informality
Speed
Cost
Cost-saving to the state
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
Mediation
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
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
Conciliation
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
Disadvantages
• Imbalance of power
– One or both parties may feel the conciliator is
not neutral in their suggestions
• Others are similar to mediation
Negotiation
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
Disadvantages
•
•
•
•
Imbalance of power
Lack of legal expertise
Lack of certainty
Enforceability