Civil courts

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  • Created by: aisha1106
  • Created on: 16-11-20 20:03

Civil courts

Advantages

  • Fair legal expert= trial is conducted by a legal expert and the decision is being made by a judge who is experienced and qualified. Whereas in most ADR methods, the decision maker isn't qualified legally. Advantages because judge would be impartial and would be a neutral third party and make the right decision. Therefore, they ensure consistency and efficiency as over the years they would have experience dealing with similar cases and can deal with them quickly by looking at past precedents. Whereas, ADR doesn't set a precedent as decisions aren't recorded so it doesn't provide efficiency
  • Outcome legally binding= outcome is legally binding hence it must be followed. This is an advantage because this wouldn't happen through the process of ADR and decisions made cannot be argued with unless a party chooses to appeal whereas courts have greater powers to enforce their decisions than any ADR method. Therefore it provides certainty that the Matter will be resolved because both parties have to agree to the outcome of the proceedings whereas when using an  ADR method such as mediation, one can choose to ignore the decision if it's not in their favour and not for their benefit.
  • Legal aid= more widely available for court litigation than for ADR
  • Appeals process= courts provide a comprehensive appeals process whereas ADR has no such appeals structure. This allows for any mistakes to be rectified so that individuals can have faith in the system
  • Compulsory process= once defendant has received the claim, they have no choice but to show up to court. No other process can make the other side come to a forum to resolve the dispute. The defendant has the option to decline to file a defence and decline to appear in court where in which case default judgment would be issued against them and the claimant would win. Whereas in ADR methods, one can simply decline to resolve the diamd no action would be taken.
  • Allocation questionnaire= judge makes sure case is allocated to the right track and therefore the right court
  • Specialist divisions= divisions in high court for complex cases allows cases to be dealt with in the best way possible

Disadvantages

  • Delay= preliminary stages add to the length of the case- ADR might be quicker
  • Expensive= cost of going to court might be higher than the amount actually being claimed especially with a claim in the small claims track as there is no legal aid and the costs for legal representation is also expensive. Therefore sometimes it's not worth using the courts as they might end up getting a bigger loss instead of the win even if the courts decided in their favour as they could end up losing large sums of money. Also if a party loses, they'll also have to pay the other sides legal costs- ADR might be cheaper
  • Damages future relations= taking a case to court can damage future relations even if it was a social one or a business one. Using the courts without trying alternative ways such as ADR shows that they are unwilling to reach a compromise. Therefore going through the courts shows that the claimant doesn't care for preserving future relationships
  • Inequality of power= richer business might be able to afford better, more experienced lawyers
  • Technical issues= ADR might be a better resolution method if the issue doesn't particular involve an area of law or if it doesn't need a legal precedent. This is because the ADR decision maker would be more experienced in dealing with non serious matters whereas judges would be trained in resolving matters where an area of law is involved.

Evaluation

Civil courts compared to ADR.

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