Unit 1 B: The Legal System

1. Negotiation is when two parties meet face to face in order to solve a problem between them without the help of a major third party (i.e. mediators, arbitrators). However, they can still hire solicitors who instruct them on points of law. These lawyers are still used even if the case is brought to court, and in many cases the argument is settled out of court. Some arguments are settled right at the door of the court, wasting money and time. This is what the other methods of dispute resolution try to avoid.

This is the quickest and cheapest way to resolve a dispute, unless complicated problems lead to arguments that take years and costs lots of money to hire lawyers.

Mediation is where a neutral mediator helps the parties to reach a compromise. The mediator is a neutral third party who helps parties in dispute come to a compromise by trying to find out what they can agree on and carries offers to and fro between parties. However, the mediator may be asked to give his own opinion. Mediation is only used if it is actually possible for both parties to reach a compromise. Both parties are in control this way, and can pull out at any time.

Parties may engage in formalised settlement conference, which involves a mini trial with a panel of mediators who may come to a decision that is not strictly in line with the law to give the best result for both parties. People can hire Mediation services that costs about 1000-1500 pounds per day. Examples include the Centre for Dispute Resolution or the Online Dispute Resolution.

Mediation is cheaper then courts but the decision is not binding which could renew the argument.

2. Arbitration is when two parties agree for an independent third party to make a binding decision on their dispute after hearing both sides in a judicial manner. This process is governed by the Arbitration Act 1996 s(1) which outlines it’s principles:

• The main purpose of arbitration is for an informal tribunal to come to a just decision without unnecessary cost and delay
• Parties have the power to agree on how their dispute will be resolved, unless there are limitations because it affects public interest

Arbitration can be chosen as the method of dispute resolution both before and after the dispute arises. Parties usually use the Scott v Avery clause to make sure that arbitration is used if a dispute comes up. The arbitrator is chosen by both sides and can be a business person or a lawyer because he has specialist technical knowledge. There can be a single arbitrator or several people who sit in a panel. If both parties do not agree on an arbitrator, then the court can be asked to appoint an appropriate arbitrator.

Evidence/argument can be submitted to the arbitrator on paper and after that the arbitrator comes up with a decision. A hearing may also take place where witnesses may be called out and given their evidence. However, he/she does not to take a formal oath to swear to tell the truth. The date, time, setting and method of arbitration is decided by both parties, so it is very flexible for them. The final decision is called an award, and is binding to both parties. However, it can be challenged in court because of serious flaws in the proceedings or points of law.

There are three different types of arbitration:

• Small claims court: Even though this is a part of the County Court, court procedures on cases with debt problems or consumer damage lower than £5000 are very similar with arbitration because the judge is not bound to strict judicial rules of evidence and procedure.  
• Consumer arbitration: trade associations are encouraged by the OFT to set up arbitration schemes to resolve consumer problems.
• Commercial arbitration: Many parties use the Scott v Avery clause in contracts. The arbitrator will likely be a member of the Institute of Arbitrators. The Commercial Court (Part of the Queen’s Bench Divisional Court) can adjourn the court litigation and decide the issue by arbitration at the request of both parties.

Parties retain more control over arbitration than over a court case, where the control is by the court. Arbitration is held in private, which is good for commercial disputes. This method of dispute resolution is also cheaper and quicker than court proceedings. Arbitrators are usually experts in the area in dispute.

However, there are no legal aids available for arbitration. The right for both parties to appeal is limited. It is hard to enforce the award. There may be an imbalance between parties (e.g. consumers vs producer)

3. Alternative methods of dispute resolution are used instead of going to court when disputes arise between parties. They do this because ADR is cheaper, quicker, and the parties involved are in control of the negotiation. However, ADR has its disadvantages.

Negotiation may never come to an end if both parties cannot agree on anything. Disputes using negotiation could take up to several years, and may be resolved just as the case is taken to court. Lawyers can be hired for all types of ADR, and if the disputes take very long to come to a compromise then the cost of ADR can still be very high. The decision from ADR is not binding (not counting arbitration) and there is no way to enforce this decision. This makes ADR useless because it still cannot solve the argument.

For arbitration, the cost of hiring an arbitrator can be very high. Arbitration is very much like court litigation, although instead of judges, the arbitrator hears the case and makes a binding decision. However, this method of ADR is not suitable for if there is a dispute in a point of law. Furthermore, arbitration can be made formal with witnesses on both sides. This undermines the main advantage of most ADR of being ‘private’. Arbitration may take as long as court litigation if a professional arbitrator and lawyers are selected.

The final disadvantage of ADR is that one of the two parties cannot represent themselves well to due to financial problems. This makes arguments unbalanced and wrong decisions can be made. If a disadvantaged or low income person had applied for a court case, he would have received legal funding to improve his ability to present himself.

