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A. Compare and contrast different sources of legal advice and support for
dispute resolution to make appropriate recommendations to legal solutions (P6).
1. Explain the advantages and disadvantages of various ways/ methods to obtain these legal
solutions (ways to resolve the dispute) Tribunals
The Tribunals method refers to a system of dispute resolution where independent bodies or
panels of experts are established to adjudicate specific legal issues or disputes. These tribunals
operate separately from regular courts and have the authority to make decisions on particular
matters. They are commonly used in various legal and administrative contexts to address
specialized disputes, such as employment disputes, human rights violations, and international law cases. Advantages
• Decision is legally binding meaning parties are compelled to follow the judgement. This
makes the process formal and fair.
• They are a cheaper alternative to courts and parties represent themselves so no lawyer fees
making them cost efficient in the sense that the claimant is likely to keep more of any money awarded.
• Hearings are much faster than in courts and most cases can be dealt with in a day which
saves time for everyone involved.
• There are a few appeals which may be of some use to parties that are not happy with the outcome.
• Lay members sit with the tribunal judge to hear the case and they are experts in the type of
case being heard which gives them good knowledge and understanding of the issue in dispute. Disadvantages
• Due to the high number of cases being resolved by tribunals, there can be a delay in actually getting your case heard
• Public funding is not available for tribunals so one side may be at a disadvantage if the other
parties can afford a lawyer to represent them making the process unfair
• Tribunals are quite formal so procedure may be confusing for individuals representing themselves.
https://getrevising.co.uk/grids/advantages-and-disadvantages-of-tribunals Arbitration
Arbitration is a private method of dispute resolution where the parties have agreed that their
dispute will be heard and decided upon by an arbitrator and not a judge in a court of law.
Arbitration is often referred to as “alternative dispute resolution” i.e. an alternative to a court. Advantages
The primary advantage is that the parties to arbitration have an almost free reign to determine
the structure and procedure applicable to the proceedings:
• Full control of the process: the parties can, by agreement, determine the conduct of the
proceedings. This can lead to a streamlining of the procedure to suit the specific
requirements of the case at hand.
• Finality: the grounds for challenging an arbitrator’s decision are severely limited by the
Arbitration Act. The decision of the arbitrator is agreed to be final which can bring
proceedings which could have continued for years through the court system to a swift conclusion.
• Privacy: arbitrations are closed whereas court proceedings are open to the public. If the
subject matter is sensitive such as proprietary technology or trade secrets it would benefit
the parties to limit the number of persons who would have access to the evidence before the arbitration tribunal.
• Convenience: in litigation the dates for trials are determined by the Court with little regard
for the convenience of the parties. There can often be a long wait for trial dates particularly
where a matter requires a number of court days. In the arbitration process dates can be
agreed between the parties to those most suitable to them and their witnesses. Disadvantages
Despite its popularity there are a number of disadvantages to the process which parties should
bear in mind if they are contemplating inserting arbitration clauses into their contracts or
becoming involved in arbitration proceedings.
• It requires good faith and agreement between the parties. A court has wide powers under
the Civil Procedure rules to punish litigants who are obstructive or dilatory in their conduct of
the proceedings. An arbitrator’s powers are not as strong as to find someone in contempt of court.
• The pre-arbitration procedures are often not as clear and direct as those under the Civil
Procedure Rules which can lead to delays and unduly long hearings.
• There is limited scope to challenge the decision of an arbitrator. An aggrieved party would
have to show that: The tribunal lacked substantive jurisdiction, there was a serious
irregularity in the proceedings which would justify the setting aside of the award, the
arbitrator erred on a specific point of law.
https://burlingtonslegal.com/insight/what-is-arbitration-all-you-need-to-know-about-the- process/ Negotiation
Negotiation is a method of dispute resolution in which two or more parties engage in
discussions and dialogue to reach a mutually acceptable agreement. It is a voluntary and
informal process where the parties involved attempt to resolve their differences through
communication and compromise. Negotiation can be used in various settings, such as business
deals, legal disputes, interpersonal conflicts, and international relations. Advantages
• Party-based Dispute Resolution:One of the fundamental factors in the effectiveness of
negotiation is that it only engages the parties involved and excludes all other parties, keeping
the process private and secret. The parties choose the process’s content, duration, venue, and other factors.
