Managing Resources in a Business Context

BUS 746

Law
Assignment 1A

Amit Bhanot S12003170

Question Two

Equally, it is recognized that the formal and rather intimidating atmosphere of the ordinary courts is not necessarily the most appropriate one in which to decide such matters. Even where the dispute cannot be resolved internally. In recognition of this fact, various alternatives have been developed specifically to avoid the perceived shortcomings of the formal structure of law and court procedure.

(English Legal System; Slapper & Kelly; 2012)

Critically analyse the alternatives to civil court action that are available for businesses.

The Civil court system is the system which is accessible by everyone to justice and keeps a balance in society. This system deals with cases in a reasonable speed and low cost money. The case is judged by an experienced person who has particular knowledge. The system is divided by the functions and rules into the following categories; Magistrates Court, County Court, High Court and Supreme Court. 1) The Magistrates court is a lower level of court which deals with criminal issues and civil matters. A Magistrates' Court is usually presided over by three magistrates; they are called Justices of the Peace. The panel of judges is often called the Bench. Magistrates are not paid, but they can claim for expenses and loss of earnings (Dave Howell, 2012). 2) The County Court is intended for the resolution of miniature matters, much like the magistrate court. These are usually local courts. They separate the distribution in which there is being solved. Small claims track provides a simple and informal way of resolving disputes and should enable you to dispense with the service of a lawyer. The amount in disputes normally be less than 5000 Bennie.D (25th Oct 2009) Fast track claims are usually solved in one day. Multi track claims are a collaboration of small claims and fast track claims. 3) High Court of Justice is covenant with all high value and important cases. They deal with more brutal cases and the judge is given more power to distribute severer punishments, than magistrates. This type of court consists of three divisions: 1) The Queens Bench 2) The Chancery 3) The Family Divisions. 4) The word supreme defines itself as powerful. The Supreme Court is the highest court. It is also called the court of last resort because if anybody wants to appeal after lots of failure then he have chance to file a lawsuit in the high court.

Disadvantages of Civil Court

The civil court is generally known as an expensive court, which is not always suitable for everyone. There are many cases in civil court where the cost is more than what is alleged. The method of civil court takes a longer time, which will result in delaying of trials. There is no privacy in the civil court; it is open to the public and the press, which can lead to all sorts of publicity. The judge who declared the decision doesnt have any technical expertise, which will have a negative impact on the person who is filing the case. Court service chooses the trial date.

Alternative Dispute Resolutions (ADR)

ADR is a process - alternative to court action - where the parties choose an independent third-party and agree on the timetable rather than having these imposed by someone else. It is a process of adjudication and parties may, or may not; agree at the outset to be bound by the decision. Alternative Dispute Resolutions are the collaborative term of solving disputes. It is the best alternative option for dissolve the agreement. There is much better outcomes in the ADR than the court. They use different ways to solve the disputes.ADR may be also being an Option for trying to resolve a problem where there are no formal alternative.

Advantages
They are more flexible than the court process. A case may be discussed on the phone, face to face conversation or other available option which the parties prefer to use. There are favourable chances of success in the ADR which gave them as benefit for using in the disputes.

Disadvantages
It takes long time for investigation on the desired case which the parties gave arbitrator for solving. This is the worst part in the ADR the decision what the arbitrator has decided parties have to obey them and dont have other solution except agree on them. It means that you cannot change the decision if you dont like it.

Five forms of ADR

Arbitration Mediation Conciliation Mini Trials Negotiation

Arbitration It is the most prescribed type of ADR which is regulated by Government Act 1996. Arbitration is the process which is used in solving the disputes between two people without using court. They hire the third person who acts as a decision maker (Arbitrator). The person which they choose must have the perfect knowledge about the dispute. He must have the law degree. It is strict to use friends or family as Arbitrator. Advantages Cost saving is the best advantages of arbitration Parties can decide the how the process is conducted as formal or less formal way. With the help of arbitrator dispute are solving very quicker. Low-cost process than the court. Anytime Available Parties can easily access and also save the time of the parties. Disadvantages Not suitable in every time. Its all depend upon the pros and cons of the case Not proper legal knowledge about the law. Anybody can make himself as Arbitrator. Mediation There is third party known as mediator. They are from different backgrounds. They have