4. Lay magistrates are untrained part-time (26 half days per year) volunteers who work for Magistrates’ Courts and deal with the majority (97%) of criminal cases in the UK.  Lay magistrates have both criminal and civil role. They act as criminal judges in local Magistrates’ courts which deals with the preliminary hearing of all cases as well as full summary cases (less serious cases that carry up to a maximum of £5000 fine) and triable either way cases that did not go to the Crown Court because the defendant had pleaded guilty. For civil cases they deal with matters such as the non-payment of taxes and bills. Lay magistrates sit in the Magistrates’ Courts either as examining judges who find out whether evidence is strong enough to send the case to the Crown Court or as trial judges who deal with cases where sentence can be up to 6 months for one single offence or a maximum of 12 months for multiple offences.

Lay magistrates sit in a bench of 3 to 6 and always have a clerk to advise them on points of law but he/she is not allowed to participate in the decision making. A bench of two may also sit in a Crown Court with a Crown Court judge to advise him if the case came from an appeal from another Magistrates’ court. Lay magistrates have various powers to issue warrants for arrest, remand hearings, determining applications for bail, enforce the payment of fines, and start Early Administrative Hearings. Magistrates also solve cases in youth court (10 – 17 years), where yeah panel has specially nominated and trained magistrates including a man and a woman. Specially trained lay magistrates also hear family issues such as care and supervision orders. However, they do not deal with divorces. There are some things that were within the power of Lay Magistrates before 2005 such as the power to issue licenses which was transferred to local authorities.

5. Before 1972, (The Morris Committee Report), only persons owning a dwelling was allowed to be a juror, thus excluding many  poor people including women. It was estimated that 78% of voters and 95% of women did not qualify. The current regulations is now decided by the Juries Act 1974, which sets new qualifications for jurors:

• Aged between 18-70 years
• On the electoral register (be able to vote)
• Residence in the UK, Channel Island or Isle of Man for at least 5 years since the age of 13

Jurors are chosen at random by the Central Jury Summoning Bureau. Those people must attend unless they are disqualified, ineligible or are excused. After that, the potential jurors are vetted for criminal records (this has been approved after R v Mason 1980). The background of the juror may also be checked to see if they had any political affiliations in cases of national security (have to follow Attorney General’s guidelines). From those selected 20 are chosen by the jury usher for a particular trial. Twelve jurors who do not have any connection with the defendant are chosen and the rest sent back to sit another case from that particular trial. These jurors are expected to serve for 2 weeks, and more if the case takes longer than that.

There are some people who are excluded or excused from service for some reasons:

• Disqualification: Those with criminal conviction or a custodial/community sentence in the last 10 years will be disqualified. Those who are imprisoned or have served a term of more than 5 years will be disqualified for life. Anyone who are disqualified but still comes will be fined £5000.
• Ineligibility: under the Criminal Justice Act 2003 any person with mental disorders or who are resident in a hospital or is receiving regular treatment will not qualify. This includes people who are under guardianship or are unable to administer his/her property and affairs. Deaf jurors will also not qualify (he would need an interpreter and the court did not allow a 13 jury member)
• Excusal as of right: apart from those aged 65-70, clergymen, lawyers, police officers and judges now can become jurors under the Criminal Justice Act 2003.
• Excusal at court’s discretion: these are logical excusals which postpones the obligation to serve in the jury for those with limited knowledge of English, students doing public exams, parents with childcare commitment/problems or people with booked holidays. Full time members of the armed forces may be excused if their commanding officer certifies that their absence would affect the efficiency of the service.

6. The main advantage of lay magistrates is that they put the law in the hand of people which improves equality and prevents dictatorships. The cross section of society for lay magistrates is also balanced, with 49% of all lay magistrates being women compared to the 10% composition of qualified judges. Lay magistrates come from a much wider range of backgrounds, with 7.3% being of ethnic minorities. This means that many people can be involved with the law and the more background people come from the more balanced the magistrates’ courts will be.   

Lay Magistrates are unpaid, so costs for people are lower. It is cheaper to go to a Magistrates’ Court than to hire a 60 pound/hr lawyer. It is also cheaper than to go to the Crown Court. Therefore, justice is produced at a lower price. Also, lay magistrates deal with over 95% of all criminal cases which saves the other courts 1.5 million cases a year and prevent them from being overloaded.

There is a low number of appeals against a magistrate’s decision (6000 per year compared to the 2million cases per year, and less than 50% of appeal were successful), and most of them are against sentence, which is making the decision making of magistrates more consistent. Lay magistrates also make a low number of mistakes in law (in 2008 only 72 appeals went to the Queen’s Bench Divisional Court)

Lay magistrates have specialist local knowledge, which is why consistency of decision making may seem different in different places as the magistrates knowledge is different. This specialist knowledge could be very useful for cases such as Bowman v DPP (1911) which normal judges without any local knowledge would not have been able to solve. Lay magistrates also have a qualified clerk to advise on points of law. They are also much better in training than before.