• Freedom of Parties:The parties are allowed to choose their own agendas while also making
sure that the negotiation’s goal is met..
• Consent of Parties: The negotiating process makes sure that everyone engaging in the
process is doing so of their own free will and that no one is coerced. Additionally, this
freedom guarantees that there is no power play and that all parties are on equal footing..
• No Third-Party Intervention: Negotiation differs from most of the radius system in that it
does not require a third party to arbitrate disputes..
• Comfortable Process: An informal process is negotiation. The decisions made in this quick
process are typically not enforceable against the parties. The decision can now be accepted
or rejected by the parties at any time within a fully self-built process, which allows for
process withdrawal at any time.
• Improvement in Relations: There is potential for improvement in the relationships between
the parties once the negotiating process has been effectively concluded. Additionally, it
makes the process of negotiating for any additional schooling easier.. Disadvantages
• Power Tactic :The parties to discussions do not necessarily need to be of equal strength and
influence. Therefore, in the absence of a disinterested third party, the party that is in a
position to dominate the other uses that dominance to secure the other party’s assent and
reach a settlement. As a result, an unjust arrangement is reached, which is eventually useless..
• Impasse: A deadlock situation can occasionally result from differences and disagreements
between the parties. During the negotiation process, there may be an impasse where the
parties are unable to continue the conversation because they are both at a standstill. When
there are no potential positive consequences, this stage can be exceedingly frustrating. This
typically occurs when one party is so dogmatic in pursuit of its objective that compromise is
impossible. In the end, a walkout occurs as a result of this.
• Backing Off: Negative relations between the parties are created by a failed negotiation, and
any business or contractual relationships are afterwards terminated. It also occurs that the
parties occasionally lose faith in the negotiating process as a means of resolving their
differences and look into alternative methods.
• Not all issues are Negotiable: There are a number of situations where the home negotiating
procedure involves numerous parties and cannot be made applicable, and such situations
can proceed directly to court for the conclusions.
https://lawnotes.co/tag/disadvantages-of-negotiation/ Mediation
Mediation is a form of ‘Alternative Dispute Resolution’ (ADR), which is a very ancient practice
that has been developed for modern usage. ADR can offer a compelling alternative to litigation
which is often costly and damaging to business relationships whilst offering limited creative
problem-solving opportunities.Mediation has been used as a method of resolving disputes since
time began, however it was not until the 1990s that it become an accepted part of the legal process. Advantages
• Mediation can be carried out relatively quickly compared to litigation, taking on average between 1 to 2 days.
• If both parties agree to mediation this clearly demonstrates a willingness to achieve a negotiated solution.
• The appointed mediator will be independent, they will not advise or provide judgement;
• The mediator is there to facilitate and guide the discussions between the parties, with the
primary objective of resolving the dispute.
• It is the parties involved in the mediation process that arrive at a final solution and not the mediator.
• It is a flexible process that provides parties access to a wide range of outcomes that are not
available in litigation. For example, courts will usually order one party to pay money to the
other party, whereas in mediation the parties come to their own agreement and other things can be taken into account.
• If a solution cannot be achieved then other options are still available.
• The process will attempt to preserve the relationship between the parties.
• Mediation can allow each party to hear the opposing view in a non-confrontational environment.
• Both parties must sign an agreement of the final recommendation in order for it to be binding.
• The parties via the mediator can bring other matters outside of the contract itself into the
mediation in order to assist a commercial settlement.
• It is a confidential process and anything discussed at mediation is considered ‘without
prejudice’ and therefore cannot be used as evidence in any subsequent tribunal. Disadvantages • Not compulsory.
• Concerns exist around the enforceability of a mediation agreement.
• All parties must agree to a resolution as the result is not guaranteed.