Full experienced person who helped other in solving disputes. In this type of ADR both the parties refer their disputes to random Third Person who will discuss the issues with together in a separate room and most of time it identifies or clear the issues. Advantages It is best and cheapest solution to solve the dispute between two parties. Probability of clearing issues is high if they are failed to show the once dispute. All the session between the parties and mediator are private or confidential. The speed of processing is very fast and not takes a long time for the decision. Parties hire person which they know better or on which they have trust so they think that he will solve the issue in a positive way. Party arrange the mediator themselves so its save more time for both persons. Disadvantages The person is choose between their relation may cause damage to the parties. It is not an easy process for solving the disputes. Imbalance of power is also a disadvantage. One party may be strongly financially or emotionally. Mediator may not have expertise on complicated area of law. Conciliation Conciliation is the process that may involve elements of facilitation and mediation. One goal of the conciliator is to get the parties together: to help coordinate meeting opportunities; facilitate initial information exchanges; and to encourage the parties to test their perceptions and misperceptions. Conciliation is no judicatory and non binding ASA Guide. (June 2012).There is a positive relationship in the conciliation between the parties of the dispute. It is most common concept than the mediation. The conciliator is an impartial person that assists the parties by driving their negotiations and directing them towards a satisfactory agreement. Advantages It is free of charge parties does not need to spend money for the conciliator It provides neutral advice. All the matter in the conciliation is private. Only it is going to public when parties agree to do so. Otherwise no one can see the important information it is being kept contained. Time duration for the case is minimal as compared to other resolutions. It does not take long time for the processing. Nominal written records.

There is no winner and losers in the dispute. It is in the favour of both parties and compromises are being made Conciliation look to maintain an existing business relationship and to redevelop a lost constancy of power between two parties.

Disadvantages No access to the court system because they dont have right to go to court. Not any one can be conciliator until he doesnt have proper knowledge about the system. In some case there is impossible to reach the solution so it is advantage to use conciliator because there cases are more complex and does not understand easily. It takes too long time for finding the exact solution for it.

Mini-Trial Mini trail is the simplest form of ADR. There is no need of judge or not taking too much time. The decisions are made quickly. Decisions are negotiated between the parties are decided by managerial representative not by the judge. It is compulsory that when the both going to use Mini trial they must have a mutual agreement so the chances of being it success is higher. Advantages There is no need to follow any rules to use mini-trial for carry out consultation. No one knows in advance where the mini trials will result in a settlement everybody wants to preserve their frank comment during the conference. It saves the cost of both parties because all the disputes discussed in a meeting room not have to go to court. Disadvantages Not suitable for all disputes there are many disputes which is complex in nature and does not solve by mini trial. They need more time for resolving it. All the work is done by administrative personality so there is work load on him which will result in weakness of execution. He does not have time for organising his structure for the meeting. Negotiation Negotiation is the oldest form of ADR it means without the interference of judge or voluntary person. It is the process which varies between only two parties where disputants communicate with each other, directly or indirectly, about the issues in disagreement in order to reach a settlement of their differences. Reach a settlement of their differences. Advantages Direct negotiation permits the disputants to determine, each step of the way, what type of procedural activity is permitted. Will documents be shared? Will a limited form of discovery be allowed? Will expert witnesses be allowed to participate? What time period will be imposed on the process? These are all procedural issues that can control in a negotiation that are less controlled in many dispute resolution processes Masters F.M, Albright. R, r (13 May 2002). Disadvantages A successful negotiation requires each party to have a clear understanding of its negotiating mandate. If uncertainty exists regarding the limits of a party's negotiating authority, the party will not be able to participate effectively in the bargaining process Department of Justice. (2006).

Conclusion
Unlike civil courts proceedings are open to public, ADR is a private process. Law suits are matter of public, which mean everybody allows accessing the documents but in the ADR important information is not in the context. In ADR the parties have freedom to select best solution rather than being limited to judge decision in the civil court. I think that ADR is a rigid system where solutions are attainable. If one solution does not provide the key then the parties have a choice to utilize another type of ADR. This then offers them another chance for solve the case, instead of going to civil court, which is not flexible and can be an elongated process.

References
[1] Howell. d (12 September 2012). Information about the Magistrates Court. Available:
http://www.courtroomadvice.co.uk/information-about-the-magistrates-court.html. Last accessed 16/03/2013. [2] Bennie.D (25 Oct 2009). Small Claims and the County Court. 2nd ed. UK: Straightforward co Ltd,. 1.

[3] ASA Guide. (June 2012). Why use ADR? Pros & cons. Available:
http://www.asauk.org.uk/fileLibrary/pdf/Why_use_ADR001.pdf. Last accessed 16/03/2013. [4] Masters F.M, Albright, R, r (13 May 2002).The Complete Guide to Conflict Resolution in the Workplace. United States of America: AMACOM Div American Mgmt Assn. 343 pages. [5] Department of Justice. (2006). DISPUTE RESOLUTION REFERENCE GUIDE. Available: http://www.justice.gc.ca/eng/pi/dprs-sprd/ref/res/drrg-mrrc/03.html#iv.Last accessed 15/03/2013. [6] Thygerson. K (1994). Controlling Corporate Legal Costs: Negotiation and Adr techniques for Executives. United States of America: Greenwood Publishing Group 170 pages.+