Summary
Summary Civil Justice System 4
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Summary of 3 pages for the course Law at BU (Revision Notes)
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Civil Justice System 4 – Alternative Dispute Resolution Collective description of methods of resolving disputes otherwise than through the normal trial process
o Normal trial process = dispute, pre-action communication, claim iss + served, defence filed
Allocated to a track (depends on value/complexity)
Case management directions made: exchange info: documents, factual/expert evidence
Trial – judgement for Claimant or D
ADR = Parties may negotiate + settle – no civil action
o Pre-action communications – encourage settlement + consideration of ADR
o Pre-action protocols for different types of case
o Follow set pattern – set out case, exchange info, try to settle or narrow the issues
o Court can stay the proceedings after the defence filed, to enable parties to try to settle
o Many cases settle ‘at the door of the court’
Many attempts to introduce rules/schemes to encourage ADR
Problem
o Too early + issues not clear enough + ADR may not work
o Too late + parties’ positions may be entrenched
Civil Procedure Rules encourage ADR
Rule 1.1 – Overriding Objective – Court’s powers inc enc parties to consider ADR + facilitating ADT (Rule 1.4)
Rule 26 – Court managing the case after Defence filed
o Order a ‘stay’ of proceedings so parties can try settle other than by proceeding to trial (Rule 26.4)
o Can refer small claims to meditation (Rule 26.4A)
Costs orders + costs assessment
o Refusal to consider alternatives may mean reduced amounts of costs recovered
Court can’t order parties to engage in ADR but can penalise for failure to consider
Types of ADR
Non-adjudicative helping/enabling parties to settle dispute
o Negotiation – parties/parties’ lawyers
o Mediation – facilitated settlement
o Conciliation – like mediation but more structured + may have a statutory framework
o Early neutral evaluation – expert third party (often a judge) evaluates dispute (or part)
+ gives an opinion on merits – not binding
Adjudicative decision made by neutral 3rd party
o Ombudsman schemes – originated in Scandivinavia
Officials appointed to inv complaints by individuals against public authorities + businesses
Public sector – statutory schemes – examples:
Parliamentary + Health Care Ombudsman – complaints against govt depts + NHS
Prison + Probation Ombudsman inc inv into deaths in prisons/detention centres
Local inc complaints about housing + community care decisions
Commercial/private sector
May be voluntary to be accredited/a member of an Ombudsman/redress scheme
Eg Home Improvements Ombudsman schemes
o Double glazing + conservatory + home insulation + energy systems
Financial Ombudsman
Set up to resolve disputes between financial businesses + their customers
o Inc banking, loans, PPI, insurance, mortgages + investments
o Funded by compulsory contributions by financial institutions
o And, they pay for each investigation
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