• Can be difficult if either party are withholding information.
• Mediation may not be appropriate if one of the parties required public disclosure.
• Utilising the services of an unskilled mediator can contribute to an unproductive resolution.
• An unwillingness of one or both of the parties to cooperate can make the whole process a
waste of time, effort and money.
• If the dispute cannot be resolved in mediation the cost of mediation will have been wasted.
• During the mediation process either party can withdraw from proceeding at any time.
• There is the possibility that information may be given away to the other party during the
mediation process that could benefit the other party.
https://www.systech-int.com/insights/thoughts/mediation-advantages-and-disadvantages Conciliation
Conciliation is a method of dispute resolution in which a neutral third party, known as a
conciliator, assists the conflicting parties in reaching a mutually acceptable resolution to their
dispute. The conciliator facilitates communication between the parties, identifies common
interests, and helps them explore potential solutions. Unlike mediation, where the mediator
actively proposes solutions, the conciliator may take a more active role in proposing potential
resolutions. Conciliation is often used in various settings, including labor disputes, community
conflicts, and commercial disputes. Advantages
• Neutral third-party involvement: The presence of a neutral conciliator helps create a
balanced and unbiased environment for the parties to communicate openly without fear of partiality or favoritism.
• Informality: Conciliation is generally a less formal process compared to litigation, making it
less intimidating and more accessible to the parties involved.
• Voluntary process: Participation in conciliation is typically voluntary, allowing the parties to
maintain control over the outcome and the terms of the agreement.
• Flexibility: Conciliation offers flexibility in exploring various solutions to the dispute, and the
conciliator can propose creative alternatives to bridge the gap between the parties.
• Preserves relationships: Similar to negotiation, conciliation focuses on finding mutually
agreeable solutions, which can help preserve relationships between the parties, even after the dispute is resolved. Disadvantages
• Non-binding agreements: The resolutions reached through conciliation are typically not
legally binding. Although the parties agree to the terms, there may be no legal recourse if
one party fails to adhere to the agreement.
• Uneven power dynamics: Despite the neutral role of the conciliator, power imbalances
between the parties can still influence the process and outcomes.
• Confidentiality concerns: While confidentiality is often a key aspect of conciliation, there may
be instances where maintaining confidentiality becomes challenging, especially if the dispute
involves public interest or sensitive issues.
• Limited enforcement options: In situations where a party fails to comply with the agreed-
upon resolution, there may be limited enforcement mechanisms available to ensure compliance.
• Possible deadlock: If the parties cannot reach a mutually acceptable agreement through
conciliation, they may need to resort to alternative methods of dispute resolution,
potentially leading to more time and resources being invested.
https://getrevising.co.uk/grids/advantages-and-disadvantages-of-conciliation Ombudsman
The Ombudsman is a form of alternative dispute resolution that involves the appointment of an
impartial and independent official known as the Ombudsman. The role of the Ombudsman is to
investigate complaints and grievances raised by individuals or groups against government
agencies, organizations, or public institutions. The Ombudsman acts as a mediator or
intermediary between the complainants and the entities under scrutiny, aiming to resolve
disputes in a fair and equitable manner. Advantages
• Impartiality and independence: Ombudsmen are neutral and independent entities, which
helps ensure that complaints are handled objectively without any bias or conflict of interest.
• Accessibility and ease of use: The Ombudsman process is generally accessible and
straightforward, allowing individuals to lodge complaints without the need for extensive legal
knowledge or formal procedures.
• Timely resolution: Ombudsmen are often empowered to conduct timely investigations,
leading to quicker resolutions compared to traditional court proceedings.
• Cost-effective: Utilizing the Ombudsman method can be cost-effective for both the
complainants and the entities under investigation, as it avoids the expenses associated with formal legal processes.
• Confidentiality: Ombudsmen typically maintain confidentiality throughout the investigation,
providing a safe space for individuals to voice their concerns without fear of reprisal.
• Systemic change: Beyond resolving individual complaints, Ombudsmen can identify patterns
of issues and advocate for systemic changes to address underlying problems. Disadvantages
• Limited powers: Ombudsmen usually do not possess the authority to enforce their decisions
or rulings. Their recommendations are typically non-binding, which may limit the impact of their findings.
• Lack of legal enforcement: The resolutions reached through the Ombudsman process may
lack the legal force to compel compliance from the entities involved.
• Restricted jurisdiction: Ombudsmen's authority may be limited to specific sectors or
government agencies, leaving some disputes outside their scope.
• Reliance on cooperation: The effectiveness of the Ombudsman method relies on the
willingness of the parties involved to cooperate and comply with the recommendations.
• Potential resource constraints: Ombudsmen offices may have limited resources, which can
affect their capacity to handle a large volume of complaints effectively.
• Potential conflicts of interest: In some cases, the Ombudsman may face challenges in
maintaining complete independence, especially if the entity under investigation has
significant influence or control over their office.
https://www.lawhandbook.sa.gov.au/ch09s01s02s03.php
2. Compare and contrast different ways/methods to resolve disputes
Mediation and Negotiation:
Mediation: Mediation is a process in which a neutral third party intervenes in a dispute between
two parties to assist them in reaching a settlement. The mediator does not have the authority to
make a final decision but helps the parties find a mutually acceptable resolution. This process
usually takes place voluntarily and often does not involve formal legal procedures.
Negotiation: Negotiation is a process in which the involved parties directly communicate and
bargain to resolve a dispute. The parties may negotiate within a certain timeframe, and the
ultimate goal is to reach an agreement that both parties agree on. Negotiations can be more
direct than mediation and may involve the use of specific rules or procedures.
Mediation and Conciliation (Both means):
Mediation: As explained above, mediation involves a neutral third party facilitating discussions
between the disputing parties to help them reach an agreement. The mediator's role is to guide
the conversation, but they do not impose a decision.
Conciliation: Conciliation is similar to mediation, and the terms are often used interchangeably.
Both involve a neutral third party helping the parties find common ground and resolve the
dispute. In some contexts, conciliation may imply a slightly more active role for the third party,
but in practice, there might not be a significant difference between mediation and conciliation.
Tribunal and Court:
Tribunal: A tribunal is an informal legal body set up to resolve specific types of disputes, such as
employment-related issues or administrative matters. The decisions of a tribunal may be legally
binding or not, depending on the jurisdiction and the nature of the case. Tribunals are often
designed to provide a quicker and less formal resolution process compared to traditional courts.
Court: A court is a formal judicial body with the authority to interpret and apply the law, hear
cases, and make legally binding decisions. Courts have more rigid procedural rules and follow
formal legal processes. The decisions made by courts are enforceable by law.
Ombudsman: purpose and function of the ombudsman
The purpose of an ombudsman is to act as an impartial and independent mediator between
individuals or the public and government agencies, corporations, or other organizations. The
ombudsman's primary function is to investigate complaints lodged by individuals against these
entities, especially when they believe they have been treated unfairly or their rights have been violated.
The functions of an ombudsman typically include:
Receiving and reviewing complaints from individuals.
Conducting impartial investigations into the complaints.
Mediating between the complainant and the organization to find a resolution.
Offering recommendations to resolve disputes and rectify any unfair practices or errors.
Raising awareness of systemic issues and suggesting improvements to policies and procedures.
Arbitration and Conciliation:
Arbitration: Arbitration is a formal ADR process where a neutral third party, known as an
arbitrator, is appointed to listen to both parties arguments and evidence and make a binding
decision to resolve the dispute. Arbitration is generally more similar to a court proceeding and
the arbitrator's decision is enforceable by law.
Conciliation: As discussed earlier, conciliation is a process similar to mediation where a third
party facilitates communication between the disputing parties to help them reach a resolution.
However, in some contexts, conciliation may imply a more active role for the third party in
proposing potential solutions. It is important to note that the terminology and the exact
meaning of conciliation may vary depending on the jurisdiction and the specific ADR process being used.